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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for an alleged wrongful death. The appeal is from orders overruling defendants’ motion to strike portions of the petition and an order overruling their demurrer to the petition.
The pertinent portions of the petition may be summarized as follows: It is alleged that plaintiffs are husband and wife; that on October 31, 1949, they were the natural parents and next of kin of Farrell L. Holthaus, who was killed on that day, and that no administration has been had upon his estate and no personal representative of his estate has been appointed; that on October 31, 1949, the defendant, Sam Munsel, was the duly appointed and qualified city marshal of the city of Goff, Kansas, and also a duly appointed and qualified deputy sheriff of Nemaha county; that the defendant, Pete Bieri, at all times mentioned in the petition was the duly elected and qualified sheriff of Nemaha county, and that the defendant, Fidelity and Deposit Company of Maryland was the surety on his official bond, which followed the requirements of G. S. 1949, 19-802; that about ten o’clock p. m. on October 31, 1949, Farrell L. Holthaus was engaging in Halloween pranks with two friends in the vicinity of the Goff high school of Goff, Kansas, at which time and place Sam Munsel, acting in the scope of his employment and duties as city marshal of Goff, Kansas, and deputy sheriff of Nemaha county, Kansas, started to chase Farrell L. Holthaus and the other two boys and in doing so fired his revolver for the purpose of warning the boys and negligently and carelessly fired in the direction of Farrell L. Holthaus, causing a bullet to pass through his heart which resulted in his death; that the direct, immediate and proximate cause of the death of Farrell L. Holthaus was the negligence of the defendants’ servant, agent and employee, acting in the scope of his employment as city marshal and deputy sheriff, in pointing and firing his revolver in such a manner as to strike the deceased boy in the heart; that Farrell L. Holthaus was a healthy, able-bodied boy, sixteen years of age, with many years of life expectancy; that as a direct result of the negligence of the defendants and the death of their son the plaintiffs have suffered mental anguish and bereavement and the loss of society and companionship of their son, and have suffered the loss of his services, filial care and attention; that as a result of their son’s death they were required to pay funeral expenses in the amount of about $650 and have suffered damages in the total sum of $15,000, for which sum they prayed judgment.
To this petition the defendant, Pete Bieri, filed a motion to require the plaintiffs to elect as to whether the defendant Munsel was acting as city marshal of Goff or as deputy sheriff of Nemaha county at the time and place of the tragedy. Upon the hearing of this motion defendants offered in evidence a petition filed by the plaintiffs in the district court of Nemaha county, Kansas, against the mayor and members of the city council of the city of Goff for employing Munsel as city marshal and permitting him to carry a gun when they knew, or should have known, he was an incompetent person for that position. The trial court declined to receive the offered petition and denied the motion to require plaintiffs to elect.
The defendant, Pete Bieri, also filed a motion for an order to require plaintiffs to make the petition definite and certain in several particulars. This was sustained in part and overruled in part and plaintiffs were given twenty days to file an amended petition. The defendant, Pete Bieri, also filed a motion to strike from the petition the allegations in the last paragraph thereof which alleged the loss they had suffered. This was predicated upon the ground that our statute (now G. S. 1949, 60-3203) is unconstitutional, in violation of section 16, article 2, of our Constitution, and also upon the ground that damages for mental anguish and bereavement in the loss of society and companionship are incapable of being measured by any pecuniary standards and are indefinite and uncertain. This motion to strike was denied. The defendant, Fidelity and Deposit Company of Maryland, filed motions identical with those filed by Bieri, and they were all ruled upon in the same way. They then joined in a demurrer to the petition upon the ground that plaintiffs have improperly joined several causes of action. This demurrer was overruled. Bieri and his surety have appealed from all adverse rulings.
We think the demurrer to the petition “on the ground that plaintiffs have improperly joined several causes of action” in their petition was properly overruled. This is predicated upon the wording of the petition, that “Sam Munsel, acting in the scope of his employment and duties as city marshal of Goff, Kansas, and deputy sheriff of Nemaha County, Kansas,” started to chase plaintiffs’ son and negligently fired the shot which caused his death. Neither this language nor the petition as a whole indicates that the plaintiffs are seeking recovery against the city of Goff, or any of its officials, or the surety on the bond, if any, of Munsel as city marshal. The language, as we interpret it, is simply a statement of the facts giving rise to tire cause of action appropriate under G. S. 1949, 60-704, Second. It does appear from the language quoted that plaintiffs are uncertain with respect to whether Munsel was acting as city marshal or as deputy sheriff. Naturally, before they can recover anything in this action against the sheriff or the surety on his bond plaintiffs will have to produce evidence showing that Munsel at the time in question was acting as deputy sheriff. But we are not dealing here with evidence.
The principal question stressed by counsel for appellants in their brief is the contention that G. S. 1949, 60-3203, is void for the reason that chapter 319 of the Laws of 1947, which was the last amendment of the section, violates section 16 of Article 2 of our Constitution, which, so far as here pertinent, reads: “No bill shall contain more than one subject, which shall be clearly expressed in its title . . .” The title to the act reads:
“An Act relating to the code of civil procedure, amending section 60-3203 of the General Statutes Supplement of 1945, and repealing said original section.”
The argument presented by counsel for appellants in support of this view is that this section is not procedural in its nature, but is substantive law and has no place in die code of civil procedure; that the reference in the title to the section of the code, without stating the substance of the contents, is insufficient. This point is not well taken. The section of the statute dealing with the subject matter has been a part of our code of civil procedure since 1868 (Chap. 80, § 422, G. S. 1868). The wording used in the title of the 1947 act is adequate to advise the members of the legislature of the section of our statute to be amended and repealed, and in no way is misleading. While a different wording might have been chosen it cannot be said that the title did not conform to the provisions of the section of our Constitution in question.
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is a workmen’s compensation case. Upon the record the trial court found that the injuries suffered by claimant-appellant did not rise out of and in the course of his work with respondent-appellee and rendered judgment in favor of respondent denying the claim. Claimant brings the case here and contends the lower court erred in the following:
1. Failing to read and consider the transcript of evidence taken before the examiner for the workmen’s compensation commissioner prior to making its findings and decision on appeal;
2. Misapplying the law to the facts;
3. Making its findings of fact and decision without sufficient, competent and substantial evidence on which to base the same;
4. Finding claimant’s injuries did not arise out of and in the course of his employment.
Appellant first contends that the trial court rendered judgment after listening to arguments on behalf of counsel for the respective parties without having reviewed the evidence taken by the examiner for the workmen’s compensation commissioner (G. S. 1949, 44-556). We have examined the record carefully and at no place does it affirmatively appear that the trial court failed to read the record of the testimony taken at the hearing prior to making its decision in this case. It has long been the rule of law in this court that where the record fails to show what action was taken by the trial court with reference to some particular matter in a proceeding, it will be presumed, in the absence of an affirmative showing to the contrary, that the action of the court was regular and in accordance with the law. (In re Wright, 74 Kan. 409, 89 Pac. 678.) Error is never presumed; it must always be shown, and if it is not affirmatively shown, it will be presumed that no error was committed. (Robertson v. Labette County Comm'rs, 124 Kan. 705, 711, 261 Pac. 831; Donaldson v. Cox, 103 Kan. 791, 793, 176 Pac. 647; Hatcher’s Kansas Digest, Appeal and Error, § 408-/2).
We will consider appellant’s second, third and fourth specifications of error under one heading inasmuch as all the points are raised under his third assignment of error.
Under G. S. 1949, 44-556, appellate jurisdiction of this court in compensation cases is confined to reviewing questions of law only. In doing so, it is necessary to determine whether the record contains any evidence which tends to support the judgment rendered, and in so considering, this court is required to view all testimony in the light most favorable to the prevailing party below. If when so considered, the record contains any evidence which supports the trial court’s judgment, that judgment must be affirmed; being conscious at all times of the fact that this court has little concern with disputed questions of fact in ordinary law suits and none whatever in workmen’s compensation cases, except to ascertain whether the record contains any evidence which on any theory of credence would justify the trial court’s finding or conclusion of fact. (Addington v. Hall, 160 Kan. 268, 160 P. 2d 649; Woodring v. United Sash & Door Co., 152 Kan. 413, 417, 103 P. 2d 837; Johnson v. Arma Elevator Co., 146 Kan. 965, 967, 73 P. 2d 1018; Bull v. Patti Const. Co., 152 Kan. 618, 628, 106 P. 2d 690; Leamos v. Wilson & Co., 136 Kan. 613, 616-617, 16 P. 2d 490; Shay v. Hill, 133 Kan. 157, 158, 299 Pac. 263; Vocke v. Eagle-Picher Co., 168 Kan. 708, 709, 215 P. 2d 185.
It would serve no useful purpose for this court to go into and set out at length all the testimony disclosed by the record, and inasmuch as only questions of law have been raised, we will limit our review to questions of law only.
The single question here involved is whether the court’s finding that claimant’s injuries did not arise out of and in the course of his employment is sustained by sufficient evidence. While this court has the same transcript before it as had the district court, it is not the province of this court to determine whether the evidence duly weighed and considered supports one conclusion better than another; the sole question is: Was there evidence, whether opposed or not, warranting the judgment of the court below? Examination of the record reveals there was sufficient evidence upon which the court could base its findings of fact and its legal conclusion therefrom that the injuries to the claimant did not arise out of and in the course of his employment.
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The opinion of the court was delivered by
Webtz, J.:
This is an appeal from an order of the trial court denying appellant’s petition for a writ of habeas corpus. This is the second time appellant has been before this court seeking a writ of habeas corpus for his release from the Kansas State Penitentiary where he is serving a sentence of confinement at hard labor for the duration of his natural life. No necessity exists for detailing the allegations of the petition as our examination of the entire record reveals that all of the several reasons asserted why he should be granted his freedom pursuant to a writ of habeas corpus were fully determined by this court in his previous application for a writ, Rutledge v. Hudspeth, 169 Kan. 243, 218 P. 2d 241, writ of certiorari denied, Rutledge v. Hudspeth, 340 U. S. 840, 95 L. ed. 616, 71 S. Ct. 29. The record in this case presents nothing new for our consideration.
We approve and affirm in toto our former opinion in Rutledge v. Hudspeth, supra. The judgment of the lower court denying the writ is affirmed. | [
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Per Curiam:
On a claim for professional services as a physician and surgeon the judgment was in favor of the defendant. No complaint is made by plaintiff of rulings in submitting the case to the jury, and the only objection made by him is to the sufficiency of the testimony. An examination of the evidence satisfies us that there was enough testimony to take the case to the jury and to support the verdict.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to compel the defendants to deliver to the First National Bank of Attica an oil and gas lease which had been executed by the defendants and delivered to the plaintiff, or in default of the delivery of the oil and gas lease to the bank to direct the sheriff to execute an oil and gas lease and deliver the same to the bank. The defendants demurred to the plaintiff’s petition. That demurrer was overruled, and they appeal.
The petition alleged that the defendants had executed to the plaintiff an oil and gas lease on land situated in Harper county and had delivered the lease to the plaintiff; that the plaintiff soon thereafter placed the lease in an envelope directed to the First National Bank of Attica, and gave the lease thus inclosed in the envelope to the defendant, B. Sloop, and instructed him to mail the lease to that bank to be there held in escrow until a well had been started on a block of leases in the neighborhood of the land in question, when the lease was to be delivered to the plaintiff. The petition also alleges that the defendant, B. Sloop, failed and refused to mail the lease to the bank. The lease recited that it had been executed for and in consideration of $1 paid in cash.
The only question presented is: Did the petition state a cause of action? The lease, when it was signed and delivered, constituted a valid lease. It was not necessary to do anything further to make it effective. Its delivery to B. Sloop with instructions to him to mail it to the bank in Attica did not affect the validity of the lease in any way whatever. The plaintiff owned it and had the right to proceed under it. The fact that it was not in his possession did not affect his rights under it. In order to perfect the plaintiff’s record title to operate on the land for oil and gas, it was necessary that the lease be recorded, but the failure to record the lease did not affect his right to go on the land, unless the rights of innocent third parties intervened. The plaintiff had the right to establish the fact that the lease had been given to him. (38 C. J. 251; 17 R. C. L. 1170.) The petition stated a cause of action for the establishment of the lease as a lost instrument. The demurrer was properly overruled.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This is a disbarment proceeding filed against the accused by the state board of law examiners March 19, 1926. The complaint contained various charges of dishonorable and nonprofessional conduct on the part of the accused, among which were soliciting business and fraud and deceit.
The Hon. Plenderson Martin, of Lawrence, was appointed commissioner, heard evidence, made a painstaking personal examination into all the charges touching the conduct of the accused, and reported thereon. The matter was ably presented on oral argument and has had careful consideration in all its details. A recapitulation of the evidence and commissioner’s report is not necessary and would serve no useful purpose. The charges are fully sustained, and it is proper that an order of disbarment of the accused from the practice of law in this state should be entered.
It is so ordered. | [
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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 appealed. The judgment was affirmed (State v. Hardisty, 121 Kan. 576), and now he presents a motion for rehearing on the ground that the decision was contrary to the law and the evidence.
The tragedy was the result of a controversy over the grading of a road. (For full statement of facts see State v. Hardisty, supra.) The defendant again argues the principal questions previously presented and considered. He contends that the circumstances attending the homicide were such that it could not have been murder in the first degree; that it was murder in the second degree or manslaughter, and that the court erred in refusing to instruct the jury on any of the degrees of manslaughter.
We can best present defendant’s contention by reproduction of his summing up, which follows:
Defendant’s Claim.
“Frank Hardisty lived on a farm in Osage county, Kansas, through which a public highway was established. It had been graded up from both sides, leaving ditches on both sides of the road. He had constructed crossings for his convenience to cross from the road upon the farms located next to and adjoining the road. On June 9, 1924, he came home in the evening and found that the crossings on the east side of the road had been graded out by the public authorities. He followed them, up the road and asked for the boss, and Del Herían, who was the overseer, replied by saying, “By God, I am; what about it?” They quarreled for a little bit and Herían called Frank a son-of-a-bitch, which started a fight. Herían struck first and kicked him. He also told Frank that he would tear out all of the crossings on the west side of the road the next day and Frank said hé would be there. That evening Frank called up his attorney about the matter and was referred by him to the county attorney. Frank could not locate the county attorney and he talked with a neighbor by the name of Bryson, who advised him to procure an injunction from a justice of the peace, which Frank did that evening. The order was served qn Del Herían and he paid no attention to it. Frank thought he was complying with the law and was trying to protect his property. He talked some with his wife about it and said he did not intend to let them tear out the crossings. On the next day when he saw the graders coming he took his gun and went up to the gap in the hedge where for more than fifty years the same had been used for ingress and egress to and from the farm. When the graders came near the crossing, Henry Hupp, a life-long friend of his, jumped off the grader and ran or walked rapidly towards Frank. Frank picked up his gun and told him to stop, but he paid no attention to him. He walked right up to Frank, although Frank told him not to do so. He asked Frank what about the crossing and Frank told him to drive around it and everything would be all right. They immediately engaged in a quarrel which continued with only a short intermission until Hupp was killed. In the beginning of the quarrel, Hupp told Hardisty to get the God-damned woman out of there if he did not want to get her hurt, and Frank told him not to hurt her. He told Frank that he intended to tear out the crossing and Frank said he would not. He also told Frank that when Del Herían came up they would fix him as they were ready for him. Hupp turned around and took two or three steps to the east and met Herían. They talked for a short time and Frank could not hear what they said. After Hupp turned away Frank put the end of the gun to the ground and left it there until Hupp turned around and said: ‘You God-damned cowardly son-of-a-bitch, shoot!’ and Frank shot and killed him. The evidence shows that Frank was angry, excited, and nervous at the time and beyond question was not in cool blood. The evidence further showed that there was no previous threats or grudges between Frank Hardisty and Hupp. They had been life-long friends. Had it not been for the quarrel and the sudden passion aroused by it, Henry Hupp would not have been shot. On the above state of facts, was the defendant entitled to an instruction on manslaughter? Under the above state of facts, which was not disputed on the trial, would the evidence justify a verdict of murder in the first degree? This court in the opinion did not pass on the case presented to it. Nowhere in the opinion does the court take into consideration the quarrel which occurred between the parties at the time of the killing. Nothing is said about the heat of passion or provocation. In the opinion the court quotes from the testimony of Fred Montgomery. He was not worthy of belief. He swore to a number of things that was denied by every witness present, or they did not see or hear it. The court assumes that he told the truth and everybody else was mistaken. Every witness admits there was a quarrel between them and that the deceased called Hardisty vile names, yet that is given no weight in the opinion.”
It has been held that:
“Mere woi’ds, however abusive or insulting, will not justify an assault or constitute a sufficient provocation, to reduce to manslaughter what would otherwise be murder.” (State v. Buffington, 71 Kan. 804, 81 Pac. 465. See, also, 29 C. J. 1135.)
Also, that:
“An offense against property does not, in the absence of other circumstances, constitute adequate provocation, to reduce an intentional homicide to manslaughter, although there is some authority to the contrary. The rule applies where the homicide was intentionally committed with a deadly weapon, although the trespass or larceny could have been prevented in no other way.” (29 C. J. 1145.)
The defendant’s statement quoted above omits some controlling essentials. The facts disclosed by the record show clearly provocation was not adequate, nor was there a sufficient degree of passion to reduce the grade of the offense. The defendant testified that when he shot, he shot to kill; that it was not an accident; that he took aim just the same as if he was shooting at anything else than a human being; that he shot right after Hupp dared him to shoot. His wife, on direct examination, answered the double question as to his condition “at the time of the shooting and afterward,” that “he was very much excited.” On cross-examination she made her meaning clear.
“Q. You say that Hardisty was much excited that day? A. Not till it was all over. When I took the gun he was.
“Q. He was very angry? A. He was not really angry; he was upset and thought they were going to take the rock out.
“Q. He was excited when you took the gun? A. He was excited after it was done.
“Q. He was excited when he took the gun down? A. I did not see him then; I don’t know.
“Q. He was somewhat excited the night before? A. No, sir; he said he would be there when they came through; he was not excited.
“Q. He said they were not going through the night before? A. Not that way; he said he would be there when they took them out; that they were not going through the rock.”
The defendant made a statement to Deputy Sheriff Allen about an hour after the killing, that he had shot Henry Hupp; that he shot to kill him and not to miss him; that he wanted them to leave the rocks alone; that they were going to move them and that he did not want them moved; that he had told them on yesterday that they could not tear them out and that he wanted to make his word good. He maintains the whole thing happened in five minutes; that there was no time for the bloo.d to cool; and that no jury would be authorized to find him guilty of deliberation and premeditation. This might be true if the only facts in evidence were those stated in his motion, or if all the facts therein stated were supported by the evidence. The court gave due consideration to what defendant terms the quarrel between the defendant and the deceased, but that is not all. The court was and is bound to give due consideration, also, to the trouble of the day before, the attitude and acts of the defendant from that time until after the killing. The first controversy occurred the previous afternoon. It ended in a fight between the defendant and the foreman of the grading crew. Later in the afternoon the defendant endeavored to procure the advice of his attorney; also the county attorney, and subsequently went to a justice of the peace and secured an “injunction” which was served on the foreman. Defendant told his wife and hired man that they (the grading crew) would not take out any more rock; that he would be there and see that they did not go through it. He was advised not to have trouble over the matter. Similar conversation with the same parties occurred the following morning. The contention that he thought he was complying with the law and trying to protect his property by injunction appears not to have been thought of when he had the conversation with his wife and hired man the night before and the morning of the tragedy. He did not tell them that the injunction would prevent the grading crew from going through, but stated that he would be there and see that they did not go through. If he was depending on the injunction, there was neither reason nor excuse for procuring and taking with him a loaded shotgun. He had determined that the grading crew should not remove the crossings. He knew all of the crew would have a part in their removal. He had no particular member of the crew in mind. He determined to use force if necessary to prevent anyone or all from removing the crossings. For what other purpose did he provide himself with the loaded gun? Having determined on a course of action, he proceeded to put it into execution. He appeared at the crossing at the right time with his loaded weapon. Had he been depending upon his injunction, there was no good reason for him to direct his hired man to come in from his work in the field; there was no reason for having his wife go out and sit on the crossing at the point next the first approach of the graders. In State v. Kearley, 26 Kan. 77, 84, it was said:
“It is also clear that the defendant armed himself with the determination of •compelling a retraction at the point of a pistol, with all the consequences before him that might follow from a possible refusal. And the question was fairly presented to the jury whether under such circumstances a fatal result ■should be classed as murder in the first or second degree. Unquestionably the deceased was armed, expecting an affray, and in it, he fired the first shot; but also beyond question, upon the firing of such shot, he turned and fled, was pursued by the defendant and his son, and in the pursuit was killed. There was testimony that as the defendant and his son pursued the deceased, the former called to his son, ‘Kill him, God damn him, kill him,’ and that as they .stood over the fallen body, both father and son fired into it. While under the circumstances the jury might properly have found that the killing, though intentional, was done only in the heat of the affray, we cannot say that they were not also justified in finding, considering the purpose for which the interview was sought, and the previous preparation in the way of arming, that the defendant went there intending to compel a retraction, or to kill if the same was refused. This implies, it may be, only a conditional premeditated intent to take life, and yet such intent is sufficient, if subsequently carried into effect, to make murder in the first degree. We do not understand that in order to •constitute this crime, there must be an absolute, unconditional premeditated attempt to take life. If one party seeks an interview with another, arming himself for the encounter, intending deliberately that such other shall do some ■certain thing, or failing to do that, that he will kill him, such conditional intent is sufficient, if carried into effect, by the homicide of the latter, to make murder in the first' degree. ... If the deceased had done aught against the laws of the state, the courts were open to punish or restrain; and when the defendant took the law into his own hands and attempted to accomplish by force the righting of his wrongs, or supposed wrongs, he became himself the aggressor, and must take the consequences of all that comes within the probable scope of his intended action.”
“It is earnestly insisted that the law allows ‘cooling’ time, and that because of the want of this the offense could not be above murder in the second degree. Doubtless this view of counsel would be correct, if the parties had met accidentally, without feeling, without preparation for, or expectation of an affray, but such was not this case. This conviction can be supported only upon the theory that the defendant went to the place of homicide with the thought present in his mind of taking life. There was testimony from which the jury could properly find that such was the fact. To limit their consideration to the mere circumstances of the interview, and to compel them to ignore all that indicated antecedent feeling, would fail to present the case as it truly stood; and to emphasize any particular transaction at the time of the interview, ignoring the circumstances which preceded it would equally present the case in a false light.” (p. 87.)
The contention that the court erred in not giving the jury a chance to pass on the question of manslaughter cannot be sustained. It wa& the duty of the court in instructing the jury to apply the law to the facts as they appeared in the evidence, and to cover every degree of the crime charged of which the evidence naturally suggested the defendant might probably be guilty.
“Where there is no substantial testimony applicable to the lower degrees, and all of it taken together shows the offense, if committed, was clearly of the higher degree, instructions relating to the inferior ones are not necessary.” (State v. Cunningham, 120 Kan. 430, 431, 243 Pac. 1006. See, also, 16 C. J. 1046.)
It is only where it appears that if the omitted instructions had been given the jury might naturally and probably have convicted of a lesser degree, that the omission will constitute prejudicial error. (State v. Winters, 81 Kan. 414, 421, 105 Pac. 516.)
“If the verdict had been for second-degree murder, there would be room tO' suppose the jurors might have found the defendant guilty of manslaughter only, if the opportunity to do so had been afforded them. But inasmuch as,, having a choice between first- and second-degree murder, they elected the former, there is no reasonable probability that they would have returned a verdict of manslaughter if that issue had been submitted to them.” (State v. Hardisty, 121 Kan. 676, 685.)
We see no reason to change the decision already rendered and a rehearing would serve no useful purpose.
The motion for rehearing is denied.
Mr. Justice Dawson adheres to his dissenting views as stated in the original opinion. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an agreed case formulated under R. S. 60-2938 (Civ. Code, § 549), in which The Missouri Pacific Railroad Company, plaintiff, sought to recover from The Red Star Milling Company, defendant, a claimed balance of $431.33 and $12.94 war tax due as undercharges on 31' carloads of wheat transported by plaintiff in 1921 from southwestern Kansas to certain points in southeastern Kansas exclusively in intrastate commerce.
The facts set forth in the agreed case include references to quotations from tariff schedules governing interstate rates, intrastate rates, and orders of the interstate commerce commission and of the Kansas public utilities commission, and all on file with those official bodies.
The controlling features of the agreed case may be abridged thus:
The 31 carloads of wheat originated at local points north and west of Pratt on the Anthony & Northern Railway. They were delivered to plaintiff and by it carried to destination, Fort Scott, Pittsburg, Cherokee, and points thereabout. The shipments were accorded milling-in-transit privileges in Wichita, and freight charges from points of origin to Wichita were paid when the grain was received in Wichita, and when the flour and grain products produced by such milling were forwarded from Wichita to southeastern Kansas destinations the freight charges were assessed and paid on the basis of what was supposed to be the balance of the correct freight rate from point of origin to final destination.
The regular and authorized intrastate schedules of freight rates on file with the public utilities commission in 1921 were tariff No. 146 of the Western freight tariff bureau and tariff No. 146-A of the Western trunk lines; and these rates would ordinarily govern this traffic but for the announcement of a rule appearing on their title pages, which read thus:
“Rates named herein will be applied only when they make a lower charge than is provided for in other tariffs lawfully on file with the public utilities commission of the state of Kansas.”
At the same time there was on file with the state commission a schedule of rates pertaining to both local and interstate traffic entitled, “Missouri Pacific Railway Freight Tariff of Local and Joint Rates, No. 4746-C (I. C. C. No. A-4389),” one item, No. 770, on page 165 of which prescribed a rule for determining the correct rate for wheat, flour and flour products moving under its terms. That rule was to this effect:
“(1) Ascertain the rate from point of origin to Kansas City, Mo.; (2) ascertain the rate from point of destination to Kansas City, Mo.; (3) the higher one of these two rates is to be the rate to apply upon a shipment from a' point on the Wichita & Northwestern Railway [Anthony & Northern] to a point in the state of Kansas on the Missouri Pacific railway. This rate was known in railroad parlance as the ‘higher Missouri river rate.’ ”
Prior to December 15, 1920, this so-called higher Missouri river rate was a lower freight rate than that prescribed in tariffs No. 146 and 146-A under sanction of the public utilities commission, and in consequence the higher Missouri river rate was the one on which such shipments as we have here to consider had been accustomed to move. But on December 15, 1920; by authority of the interstate commerce commission all interstate freight rates on wheat, flour and milling products in this territory were increased by thirty-five per cent. The new rates carrying this authorized advance were filed with the interstate commerce commission (and with the public utilities commission) in a schedule known as Supplement No. 14 to Freight Tariff of Local and Joint Rates 4746-C. The result of this thirty-five per cent advance was that the higher Missouri river rate became a higher rate than those prescribed in tariffs 146 and 146-A, governing the Kansas intrastate traffic.
Reduced to its simplest terms the claim of the railway was that the lawful charges on these 31 carloads should have been the rates specified in the Kansas local-distance tariffs 146 and 146-A because they were lower than the new higher Missouri river rate.
The defendant milling company’s contention was that inasmuch as the higher Missouri river rate, which prior to December 15, 1920, had governed such traffic, was on file with the public utilities commission and had received its approval, and the Kansas commission had not given its approval to a raise in that rate, it was still the proper rate in 1921 when these shipments moved, notwithstanding it had been superseded by a new and advanced rate under sanction of the interstate commerce commission.
At the hearing before the trial court, the only witness called was defendant’s traffic manager, whose testimony simplified the rather technical character of the matters incorporated in the agreed case. There was also introduced certain local and interstate tariffs and tariff supplements and other data showing progressive changes in pertinent rate schedules, as well as some quasi-judicial controversy between the public utilities commission and the interstate commerce commission over the propriety of the 35 per cent advances. An elaborate tabulation of the 31 shipments was also in evidence, showing points of origin, dates of shipment, rates paid, Kansas local-distance rates, higher Missouri river rates, points of destination, claimed balances due, and other instructive data. Photostatic copies of this tabulation were submitted for our inspection.
The trial court gave judgment for plaintiff as prayed for. Defendant’s assignment of errors reduces to one proposition — that the judgment should have been in its favor.
The rates which the plaintiff seeks to collect are those which, in 1921 during the movement of this traffic, were specified in tariffs 146 and 146-A, and which had the sanction of the public utilities commission (then known as the court of industrial relations). The rates specified in those schedules were applicable unless there was' in existence at the time of those shipments a lower charge provided in other tariffs lawfully on file. The only other rate comparable with the Kansas local-distance tariff rates, was the higher Missouri river rate, which was an interstate rate applicable to similar traffic as shown by Missouri Pacific tariff No. 4746-C, but which had been lawfully raised by the interstate commerce commission to a’ figure in excess of the Kansas intrastate rates. The argument that the Kansas commission had never given its sanction to the raising of the higher Missouri river rate does not control this controversy. The Kansas commission’s approval or disapproval of that rate — an interstate rate — would have been wholly ineffective. The Kansas commission had approved tariffs 146 and 146-A which specified precise rates for this particular traffic, and had merely given its sanction to any lower rates not under its jurisdiction which might be available to the shipper. In the agreed case it was stipulated that—
“As to any shipment, the shipper or consignee may elect as between the Kansas distance rate and the so-called ‘higher Missouri river rate’ as in effect at the. date of such shipment, and may avail himself of whichever of these rates provides the lower transportation cost.”
When the higher Missouri river rate ceased to be a lower rate than the specific freight rates governing this traffic promulgated by authority of the Kansas commission it ceased to be an authorized rate for the movement of intrastate shipments. It was no longer applicable in 1921 when these 31 carloads were transported by defendant and its associated and connecting carrier.
Appellant cites statutory provisions (R. S. 66-108, 66-109, 66-117), which require all schedules of freight rates to be filed with the public utilities commission, and which forbid the exaction of rates at variance with those on file, and forbid changes in those rates without the consent of the commission. But those salutary provisions of statute have to do with matters within the dominion of our local legislature and over which the jurisdiction of our Kansas commission may lawfully be extended. These statutory provisions have no material'effect on the higher Missouri river rate, an interstate rate prescribed by federal authority for traffic from Kansas points of origin to Kansas City, Mo. The fact that the Kansas commission assented to the use and application of the higher Missouri river rate by the railway carriers under certain conditions for the movement of local traffic rather than the intrastate rates the Kansas commission itself has prescribed or sanctioned, did not bring that particular interstate rate under the dictation of the Kansas commission in the slightest degree. And yet this elastic and liberal rule of the Kansas local-tariff distance tariffs is perfectly sound, and doubtless serves many a good purpose. It may even now be in operation in various parts of the state, governing much traffic moving exclusively between Kansas points. “Whenever and wherever,” says our public utilities commission in effect, “rates lower than those prescribed or sanctioned by our authority (tariffs 146 and 146-A) are available to Kansas shippers, such lower rates, not those prescribed by our specific authority, shall be the proper charges.”
Manifestly the Kansas rates must be collected by the carriers and paid by the shippers when no other lawful lower rate is available.
A point is raised that the interstate rate advancement of 35 per cent, which on December 15, 1920, increased the higher Missouri river rate, was never lawfully in force. The Supplement No. 14 to Missouri Pacific Tariff 4746-C, effective December 15, 1920, announced that the advanced rate authorized by federal authority “amends page 144 of the tariff.” Defendant argues that such an amendment was ineffective because it failed to add that the earlier rates thus sought to be amended were canceled; and certain rules and decisions of the interstate commerce commission are cited to support that argument. The decisions cited are not in point. The rule as a mere rule of simplicity for the guidance for railway freight clerks who are not lawyers is well enough. As a proposition of law and logic, the contention lacks merit. We have the analogous rule in the Kansas constitution which provides that when a section of a statute is amended the older section shall be repealed (Const. Art. 2, §16), but if the legislature fails to declare such specific repeal it is judicially considered as done nevertheless. (Case v. Bartholow, 21 Kan. 300, 308, syl. ¶ 3.) When the interstate commerce commission gave its approval to an advance of the interstate rate specified on page 144 of the Missouri Pacific Tariff No. 4746-C, and that rate was published by Supplement No. 14 thereto, the higher Missouri river rate included therein was thereby advanced from 22.5 cents per hundredweight to 27.5 cents per hundredweight, thereby increasing it above the Kansas rates governing the transportation of these 31 carloads of wheat, and the balance due plaintiff from defendant according to the Kansas local distance tariffs must therefore be paid.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
James H. Elliott appeals from a conviction upon a charge of receiving deposits in a bank of which he was president, knowing it to be insolvent. He contends that his motion to quash the information should have been sustained, because while it alleged that he received deposits at a time when he knew the bank to be insolvent, it did not state the specific conditions which made it insolvent, or constituted its insolvency.
The section of the statute defining the offense forbids an officer of a bank knowingly to receive deposits when the bank is insolvent. (R. S. 9-119.) Another section of the same act, which relates also to insolvency in other connections, reads:
“A bank shall be deemed to be iasolvexá^-first, when the actual cash market value of its assets is insufficient to pay its liabilities; second, when it is unable to meet the demands of its creditors in the usual and customary manner; third, when it shall fail to make good its reserve as required by law.” (R. S. 9-133.)
The defendant invokes a rule of pleading applicable to statutory offenses which has been thus stated;
“Where a general term used is succeeded by words more precise and definite, the indictment must charge the offense in the more particular words, and the same is true when the general term follows the particular terms.” (31 C. J. 713.)
In a typical case a statute forbade the sale of “rum, brandy, whisky, taffia, or other spirituous liquors without a license.” An indictment merely charging the sale without a license of “spirituous liquors” was held fatally deficient “in not defining the offense with that precision which the humane policy of our law requires,” the opinion saying;
“It is a well established principle of criminal pleading, that where a generic term is used in a statute creating an offense, in connection with words more precise and definite in their meaning, the indictment must charge the offense in the particular words used1 in the statute.” . (The State v. Raiford, 7 Ala. 101, 104.)
Following that case the same court in 1850 held an indictment bad which charged the defendant with playing cards “at a public place” under a statute forbidding such conduct at “any public house, or highway, or any other public place,” where the evidence showed the playing to have taken place on the side of a public road. In the opinion it was said:
“I confess, however, that I am yielding to authority, without being able to see clearly the reasons, on which the decisions are based, but so the law is settled, and we must abide by it.” (Bush et al. v. The State, 18 Ala. 415, 416.)
The Corpus Juris text quoted above is followed by these words:
“. . . Although when the offense is prohibited in general terms in one portion of the statute, and in another portion, entirely distinct, the acts of which the offense consists are specified, it is not necessary that anything but the general description should be set out in an indictment.” (31 C. J. 713.)
Regarding the matter as one of conformation to technical rules of pleading this seems a sufficient answer to the defendant’s objection to the information, and one not without a basis in reason, there being some analogy to the rule that exceptions not incorporated in the “enacting clause,” or description of the offense, need not be negatived in the state’s pleading. We hold the information to be good, however, upon the broader ground that it sufficiently advised the defendant of the nature of the charge against him to enable him to prepare his defense, and no substantial prejudice to him is shown to have resulted from the lack of a fuller statement. The information charges the offense essentially in the language of the section of the statute creating it.. The definition of the term “insolvent,” given in another section by a later enactment, adds somewhat to its former meaning, but the addition is not out of harmony with its general scope. There is no presumption that the conviction was in any way affected by the omission of details as to the facts rendering the bank insolvent, and nothing is brought here to show any probability that such was the case. If. the defendant had asked for a bill of particulars as to the character of insolvency on which the state would rely, pointing out the .specific subject on which greater definiteness was desired, the request might have been granted. Concerning the practice in relation to such a motion it has been said:
“In. cases of this kind, where the information does not state specifically the acts of the defendant in keeping and maintaining a common nuisance, but states such facts only in general language, it would be very proper for the district court, exercising a sound judicial discretion, to order that the county attorney file a bill of particulars setting forth the specific acts which the county attorney claims constitute the keeping and maintaining of such common nuisance. In that way the defendant can be well informed as to what specific acts he will be called upon to defend against.” (State v. Teissedre, 30 Kan. 476, 483, 2 Pac. 650.)
“We think this is one of that class of cases in which the court might in its discretion require the prosecution to file a bill of particulars. . . . But where the complaint is sufficient in all particulars except that it states the facts constituting the offense only in general terms or vaguely, and not in specific detail, the defendant must, if he desires a more elaborate or detailed statement of the facts, set forth in his motion the portions of the indictment or information which he claims to be insufficient or defective, and point out to the court wherein he desires a fuller, more complete, more definite or more circumstantial or particular statement of the facts.” (State v. Reno, 41 Kan. 674, 679, 21 Pac. 803.)
The record does not affirmatively show even that .the precise objection now made was specifically called to the attention of the trial judge. We regard the information as sufficient against a motion to quash and a motion in arrest of judgment, these being the methods by which it was attacked.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to rescind, because of the alleged fraud of defendants, a contract by which plaintiff traded 200 shares of the capital stock of the Monarch Cement Company, and for the recovery of the stock, or its value. The defendants named were H. A. Hewitt, A. F. Carson, Walter Krouse, H. H. Keenan, T. M. Thomas, doing business as the Thomas Investment Company, Carl L. Lamb and Paul Brown. Defendants Carson and Lamb were never served with summons; defendants Hewitt and Krouse defaulted; plaintiff settled his controversy with Brown, as to 100 shares of the stock, without prejudice to his action against other defendants as to the remaining 100 shares of stock. Defendants Keenan and Thomas answered and defended. The corut found for defendants. Plaintiff has appealed. The court made the following findings of fact and-conclusions of law:
Findings op Fact.
“1. On and prior to the 13th day of May, 1922, plaintiff C. W. Peckham, a man of about seventy-five years of age and residing in the city of Haven, Reno county, Kansas, was the owner of 236 shares of the capital stock of the Monarch Cement Company, of Humboldt, Kan. The stock was a reissue upon reorganization of the company which had previously been in financial difficulties and was dormant and inactive, having not paid dividends for some time and of a market value of $26 per share. A dividend had been declared on said stock but had not been paid for the reason that the company had no funds to pay it. Peekham was familiar with this fact. He was and is a man of considerable intelligence and had had considerable business experience.
"2. On the 13th day of May, 1922, defendants Hewitt, Carson, and Krouse came to plaintiff’s home in Haven, Kan. They were acting jointly. They represented to' plaintiff that a pool was being formed to get control of the Mon-, arch Cement Company; that this was nearly completed; that a friend of plaintiff’s named Gus Roll had sold his stock; that this was the last day in which plaintiff could get in on the pool and if he did not get in on this day his stock would be of little value; that with plaintiff’s stock .those forming the pool would have about 61 per cent of the stock and would have control; that if plaintiff did not sell his stock it would be of little or no value. They proposed to trade plaintiff 1,400 shares of Elmhurst Investment Company stock for his cement stock, and represented to plaintiff that the Elmhurst Investment Company stock was selling at par or $10 a share, and that there was a ready market for it and that it had paid substantial dividends every year. These representations regarding the formation of the pool and the value of the Elmhurst stock were false and known to be false by defendants Hewitt and Carson, who made them, and were made for the purpose of defrauding the plaintiff out of his stock. Defendants Hewitt and Carson further agreed with plaintiff that they would sell his Elmhurst stock within six months at par and put up fifty dollars as forfeit mioney on this latter agreement. The writings in connection with this trade were introduced in evidence and are exhibits ‘A’ and ‘B.’
“3. Becoming uneasy about the deal, on May 14, 1922, plaintiff wrote a letter to H. F. G. Wulf, of the Monarch Cement Company, stating what his deal was and instructing Mr. Wulf not to transfer the stock. This letter was introduced in evidence and is marked Defendant’s Exhibit 2. Plaintiff also at or about said time came to Wichita and interviewed defendant Paul Brown, a reputable attorney of Wichita, Kan., seeking advice as to his rights in the premises. Brown undertook to and did advise Peekham as to his rights and the remedies for their redress. Peekham did not employ Brown to institute a suit at this time or instruct him to do so, stating to Brown that he wished first to consult some attorneys of his own at Hutchinson, Kan. On this visit Brown prepared a demand on Hewitt and Carson for the return of the stock, a copy of which was introduced in evidence and is marked Exhibit ‘H.’ On this visit also Brown, at Peekham’s request, called up T. M. Thomas, who was engaged in the business of selling stocks and bonds in the city, inquiring of him as to the market value of Elmhurst Investment stock. He was advised by Thomas that it was worth about $1.30 per share. Peekham then took this demand and started out to find Hewitt and Carson. He found them on the streets of the city and followed them until he was near Thomas’s office, asking them to step into Thomjas’s office. Carson went into the office but Hewitt stayed outside. Defendant Keenan happened to be present in Thomas’s office on this occasion. The demand was read by Peckham to Carson and Peckham attempted to deliver a copy of same to Carson. Carson refused to take it and Peckham left it on Thomas’ desk. All these events transpired bn May 15, 1922. Peckham returned to Brown’s office, informing him of the circumstances surrounding the making of the demand and then left Wichita.
“4. On May 25, 1922, Krouse went to Haven and interviewed Peckham regarding the trade. He then stated to Peckham that' he was the principal in the transaction and urged Peckham to release the stock, and threatened him with suit if he would not do so. Peckham communicated the fact of this visit to Brown. Krouse also called on Peckham on May 31, 1922, making like demands. On June 1st, Krouse’s visit to Peckham was reported by Peck-ham to Brown in a letter of that date. At or about this time Krouse also called at Brown’s office and attempted to persuade Brown to release the stock to him. Brown refused. Prior to this time Brown had interviewed Mr. Wulf of the Monarch Cement Company and had secured Wulf’s promise not to transfer the stock. Likewise, Wulf had promised Peckham not to transfer the stock.
“5. On September 5, 1922, Hewitt and Carson called on Peckham and tried to persuade Peckham to release the stock. Peckham refused and reported this visit to Brown.
“6. Shortly after securing the Peckham stock, Krouse hypothecated it at the American State Bank of Wichita, Kan., to secure a loan to him of some $1,700. During the time of these various negotiations the stock had been presented to the company and transfer had been refused. Peckham knew this.
“7. Some time during August, 1922, Peckham went t'o Brown and instructed Brown to prepare an action to recover his stock. He did not, however, give Brown instructions to file such action but told him not to file it, believing that he might be able to make some sort of a settlement or adjustment with Hewitt, Carson and Krouse.
“8. On September 14, 1922, defendants Keenan and Lamb visited Mr. Peckham at his home in Haven, seeking t'o interest him in trading his Monarch cement stock for stock in the Cream-O-Milk Company. Lamb was an officer in that company, which was named the Cream-O-Milk Company, a corporation, incorporated under the laws of the state of Colorado, and had a capital stock of 50,000 shares of no par value. Lamb stated t'o Peckham that the company was being at that time organized in the city of Wichita and that a number of prominent men were interesting themselves in the company and had purchased stock in the same, giving the names of A. A. Hyde, W. C. Coleman and others. They further stated that the stock had not yet been generally placed on the market but that it was proposed to put' it upon the market at $50 a share. They represented that Mr. Hunter had purchased $21,000 worth of the stock and paid cash therefor, and that the other stockholders had paid cash for their stock; that the product to be manufactured had already been placed on sale in Wichita; that the same was highly recommended; that the product had great advantages due to the fact that it preserved the whole milk and could be easily transported; that a plant was then being constructed by the company for the manufacture of the product at Lamed, Kan.; that the company was considering the establishment of other plants elsewhere in the state of Kansas, among other places mentioned being Halstead, Kan. All of the persons mentioned as being connected with the company were in fact so connected and all had paid something for their stock, although Coleman had not paid $50 a share and R. B. Campbell probably had not received and paid for his stock but had subscribed for same. The stock had not yet' been generally placed on the market. The product was on sale in Wichita. Hunter had not paid cash for $21,000 worth of the stock but had purchased that amount, giving other stock in exchange therefor. The plant was being constructed at Lamed, Kan., and was visited by plaintiff. The location of other plants was being considered by the company, among them being a plant at Halstead.
“9. At times other than September 14, the exact dates of which the court is unable to fix, but subsequent to September 14, 1922, Lamb and Keenan called upon Peckham in regard to trading the stock. On each of these visits Keenan and. Lamb stated to Peckham that they were in a position to secure the release of his Monarch stock. They represented to Peckham that his stock was paying no dividends and it was uncertain when a dividend would be paid. This was true. They stated to Peckham that the English and Canadian rights to manufacture the product had been sold for considerable sums. No proof has been offered that this was untrue. They further stated to Peckham that the company had brilliant prospects and was sure to be a big success, and some other statements of a similar nature. These statements, whether true or not, were, in the court’s judgment, mere puffing. The product itself was an excellent product and was on sale in Wichita. They stated to Peckham that same had been highly recommended by prominent physicians in, Wichita and this was true.
“10. Keenan and Lamb invited Peckham to come to Wichita and inspect the proposition for himself and on the 20th day of September, 1922, he did so. In company with Keenan he went to Paul Brown’s office and asked Paul Brown his opinion of the proposition. Brown stated to him that he could give him no advice as to the merit of the proposition as an investment, but would advise him as to the legality of any feature concerning which he wished advice. Brown stated, however, that he would go with Peckham and introduce him to some of the men who had been mentioned by Lamb and Keenan to Peckham. Brown, Keenan and Peckham then called on R. B. Campbell and discussed the proposition with him at considerable length. Campbell recommended it, saying that he had subscribed fop stock and believed the company had good prospects of becoming a success. Peckham, Brown and Keenan then called on W. C. Coleman, a prominent business man of the city of Wichita and president of the Coleman Lamp Company, who was at that time an officer and stockholder in the Cream-O-Milk Company. Coleman went into the affairs of the company thoroughly, explaining the proposition .and plan in all its details, saying that he believed it to be a good investment and that it would be a success. He made it clear that the project was purely a speculative one, that it was a venture, but that he believed in the proposition thoroughly, and had purchased stock in it although he had not paid $50 a share for same. After leaving Coleman’s office, Peckham, Brown and Keenan went to the office of W. M. G. House, president of the JohnsonLarimer Dry Goods Company, who was also interested in the venture, but did not find Mr. House in. They then, went to the office of J. H. Elem, a prominent business man of the city, who was an officer and stockholder in the company, and discussed the affairs of the company thoroughly with him. Later, and on the same day, Peckham returned to Elem’s office in company with Mr. Dunsworth, a neighbor of Peckham’s, who was an old acquaintance of Elem’s, and further discussed the proposition. Mr. Peckham in these various discussions informed himself fully and thoroughly as to the character and nature of the enterprise, its assets.and its expectation of success. He understood fully what the proposition was, and after such investigation, in all that he subsequently did, relied wholly upon such investigation and what it had disclosed and acted wholly upon his own judgment in the events that subsequently transpired.
“11. Later and on the samje day, Keenan, Brown, Thomas and Lamb met in Thomas’ office and the details of the trade that was about to be made were there discussed. Brown took a memorandum and later embodied the trade which the parties then agreed upon in a contract which has been introduced and is marked Exhibit ‘L.’ Exhibit 'L’ was then prepared by Brown. In the meantime Peckham had returned to Haven.
“12. On September 21, 1922, Peckham wrote Brown from Haven that he had decided not to turn but 109 shares on the trade, instead of 200 shares as-tentatively agreed upon orally at the conference in Thomas’ office.
“13. On September 22 Paul Brown called Peckham over the telephone, informing him that Keenan was there for the contracts and asking Peckham if' he should let him have them. In this conversation Peckham informed Brown of his letter of the 21st which had not yet been received by Brown, but told Brown to give the contract to Keenan anyway, and if he desired to change it he would'do so when Keenan brought it up for his signature.
“14- On the 22d or 23d of September, 1922, Keenan took the contract and an order on the Monarch Cement Company releasing Peckham’s stock, and a; certificate for 128 shares of Cream-O-Milk stock and went to Haven. Peck-' ham signed the contract and release and the Cream-O-Milk stock was delivered to him. At the sarde time and as part of the same transaction, Keenan agreed with Peckham that if Peckham would sign the contract for the exchange of the 200 shares of Monarch stock, he, Keenan, would sell one-half of the Cream-O-Milk stock for him at any time he desired before March 1, 1923. Keenan never reported to Lamb or Thomas that he had made Peckham this promise. Peckham never requested Keenan to carry out this promise.
“15. On or about May 24, 1923, Peckham wrote Lamb regarding the sale of half of the Creanf-O-Milk stock. This seems to be the first demand that Peckham ever made that this agreement for the sale of half of his stock be carried out. The letter written by Peckham to Lamb on May 24 was not produced in evidence and the court is unable to state its contents. It seems, however, to have contained a statement that the promise had been made by Keenan alone. Peckham evidently regarded the promise as having been made: on behalf of the Cream-O-Milk Company, as indicated by his letter of May 29 to J. H. Elem, which was introduced in evidence and marked Exhibit ‘BB.'
“16. The arrangement entered into between Thomas, Keenan and Lamb was in substance as follows: Lamb was to give the Cream-O-Milk stock to Peckham in exchange for the release of the cement stock, and when so released Thomas was to purchase the cement stock. Keenan was to receive $300 out of the transaction for his part in helping to consummate the deal. The purchase was handled in this way: Thomas issued a check for $1,700 payable to Walter Krouse. This was indorsed by Walter Krouse and delivered to the American State Bank, which thereupon delivered the Monarch stock to Lamb. Lamb then delivered the stock to Thomas and received from Thomas two checks, one for $300 and the other for $4,211.40. Lamb cashed both these checks, turning $300 over to Keenan. Lamb had previously furnished the Cream-O-Milk stock as provided for in the contract between Peckham, Thomas and the Cream-O-Milk Company, by Lamb as vice president.
“17. Shortly thereafter the Cream-O-Milk stock was placed on the market by the company at $50 a share, and was sold at that figure. There were in fact three distinct corporations with similar names: The Cream-O-Milk Company of Kansas, the Cream-O-Milk Company of Colorado, and the Cream-O-Milk Company, organized under the laws of Colorado. It was stock in this last company that was sold to plaintiff. Plaintiff may not have understood that there was a Cream-O-Milk Company of Kansas or a Cream-O-Milk Company of Colorado, but he did understand and was informed what the Cream-O-Milk Company organized under the laws of Colorado was, and all representations made to him regarding the stock were mfe.de regarding the stock of the Cream-O-Milk Company organized under the laws of the state of Colorado. He was not misled or confused by reason of the fact of the existence of the three companies. Subsequently and during the fall of 1923 the Cream-O-Milk Company failed and its affairs were placed in the hands of a receiver, and its stock is now of very little, if any, value. Meanwhile, the stock of the Monarch Cement Company had increased considerably in value. At no time prior to the receivership of the Cream-O-Milk Company did plaintiff make any demand upon any of the defendants for the return of his Monarch cement stock, nor did said plaintiff at any time prior to said receivership make to any of the defendants any complaint of the transaction mentioned in and covered by the contract for exchange of the Cream-O-Milk stock for the Monarch Cement stock.
“18. The court finds that there was no connection between the transactions in which Krouse, Hewitt and Carson were interested and the transaction between Thomas, Lamb, Keenan and Peckham in which the Cream-O-Milk stock was traded for the Monarch cement stock. The court finds that there was no conspiracy amongst the defendants Brown, Thomas, Lamb and Keenan, between themselves or with any other person, to defraud plaintiff, but that Hewitt, Carson and Krouse did conspire to defraud plaintiff and did defraud him.
“19. After Thomas acquired the stock he proposed selling 100 shares of it to Brown. Brown called up Peckham and asked him if it would be all right for him, Brown, to buy a part of Peckham’s stock and Peckham assured him that it was all right and gave his consent to the transaction. Peckham at no time understood that Brown was purchasing the stock for him. When the stock was obtained from the bank by Lamb, it was sent to the Cement Company and transfers were made as follows: 100 shares to Brown; 100 shares to Thomas, and 36 shares to Peckham. This 36 shares was delivered to Peckham in the fall of 1922 was sold by him!. Brown paid Thomas the full market value for the stock purchased by him, to wit: $27.50 per share. Thomas sold the one hundred shares retained by him, on November 9, 1922, to Strandberg-McGreevy & Company at $29.50 per share.
“The court has received requests for findings from the parties, numbered 1 to 23 by plaintiff Peckham, 1 to 51 by defendant Thomas, and 1 to 9 by defendant Keenan. Plaintiff has likewise propounded 115 special questions. The court understands the law to be that the court is not required to answer special questions. It is believed, however, by the court that the foregoing findings of fact sufficiently cover the facts of this case and are determinative of the litigation.
“Conclusions op Law.
“The court concludes as a matter of law that while plaintiff was defrauded by defendants Hewitt and Krouse, the remedy of rescission is not now open to him.
“The court further concludes as a matter of law that the plaintiff was not defrauded by defendants Brown, Keenan, Thomas or Lamb, and the remedy of rescission is not open to him as regards these defendants.
“The court further concludes as a matter of law that the costs of this action should be taxed to plaintiff.”
This case, as betw'een plaintiff and the contesting defendants, turns upon the facts. There is no controversy of consequence over the law pertaining to the case. Broadly speaking, plaintiff’s right to rescind depends upon two questions, viz.: (1) Did plaintiff make but one trade of his stock, or did he make two trades? (2) If he did make two trades, was he induced, by fraud of defendants, to make the second trade?
Plaintiff contends that all the transactions, beginning with his dealings with Hewitt, Carson and Krouse, May 13, 1922, until after his final release of the certificates of stock, late in September, 1922, and even the later sales of the stock made by Thomas, are so connected in fact that they should be treated as one transaction, for the purpose of determining plaintiff’s right to rescind. The trial court found plaintiff had two transactions — made two trades of his stock; that his first trade, May 13, 1922, was with Hewitt, Carson and Krouse; that the other defendants had nothing to do with this trade; that plaintiff was induced to make this trade by the fraudulent representations of Hewitt, Carson and Krouse; that he and his at torney succeeded in preventing a transfer of his certificates of stock on the books of the Monarch Cement Company and held in abeyance for several months either the completion or the rescission of that trade; that in September, 1922, plaintiff made another trade of his stock to Keenan, Lamb and Thomas; that in doing so he in effect got his stock back from Hewitt, Carson and Krouse; that Hewitt, Carson and Krouse had nothing to do with this second trade, except that they waived or released any claim they had upon plaintiff’s stock in the Monarch Cement Company upon the payment by Lamb to Krouse of $1,700; that what Lamb paid Krouse, if anything was of little or no concern to plaintiff; that plaintiff did in effect get his stock back from Hewitt, Carson and Krouse and traded it to Keenan, Lamb and Thomas.
Having determined that plaintiff made two trades of his Monarch Cement Company stock, the next question is, Was he induced to make the second trade by the fraudulent representations of Keenan, Thomas, Lamb, and Brown, or of any of them? The court found, (a) that no fraudulent representations were made to him in connection with this trade, and (6) that plaintiff did not rely upon any representations made to him by these defendants, or any of them, but made an investigation of his own, upon which he acted.
The findings of the trial court are sustained by the evidence. In reaching this conclusion we have not relied upon the abstracts, because of a controversy between counsel as to their accuracy, but we sent for the transcript of testimony and have examined it with care.
Appellant complains that the trial court erred in making material findings of fact contrary to the evidence and to the weight of the evidence, and under this heading complains of many specific details of the findings, quotes or refers to the evidence, or some of it, pertaining thereto, and argues either that the specific portions of the findings complained of are against the weight of the evidence, or that they are not supported by any evidence. It is not necessary to analyze these separate complaints in detail, and to do so would unnecessarily lengthen this opinion. Complaints that findings are contrary to the weight of the evidence are not open to review. It is the function of the trial court to weigh the evidence. (Farney v. Hauser, 109 Kan. 75, syl. ¶ 7, 198 Pac. 178; Rezac v. Rezac, 115 Kan. 482, 223 Pac. 295.) Complaints that findings are not supported by any evidence are open to review. (Bell v. Skinner, 119 Kan. 286, 239 Pac. 965; Bortnick v. Cudahy Packing Co., 119 Kan. 864, 241 Pac. 442.) But an examination of the record in this case discloses that each of the findings of the court, and all- material portions of them, were supported by- competent, substantial evidence.
Appellant complains that the court did not make other and additional findings of fact. The findings made covered the material facts established by the evidence. That is as far as the court is required to make findings of fact, and is as far as findings should be made. (R. S. 60-2921; Shuler v. Lashhorn, 67 Kan. 694, 74 Pac. 264; Nordman v. Johnson, 94 Kan. 409, 146 Pac. 1125; Eakin v. Wycoff, 118 Kan. 167, 234 Pac. 63.)
The court was not required to answer special questions, and the practice of submitting them is not commended. (Oil and Cas Co. v. Strauss, 110 Kan. 608, 203 Pac. 1111; Lumber Co. v. Russell, 93 Kan. 521, 144 Pac. 819; Railroad B., L. & Savings Ass’n v. Watkins, 119 Kan. 409, 410, 239 Pac. 755.)
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The opinion of the court was delivered by
Mason^ J.:
The plaintiffs appeal from a judgment against them in an ejectment action. The defendant claimed title under a sheriff’s deed executed May 29, 1923, upon a sale under a general execution issued October 6, 1921, on a judgment against the plaintiffs. The plaintiffs contend that the deed is void because the land was sold by the sheriff without an appraisement having been had. The plaintiffs assert, and the defendant denies, that appraisement was necessary.
Prior to 1893 the Kansas statutes contained this provision:
“If execution be levied upon lands and tenements, the officer levying such execution shall call an inquest of three disinterested householders, who shall be resident within the county where the lands taken in execution are situate, and administer to them an oath, impartially to appraise the property so levied on, upon actual views and such householders shall forthwith return to said officer, under their hands, an estimate of the real value of said property.” (Gen. Stat. 1868, ch. 80, § 453.)
In the act of that year giving the owner of realty sold on execution a right to redeem it within eighteen months, the section quoted was repealed, as well as the two immediately following it, one relating to the waiver of appraisement and the other to the deposit-of a copy with the clerk. (Laws 1893, ch. 109, § 28.) Several sections of the old law, however, containing references to an appraisement and seemingly recognizing the necessity of its being made, one of them providing that a sale should not be made for less than two-thirds, of. the appraised value (R. S. 60-3414), remained and still remain without express repeal or amendment. In that situation this court held that no appraisement was required, saying:
“The explicit repeal of the section of the statute providing for the appointment of appraisers (Gen. Stat. 1889, § 4550) showed an unmistakable purpose to do away with an appraisement as a part of the procedure in execution sales', notwithstanding the omission to eliminate' references to the matter from other sections. The statute upon its face (Gen. Stat. 1901, §-4903)-still .forbids the-sale of real estate upon execution for less than two-thirds of its appraised vajup, but it is recognized that such prohibition has become obsolete.” (Armstead v. Jones, 71 Kan. 142, 145, 80 Pac. 56.)
The statute contains an express provision that if land levied on. is not sold on one execution, other executions may be issued to sjell it. (R. S. 60-3420.) At the time of the general revision of the code of civil procedure in 1909 a section authorizing the levy upon additional property, in case a writ should be issued directing the saie.oL property previously taken in execution, was amended by the addition of the words: “And [the sheriff] shall call in two disinterested.householders, -who shall be sworn and who shall view and appraise said real estate and make their return thereon.” This amendment was not a-part of the bill as originally introduced, but .was added in the course of its consideration by the legislature. The section now. reads: ...
“When any writ shall issue, directing the sale of property previously taken in execution, the officer issuing said writ shall, at the request of the person entitled to the benefit thereof, his agent or attorney, add thereto a command to the officer to whom such writ shall be directed, that if the property remaining in his hands not sold shall, in his opinion, be insufficient to satisfy the judgment, he shall levy the same upon lands and tenements, goods and chattels, or either, as the law shall permit, being the property of the judgment debtor, sufficient to satisfy the debt, and shall call in two disinterested householders, who'shall be sworn and who shall view and appraise said real estate and make their return thereon.” (R. S. 60-3413.)
The plaintiffs contend that this change restored the requirement of appraisement in execution sales of real estate generally. The defendant asserts that it affected only sales made under the circumstances there stated — where a writ is issued directing the sale of property previously taken in execution, the officer being required to make a further levy if that already taken is in his opinion insufficient to satisfy the judgment. Obviously the addition does not in terms apply in any other situation than that referred to in the original section. If by interpretation it is to be given a different meaning it must be because of an extreme improbability that the change would have been made if it were intended to accomplish no more than it says. The case is one for the balancing of- probabilities, for it seems highly likely that if the purpose were to restore the law as it had existed prior to 1893 — to make the appraisement provision apply to all real estate sales on execution — -the legislature would have said so explicitly, either by restoring the former section or by attaching the rider to a section relating to executions generally instead of to one having plainly to do with an exceptional situation. An appraisement has obviously such a special use to serve in connection with an execution of the kind referred to in the section to which the addition was made, as to render it quite conceivable the legislature thought it desirable with "respect to such executions alone. An appraisement of property seized by the sheriff has other functions than to fix a minimum price at the sale, otherwise the statute would not require the appraisement of chattels and realty taken in attachment. (R. S. 60-909.) One such function is to aid the sheriff in determining how much property he ought to take so as, on the one hand, not unduly to harass the defendant, and on the other not to leave the plaintiff insecure. Where the sheriff has already made- one levy on an execution, and a new writ is issued requiring him to sell the property already taken, and also to seize more if that is necessary to satisfy the judgment, there seems to be such a special reason for having an appraisement as to warrant the assumption that the legislature intended the very amendment that was made.
In the plaintiffs’ brief it is said in effect that to construe the statute in question literally “would be not only a futile but a hypocritical pretense of regard for the interest of unfortunate debtors.” The legislature of 1893 obviously thought, and the conclusion seems entirely reasonable, that where the debtor is allowed eighteen months to redeem from an execution sale of realty on the basis of the amount bid, his interest no longer requires the fixing of an upset price. The lower the sale price, the easier it is to redeem. The buyer is not tempted to keep the price down, because in trying to drive too good a bargain he impairs his chance of retaining its benefits.
It is argued that the retention in the statute of the large number of references to an appraisement, all apparently assuming that one is to be made, shows a legislative purpose to that effect. That proposition was involved in Armstead v. Jones, supra, and the decision was against it. It is contended, however, that the reenactment of these sections in the revision of 1923, with the change already discussed, made in 1909, puts a different face on the matter and requires a holding to the contrary. This reenactment seems to us to show merely that the legislature saw no occasion for a change in the law as it stood, and we do not think it requires or justifies any different interpretation from that previously adopted.
In 1923 this addition was made to the section of the code giving the owner the right to redeem real estate from a sheriff’s sale:
“Provided, That the right of redemption shall not apply to oil and gas leases, or oil and gas leasehold estates. In all sales of oil and gas leases under order of sale the property shall be appraised as in the case of sales of real estate on execution, and no such property shall be sold for less than two-thirds of the appraised value thereof.” (R. S. 60-3439.)
If this were to be treated as a definite interpretation of the existing statute, as requiring appraisement in such a case as the present, it could have no retroactive operation (State v. Shawnee County, 83 Kan. 199, 110 Pac. 92; White v. Kansas City, 102 Kan. 495 499, 170 Pac. 809; 36 Cyc. 1143; 25 R. C. L. 1047), and the sale with which we are here concerned was made under an execution issued in 1921. But we think it was not intended as an interpretation of the existing law and does not operate as such. We regard the reference to appraisement as having no purpose or effect further than to require appraisement in sheriff’s sales of oil and gas leases, a policy apparently founded upon the consideration that redemption from such sales is denied.
In two cases arising after 1909 it was said upon authority of the decision in Armstead v. Jones, supra, that appraisement prior to a sheriff’s sale was no longer necessary (Insurance Co. v. Carra, 101 Kan. 352,166 Pac. 233; Catlin v. Deering & Co., 102 Kan. 256, 170 Pac. 396), but in neither was the effect of the new portion of the section here invoked (R. S. 60-3413),"discussed or passed upon, and they of course have no bearing on its interpretation. In Bank v. Barons, 109 Kan. 493, 200 Pac. 297, that part of the statute was invoked but was held inapplicable on the ground that its operation extended no further than to executions and not to an order of sale on the foreclosure of a lien. Whether it extends to all general executions or only to those to which it is in terms made applicable was not involved and was not determined.
The conclusion we have reached makes it unnecessary to consider other questions which have been argued, including one concerning a claim that appraisement has been waived.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover certain funds alleged to have been unlawfully appropriated by the defendant. Material allegations of the original petition were:
“That on or about the first day of November, 1923, the defendant withdrew from the First State Bank of Stafford the sum of $443.25 belonging to the plaintiff and retained the sum of $200 of said amount, remitting the sum of $243.25 to plaintiff on November 10, 1923. That at the time of said acts set forth above, the defendant had been acting in the capacity of attorney for the plaintiff, for the sole and only purpose of supervising the rental of certain Pratt county lands occupied by plaintiff’s tenant, one Ben Titus. That said Ben Titus had deposited the sum of $443.25 in said bank to the said plaintiff’s credit. That the defendant had no right nor authority, expressed or implied, to withdraw said moneys from the bank, and thait his act in doing so was unlawful. That the said defendant had no right to retain said sum of $200. That plaintiff was in no wise indebted to said defendant at the time of said unlawful retention of the $200 and is not now or has not been since at any time from said wrongful retention of said $200, in any way indebted to this defendant. That planitiff has made demand on defendant for the payment of said $200 with lawful interest from the date of November 1, 1923, and that the defendant has wholly failed, refused and neglected to make such payment to the plaintiff.”
Plaintiff alleged there are no just claims or set-offs and prayed judgment for the amount due with interest.
Upon and during consideration of a demurrer to the petition, plaintiff asked, was granted leave and filed an amended petition. In it he set out a large number of letters from the defendant. The defendant then filed a motion to strike nine of the letters from the amended petition on the ground that they constituted redundant matter and that plaintiff was pleading his evidence. The letters in question were written at intervals from October 14, 1921, to February 13, 1925. The amended petition and the letters show substantially that plaintiff, who was then at Phoenix, Ariz., employed the defendant as his attorney to supervise the rental of his farm then occupied by one Titus; that defendant wrote plaintiff he would make a reasonable charge for his services; that he later wroté that one Roy Allen had agreed to take the place; later that he had instructed Titus to sell plaintiff’s share of the wheat; later, on January 24, 1923, that he had requested Titus a number of times to sell the wheat and send defendant the tickets; that Titus had made one excuse after another but had not complied with his request; that on March 5 defendant advised plaintiff Titus had no right to sell the wheat and the parties who purchased it did so at their peril; that it would take a day or so to go to the different elevators and ascertain the amount of wheat that they had purchased. The petition then alleged that on March 3, 1923, Titus had deposited the pro ceeds of the wheat due the plaintiff, amounting to $433.25, to the credit of plaintiff in the State Bank of Stafford; that the defendant had notice and knowledge of such deposit at the time he wrote the letter of March 5, or as the representative and agent of the plaintiff could have obtained such knowledge; that on July 29, following, defendant wrote plaintiff that he was unable to get any definite information as to where Titus sold the wheat and advised plaintiff to prosecute Titus criminally; that September 17, defendant acknowledged receipt of $25 in full for his services from the plaintiff. The petition then alleges that the defendant, at the time of writing such letter, knew that the rent had been paid into the First State Bank of Stafford, and if he did not have such notice he could have ascertained the fact from the tenant or from the parties purchasing the wheat. Another letter on September 17, from the defendant to the county attorney of Pratt county, made complaint in detail against Titus, charging that he had sold the wheat and promised to send defendant the tickets but failed to do so. In this letter he asked the county attorney of Pratt county to prepare a complaint against Titus, and that he, the defendant, would have it signed. On September 22 a letter was written purporting to inclose a complaint against Titus, in which defendant asked plaintiff to sign and swear to the complaint before a notary public. On November 10, defendant wrote plaintiff inclosing his check for $243.25, “in settlement of a criminal action.” The petition then alleges that on November 1, 1923, the defendant, with knowledge of such deposit so made by the tenant in the bank, drew a check and withdrew from the bank the $443.25 deposited by Titus for the plaintiff.
A petition should contain a statement of the facts constituting the cause of action in ordinary and concise language and without repetition. (R. S. 60-704.) The amended petition in the instant case did not conform to the requirements of the statute and the court committed no error in sustaining the motion to strike the letters therefrom. If the order to strike had had the effect of a demurrer, it would have been appealable (Grain Co. v. Coöperative Association, 109 Kan. 293, 198 Pac. 964) but it had no such effect. Therefore the order sustaining the motion to strike was not appealable (R. S. 60-3302, 60-3303; Ludes v. Hood, 29 Kan. 49; Whitlaw v. Insurance Co., 86 Kan. 826, 122 Pac. 1039; Fox v. Ryan, 121 Kan. 172), and we are, therefore, compelled to dismiss the appeal. We cannot do so, however, without observing that if the allegations of the amended petition together with the letters are correct statements of fact, the defendant is involved in a serious breach of duty toward his client.
“Unprofessional conduct on the part of an attorney involves a breach of duty which professional ethics enjoin. It has been held that it may consist in betraying the confidence, taking advantage of, or acting in bad faith towards his client; in attempting, by any means, to practice fraud, impose upon or deceive the court, the adverse party, or his counsel; . . . and, in fact, any conduct which tends to bring reproach upon the legal profession, or to alienate the favorable opinion which the public should entertain concerning it.” (Ex parte Ditchburn, 32 Ore. 538, 543, 52 Pac. 694.)
“It is not enough for an attorney that he be honest. He must be that and more. He must be believed to be honest. It is absolutely essential to the usefulness of an attorney that he be entitled to the confidence of the community wherein he practices. If he so conducts in his profession that he does not deserve that confidence, he is no longer an aid to the court, nor a safe guide to his clients.” (Fairfield County Bar v. Taylor, 60 Conn. 11, 17, 22 Atl. 441.)
“An attorney occupies a fiduciary relation to ’his client, and confidence is reposed in him, not on account of his financial responsibility, but because he bears the certificate of this court that he is of good moral character and worthy to be intrusted with the interests, business and property of those who require his services. If he receives money belonging to a client and there is no obstacle to its immediate payment the only course consistent with his office is to pay it over immediately, and if there is any obstacle to immediate payment to regard it as a trust fund, and not appropriate it to his own use.” (The People v. Kwasigroch, 296 Ill. 542, 548, 130 N. E. 344. See also, Foss v. Bachop, 5 Kan. 59; Haverty v. Haverty, 35 Kan. 438, 11 Pac. 364; In re Wilson, 79 Kan. 450, 100 Pac. 75; Id. 79 Kan. 674, 100 Pac. 635; In re Cherry, 208 N. W. 197 [Minn.], 45 A. L. R. 1108; note in 43 A. L. R. 54.)
The appeal is dismissed. | [
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The opinion of the court was delivered by
Harvey, J.:
Mrs. Dalke was injured by falling over a broken guy wire from a telephone pole, in the parking of a street in the city of Inman. She sued the city and the telephone company for damages. The case was tried to a jury, which answered special questions and returned a general verdict for plaintiff. Both defendants have appealed.
Delaware street extends east and west through the city, ending at the east edge of the city square up against a wheat field. About half a block from the east end it is intersected by Pine avenue. On the south side of Delaware and east of Pine there is a church. On the south side of Delaware there is a sidewalk, beginning in front of the church and extending west, across Pine avenue, to the business portion of the city, about two blocks away. Delaware street was laid out to be sixty feet wide between the sidewalks. It had been graded, for vehicular traffic, through the center, a strip thirty- six feet wide, leaving a parking twelve feet wide of native buffalo grass on each side. Mrs. Dalke lived in the house on the corner, being the only residence north of Delaware and east of Pine. There was no sidewalk on the north side of Delaware street south of the property where she lived, and the place for such a sidewalk was rough, not suitable for pedestrian travel, but between that and the graded portion of the street was a strip of smooth sod. The walk from the Dalke house to the street was a path on this native sod portion of the park. The telephone company had, by permission of the city, set a telephone pole in this parking, with a guy wire from near the top of the pole to an iron rod in the ground, with an eye bolt at the top, which was about twelve inches from the ground, some distance from the pole. This guy wire was broken about four feet from the eye bolt and the piece, loose at one end, fastened to the eye bolt at the other, lay in the parking. It was near the foot path to plaintiff’s residence, but ordinarily lay away from it. The guy wire had been in this broken condition for months, a fact which was known to plaintiff and to both of the defendants. The injury occurred in the evening, after dark. It had rained recently. Plaintiff had been to call on a neighbor, who lived on the south side of Delaware street and nearly a block west of Pine. Going home plaintiff went east on the sidewalk -on the south side of Delaware street until she came to the intersection of Pine avenue. There was an electric street light at this intersection. She then went diagonally northeast across this intersection to the path on the parking north of Delaware strefet leading to her home. In some way the loose end of the broken guy wire was thrown across this path. She did not see it in the dark. She stepped on the loose end of this wire with one foot, and as she went forward caught her other foot in the loop of the wire and was thrown to the ground, her arm or shoulder striking the eyebolt, breaking her arm and causing her serious injury. No complaint is here made of the amount of the verdict, so we shall give that question no attention. In this statement we have attempted to give a general outline of the facts, rather than a detailed statement of them.
The defendant city makes two principal contentions, (1) that the place where the injury occurred was so sparsely settled and so little used by the public that it was under no obligation to keep it safe for pedestrians, and (2) that plaintiff was guilty of contributory negligence as a matter of law.
As to the first question: Defendant argues that the city is not, under all circumstances, required to keep every street and the whole width of every street safe for travel, citing City of Wellington v. Gregson, 31 Kan. 99, 1 Pac. 253, and Jones v. City of Kingman, 101 Kan. 625, 168 Pac. 1099. What was there said pertains to the improvement of streets for vehicular travel, and only indirectly pertains to the situation here. It is argued that the city having graded and made safe a strip thirty-six feet wide through the center of the street — -which portion of the street plaintiff was not using — it was not obliged to make the entire width of the street safe for travel. But pedestrians are not ordinarily expected to walk out in the center of the street, that portion of it graded, designed and ordinarily used for travel by vehicles. Ordinarily sidewalks, or paths, are provided along the side of the street for the use of pedestrians. Whether the use of them is such as to impose a duty upon the city -to keep them in reasonably safe condition is ordinarily a question of fact to be determined by the jury under proper instructions, in view of all the facts and circumstances disclosed by the evidence. See cases above cited; also City of Atchison v. Mayhood, 69 Kan. 672, 77 Pac. 549; Williams v. City of Parsons, 87 Kan. 649, 125 Pac. 60; 13 R. C. L. 312, 313; 28 Cyc. 1362. Complaint is made of instructions concerning this question. Without setting out the instructions requested and refused and those given, and analyzing them in detail, we simply say that we have examined them carefully and find no error in this respect. The instructions given fairly stated the law of the case.
Defendant argues that plaintiff was guilty of contributory negligence which bars her recovery. She knew the broken guy wire was there in the parking, near the path; she passed it frequently, and on one occasion some months before her injury her father had walked into the wire or iron stake and been thrown down. We regard this as a jury question. This broken guy wire usually lay away from the path, not across it; the evidence does not disclose any previous time when it lay across the path. Whether plaintiff should have anticipated that the wire might be across her path, and taken more caution than she did, were proper questions to submit to the jury. (Garnett v. Smith, 72 Kan. 664, 83 Pac. 615; City of Ottawa v. Green, 72 Kan. 214, 83 Pac. 616; Clark v. City of Hutchinson, 114 Kan. 172, 217 Pac. 305.) The court fairly instructed the jury on this question and its verdict is conclusive.
The defendant telephone company argues the same questions, and this in addition: that the anchor bolt and guy wire were not the proximate cause of the injury. It is argued, there having been a recent rain, the ground was slippery, that there was a ditch a few inches deep at the edge of the grading, which was a little more than four feet from the anchor bolt, and that because of these obstacles plaintiff stumbled and fell before she reached the guy wire. This again is a question of fact. There is positive evidence that plaintiff’s fall was caused by her tripping on the guy wire which was across the path. This supports the jury’s verdict.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff prosecutes this action under the declaratory judgment law to secure an interpretation of section 4 of chapter 214 of the Laws of 1925. That section reads:
“That section 68-602 of the Revised Statutes of Kansas for 1923 is amended to read as follows: Sec. 68-602. That the motor-vehicle registration fees now provided by law or which may be hereafter provided by law shall be applied to the construction, reconstruction and maintenance of highways in the state in the following manner: Twenty-five per cent (25%) of the motor-vehicle registration fees remaining after the 50c fee for registration has been sent to the secretary of state, as provided by law, shall remain in the county where it originates, and shall be placed in township road fund, and shall be divided between the township road fund in. the proportion that it bears to its place of origin in the township: Provided, That any unexpended balance remaining in the fund June 30th of each year shall be turned into the county and state road fund. Seventy-five per cent (75%) of said motor-vehicle registration fees shall be transmitted monthly by the county treasurer’s to the state treasurer and shall be placed in the state highway fund. The money derived from the motor-vehicle fuel tax as provided by law for the construction, reconstruction and maintenance of highways shall be placed in the state highway fund. For the purpose of meeting the present requirements of our constitution the sum of three hundred thousand dollars ($300,000) of said fund shall be placed quarterly in the state treasury to the credit of the state aid road fund and shall be expended in the various counties of- the state in the same proportion as the state highway road fund as hereafter provided upon the state highway system under the direction of the state highway commission, acting in conjunction with the boards of county commissioners: Provided, That the sum of money so applied for any specific project shall not exceed twenty-five per cent (25%) of the total cost of the same, nor be in excess of ten thousand dollars ($10,000) per mile. The remainder of the state highway fund, less any appropriation by the legislature not to exceed the sum of $75,000 for each year made for the maintenance of the state highway commission, shall be distributed to the counties as follows, namely: forty per cent (40%) of said fund shall be distributed equally amongst the one hundred five (105) counties of the state; sixty per cent (60%) shall be distributed amongst the several counties in proportion to their assessed valuation, based upon the preceding year’s assessment. This distribution shall be made semiannually, on March 1 and September 1 of every year. The fund thus created in the various counties shall be known as the county and state road fund and shall be used for the construction, reconstruction, and maintenance of state roads in the counties: Provided, That not more than twenty per cent (20%) of said fund may be expended on county or township roads or bridges at the option of the county commissioners. All money in the state and county aid road fund at the time this law is adopted shall remain in the county in which said money was collected and shall be credited to said county and state road fund.”
1. By permission of the court, Benjamin F. Hegler, of Wichita, has filed a brief as amicus curia, in which he contends that section 4 of chapter 214 of the Laws of 1925 is unconstitutional because it directs that more than twenty-five per cent of the cost of any road may be paid out of money used by the state in building roads- and because the law permits more than $10,000 per mile to be expended by the state in building roads.
The constitutional provision in question, section 8 of article 11 of the constitution of this state, reads:
“The state shall never be a party in carrying on any works of internal improvement except to aid in the construction of roads and highways and the reimbursement for the cost of permanent improvements of roads and highways, constructed after March 1, 1919; but such aid and reimbursement shall not be granted in any county for more than 25 per cent of the cost of such road or highway, nor for more than ten thousand dollars per mile, nor for more than one hundred miles in any one county; except, that in counties having an assessed valuation of more than one hundred million dollars such aid and reimbursement may be granted for not more than one hundred fifty miles of road or highway; and the restrictions and limitations of sections 5 and 6 of article XI of the constitution, relating to debts and internal improvements, shall not be construed to limit the authority retained or conferred by this amendment.”
The statute is invalid if it directs that more than twenty-five per cent of the cost of a road be paid by the state or if it directs that more than $10,000 per mile be paid by the state. The statute must be held valid unless it is clearly in contravention of some provision of the constitution. (City of Atchison et al. v. Bartholow, 4 Kan. 124; Leavenworth Co. v. Miller, 7 Kan. 479; Beach v. Leahy, 11 Kan. 23, 28; Rural School District v. Davis, 96 Kan. 647, 648, 152 Pac. 666.)
The statute creates a number of different funds: a “township road fund,” a “county and state road fund,” a “state highway fund,” and a “state aid road fund."
Before section 8 of article 11 of the constitution was adopted, the state had power to direct townships and counties to levy taxes to be used in the construction of roads and highways. The state could then have levied the motor vehicle registration tax and the motor vehicle fuel tax and could have distributed the money to the counties and townships of the state to be used in the construction of roads. Under such circumstances the state would have been acting for the counties and townships in the collection of the tax.
The first fund created by the statute is the township road fund, which is made up of twenty-five per cent of the motor vehicle registration fees remaining after the fifty-cent registration fee has been sent to the secretary of state.
The next fund mentioned is the county and state road fund, which is created by taking what is distributed to the counties from the state highway fund and by taking the unexpended balance remaining in the township road fund on June 30 of each year and turning them into the county and state road fund.
The next fund mentioned in the statute is the state highway fund, which is composed of seventy-five per cent of the motor vehicle registration fees and all of the motor vehicle fuel tax.
The next fund mentioned is the state aid road fund, which is created by taking $300,000 quarterly out of the state highway fund. The statute provides that the state aid road fund shall be expended in the various counties in the state in the same proportion as the state highway road fund.
The state highway fund, after the appropriation of the maintenance for the state highway commission and after the $300,000 quarterly is deducted from it, is distributed to the counties forty per cent amongst the 105 counties equally and sixty per cent among the counties in proportion to their assessed valuation and becomes a part of the county and state road fund, which is used for the construction, reconstruction, and maintenance of state roads in the counties with the provision that not more than twenty per cent of that fund may be expended on county or township roads or bridges at the option of the county commissioners.
The result is that out of the motor vehicle registration fees and out of the motor vehicle fuel tax, the state retains only the $300,000 payably quarterly. The remainder of the motor vehicle registration fees and of the motor vehicle fuel tax is distributed to the various counties of the state to be used by them as money belonging to them in the construction, reconstruction, and maintenance of township roads, county roads, and state roads. Under the law, the state commands the counties to construct roads and highways and provides the funds with which to obey the command of the law. The taxes, as all taxes, are levied under a law passed by the legislature, are collected by authorized officers, and when collected are distributed between state, county, and township in the manner that the legislature has thought advisable.
The statute neither directs nor permits the state to pay more than twenty-five per cent of the cost of any road nor to pay more than $10,000 a mile therefor, and does not violate section 8 of article 11 of the state constitution.
2. It is contended that the law is unconstitutional because it permits money raised in one county to be expended in another county. This contention is based on the manner in which the money is distributed to the several counties of the state. Does the statute violate the constitution by distributing the state highway fund to the various counties in the state in a proportion of forty per cent and sixty per cent? The money that comes to the state from each of the counties could be ascertained, and the statute might direct that the money collected should be distributed to the counties from which it came; but that would not necessarily be a just distribution because money sent from one county would arise from motor-vehicle registration fees on cars used all over the state and from motor-vehicle fuel tax collected where the fuel was sold but the fuel would be used in other parts of the state. It would be difficult to prescribe a system of distribution that would be absolutely fair. As a practical matter, the method of distribution adopted is probably as nearly correct as any that could be devised. The statute does not violate the constitution.
3. There remains for discussion the question presented by the parties to this action.
The plaintiff contends—
“That section 4, chapter 214, Laws of Kansas, 1925, provides for and establishes a fund known as the state highway fund, and provides that $300,000 of said fund shall be placed quarterly in the state treasury to the credit of the state aid road fund and shall be expended in the various counties of the state upon the state highway system under the direction of the State Highway Commission acting in conjunction with the boards of county commissioners as follows, namely: forty per cent of said state aid road fund shall be expended equally among the hundred and five counties of the state, and sixty per cent of said state-aid road fund shall be expended among the several counties of the state in proportion to their assessed valuation, based upon the preceding year’s assessment, provided that the sum of money so expended for any specific project shall not exceed twenty-five per cent of the total cost of the same, nor be in excess of $10,000 per mile.”
The defendants contend—
. “That section 4, chapter 214, Laws of Kansas, 1923 [1925], authorizes said defendants, in conjunction with the boards of county commissioners of the various counties of the state, to expend said state-aid road fund in the various counties of the state in such proportion and amount as to said defendants may seem proper, depending upon the amount of road construction being carried on upon the state highway system in such counties, provided only that the sum so applied for any specific project shall not execeed twenty-five per cent of the total cost, nor be in excess of $10,000 per mile, and that said statute does not require said State Highway Commission, in conjunction with the boards of county commissioners to expend said state aid road fund in the various counties of the state upon the state highway system in the proportion claimed by- plaintiff.”
Another analysis of the statute becomes necessary. It provides that “the sum of $300,000 of said fund [the state highway fund! shall be placed quarterly in the state treasury to the credit of the state aid road fund and shall be expended in the various counties of the state in the same proportion as the state highway road fund as hereafter provided upon the state highway system under the direction of the state highway commission acting in conjunction with the boards of county commissioners.” No state highway road fund is created anywhere in the statute; there is no such fund; no such fund is mentioned except in the language quoted. The statute is particular to create the township road fund, the county and state road fund, the state highway fund, and the state aid road fund, and to prescribe the manner in which the first three of these funds shall be expended or distributed. The statute attempts to prescribe how the fourth, the state aid road fund, shall be expended by stating “in the same proportion as the state highway road fund as hereinafter provided,” but there is no state highway road fund and no provision for the expenditure of a state highway road fund. If a state highway road fund had been created and a manner of expending that fund had been prescribed, there would be something on which the quoted language of the statute could operate. But, since no “state highway road fund” was created by the statute, the phrase pertaining thereto is ineffectual; it cannot be applied to anything. This construction is justified, even required, by section 8, chapter 214, Laws of 1925. When so read, the portion of the statute pertaining to the state aid road fund reads as follows:
“. . . For the purpose of meeting the present requirements of our constitution the sum of three hundred thousand dollars ($300,000) of said fund shall be placed quarterly in the state treasury to the credit of the state aid road fund and shall be expended in the various counties of the state upon the state highway system under the direction of the state highway commission, acting in conjunction with the boards of county commissioners: Provided, That the sum of money so applied for any specific project shall not exceed twenty-five per cent (25%) of the total cost of the same, nor be in excess of ten thousand dollars ($10,000) per mile.”
Under this construction of the statute, which we deem the proper one, the state highway commission is not required to apportion the state aid road fund amongst all the counties- in the state, upon the so-called 40-60 basis, as the “county and state road fund” is apportioned. The state aid road fund is to be expended under the direction of the state highway commission acting in conjunction with boards of county commissioners in the various counties of the state upon the state highway system, where appropriate highway improvement projects are being carried on, the only limits to the expend iture in any one county being those provided by the statute, as above quoted, and the constitution (art. 11, § 8) of not to exceed twenty-five per cent of the cost, nor ten thousand dollars per mile, nor a certain number of miles in each county.
Johnston, C. J., dissents from the first and second parts of the syllabus and the corresponding parts of the opinion. | [
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The opinion of the court was delivered by
Dawson, J.:
This action arose out of a railway-crossing accident in which defendant’s passenger train collided with a Ford touring car which was stalled on the railway track, and in which collision plaintiff, its driver, received various severe injuries, one of which culminated in the amputation of his right leg.
The accident occurred about half a mile south of the town of Toronto, in Woodson county. South of Toronto station the railway track veers round a curve towards the southeast and then runs due south for a mile or two. A clear view of the crossing can be had by enginemen on a southbound train from a point about a quarter of a mile north of it. The public road over the railway runs east and west. The train which collided with plaintiff’s car was a southbound passenger train running at thirty miles per hour. The collision happened about 10:30 o’clock in the forenoon. The day was misty, a recent heavy snow was melting, and the road and ground were very soft and muddy. Plaintiff had left Toronto to take some corn to his father’s farm near the crossing and east of it. To get there, plaintiff drove across the track from the west, left the corn at the farm, and started back to town. The approach to the crossing was slippery, and when the front wheels of plaintiff’s car had crossed the east rail, the car stalled; the rear wheels kept spinning in the mud; and on looking northward plaintiff saw the train about 400 feet away. He then made another effort to get the car across the track, but killed his engine, and the collision with its consequences happened.
Plaintiff’s petition charged defendant with negligent failure to build and maintain the statutory sort of crossing — twenty-four feet wide, and level for thirty feet on each side of the center of the track, with approaching grades not exceeding six per cent, except where such specifications are excused by the county commissioners. (R. S. 66-227.) Other negligence charged against defendant was its failure to sound a whistle or give any warning of the approaching train, and—
“Failui’e to stop said ti'ain when his helpless and pex’iloxxs situation was discovered by them [defendant’s enginemen].”
Defendant’s answer denied all the tortious acts alleged against it, and pleaded that plaintiff’s injuries were caused wholly by his own negligence and not by any negligent act or omission of defendant or its employees.
The cause was tried before a jury. When the evidence was concluded, the trial court instructed the jury that plaintiff’s contributory negligence was established by his own testimony, and that his right of recovery, if any, lay solely in the application of the doctrine of the last clear chance. The instruction touching plaintiff’s negligence reads:
“4. Now ixx view of the testimony of the plaintiff himself that he knew all there was to know about this crossing, that he had a full view of the track for more than a quarter of a mile in the direction from which the train was coming and that after reaching the track and encountering difficulty in crossing because of things he knew beforehand existed he had ample time to see the approaching train and alight from the automobile or a chance to back same off the track and by either method avoid injury to himself if he had only looked, after getting upon the track, to see if a tx-ain was coming, and that he did not look until too late, you are instructed that plaintiff was, as a matter of law, guilty of negligence on his part in not looking and seeing said train and that because thereof the complaint of plaintiff as to the character of the crossing and alleged failure of defendant to sound the whistle or give warning of the oncoming train cannot avail plaintiff as causes of action against defendant, and therefore the court will not instruct you further as to the law concerning the construction or maintenance of crossings, nor concerning the duty of defendant to sound the whistle or give other warnings of the approach of the train.”
The jury returned a general verdict for plaintiff and answered two lists of special questions submitted by the parties.
Questions Submitted by the Defendant.
“Q. 1. State- the distance the train in question could have been seen approaching the crossing by a person looking for it from the roadway fifty feet east of the track. A. 14 mile. . . .
“Q.3. Was the plaintiff thoroughly familiar with the crossing? A. Yes.
“Q. 6. How many feet was the engine from the crossing when the fireman first discovered the plaintiff on the right of way? A. 1,600 feet.
“Q. 7. How many feet was the engine from the crossing when the fireman first discovered that the plaintiff would come to a place of danger? A. 1,600 feet.
“Q. 8. How many feet were required in which to stop this train on the track at the point in question going at a speed of 30 miles an hour? A. 600 feet.
“Q. 9. If you find for the plaintiff, then state in what respect the defendant was negligent at the time and place in question. A. They should of slowed down and had the train under control.
“Q. 10. After the fireman first discovered that the plaintiff was in or would come to a place of danger, what could he have done to avoid a collision? A. By notifying the engineer to slow down. . . .
“Q. 13. Did the automobile go upon the track, or did it strike the side of the pilot on the engine? A. Front wheels over east rail.
Special Questions Requested by Plaintiff.
“Q. 1. Did the plaintiff, M. F. Jamison, become stalled on the railroad track? A. Yes.
“Q.2. Was the train in sight when the plaintiff, M. F. Jamison, drove on the track? A. No. ,
“Q.3. Did the engineer and fireman see the stalled automobile, or could have seen it in the exercise of ordinary care, in time to have stopped the train and avoided injury to plaintiff? A. Yes.”
Defendant’s motions for a new trial, to set aside certain findings, and for judgment non obstante were overruled, and judgment was entered for plaintiff.
The critical question in this appeal turns upon the propriety of submitting the cause to the jury on the doctrine of the last clear chance. This doctrine can be invoked in negligence cases only where the party ..relying upon it has by his own prior negligence gotten himself into a predicament from which his subsequent diligence will not avail to extricate him without injury or damage through the act or delict of another party, but where such other party has a fair opportunity — a last clear chance — to avert or minimize the accident, injury or damage, by the exercise of reasonable diligence after the negligence of the first party has ceased. (Dyerson v. Railroad Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A., n. s., 132 and note; Juznik v. Railway Co., 109 Kan. 359, 364, 365, 199 Pac. 90; Williams v. St. Louis-San Francisco Rly. Co., ante, p. 256, and citations.)
Just when did the plaintiff’s negligence cease to be effective, so as to create a sufficient margin of time thereafter and prior to the accident in which the defendant had a fair opportunity, a last clear chance, to avert or minimize the collision and its consequences? The trial court instructed the jury that plaintiff was negligent. That instruction was the law of this case as far as it went, for neither party objected to it. Other instructions proceeded on the theory that after plaintiff’s negligence ceased there still was or might have been an interval of time in which the last-clear-chance rule might be applied. But defendant contends that there was no appreciable interval of time prior to the collision when plaintiff’s negligence was not a contributing cause of the collision and its consequences, and it cites and quotes from plaintiff’s own testimony to show that plaintiff’s negligence did not terminate at any time before the collision. As abstracted, that testimony reads:
“About ten o’clock on this morning he [plaintiff] and Ralph Weigand started out to this farm in a Ford touring car to take some corn. There was about two or three hundred pounds of this in the back end of the car. They drove along the road, . . . crossing the railroad track at the crossing in question, going east over the railroad track. . . . ‘Well, I took this corn down for the hogs about 10 o’clock and I got to this crossing it was awful muddy and I wasn’t making very much headway and I couldn’t hardly get up the grade, but the corn in the back end kinda held it down enough that I finally got over, after coming to a standstill a time or two I finally got over the track.’ . . . They stayed at the farm probably thirty to thirty-five minutes and then started back. This was about 10:30. When he got into the right of way and probably fifty feet from the track, he looked up and down the .track and there was no train coming, so he went on up. It was awful slippery there, and on the north side of the grade it is higher than on the south side and they kept slipping off to the south, and were not making much time, and finally he looked around just before he went over on to the track and there was no train in sight, and they kept going on up until the hind wheels got to the steepest place and the front wheels were on the track, and with what mild there was and the wheels spinning, made a pretty good-sized hump to get over, and he stalled his car. He looked around at the wheels and was probably in that position about half a minute, and then looked up the track and the train was coming from the north. This train was up there somewhere near 400 feet. He tried as hard as he could to get over the track and killed his engine, and didn’t have time then to even get out of the car to keep from getting struck. The train was right on him and struck, the car. . . .
“Cross-examination. . . . He couldn’t tell how far up the track the train was when he saw it, but it looked like about 400 feet, and just an instant after he saw it, or just a few seconds, the collision happened. He had lived in the vicinity of this crossing'all of his life and his father owns a farm just east of there. . . . He thoroughly understood the operation of the Ford car and of this particular engine which he was driving, and knew that one car thoroughly, and had driven it over this same crossing in the mud before this particular time. . . . He knew before he left Toronto just what the condition of the crossing would be. It was the same that it had been when he lived on the farm and when he started away from the farm to drive back to Toronto in the car, he knew exactly the kind of crossing he was to go over, and all about it. . . .
“He knew that he could see about eighty rods up the track, and knows where the whistling post was up there. ...
“Q. And you never got any view of it until it was right on you? A. No, sir; it took a great deal of time to get up that grade from the time I looked.
“Q. And you went right on up without looking? A. Yes, sir.
“Q. And the first you saw was when the train was right on you? A. Yes, sir, pretty close.
“Q. Did you try to get out of the car? A. No, sir; I tried to get it over the track. . . .
“Q. Didn’t try to do anything? A. Yes, I tried to get it over the track.
“Q. Was your engine killed? A. I killed it after I saw the train. . . .”
“Recross-examination: Witness was asked why he said 400 feet and answered that what he meant to say was that it was about that; it might have been more and it might have been less. He thinks probably eight or ten or twelve seconds elapsed from the time he saw the train and the collision. . . .
“Q. If you had looked when the train was at the whistling post you could have seen it clearly, isn’t that correct? A. I could. ... I say I didn’t know when it was at the whistling post.
“Q. I understand, but if you had looked at that moment, you could have seen the train? A. Yes, sir.
“Q. Yes, sir, and from there clear down to the crossing, if you had looked? A. Yes, sir. . . .
“Q. ... If you had seen the train at the whistling post, you could have climbed out of the car before it got to the crossing, couldn’t you? A. Yes, sir; I suppose I could. ... ‘
“Q. And you could, have backed your ear down the hill to the east, too, couldn’t you? A. I could if I had thought of it.
“Q. Yes, if you had looked and seen the train there at the whistling post, there was nothing to prevent your having backed your car towards the east, was there? A. No, sir. . . .
“Q. And all you were trying to do was to go ahead? A. Yes, sir.
“Q. But it was a down-hill pull backwards, wasn’t it? A. Yes, sir.
“Q. There would have been no trouble in moving your car towards the east? A. Not so much; no. ...
“Q. And you could have gotten clear out of danger if you had seen the train at the whistling post? A. Yes, sir.”
In view of the foregoing testimony given by the plaintiff himself, this court is bound to hold that the plaintiff’s negligence never did cease to operate prior to the collision in time to shift the exclusive blame for this collision upon the railway company. There was nothing to prevent plaintiff from backing his car off the track before the collision; he so testified; and he knew the car would not go forward under the muddy condition of the crossing. The special finding of the jury in answer to defendant’s question No. 9, acquitted the defendant of the charge of negligence touching the maintenance of the crossing. (Morlan v. Atchison, T. & S. F. Rly. Co., 118 Kan. 713, 715, 236 Pac. 821, and citations.) Even after plaintiff did discover the train 400 feet away, coming at 30 miles per hour, he still had nine seconds to step from his car and get out of danger. He could and would have come scathless out of his predicament if he had acted upon the most elementary- principles of common prudence. At all events, plaintiff completely failed to make out a prima facie case showing that his own negligence had ceased for a sufficient length of time to have permitted the defendant by diligent action to have averted or minimized the accident and injury to plaintiff.
This conclusion renders it unnecessary to consider other errors assigned and argued by defendant.
The judgment of the district court is reversed and the cause remanded, with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff’s husband was killed at a railway-crossing one block west of the passenger-station in the city of Emporia, where defendant company has three tracks extending east and west on.Third avenue. The north track is for west-bound trains, the middle one for east-bound trains, and the south one for trains in either direction from the railway yards, which lie immediately west of the street-crossing. The. middle track extends straight west for more than half a mile. In the evening Mr. Hoopes was returning from his work to his home, which was south of the tracks. He came to the crossing on the east side of the street, and started diagonally to the southwest corner, in order to get upon the west side of the street and across the tracks. After passing over the north and middle tracks his further passage was obstructed by a freight-train going west on the south track, directly in front of him. While waiting for the train to pass he stepped between the middle and south tracks, but stood very near to the south rail of the middle track, and was struck by the steam-chest of the engine of the fast mail going east on the middle track, hurled against the moving freight-train, and by it thrown back under the wheels of the fast mail and killed. The trial court sustained a demurrer to plaintiff’s evidence, and plaintiff brings error upon the ground that the case should have gone to the jury.
The mail train was running at the rate of thirty miles an hour, without ringing the bell or sounding the whistle, and its negligence, as the case stood at the close of plaintiff’s testimony, is conceded. The only question, however, is whether the contributory negligence of plaintiff’s husband was such as to bar her right to recover. (U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529; Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101, and cases cited.) It appears that the clear space between the tracks was about nine feet, and between the passing trains six feet. Mr. Hicks, who was a witness, attempted to cross the tracks from the same direction and side of the street and at -the same time as the plaintiff’s husband, except that he stopped on the east side of the street, between the same tracks, waiting for the freight-train to pass, and when the fast mail came in from the west was standing about twenty feet east of Hoopes, but not so close to the middle track. He likewise failed to observe the approach of the train from the west until about the instant it struck deceased, and barely saved himself by stepping away from the middle track and nearer the passing freight. He testified that the sun was low in the west at the time, and that a person looking in that direction would be blinded by the sun and prevented from seeing the approaching train. Other witnesses testified that Mr. Hoopes walked a short distance west in the space between the tracks before the fast mail came in, but had turned and was looking at the passing freight when he was struck.
This case cannot be distinguished from that of Railway Co. v. Withers, 69 Kan. 620, 77 Pac. 542, 78 Pac. 451. In that case Withers, in company with another person, started along a sidewalk at a railway-crossing going to his home. As they came near one track they observed a train switching along another track, which obstructed their progress and caused them to halt on or near the first track. The court said:
“Much evidence was introduced to show that the deceased men were standing upon track 4; it seems highly probable that they were, though the jury found that they were not; but whether they were exactly upon the track or not seems of small moment, for the fact is that if they were not between the rails they were in a place of equal danger. It was not necessary for them to stand in a place of danger, as they could have stopped west of track 4, or could have safely stood between tracks 3 and 4. . . . We are of the opinion that the facts shown clearly prove the culpable negligence of the deceased, and that the company was thereby relieved from liability for their death. They knew the conditions which surrounded them. They were in the full possession of their faculties. They knew they were within the limits of the yards, with its many tracks. They saw one train occupying the track in front of them. They knew that the other tracks were in frequent use for a like purpose, and that at any moment any one of the other tracks might be occupied by moving cars. They knew that to stand upon a track, or near enough to one to be hit by a moving car, was a dangerous position. Knowing all these things, and being plainly warned that they were in and upon this network of tracks, it was their plainest duty to see to it that they did not halt in a place of danger. There was ample room for them to stop in a place of safety; others did so.” (Pages 623, 624.)
Counsel for plaintiff in error contend that certain facts take this case out of the rule governing the Withers case. It is urged that the rays of the setting sun shining directly in his face, if he looked to the west, prevented deceased from discovering the approach of the train; that it is a fair inference from the evidence that he became momentarily confused by the noise of the passing freight; and that whether he was, under these circumstances, guilty of contributory negligence was for the jury to determine. But it must be presumed that no one knew better than the deceased the fact that, by reason of the position of the sun in the west, he would be prevented from seeing a train that might be coming from that direction; and it therefore became more than ever incumbent upon him to seek a place of safety — which was so plainly open to him— by either standing midway between the tracks upon which the trains actually passed or by stepping back to the space between the middle track and the north track. He was familiar with the tracks and the conditions surrounding him, and in full possession of his senses at the time he took his position in a dangerous place, where it was not necessary for him to stand. (Railroad Co. v. Willey, 60 Kan. 819, 58 Pac. 472. See, also, Zirkle v. Railway Co. 67 Kan. 77, 72 Pac. 539; Libbey v. Railway Co., 69 Kan. 869, 77 Pac. 541.)
The evidence hardly warrants the claim that Hoopes became momentarily confused and bewildered. It appears that when he was struck he was standing looking south toward the freight-train, and, so far as the evidence discloses, knew nothing of the approach of the train that killed him. In a case where the person injured is placed in peril through the negligence of another, and there is evidence from which it might be inferred that he became confused and bewildered by the sudden and impending danger, it is ordinarily for the jury to say whether, under the circumstances, he acted with reasonable care. But “when two ways are open to a person, one of which is obviously safe and the other plainly dangerous, and he voluntarily chooses the latter, he will ordinarily do so at his peril.” (Railroad Co. v. Brock, 69 Kan. 448, 450, 77 Pac. 86.)
The view taken by the trial court is sustained by so many rulings of this court that it seems unnecessary to refer to more of them. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The facts in this case are substantially the same as those in Albright v. Bangs, ante, p. 435, and the judgment is affirmed for the reasons there given. | [
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The opinion of the court was delivered by
Porter, J.:
This is a proceeding in mandamus to compel the treasurer of Graham county to accept the principal, interest and delinquent taxes upon certain school-land contracts, and to issue duplicate receipts therefor. Plaintiffs move for judgment on the pleadings.
In September, 1884, the land in question (160 acres) was school-land, subject to sale, and was sold according to law to one Lyman for three dollars per acre, to be paid for one-tenth cash and the remainder on or before twenty years, with six per cent, annual inter est. Lyman assigned the certificates of purchase, one for each forty acres, to plaintiffs. The certificates and assignments were duly recorded, plaintiffs entered into possession, and made the annual interest payments until October, 1895, when they made default in the interest, which default continues to this time, unless it has been avoided by the offer of payment hereinafter mentioned.
On January 12, 1898, an attempt was made to forfeit the contracts for non-payment of interest by proceedings under section 2 of chapter 161, Laws of 1879 (Gen. Stat. 1901, §6356). The county clerk issued four notices, one for each forty acres, and the sheriff made a separate return upon each notice, as follows:
“Received this notice this 13th day of January, 1898, and served the same by going to the within-described land, and found no one in possession. The within-named J. A. Kinnaman, J. F. True and G. H. Pierson cannot be found in this county.
D. C. Greenwood, Sheriff.”
Later — on January 19, 1898 — the second return was made, as follows:
“Received this writ this 13th day of January, 1898. Served the same by posting a true and certified copy on the within-described land, and mailed a true and certified copy to J. F. True at Newman, Kan., and mailed a true and certified copy to G. H. Pierson at Kansas City, Mo., and posted a true and certified copy in a conspicuous place in the county clerk’s office, this 19th day of January, 1898.
D. C. Greenwood, Sheriff.”
On the 21st day of September, 1905, plaintiffs tendered to defendant, as treasurer, the following sums:
Balance of principal................................$432 00
Interest on balance due, from date of default in 1895... 259 20
Delinquent taxes, as reported by the county treasurer.. 36 42
Interest on delinquent taxes to date of tender.......... 21 85
Costs claimed by county clerk, but disputed by plaintiffs, 2 13
Taxes for 1897 to, and including, 1904, without interest, 124 18
Total ...........................................$875 78
Plaintiffs at the same time demanded duplicate re ceipts therefor, as provided in section 6376 of the General Statutes of 1901, in order that they might obtain a patent for the land. Plaintiffs stand upon the right of a purchaser of school-land deliberately to default in his payment of interest and taxes and in a measure speculate upon the rise or fall in the market value of such lands, and, in the event of a substantial increase in value thereof, to come in at any time before a valid forfeiture and redeem by paying the principal, interest, and taxes. The petition contains this language:
“Plaintiffs say that on the 21st day of September, 1905, said land not having been sold to any other party, and they desiring, notwithstanding their default, to redeem the same and secure a patent therefor, tendered and offered to pay to the defendant, as treasurer of Graham county, Kansas, the above sum of $875.78.”
The answer admits everything pleaded by plaintiffs, unless it is the fact of their continued possession of the land, to which we shall hereafter refer, and sets up the attempted forfeiture proceedings in full, even to the extent of averring the irregularity of the county clerk in issuing separate notices for each forty acres instead of including in such notice “all tracts of land sold to the same purchaser,” as provided in section 6356 of the General Statutes of 1901. It further avers that, relying upon the forfeiture, the board of county commissioners, with the county superintendent of schools and county clerk of Graham county, leased this land on the 7th day of October, 1902, for a period of three years from January 1, 1903, to one W. W. Coder, who “has ever since paid said rental in advance and is not now in default therein, and is in the actual and peaceable possession of said land under and by virtue of said lease.” This is at least a qualified denial of plaintiffs’ averment that ever since they purchased the contracts they have been in the possession of the land and improvements thereon and have never been ejected therefrom.
In the answer defendant asks that leave be given to make the lessee a party, in order that his interests may be determined. To grant this would be unavailing. The lease by its terms will expire on January 1, 1906, less than thirty days after this decision will be announced, and the lessee’s interests would not warrant him in making any defense to this proceeding, even if he were a proper party here, which we do not decide.
In answer to plaintiffs’ brief defendant has filed one copy of a fifteen-line brief, in which it is said: “The interests of the state permanent school fund are vitally involved. If it is the law that lapse of time and presumptive acquiescence do not avail, the defendant has no standing in this case.” This concedes all the contentions of plaintiffs as to the invalidity of the forfeiture proceedings, and rests the defense entirely upon the delay and presumed acquiescence of plaintiffs; in fact, upon the authority of Furniture Co. v. Spencer, 59 Kan. 168, 52 Pac. 425, the service of the notice of forfeiture is void. The first return is insufficient for the reason that it states that the sheriff “found no one in possession,” which is not a statement to the effect that no one was in possession. (Knott v. Tade, 58 Kan. 94, 48 Pac. 561; Furniture Co. v. Spencer, supra.) And what purports to have been done under the second return, being based upon the previous return as to possession, is void.
Before mandamus will lie to compel defendant to perform, plaintiffs must show a clear legal right in themselves and a substantial compliance with all the requirements of the law upon their part. Their rights are the rights of purchasers under the school-land contracts. They gave a bond for the payment of the purchase-price, and it is insisted that, inasmuch as the state could maintain an action upon this bond at any time within five years after its maturity, in 1904, plaintiffs should be given at least some time after 1904 to bring mandamus, which remedy in this instance amounts to an attempt to compel specific performance.
The attempted forfeiture was void, and, unless we can say that by reason of their laches and acquiescence plaintiffs are estopped, they are entitled to the writ. The lessee, Coder, went into possession of the land two years and eight months before these proceedings were begun. His possession was, of course, notice to plaintiffs of an adverse claim, and put them upon inquiry; but it can be said that had they made inquiry they would have discovered only the void proceedings, which in law bound no one. To hold that even actual notice of the void proceedings and failure to assert their claim or to tender the defaulted payments estopped plaintiffs would be to say that their rights as purchasers were forfeited by delay and acquiescence alone. The void proceedings themselves can add nothing to the laches of plaintiffs. Either the delay of plaintiffs to assert their rights must be held to. work a forfeiture, or there was none; and forfeitures are discouraged instead of favored in law. (Hansen v. Wilson, 40 Kan. 211, 214, 19 Pac. 717.) Besides, the only way in which the state could be prejudiced is by the failure to realize the enhanced value of the land, which is a speculative consideration. It appears from the answer that the value of this land is now $1600, and it was appraised in 1884 at $480. The state, however, in addition to the one-tenth payment, received from plaintiffs the annual interest for ten years (from 1884 to 1895), amounting to $259.20, and is now offered the balance of the purchase-price, with ten years’ interest, which, if accepted, would make the amount which the state receives, including taxes and interest, $1180.
To hold in a case like this, where it appears that the land has increased greatly in value, that delay alone works a forfeiture, and in a case where it should appear that the increase in value was slight or only normal no forfeiture should result, would not be sound in principle. The policy of the state has been to encourage the settlement and sale of school-lands. In 1883 the legislature provided (Laws 1883, ch. 140) that a purchaser who was not in default might surrender his certificate and take out a new one running twenty years longer. This applied only to purchases made prior to the act. In 1903 the legislature extended this privilege to all purchasers who had made partial payments and were not in default, and also to. those who, “being in default of such purchase-money and interest past due, and taxes past due upon the land, will pay up in full all such delinquent interest and taxes.” (Laws 1903, ch. 477, § 1.) The act further provides that if interest has been paid for more than fifteen years the new certificates shall bear interest at four instead of six per cent. If the state is willing to grant a purchaser of school-land who has been in default a twenty-year extension upon his paying up the interest and taxes past due, it manifestly ought not to object'to his paying the principal at the same time and taking his patent instead of a new contract. So the right asserted by plaintiffs is seen to be within the policy of the state in reference to the sale of school-lands, and, the forfeiture proceedings being void, we are of the opinion that upon the pleadings plaintiffs are entitled to judgment. The peremptory writ is allowed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action involves the title to a quarter-section of land in Rooks county. W. B. Ham claimed it under a regular chain of conveyances from the United States down to himself, and Henry Booth asserted title under a tax deed to James F. Houlihan, and a transfer from Houlihan to himself. There is no dispute as to the validity of any of the conveyances on either side, except the Houlihan tax deed, and the case turns upon whether that instrument is void upon its face. The district court held it to be prima facie valid, and this court is of the same opinion. The deed conforms so closely to the form prescribed by statute that a recital of the same at length is unnecessary, and hence special reference will be made only to the part claimed to be defective. It recites the assessment of the taxes upon the land, describing it in detail; the default in the payment of the taxes; the exposing of the land to public sale for taxes, in conformity to the statutes; that it could not be sold for the taxes charged against it, and, therefore, it was bid in by the county; and the assignment of the tax certificate and of the interest of the county in the property “to the Eastern Banking Company, a corporation organized and existing under the laws of the state of Connecticut.” Then follows a recital of an assignment to Houlihan, the payment of subsequent taxes, and the final grant and conveyance of the land to him.
It is argued that the deed is faulty in failing’ to give the residence of the assignee, the Eastern Banking Company. Assuming that a statement of the residence of the purchaser and assignee is a requisite part of a tax deed, as the plaintiff plausibly contends, the question remains whether it is not substantially given in this case. The statute prescribes the form of a tax deed and provides that it shall be substantially followed. A literal compliance, however, with that form is not required. A departure from the statutory phraseology will not invalidate the deed if the idea in the prescribed recital is fairly included and stated in other words. (Brown et al v. Cockrill, 6 Kan. 311; Mack v. Price, 35 Kan. 134, 10 Pac. 521.) The deed, instead of stating that the assignment was made to the Eastern Banking Company, of a certain county and state, recites that it was made to “the Eastern Banking Company, a corporation organized and existing under the laws of the state of Connecticut.” In effect this was a statement that the company resides in the state of Connecticut.
A corporation is an artificial being which exists only in contemplation of law, and its residence, so far as it can be said to have one, is in the state that creates it. It may exercise a permissive right to do business in other states, but may not migrate to another sovereignty. Its home, its residence, as has been often held, is in the state of its creation, and the recognition it receives elsewhere is accorded under the rules of interstate courtesy and comity. (Williams v. Railway Co., 68 Kan. 17, 74 Pac. 600, 64 L. R. A. 794, 104 Am. St. Rep. 377; Bank of Augusta v. Earle, 38 U. S. 519, 10 L. Ed. 274; Shaw v. Quincy Mining Company, 145 U. S. 444, 12 Sup. Ct. 935, 36 L. Ed. 768; 1 Clark & Mar. Priv. Corp. 356; Thomp. Com. L. of Corp. § 688.) Since a corporation is a creation of the state, its residence may be said to be a state residence, and the naming of a county or principal place of business is not important for the purpose under consideration. A substantial compliance with the statutory form is sufficient, and the purpose of the tax law respecting residence is subserved when there is a recital in the deed of the state in which the corporation was organized and now exists.
Another objection made to the deed is that only one description of the land is contained in it. That is the description first given of the quarter-section, and in reciting the sale and conveyance of the land appropriate reference is made to the first description, which appears to be accurate and complete. There was but a single tract taxed, and, as it could not be sold for the taxes'charged against it, the county treasurer bid it off for the county. As the county is not a voluntary or competitive bidder, it necessarily took the entire tract. (Larkin v. Wilson, 28 Kan. 513; Mack v. Price, 35 Kan. 134, 10 Pac. 521.) There being no division of the property in the sale, the recital of the sale, assignment and conveyance by such terms as “said property” and “the real property above described” shows definitely that the same tract was referred to throughout the instrument, and that the description is in no sense indefinite. (Haynes v. Heller, 12 Kan. 381; Dodge v. Emmons, 34 Kan. 732, 9 Pac. 951; Gibson v. Hammerburg, ante, p. 363.)
It is argued that the deed does not recite the presentation of the certificate to the county clerk prior to the issue of the deed, but this is not required in the form prescribed by statute. Nor is there anything substantial in the objection that the deed is not made in the name of the county. In this respect it follows the statutory form, which, as to the conveyances to which it applies, must be deemed sufficient. (Gibson v. Hammerburg, ante, p. 363.)
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
Thomas M. Armstrong brought an action, as administrator of Joseph Armstrong, to recover upon a note given to the latter and executed by S. Huston and S. H. Koger. In the plaintiff’s pleading both the makers of the note were named as defendants, but service of summons was had only upon Koger. At the trial Koger offered in evidence the deposition of Huston, taken in Oklahoma, in which the witness stated that he was the principal upon the note and that Koger was merely a surety; that in the lifetime of the payee, by an arrangement made with the witness, the time of payment of the note had been extended for a valuable consideration, without the knowledge or consent of the surety, thereby effecting his discharge.
An objection was sustained to the admission of this deposition upon the ground that it was within the rule (Gen. Stat. 1901, § 4770) forbidding a party to testify in his own behalf in certain cases in respect to any transaction had personally by such party with a deceased person. The rule, however, does not apply, for the reason that the witness Huston was not a party to the litigation, and his testimony was not offered in his own behalf. Not only was Huston not formally made a defendant in the case, but his interests were not identical or involved with those of Koger. The evidence he gave had no tendency to establish a defense on his own part. Indeed, he explicitly admitted his liability on the note. Neither the spirit nor the letter of the statute rendered him an incompetent witness. (See Shorten v. Judd, 56 Kan. 43, 42 Pac. 337, 54 Am. St. Rep. 587; Murphy v. Colton, 4 Okla. 181, 44 Pac. 208; 30 A. & E. Encycl. of L. 982, ¶ 2.)
It is also suggested that the rejected evidence was incompetent because it stated conclusions rather than facts. It was couched in very general terms but was for the most part admissible.
The judgment is reversed and the cause remanded, with directions to grant a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a summary proceeding begun in the probate court upon complaint of John Humbarger, an heir at law of Susan Humbarger, deceased, in which he alleged that his brothers, Henry Humbarger, George Humbarger, and Thurston Humbarger, were concealing money, property and effects of the estate of Susan Humbarger, deceased, and asked that they be cited to appear and answer questions propounded to them by the court touching such concealment. A citation was issued and an examination had, at the end of which the probate court found that there was no concealment of the assets of the estate by the respondents, and the proceeding' was discontinued. In the course of the hearing the probate court sustained objections to questions asked of Henry Humbarger, and to these rulings exceptions were taken. A bill of exceptions was'presented to, and allowed by, the probate court, and this was made the basis of a proceeding in error in the district court. That court reversed the decision of the probate court, and of these rulings plaintiffs in error complain.
The first contention is that the district court had no jurisdiction to review the rulings of the probate court in the admission of testimony, because such rulings never became a part of the record. The ground of this claim is that the probate court had no power to settle and sign a bill of exceptions. Aside from the right of appeal from a decision of the probate court, express authority is given for the review of its judgments and final orders by a proceeding in error to the district court. (Code, § 541; Gen. Stat. 1901, § 5018.) It is argued, however, that as the jurisdiction of the probate court is limited it has only such authority as is specifically conferred, and that the right to prosecute a proceeding in error from that court does not imply that it has authority to settle and sign a bill of exceptions. There appears to be express legislative authority for the settling and signing of a bill of exceptions by the probate court. The statute declares that probate courts are courts of record. (Gen. Stat. 1901, § 1974.) By another statutory provision courts of record and the judges thereof at chambers are given authority to settle and sign bills of exceptions, and also to extend the time for doing so beyond the term. (Laws 1901, ch. 275, § 1; Gen. Stat. 1901, § 4753.)
It is next contended that the evidence and rulings were attached to, rather than embodied in, the bill of exceptions, and were not so preserved as to make them a part of it. It is true that a mere reference to papers or proceedings, without embodying them in the bill of exceptions, is not sufficient. They must be made a part of the bill of exceptions in some way, and so plainly identified as a part of it that no mistake can be made as to what is included in the bill. Here it is recited in the bill that the evidence is “attached hereto, and made a part of this bill of exceptions.” Since the evidence and rulings are fully identified and specifically made a part of the bill, they cannot be ignored because of the manner in which they were incorporated into it, or because of the part of the bill in which they were placed. It is a better and safer method to place thé proceedings and papers to be preserved in the body of the bill, preceding the signature of the judge, and thus avoid any question as to what is incorporated in it. The courts give a liberal construction to a bill, and are inclined to disregard mere formal defects and irregularities that do not cloud the record or violate a statutory requirement. In this case there can be no misapprehension as to what the bill contains, nor whether the evidence and rulings in question were settled by the probate court as a part of the bill of exceptions.
Although questioned, it sufficiently appears that the-bill was settled in good time. The final hearing be gan on February 8, 1904, and in the recitals of the subsequent steps, including the order of the court and the settling and signing of the bill of exceptions, each is introduced by the word “thereupon.” So used, the word means that one step followed another immediately and without delay, and justifies the conclusion that all occurred on the date of the hearing. (Dewey v. Linscott, 20 Kan. 684; Hill v. Wand, 47 Kan. 340, 27 Pac. 988, 27 Am. St. Rep. 288.)
The final question raised in the case is, Did the probate court err in rejecting further evidence and in discontinuing the proceeding? The asset of the estate involved in the inquiry was a promissory note given by Henry Humbarger to his father. The only thing charged in the complaint was concealment. Without hesitation Henry Humbarger testified that the note had been given, and he stated the amount for which it was given, and, further, that it had been fully paid and the debt discharged. He went further, and stated that it had been paid partly in money, partly in services, and partly in board. The complainant tried to push the inquiry still further as to the payment of the note and as to whether Henry’s liability thereon had been discharged. His liability on the note could not be determined in that proceeding by that court. It was a summary proceeding brought under section 3002 of the General Statutes of 1901. That statute provides:
“Upon complaint ihade to the probate court by the executor, administrator, creditor, devisee, legatee, heir, or other person interested in the estate of any deceased person, against any person suspected of having concealed, embezzled or conveyed away any money, goods, chattels, things in action, or effects of such deceased, the said court shall cite the person suspected forthwith to appear before it and to be examined on oath or affirmation touching the matters of the said complaint.”
The testimony of the parties examined is to be reduced to writing and filed in the probate court, and if the court is of opinion that the accused is guilty of either concealing, embezzling or conveying away any of the assets of the estate it may order and compel the delivery thereof to the executor or administrator or person entitled to receive the same. (Gen. Stat. 1901, §§ 3002-3006.) The purpose of the proceeding is to make discovery and compel production of the property of an estate suspected of having been concealed, embezzled, or conveyed away, but it cannot be employed to enforce the payment of a debt or liability for the conversion of property of an estate, or to try controverted questions of the right to property as between the representative of the estate and others. One purpose is to perpetuate evidence against the party charged, to be used if necessary in an action brought for the recovery of the property in a court of competent jurisdiction. In Moss v. Sandefur, Ex., 15 Ark. 381, it was held under a similar statute that it was intended to compel a discovery and delivery of the assets of an estate which were secretly and unlawfully held, but that it did not invest the probate court with jurisdiction of contested rights and matters of litigation as to the title to property. A like provision was before the supreme court of Illinois in Dinsmoor v. Bressler, 164 Ill. 211, 221, 45 N. E. 1086, where it was said:
“The summary proceeding in the probate court to compel the production and delivery of property ‘is not the proper remedy ... to try contested rights and title to property between the executor and others.’ (2 Woerner’s Am. Law of Adm’n, § 325, p. 681.) ‘Nor does the power conferred upon probate courts to subpoena and examine parties alleged to conceal or withhold property of the estate authorize such courts to try the title to the property in dispute.’ (1 Woerner’s Am. Law of Adm’n, § 151, p. 347; Schouler on Ex’rs and Adm’rs, § 270.) If sections 81 and 82 could be used to settle contested rights to property as between executors and administrators on the one side and third persons on the other, they would operate as an infringement upon the constitutional right to trial by jury, as they contain no provision for a jury trial.”
(See, also, In re Wolford, 10 Kan. App. 283, 62 Pac. 731; Howell v. Fry, Administrator, 19 Ohio St. 556; Ex parte Casey, 71 Cal. 269, 12 Pac. 118; Gardner v. Gillihan, 20 Ore. 598, 27 Pac. 220; Gibson v. Cook, Adm’r, 62 Md. 256; Matter of Beebe, 20 N. Y. Supr. Ct. 462.)
Here the charge was concealment, and when the testimony developed that there was no concealment of the note — the subject of inquiry — the end of the investigation was reached. No doubt existed that there was a note, and that it belonged to the estate; and the only quesion left was whether it had been paid by Henry Humbarger, or whether he was still liable for all or part of it. The proceeding was a proper remedy to compel the delivery of the note itself, if it had been concealed, but not to enforce its payment, nor to try the title to the note as between parties claiming to own it. Courts will not be disposed to hamper such investigations so long as there remains a question whether effects of the estate have been concealed, embezzled, or conveyed away, but where, as in this case, the charge is not sustained, and it appears that there was no concealment, further inquiry as to the payment and whether there still existed any liability is useless, and beyond the scope of the proceeding. The probate court rightly refused to go into the question of the indebtedness of the respondent Henry Humbarger, and therefore the judgment of the district court is reversed and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
The errors complained of relate to the giving of instructions excepted to by plaintiff, and the refusal to give others asked by plaintiff. In the first instruction given of which complaint is made the connective “and” was evidently omitted, giving a very erroneous meaning to the sentence. Yet the omission is so apparent that an intelligent jury might be presumed to have supplied it, and we are reluctant to predicate a reversal upon an error that appears to be a palpable clerical mistake. This instruction, however, authorized the jury to find for the defendant upon a defense not pleaded in the answer, viz., “by holding them [the cattle] an unreasonable time before selling them upon the market, after taking possession.” On this subject the court further instructed the jury as follows:
“I instruct you that under the terms of the chattel mortgage it was plaintiff’s duty, when he took possession of the property described therein, to proceed to sell the same within a reasonable time after taking possession thereof, either at public or private sale at the place where said cattle were situated, or to ship the same to Kansas City, Kan., or to Kansas City, Mo., and sell the same upon the market; and if you believe from the evidence that the plaintiff failed to do that, and kept said cattle or a large portion thereof for several months after taking possession of the same, then in that event the plaintiff would be chargeable with the market value of said cattle described in the mortgage at the time that it took possession of the same; and if you believe also from a preponderance of the evidence that at the time plaintiff took said cattle they were of sufficient market value to satisfy plaintiff’s note and mortgage, then you will find for the deifen'dant.”
There was no allegation in the answer that the cattle were held an unreasonable time, no allegation of fraud or bad faith in holding them,, and no allegation that the mortgagor or the defendant even demanded an earlier sale. From all that appears in the pleadings or the evidence the plaintiff might have held the cattle and put them on pasture at the request of both the mortgagor and the defendant. Yet the court by this instruction makes this the basis of a verdict in favor of the defendant, provided only that the jury find the cattle were of sufficient value when taken to pay the debt. By the express provision of section 4253 of the General Statutes of 1901 the mortgagor could, at any time after the plaintiff took possession of the cattle, have demanded the sale of them, and could thereby have imposed the risk of holding them upon the plaintiff. If the defendant desired an earlier sale he could have paid the debt and been subrogated to all the rights of the plaintiff under the mortgage, including the possession of the cattle.
The court erred in its instruction regarding the consideration for the guaranty, and in refusing instructions relating thereto. As this question is not likely to recur under the same evidence it would perhaps be fruitless to extend the discussion on this point. Suffice it to say that the true rule can be deduced from Briggs v. Latham, 36 Kan. 205, 209, 13 Pac. 129, and Winans v. Manufacturing Co., 48 Kan. 777, 781, 30 Pac. 163.
The judgment of the district court is reversed and the cause is remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This suit was brought by the Watkins Land Company to foreclose its mortgage upon certain land described in its petition, which named Nathan Creps and Mary O. Creps, the mortgagors, and R. E. Edwards, a claimant to the land, as defendants. The two Creps answered admitting the execution of the note and mortgage, but denying the allegations of the answer and cross-petition of Edwards. The defendant Edwards answered that he was the equitable owner of the land; that prior to the execution of the mortgage he had purchased the land from Creps and had paid him the purchase-price therefor; that he immediately went into actual possession of the land, and had ever since that time been in the actual, open, notorious and exclusive possession thereof, and had made lasting and valuable improvements thereon; that Creps and his wife had neglected and refused to make him a deed therefor; that at the time of the execution of the mortgage in question the mortgagors had no interest in the land and held only the legal title thereto.
The cause was tried without a jury, and the court made special findings, among which are the following: That Edwards purchased the land of Creps on the 26th day of March, 1890, and'paid him the agreed consideration therefor; that he took immediate possession and made lasting and valuable improvements thereon; that Edwards paid the taxes on the land in 1890 and 1891, and had ever since 1891 been in open, notorious and exclusive possession; and that on April 5, 1892, Creps executed to plaintiff the mortgage set out in the petition. Upon these and other findings not necessary for the purposes of this opinion the court rendered judgment for Edwards.
The plaintiff in error makes three contentions: First, that the answer filed by Edwards did not state sufficient facts to admit testimony of his claim. This contention cannot be sustained. The answer was amply sufficient.
The next contention is that the evidence did not establish the fact that Edwards had purchased the land or had taken immediate possession at the time alleged. Edwards testified that he purchased the land at the time stated in his answer; that he paid the full contract price therefor; that he immediately went into possession and fenced it; and that he had been in open, notorious and uninterrupted possession thereof since that time. Although some of these facts were strenuously denied by Creps, it was the duty of the trial court to weigh these conflicting statements and determine what the truth was, and, having done so, -we are not at liberty to say that the court erred in determining upon which side the evidence preponderated.
The last contention is that the alleged contract be- . tween Edwards and Creps for the purchase of the land, having been made before Creps made his final proof, was void under section 2 of an act of congress passed June 14, 1878, being “An act to amend an act entitled ‘An act to encourage the growth of timber on the Western prairies’ ” (20 U. S. Stat. at L., ch. 190, p. 113). Creps acquired title to this land under this act. Section 2 provides:
“That the person applying for the benefits of this act shall, upon application to the register of the land district in which'he or she is about to make such entry, make affidavit, before the register or the receiver, or the clerk of some court of record, or officer authorized to administer oaths in the district where the land is situated; which affidavit shall be as follows, to wit: I, -, having filed my application, number —, for an entry under the provisions of an act entitled ‘An act to amend an act entitled “An act to encourage the growth of timber on the Western prairies,” ’ approved -, 187 — , do solemnly swear (or .affirm) that I am the head of a family (or over twenty-one years of age), and a citizen of the United States (or have declared my intention to become such) ; that the section of land specified in my said application is composed exclusively of prairie lands, or other lands devoid of timber; that this filing and entry is made for the cultivation of timber, and for my own exclusive use and benefit; that I have made the said application in good faith, and not for the purpose of speculation, or directly or indirectly for the use or benefit of any other person or persons whomsoever; that I intend to hold and cultivate the land, and to fully comply with the provisions of this said act; and that I have not heretofore made an entry under this act, or the acts of which this is amendatory.”
The contention is that in view of the provisions of this section the contract between Edwards and Creps was a fraudulent conspiracy to defeat the purpose of the timber-culture law of the United States. As expressed by defendant in error Edwards in his brief:
“This might have some force if the land in question were a homestead or preemption, but has no force as applied to a timber claim. As to the first two the statute expressly prohibits contracts prior to final proof and declares them invalid. There is no such prohibition as to timber claims. The consideration in the two former cases is actual occupancy by the settler with intent to make it his home. In the latter the consideration’ is the planting and cultivation of the timber, and the government was indifferent as to who carried out the terms of the contract.”
It appears that Creps did comply with the oath he took when he made his application for the privilege of entering this land under this act. He planted and cultivated the amount and kind of timber required, and for the time required, and by reason thereof obtained his patent. The affidavit is only required to show the good intention of the applicant to cultivate the timber. It follows that the judgment must be affirmed.
All the Justices concurring. | [
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Per Curiam:
W. H. Webb and E. K. Taylor were partners in the real-estate business at Fort Scott. In the spring of 1895 they sold a one-third interest in the business to R. M. Herron. The style of the firm was changed to the W. H. Webb Investment Company, each having a one-third interest in the new firm. The main office was removed to Houston, Tex., where Webb and Herron remained most of the time, while Taylor stayed at the office in Fort Scott.
In July, 1895, Herron became dissatisfied and wanted to retire from the business, and Webb gave him a note for $500 and signed the name of the old firm of Webb & Taylor. Herron brought this action upon the note, making W. H. Webb and E. K. Taylor defendants as partners, under the name of Webb & Taylor. Webb filed a general denial, which raised no issue. Taylor, plaintiff in error, filed a verified denial alleging that he had not executed the note, and had not authorized any one to execute it for him by using his name as a member of the firm or otherwise, and denied ever having ratified the execution of the note.
A jury trial resulted in a judgment for plaintiff, and defendant Taylor complains. The only brief submitted is by plaintiff in error, and while several errors are specified counsel eliminate all of them except one. We quote from the brief:
“The question at issue in the court below was, ‘Did W. H. Webb, who signed the note, have authority to bind E. K. Taylor for payment of the same?’ We submit our case upon this single proposition, and submit to the court that there is not sufficient testimony in this record to support the verdict and judgment of the trial court.
“There is no evidence to prove the material fact necessary to be found and necessarily found by the verdict, namely, authority from Taylor to Webb authorizing Webb to sign the note, or any ratification by Taylor of Webb’s act subsequently to the execution of the note.”
This leaves nothing for us to determine except whether there is any evidence to support the verdict. From the record it appears that W. H. Webb testified that he executed the note and signed the name of Webb & Taylor; that Herron had become dissatisfied and wanted to leave; and that some time before executing the note Taylor had told him to go to work and fix it up with Herron the best way he could. This, in substance, repeated in his testimony several times, is all the evidence of any authority. Upon the question of ratification he testified that after the note was executed he talked with Taylor about it several times and that in such conversations Taylor never denied liability upon the note. The evidence is weak, and the record discloses many circumstances from which the jury might have found for defendant, but we cannot say that there was no evidence. There was some slight evidence of authority and of ratification. The jury considered it sufficient and the trial court sanctioned it. We are powerless to weigh it here.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The plaintiff, Otto Kolleen, was employed as a car-cleaner by the Pullman Palace Car Company, and while engaged in his duties the defend ant, the Atchison, Topeka & Santa Fe Railway Company, when moving and changing cars in making up a train, violently moved the car in which the plaintiff was at work, whereby he was injured.' Afterward plaintiff commenced this action against the defendant to recover damages for such injury. Pending the action the plaintiff’s attorneys negotiated a settlement with the defendant, informed their client thereof, and requested him to authorize them in writing to make the settlement agreed upon. Subsequently plaintiff executed and delivered to his attorneys written authority to make such settlement, which authority specifically stated the amount that the defendant should pay, how much the attorneys should retain for services, and the amount that the plaintiff should receive.
Later the attorneys completed the settlement, received the money, and sent to plaintiff the amount due him, which he refused to accept. As a part of the settlement it was stipulated that the case should be dismissed with prejudice. At the next term of court, when the application to dismiss was presented, the plaintiff was personally present and objected thereto, and repudiated the settlement. Thereupon the plaintiff’s attorneys withdrew from the case, and it was continued to enable plaintiff to employ other counsel. The defendant filed an answer setting up the settlement. The plaintiff in his reply alleged ignorance thereof, and mental incapacity when the settlement was made. At the January term, 1904, the case was tried upon the single issue as to whether or not a valid settlement had been made, a verdict was returned in favor of the defendant, and the plaintiff brings the case here.
The principal error of which the plaintiff complains is that the verdict does not justify the judgment. The verdict reads: “We, the jury impaneled and sworn in the above-entitled case, do upon our oath find for the defendant; that the plaintiff’s claim sued upon has been settled.” It was practically conceded on the trial that the settlement was actually made and authorized by the plaintiff, and the jury in answer to special questions so found.
The only question inquired into at the trial was whether the plaintiff was mentally responsible at the time of the alleged settlement. All the evidence in the case and the instructions of the court were directed to this single question. When the verdict is construed in the light of these considerations it appears to be sufficient ; but, if it were doubtful, this court would be compelled so to construe it, for the reason that no objection was made to the verdict when it was returned and when the court could have had it corrected. (Copeland v. Majors, 9 Kan. 104; Carlin v. Donegan, 15 Kan. 495.)
Complaint is made that non-professional expert evidence was admitted without sufficient foundation’s having been laid therefor. The foundation was not so full and complete as usual in such cases, but we cannot say that material error was committed in this respect.
An instruction of the court upon the burden of proof is also criticized, but the instruction, while unnecessary, simply served to emphasize the proper rule in the case, and was not erroneous. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action in ejectment. In 1887 H. W. Black, and his wife, who is plaintiff in error, executed and delivered to M. R. Diver a mortgage on real estate in Sedgwick county. The western boundary of the land was described as running “in a southeasterly direction along the east bank of the said Arkansas river” between designated points. The mortgage was foreclosed in 1891, and in November, 1892, defendant in error received a sheriff’s deed, and went into possession in February, 1893. The sheriff’s deed to Diver followed the description contained in the mortgage. Plaintiff in error, who is the widow of the mortgagor, claimed the made land between a row of piling driven in the river (which she asserted was the western boundary of the mortgaged tract) and the water’s edge. The land in dispute was used as a dumping-ground for city refuse which was spread out by the husband of the plaintiff in error. In 1900 Mrs. Black fenced the property in controversy, and she now contends that it was not encumbered by the mortgage nor included in the sheriff’s deed, but belonged to her husband. The land was subject to overflow before it was filled in.
The court below instructed the jury to return a verdict in favor of Diver for the- recovery of possession. Plaintiff in error complains of this and of the exclusion of certain testimony offered by her on the trial
It is conceded by counsel in this case that the Arkansas river is a navigable stream. In Peuker v. Canter, 62 Kan. 363, 63 Pac. 617, the well-settled rule was approved to the effect that meander lines along-the shore of a navigable stream show that the watercourse is the boundary. In the present case the mortgage and sheriff’s deed (being identical as to description) carrie¡d the lien, and afterward the legal title, of defendant in error to the border of the stream, however much the water-line might gradually shift- or change. (Wood v. Fowler, 26 Kan. 682, 48 Am. Rep. 330; Gould, Wat. 3d ed. §76 and note.)
Counsel for plaintiff in error is not certain whether the title to the land claimed by his client is vested in her or in the state for the benefit of the public. It-is .contended, however, that in no event could Diver-own it. It is clear that the made land was appurtenant to that conveyed by the sheriff to the defendant in error. It was an extension of his western boundary line. His title to it was as complete and absolute as-it would have been had the river, by a gradual process of accretion, made the deposit. (Steers v. City of Brooklyn, 101 N. Y. 51, 4 N. E. 7.)
To sustain the position of plaintiff in error, it must be held that in the mortgage from Black and wife to-Diver the land in controversy wás excluded, notwithstanding that the east bank of the river was designated as the western boundary. If the mortgagors had desired to confine the western line within specific limits they could have done so easily. In the absence of a specific description, it was not competent for the mortgagors to show by parol testimony that-they reserved title to themselves in the accreted land. (Turner v. Holland, 65 Mich. 453, 33 N. W. 283.) Such testimony would.be in contradiction of the deed..
On the minor questions raised, we think it was conceded by counsel at the trial that t¡he legal title was in Black at the time of the execution of the mortgage.
The attempt to show on cross-examination of the plaintiff below that the land was filled in by Black with the knowledge and consent of Diver, who disclaimed ownership beyond the original line as it existed at the date of the mortgage, was foreign to anything testified to by the witness on direct examination. The admission of such testimony, however, would not have affected the right of plaintiff below to recover. Land is not conveyed by parol. The learned judge of the district court committed no error in the case.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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Per Ouriam:
This was an action in ejectment brought by Benjamin C. Obouteau against William KLapmeyer and others, the present owners, to recover possession of the northeast quarter and the northeast quarter of the northwest quarter of section 27, township 13, range 25, in Johnson county, Kansas. Judgment was for defendants.
Cyprian Chouteau, a white man, married a Shawnee Indian. The plaintiff in this action is the issue of that marriage.
In September, 1856, while plaintiff was a minor, his father was adopted into and regularly enrolled as a member of the Shawnee tribe of Indians. In 1856 and 1857, for the purpose of allotting the Shawnee lands, a tribal roll was made, upon which appears the following: “Number in family, 1; name, Benjamin 0. Chouteau; age, 20.” After this roll was completed, and in 1857, the tribal lands were allotted. The father of plaintiff caused the lands in controversy to be allotted to Benjamin. On December 28, 1859, a patent was issued to Benjamin for this land. In 1853 Benjamin left the tribe and went to California. During the first two years of his absence he corresponded with his people occasionally, but thereafter he was not heard from and was given up as dead In 1867 Cyprian Chouteau, as the only heir, believing Benjamin to be dead, sold this land for $1200. The land has been occupied ever since by the owners, and by mesne conveyances the title thereto is now in defendants, who are in possession.
The deeds executed by Cyprian Chouteau were in all respects in conformity with the -law and the rules of the department of the interior, and were approved by the secretary of the interior. In 1877 or 1878 the plaintiff returned to his father’s home, in Jackson county, Missouri. His father informed him of the land transaction, and paid him a portion of the money received therefor. Plaintiff then went to the Indian Territory and settled near Vinita. where he has ever since resided. Cyprian died in 1879, leaving a valuable estate. His widow was the administratrix, and she testified that, in 1880, when she paid the plaintiff his share of his father’s estate, amounting to about $8700, she also paid him an additional sum of $500, being, the balance due him from the sale of the real estate in question.
The present action was brought in 1901, more than thirty-four years after Cyprian had sold the land, twenty-four years after Benjamin had been informed thereof and had received a part of the proceeds of the sale, and twenty- one years after be bad received from his fathers estate the balance due from the sale of such lands.
The facts of this case bring it within the principles announced in Dunbar v. Green, 66 Kan. 557, 72 Pac. 243. Upon the authority of that case, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, J. :
William Shadwell brought an action against Elijah M. Topliff, a resident of the Btate of New Hampshire, alleging that the latter, in June, 1899, made a written agreement whereby he promised to convey to Shadwell certain city property in Kins-ley, Kan., for the sum of $2500 — $1500 to be paid September 1,1899, secured by a chattel mortgage, and the balance, $1000, to be paid on or before September 1, 1902, to be secured by a first mortgage on the premises, to be executed when the $1500 was paid. Upon the payment of said $1500 and the giving of the mortgage Topliff agreed to make a good and sufficient' warranty deed to Shadwell for the property. The petition further alleged that Shadwell, with the consent of Topliff, took possession, and on or about September 1,-1899, made valuable improvements and repairs to the amount of $600. The petition alleged a tender of performance of Shadwell', a refusal of Topliff to comply with the contract, and prayed for damages to the amount of $3100. Topliff answered denying tha.t one H. C. Bingham, who made the contract with Shad-well, had authority so to do. Shadwell replied that Bingham had been held out to the world by Topliff as his agent, and that the latter had ratified the contract by offering to execute a special warranty deed, and was therefore estopped from denying the agency of Bingham.
The trial resulted in a verdict and judgment for Shadwell in the sum of $425, which judgment was reversed in this court. (Topliff v. Shadwell, 64 Kan. 884, 67 Pac. 545.) After the case was remanded plaintiff below obtained leave. to amend his petition, striking out all allegations for special damages, and based his action on the implied promise of Topliff to pay for improvements and repairs made by plaintiff below on the premises. The amendment is prefaced with this statement:
“That this plaintiff, relying upon said contract and with the consent of the defendant, took possession of said premises and made the following permanent and lasting repairs and improvements thereon, to wit.”
Then follows an account of the repairs made upon the property and the cost thereof.
It was conceded at the trial that Bingham, who made the contract of sale, had no authority to do so, and that he was a rental agent only. The court instructed the jury that if Shadwell took possession un der a genuine belief that he had contracted to purchase from an agent who had authority to sell, that he made improvements and repairs under the belief that his contract was a good and valid one, and in making such repairs he was adding to the value of the property, and that he was put into possession by Bingham, who was a rental agent of the property, then the plaintiff below might recover the proper value of such repairs and improvements, although it should afterward develop that Bingham did not have authority to make such contract of sale. The court told the jury :
“It is the law that a person who, acting under an honest mistake of fact, makes permanent and lasting repairs to the property of another and enhances the value of such property by said repairs, is entitled to recover from the owner of said property the value of said improvements and repairs.”
The plaintiff below recovered a judgment.
We cannot approve the statement of law contained in the instructions when applied to the facts of the present case. Plaintiff below went into possession under a contract of which the owner of the land was ignorant. He avers in his petition that he made the improvements and repairs relying on such contract. It is true that the consent of Bingham was shown, but Bingham was a rental agent only, and plaintiff below made no claim that the relation of landlord and tenant existed between himself and Topliff, the owner ■ of the land, at any time. The knowledge of a rental agent that improvements and repairs were being made by one in possession of land under a contract of sale would be no more effectual to bind the principal to pay for them than if such knowledge was brought home to an agent having charge of cattle for the principal with power to sell them.
To affect the principal with notice, the matter known to the agent must be something within the scope of his agency. (Tiff. Ag. 262; Wade,Not.,2d ed., § 674; Roach v. Karr, 18 Kan. 529, 26 Am. Rep. 778.) In The State, ex rel. St. Jos. & D. C. Rld. Co., v. Comm’rs of Nemaha Co., 10 Kan. 569, 579, Brewer, J., speaking for the court, said :
“Authority from a principal to an agent to do a specific act is limited to that act, and does not empower the agent to bind his principal to an act securing essentially different rights, and imposing essentially different obligations.”
The legal proposition involved is this : An agent to rent land for a non-resident makes a contract for its sale without authority from the owner. The purchaser goes into possession under the contract and improves the property without the knowledge or consent of the principal. After the agreement to sell has been brought to the attention of the owner and repudiated by him, is he chargeable with the cost of improvements made by the purchaser? We think not. In the numerous cases cited by counsel to sustain the judgment an implied promise to pay for labor or services was inferred from the fact that they were made with knowledge of the person benefited, or accepted by him, although not made under an agreement to pay therefor. The law does not require the owner situated as defendant below to leave the land in possession of such a purchaser until the improvements are paid for. The taking possession after the better-ments were placed on the property by Shadwell was a right which the owner had, and did not imply a promise on his part to pay their value. In a like case it was held that the purchaser was not entitled to the benefit of the occupying-claimant’s law. (J. Doe, ex dem. Samuel M. Reynolds, v. N. Cordery, Fed. Cas. No. 11,729, 4 McLean, [C. C.] 159. See, also, Isle Royale Mining Co. v. Hertin, 37 Mich. 332, 26 Am. Rep. 520; Hall v. Hall, 30 W. Va. 779, 5 S. E. 260.)
The judgment of the court below will be reversed and a'new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
A street-sweeper of a city street, while engaged in the performance of his duties at night, was run down and killed by an electric street-railway car. The car was running at a speed of twenty to twenty-five miles per hour, while the rate allowed by the ordinances of the city was but twelve miles per hour. The track was “sweaty,” and because of its slippery condition a moving car was difficult to control. The conductor and motorneer in charge of the car discovered the employee of the city when 100 feet distant from him. He was then upon the track between its rails and in the act of walking across it. The car conductor shouted to him, but the bell was not sounded or other warning given. Two railway engines were standing a short distance beyond the place of accident, one of which was taking water and the other noisily emitting steam, while the wind blew from the direction of the engines toward the pedestrian and the car. When the man was observed the motorneer set the brakes, which locked the car wheels, but not so quickly as if the brakes had been in good repair. The proper method of overcoming the momentum of the car would have been to apply sand to the track, but the apparatus for the use of sand was out of repair and that expedient was not adopted at all. The car was properly lighted, and some street lights were burning in the vicinity, and if it had been properly equipped, operated and controlled the car could have been stopped within a distance less than that intervening between the man and the car when he was discovered to be on the track.
The deceased was struck by the corner of the car on the side of the track toward which he was walking, and by force of the collision his body was thrown still farther away from the track. He was in good health and had good eyesight and good hearing. He was familiar with the track and the manner and mode of runhing cars upon it along the street in question, and knew about how often cars passed the place of injury. He had an unobstructed view of the track for 610 feet in the direction from which the car came. There was nothing to prevent his seeing the car as it approached him if he had looked, and if he' had heard or heeded the shouting of the conductor he then had time to leave the track and avoid the collision, and had the ability to do so. But there is nothing to show either that he did or did not look for an approaching car, or that he did or did not see or hear the one which struck him.. Under these circumstances, was the deceased guilty of such contributory negligence that his widow may not recover from the company operating the car the damages occasioned by his ■death ?
The defendant company argues the case as if the ■deceased man either looked and listened for an approaching car, or did not do so; thit he was negligent if he failed to take so much precaution for his ■own welfare; that he must be held to have noted the proximity of the car, if he did look and listen, and that a reasonably prudent man, after looking and listening, would have avoided a collision. It is true that a traveler upon a city street, who is about to •cross the track of an electric street-railway company, should exercise his faculties of sight and hearing, and In other respects take ordinary precautions to avoid collision with the cars. If he does look and listen he will be held to an apprehension of that which should have been seen and heard ; and if he fails to look and listen he will be charged with the same liability in case of disaster as if he had done so. These principles meet the tests both of reason and of practical application to the affairs of men. (Burns v. Railway Co., 66 Kan. 188, 71 Pac. 244.)
But a jury may infer ordinary care and diligence on the part of an injured person from the love of life, the instinct of self-preservation, and the known disposition of’men to avoid injury. (Dewald v. K. C. Ft. S. & G. Rld. Co., 44 Kan. 586, 24 Pac. 1101.) And in the absence of evidence to the contrary, it will be presumed that a person about to cross a railroad track both looked and listened before venturing to do so. (C. R. I. & P. Rly. Co. v. Hinds, 56 Kan. 758, 44 Pac. 993.)
“There was no error in instructing the jury that in the absence of evidence to the contrary, there was a presumption that the deceased stopped, looked and listened. The law was so declared in Texas & Pacific Railway Co. v. Gentry, 163 U. S. 353, 366, 41 L. Ed. 186, 192, 16 Sup. Ct. Rep. 1104, The case was a natural extension of prior cases. The iDresumption is founded on a law of nature. We know of no more universal instinct than that of self-preservation— none that so insistently urges to care against injury. It has its motives to exercise in the fear of pain,, maiming, and death. There are few presumptions,, based on human feelings or experience, that have surer foundation than that expressed in the instruction objected to.” (Baltimore & Potomac R. R. v. Landrigan, 191 U. S. 461, 473, 24 Sup. Ct. Rep. 137, 48 L. Ed. 262.)
Since the evidence in this case gave no account of the street-sweeper on the night of the fatality until he was suddenly seen in a place of peril, on the railway-track, with the enginery of death bearing swiftly down upon him, these presumptions should be indulged in his favor, and the case determined as if he had chosen his gait in crossing the track with reference to an observation of his surroundings. Conceding, then, that the. traveler looked for whatever was to be seen, and listened for whatever was to be heard, and duly apprehended the report of his senses, still he cannot be summarily condemned. A man may cross an electric street-railway track in front of an approaching car which he plainly sees and distinctly hears and not be negligent. Plundreds of people do • so every day, and yet satisfy every demand for care and caution which the law imposes upon them. The requirement of the law that a man shall look and listen means no more than that he shall observe and estimate with reasonable accuracy his distance from the car and the speed of its oncoming. He is then to make a calculation and comparison of the time it will take the car to come and the time it will take to cross the track, and if, under the same circumstances, a reasonably prudent person would attempt to cross at a given rate of speed he will not be negligent in doing so. It is true that a reasonably prudent man may be mistaken or be deceived, but if so, and if his conclil-ion from the facts as they appear to him be erroneous and an injury result, he is nevertheless guiltless of contributory negligence, for the law does not measure human conduct in such cases by any higher standard of care than that which such a man would exercise; and whether or not a prudent man would accept the hazard is generally a question of fact for the jury.
“It is consistent with the facts proved that Lawler saw the approaching car and, without negligence on his part, failed to observe from his position the unusual speed at which it was running, so that his conclusion that he could safely cross was not an unreasonable one. Clearly it is not negligence in law for one to cross a street-railway track in front of an approaching car which he has seen and which does not appear to him to be dangerously near, and which would not have been so in fact had it been running at its ordinary rate of speed. Whether one who has observed an approaching street-car should have also apprehended that it was approaching at such a speed as to reach him before he could cross the track, is generally a question of fact to be determined upon the circumstances of each particular case.” (Lawler, Adm’r, v. Hartford Street Ry. Co., 72 Conn. 74, 82, 43 Atl. 545.)
“He who puts himself in the way of runaway horses who have escaped from the driver’s control must know that he is taking a risk. But a jury may well say that he who crosses in front of a trolley-car provided with a motorman may assume that it is furnished with the means of stopping ,or reducing speed. Then there was a question for the jury in this case whether a prudent man; upon such an assumption, might not judge it safe to cross in front of a trolley-car 300 feet away, although coming at great and illegal speed. Upon the assumption of the existence of means to reduce speed and to stop, and of a servant employed to make use of suck means, it would be absurd to say that one was bound to refrain from crossing for fear the servant would not make use of the means.” (Consolidated Traction Co. v. Lambertson, 59 N. J. L. 297, 299, 36 Atl. 100.)
“It would be palpable negligence for the driver of a wagon or carriage to recklessly drive upon a crossing-in a race with an approaching car. In all such cases-it should be held that the driver of the vehicle takes his chances of a collision, and he ought to have no-remedy if an accident occurs. But no principle of law or common sense requires that the driver of a vehicle should stop his team and wait the passing of' an approaching car if he discovers the car on the line-at such a distance as that, in the exercise of reasonable care and prudence, he may safely proceed on his-way and cross the track. Much is said in argument about the, question whether the rule requiring a person about to cross the track tó stop and look and listen for an approaching car, and whether the rule applicable to a railroad operated by trains and steam locomotives should apply to an electric railroad. That question is not in this case. There is no claim that plaintiff did not see the approaching car. He saw it-when it was 300 feet away from the crossing. The question is, did he use proper care and caution in determining whether he could safely cross the track ?' That was a fair question, under the evidence, for the jury to determine.” (Patterson v. Townsend & Son, 91 Iowa, 725, 726, 59 N. W. 205.)
See, also, Schmidt v. The Burlington, C. R. & N. Ry. Co., 75 Iowa, 606, 39 N. W. 916; Gratiot v. The Mo. Pac. R’y Co., 116 Mo. 450, 21 S. W. 1094, 16 L. R. A. 189; 2 Thomp. Neg., 2d ed., § 1450.
What, then, was the situation of the street-sweeper in this case ? The car was hurtling through space at a rate of speed far in excess of that allowed by the-city law. An observation of it would not have indi cated peril and would not have dictated haste in crossing unless this high and dangerous rate of speed were appreciated. The sweeper had the right to rely upon a compliance with the law on the part of the company and to believe the speed of the car to be within twelve miles' per hour, and under the control of the motorneer. The mingling lights and shadows of the night necessarily rendered vision inaccurate and uncertain; the man was not bound to regard a shout as a street-car signal; and other sounds were opposed to the noise of the flying car. Under these circumstances an unexpected and unlawful acceleration of speed might well deceive a reasonably prudent and careful man and delude him into danger ; and if he were cognizant of the true rapidity of the car’s motion he might nevertheless feel secure that it would be reduced to the lawful rate by a'vigilant motorneer, in command of efficient appliances in good repair, before it could overtake him.
So considered, the facts already narrated, which seem especially to militate against a belief in the carefulness of the deceased, are not irreconcilable with a liability on the part of the company. In the light of such facts different minds might arrive at different conclusions as to what might, under all the circumstances, have.been done without blame. The question, therefore, is not one of law but is one of fact, and the general verdict against the company is conclusive.
Some complaint is made of instructions given and refused at the trial. ■ Under the view of the case taken above, the instruction given relating to reciprocal rights upon the streets could not have been prejudicial. In the next instruction given the allusion to the safety of the passengers occurs in a recital of duties evidently taken from the city ordinance granting the defendant the right to use the streets, and could not have misled the jury ; and the objection that this instruction permitted a recovery if the defendant “ negligently failed and neglected in any manner to care for the safety of the life and personal safety of the plaintiff’s intestate” ignores the succeeding words “as alleged.”
The subject-matter of two of the instructions refused, referred to in the defendant’s brief, was covered by instructions given, and the third conflicts with the views set forth above.
Since no material error appears to have been committed by the district court, its judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
Sarah McD. Potter sued George Leis on a non-negotiable promissory note made by him to James Tracy Potter. The petition alleged an assignment of the note to plaintiff, made February 1, 1899. Defendant filed a verified answer containing a general •denial admitting the execution of the note, but alleging that it had been sold and assigned by the payee to one William B. Arnold, that there had been no reassignment to the payee, and that Arnold was the owner and holder of it. Affirmative matter was also set up, which will be noticed later. Plaintiff replied denying the new matter of the answer, and alleging that the note had been assigned in writing to Arnold about January 1, 1898, and that about February 20, 1899, Arnold had assigned it in writing back to the payee, who assigned it to plaintiff.
The case coming on for trial, plaintiff introduced, besides other evidence, the deposition of James T. Potter and William B. Arnold. The former testified that he had transferred the note to his mother, Sarah McD. Potter, as part payment of a debt he owed her, but made the formal asgignment, dated January- 1, 1898, to William B. Arnold, for collection only, for the benefit of Mrs. Potter; that about February 20, 1899, an assignment was made by Arnold to the witness ; that about February 21 the witness assigned the note to plaintiff for the purpose of putting the paper title in her, she already being the real owner; that witness had no title or interest in the note. Arnold corroborated this testimony so far as it related to him, and testified that he had no interest in the note. The plaintiff having rested, the defendant-placed a witness on the stand, but was met by an objection to the introduction of any evidence, on the ground that the answer stated no defense. The objection was sustained, and judgment rendered for plaintiff. Defendant prosecutes error. The questions are whether the pleadings raised an issue as to the ownership of the note, and whether the affirmative matter of the answer stated a defense.
In support of the ruling of the trial court, defendant in error claims that under the decision in Kimble v. Bunny, 61 Kan. 665, 60 Pac. 746, the form employed in the verification of the answer was such as to render ineffective the denial of the assignment of the note by payee to plaintiff. Assuming, but not deciding, that this is true, the fact cannot avail plaintiff. The answer affirmatively stated that prior to the date of such assignment the note had been sold and assigned to Arnold, and that Arnold had never reassigned it, and was still the owner. It is not disputed that these allegations were effectively verified. The reply admitted the assignment to Arnold, but pleaded a reassignment to payee. Under the- plead-! ings, therefore, plaintiff claimed title through this reassignment, which was expressly denied under oath-in the answer, and which was alleged for the 'first time in the reply. If the allegation is considered to have been incorporated in the petition,- it was denied by the verified answer. If it stands merely as a part of the reply it was in issue without a denial. In' either case the burden was upon plaintiff to prove it, and defendant was entitled to an opportunity to contradict it.
But plaintiff further urges that the error, if any, in denying defendant this opportunity was not material because the only issue was as to the ownership of the note by Arnold, and since Arnold in his deposition disclaimed. all interest in it defendant is fully protected against any possible claim- on his part. For practical purposes this is doubtless true, yet it cannot be said as a matter of law that no injury could result to defendant. The deposition of Arnold, even though it is signed by him and filed in the case, does not have the effect of a pleading. Such estoppel as it might work against him would not have the absolutely conclusive effect of a judgment in a case to which he was a party.
These considerations compel a reversal of the case, out it is pertinent to determine whether the answer stated any affirmative defense. Its allegations of new ' matter were intermingled and stated in one count, but logically group themselves into three purported'. grounds of defense, pleaded by way of set-off, the substantial averments of each being as follows : (1) That James Tracy Potter had agreed to buy of defendant a half-interest in certain real estate, and paid a portion of the purchase-price, but had refused to carry out the agreement, whereby defendant, was damaged in the-sum of $1500; (2) that James Tracy Potter agreed with defendant that he would raise and procure at least $10,000 to be invested in a corporation to be formed, to be known as the Lawrence Investment and Loan Company ; that such corporation was formed ;. that Potter did not furnish any money to be used by it; that thereby, and by plaintiff’s failure to continue the business of the corporation, defendant sustained damages in the sum of $3000 ; (3) “that this defendant has spent a large amount of time at the instance .of said Potter in the organizing of the Sunflower Mining Company in Colorado, which said time so spent by this defendant was of the value of $500.”
The allegations of the first of these defenses were not sufficient to support the introduction of evidence, on account' of the statute of frauds. A contract for the purchase of land is within the statute. (Shultz v. Pinson, 63 Kan. 38, 64 Pac. 963.) No exceptional circumstances were alleged to take it out of the statute. The fact that defendant had received a part of the purchase-price did not enable him to avoid its effect. ( Guthrie v. Anderson, 47 Kan. 383, 28 Pac. 164.) Since the contract is one that cannot be enforced, no action for damages will lie for its breach. (8 A. & E. Encycl. of L., lsted., 658 ; Fry v. Platt, 32 Kan. 62, 3 Pac. 781, and cases cited ; 23 Cent. Dig. 2333-2335.)
The only damages claimed under the second defense seem to be such as might be occasioned by loss of profits of the business of the corporation, and are too remote. Nor does it appear that there was a consideration for the promise to furnish money to the corporation. The allegations of the third defense, which-we have quoted in full, are likewise insufficient. It is not alleged that defendant’s time was spent in the employment of Potter or that Potter had anything to do with the Colorado company. So far as related to the affirmative matter of the answer, the ruling of the trial court was correct.
The judgment is reversed, and the cause remanded for further proceedings in accordance herewith.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
Harmon brought his action against the defendants in error for the purpose of obr,, taining an attachment to enforce a landlord’s lien on crops raised on premises which he had leased to them-.. His petition set out the necessary facts and his affidavit was sufficient in form. The jury returned a. general verdict in favor of the defendants,.and found-special. facts in answer to questions, propounded to- them. The case-made contains nothing beyond the pleadings, instructions, findings, and judgment.
The plaintiff in error, as administratrix of the estate of the original plaintiff, contends that judgment should have been rendered in favor of the plaintiff upon the special findings, notwithstanding the general verdict. The special findings, summarized, show the facts to be that the plaintiff leased the defendant’s farm land in question for the year 1899 under an agreement that he was to have one-third of all crops raised; that under a custom of the neighborhood, which, in the absence of a special agreement upon this particular point, was held to govern, the plaintiff’s share of the rent was not to become due until the crops were fit for gathering. The crops raised were broom-corn, Kafir-corn, and field-corn. As to the broom-corn, the defendants were to harvest it and after paying the expense thereof to account to the plaintiff for one-third of the balance. This had been or was being done at the time of the attachment. As to the Kafir-corn, the -defendants were to harvest and deliver it in the field. 'This had been done in accordance with the agreement .•at the time the suit was brought. As to the field-corn, ¡the defendants were to husk the same at proper time . and deliver. By the eustom of the neighborhood they •were not required to gather and deliver plaintiff’s ■..share before they did their own. At the time of the 'bringing of the action the field-corn had been divided but was still on the premises, not having been husked or delivered, the proper time for so doing not having arrived. The defendants had done nothing to indicate that they did not intend, in due and proper time, to do this. They had, however, removed a considerable portion of their own share of the field-corn within thirty days prior to the bringing of this action.
The jury further found that, because the Kafir-corn had been delivered in accordance with the custom <oif the neighborhood, and the usual time for gathering and cribbing the field-corn had not passed, the defendants owed the plaintiff nothing at the time of the bringing of the action, and gave their general verdict in defendants’ favor. The attached crops were' sold prior to the trial by a receiver and the money brought into court. The broom-corn was marketed, and" the defendants'were found to have in their hands thirty-six dollars' as the plaintiff’s share thereof.' The court approved the general verdict, directed the money which had been received upon the sale of the attached property, less the thirty-six dollars due the plaintiff on the broom-corn, to be paid over to the d'ei-fendants, and taxed the costs of the action against' the plaintiff.
We are of the opinion that, upon the facts specially found, the judgment should have been otherwise; Section 27 of the landlord-and-tenant act ('Gen.' Stat. 1901, § 3871) provides'that,- “when any person'who shall be liable to pay rent ( whether the sainé be due or not, if it be' due within one year thereafter, and •whether the same be payable in money or ■ other things)-' intends to remove, or is removing, or has within' thirty days'removed his property,'or the crops, or" any part thereof, from' the leased premises’,” thé landlord' may levy an attachment for his rent. The section has been construed in Knowles v. Sell, 41 Kan. 171, 21 Pac. 102, to give the landlord an enforceable lien upon all the crops raised on the landlord’s premises, when the tenant, without thé landlord’s Consent, shall remove any appreciable part of thé crop therefrom, the motive of the tenant in removing being immaterial, the simple fact of the removal' be fore the-final adjustment of the landlord’s rights being-enough to furnish ground.
It would seem clear that under the facts found in the case at bar the attachment should have been sustained. While the tenants were authorized, under the contract as found, to dispose of the broom-corn and pay the landlord his share in money, and while the Kafir-corn had been cut and delivered to the landlord in accordance with the custom of the neighborhood, there being no contract regulating the matter, yet, the field-corn was still to be husked and delivered, and the landlord had the right to his lien upon the entire crop to compel this. Under the statute quoted, a landlord is not required to rely upon the promise or purpose of the tenant to carry out his part of the contract: he is given a lien upon the entire crop to secure from the tenant the performance of his contract, and the tenant may not remove any appreciable portion of the same, no matter how good his purpose, without subjecting himself to the penalty of the statute, except by the consent of the landlord or a waiving of the lien. In this case there were neither pleadings nor findings that he had waived this lien. While the jury found that the tenants owed the landlord nothing at the time of the commencement of his action, this finding was based upon the fact that the-time for husking and delivery of the field-corn had not then arrived. This, however, was immaterial, as the lien continued until the rent had been paid or the share delivered.
If the rent is to be paid in a share of the crop, it is the landlord’s right to have this matter adjusted and his share delivered before the tenant removes any portion from the premises. This right inheres in the contract of rental, and if the tenant removes any por tion of the crop he breaks his contract, and the landlord may then recover from the tenant the value of his share at the time it should have been delivered, in money, the same being secured by an attachment.
"While in this case the attachment should have been sustained, it does not appear what the value of the landlord’s share was and we are not able to direct the entry of a judgment. Hence, we must reverse the judgment heretofore rendered and direct further proceedings in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
About March 6,1899, Ridgeway & Co., who were conducting a general store, sold their stock of merchandise to one Meeker for $3000. The firm owed about $3900 at the time to general creditors, and, among others, was indebted to plaintiffs in error in the sum of $900. In a few days after the sale Ridgeway & Co. paid John S. Brittain Dry-goods Co. $366.50 on their claim. On June 10, 1899, Ridgeway & Go. were declared bankrupts.
This was an action by Bertenshaw, the trustee in the bankruptcy proceeding, to recover back the payment made to plaintiffs in error, on the ground that it was a preference. In answer to particular questions of fact, the jury found that, after Meeker paid Ridge- way & Co. for the stock of goods, the latter firm did not have money and property enough to pay all of their indebtedness in full. They also found that the payment made by Ridgeway & Co. to plaintiffs in error did not enable the latter to obtain a greater percentage of their debt than Ridgeway & Co. were able to pay to their other creditors. The trustee recovered a judgment in the court below, of which plaintiffs in error complain.
Subdivisions a and b of section 60 of the bankruptcy act of 1898 (80 U. S. Stat. atL. 562, Comp. Stat. 1901, 3445), read :
“ (a) A person shall be deemed to have given a preference if, being insolvent, he has procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class.
“(b) If a bankrupt shall have given a preference within four months before the filing of a petition, or after the filing of the petition and before the adjudication, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person.”
A person is deemed to be insolvent, within the meaning of the bankruptcy act, when the aggregate of his present property “shall not, at a fair valuation, be sufficient in amount to pay his debts.” A payment of money has been held to be included within the words “transfer of property,” used in section 60a. (Pirie v. Chicago Title and Trust Company, 182 U. S. 438, 21 Sup. Ct. 906, 45 L. Ed. 1171.)
The question, here involved, is whether a part payment to the Brittain Dry-goods Co. of their claim was a preference, when by the receipt of the amount they did not get a larger percentage of their debt than the debtors were able to pay to their other creditors. The language, of the bankruptcy act defining a preference answers the question in the negative. The theory of the national bankrupt law is to secure a distribution of the debtor’s property among the creditors ratably and in proportion to their respective claims. If the insolvent debtor himself should make such distribution of his assets, the creditors receiving their equitable shares ought not to be required to restore to the trustee in bankruptcy what they have received in order that it may be repaid to them again, less the cost of administering the trust. The end and aim of the bankrupt law is to secure payment to creditors of an equal percentage of their claims. If the insolvent person does this, we can see no reason why his creditors should contribute to pay the expenses of bankruptcy proceedings to accomplish the same result. If plaintiffs in error had received all of their claim, the payment manifestly would have been a preference, for it was clearly shown that the debtors’ assets were insufficient to satisfy all they owed. (Johnson v. Wald, 93 Fed. 640, 35 C. C. A. 522.) There was a finding that the payment to defendant below prevented the remaining creditors from securing payment of their claims against Ridgeway & Co., but, in the light of other answers of the jury, this means that the payment had the effect to prevent a payment in full to other ’ creditors. In the case of Pepperdine v. Bank, 84 Mo. App. 234, 242, cited and relied upon by counsel for defendant in error, the principle was recognized that if the debtor making the payment had paid or made provision to pay other creditors a proportionable amount, the transaction was not a preference.
It is essential to a recovery in cases of this kind that the effect of the payment was to enable one creditor to obtain a greater percentage of his debt than other creditors of the same class. (Re Hapgood, 2 Lowell, 200, 11 Fed. Cas. No. 6,044; Peterson v. Nash Bros., 112 Fed. 311, 314, 50 C. C. A. 260, 55 L. R. A. 344; Collier on Bankruptcy, 3d ed., 342 ; Luby on Bankruptcy, 109, and note.) The jury found that the payment to plaintiffs in error of a part of their demand did not* have such effect. There is no question of the burden of proof involved, as was the case in Baden v. Bertenshaw, ante, page 32, 74 Phc. 639.
The judgment of the court below will be reversed, and if defendants below move for judgment in their favor, the application should be granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
In September, 1901, the Philadelphia Mortgage and Trust Company, a corporation, was the owner of a half-section of land in Harper county, which had been leased to J. P. Hardesty for the year expiring March 1, 1902, for the sum of fifty dollars, due October 1, 1901, for which Hardesty had given his note. J. W. Clendenin and R. H. Lockwood, of Wichita, composing a firm known as J. W. Clendenin & Co., were agents of the Philadelphia company with respect to this and other lands, but had no authority to effect a contract of sale, except upon terms to be submitted to and approved by their principal. On September 3, 1901, Hardesty wrote a letter to Clendenin & Co., relative to a purchase of this half-section, and thus began a correspondence on the subject, which continued until October 9, and which he claims resulted in a valid contract for such purchase. The Philadelphia company denied that a contract had been made, and refused to convey the land, whereupon Hardesty sued it and Clendenin & Co. for damages for such refusal, and recovered a judgment against the corporation, which it is the purpose of this proceeding .to review.
The case was sent to the jury upon two principal issues of fact: First, whether Clendenin & Co. had made an agreement with plaintiff for the sale of the land ; and second, if so, whether they had authority to bind the corporation to such agreement. The jury found specially that the agents sold the property to plaintiff without reserving the rent; that they had no authority to make such a sale, but that the corporation had ratified it. There was no evidence of ratification, and therefore these findings would, of themselves, require a reversal if these issues were properly submitted to the jury. But there was no conflict of testimony upon these matters and all substantial evidence affecting them was in writing. Whether the various letters and telegrams established the agency and the contract was purely a question of law. Whatever authority the agents had was derived from a letter written to them by the corporation on September 16, giving a statement of terms on which a sale might be made, concluding with the words, “It is understood that this year’s rents will come to us.” The owner of the land, having leased it until the following March, was obviously not in a position to make a contract for immediate sale, without reservation. It was necessary that the matter of possession and rent should be adjusted between buyer, seller, and tenant. The owner did not know that the proposed buyer was the tenant. In view of this situation, it must be held that the words just quoted from its letter constituted, in effect, an instruction to its agents that the sale must be made, if at all, subject to the lease. At any rate, they so limited the other terms of the letter that no authority was granted to make the kind of sale the jury found was made; that is to- say, a sale without a reservation of the season’s rent. The judgment must on this account be reversed, unless it can be said that this finding was immaterial because outside the issues ; that the agents did make with plaintiff such a contract as was within their authority ; that the plaintiff was ready and willing to carry it out, and that the defendant refused to do so.
The correspondence between Hardesty and Clen-denin & Co., regarding the proposed sale, included at least ten letters and telegrams on each side. Various matters of difference arose ; various conditions were sought to be imposed and afterward withdrawn, while in the meantime other questions had arisen. Intelligently to present the question whether at any time the minds of the parties met upon all substantial matters and thus completed a contract, it is necessary to review these writings in some detail.
The negotiation was begun by Hardesty writing to Clendenin & Co., asking the price of the land. They replied, saying that the price was $1200, to be paid half in cash and half on time, at six per cent, interest. Hardesty then made an offer of $1100, $600 down and $500 on time. This offer the agents submitted to the owner, who, in the letter already referred to, authorized a sale (subject to the rent, as before noted) at $1200, half in cash and.half by mortgage. This offer was reported to Hardesty by Clendenin & Co., who, however, stated that the rate of interest required was seven per cent, instead of six, the rate mentioned in their correspondence with their principal. Hardesty replied September 20, with a telegram: “Will take land at twelve hundred, six hundred cash six on time, six per cent, interest, as agreed in your letter. Answer at once.” At this stage of the proceedings, it is clear that there was no contract. But Clendenin & Co. immediately sent the following telegram to Hardesty : “Will sell you the land as per telegram 20th instant.” At this point, therefore — that is, upon the sending of the latter telegram — it may be said that there was a definite proposal and acceptance, constituting a completed contract.
The matter of this lease and rent not having been mentioned, the agents may be said to have agreed that a warranty deed should be delivered at once. This would leave the grantor liable to the grantee for the fair value of the use of the land from the time of sale to the ensuing March — in effect accomplishing a division of the season’s rent between the buyer and seller, an arrangement presumably equitable but one not authorized by the agent’s instructions. Had Hardesty at this point offered to carry out the contract according to its very terms, he doubtless would have had a right to insist upon its performance, so far as the agents were concerned.; but this contract, nothing yet having been stated to the contrary, contemplated the payment of the purchase-price at the home of the vendor or that of its representatives. (Greenawalt v. Este, 40 Kan. 418, 10 Pac. 803.) It was incumbent upon the purchaser, in order to avail himself of the contract, to comply or offer to comply with that condition. Instead of doing so, on the same day, the 20th, he wrote to Clendenin & Co., enclosing a check for $100 and asking that the deed be made to M. Hardesty (in itself a new condition) and sent to the Bank of Hazelton. These additional requirements authorized the agents of the vendor to consider the matter still open and to impose new conditions on their own part. (Hinish v. Oliver, 66 Kan. 282, 71 Pac. 520 ; Egger v. Nesbitt, 122 Mo. 667, 27 S. W. 385, 43 Am. St. Rep. 596.) On the same day they wrote to Hardesty, insisting upon seven per cent, as the rate of interest, asking to whom the deed should be made, and offering to send the papers to Charles E. Morris, at Anthony. The controversy as to the rate of interest was finally settled by an agreement to pay the full purchase-price in cash. In their letter of the 20th, Clendenin & Co., for the first time, expressed a willingness to make a deed to any one other than Hardesty himself. This letter, therefore, marks the first period in the negotiations when it can be claimed that a contract for a deed to M. Hardesty, the wife of J. P. Plardesty, was under consideration, and to this letter was added: “Of course, you understand that owner expects you to pay the rent agreed on for the land this year, and will have to be paid at the same time that you close up the sale.” This was the first time that Clendenin & Co. had mentioned this matter in their correspondence with Hardesty, but, late as the requirement was made, it was within time, since a final agreement had not yet been reached.
On September 23 Hardesty wrote to Clendenin & Co. about the matter of interest, offering to pay the full amount down, and continued :
“You can make deed to M. Hardesty, as instructed in former letter, and send it to the Bank of Hazelton, Kansas, and on receipt of it will pay you $1100. With the $100 you already have got, will make the $1200. So you see you have all cash instead of any time, which will suit you better. Of course, I demand .an abstract, deed, clear of all encumbrance. Now, if this don’t suit you, return the check for $100 and the trade is off.”
■ The requirements insisted upon in this letter as to sending the deed to the Bank of Hazleton and furnishing an abstract had never been agreed to by Clen-denin & Co., and it is too clear for argument that whatever may have been the earlier condition of the negotiation, at the time this letter was written there was no contract between the parties. Clendenin & Co., on September 24, notified Hardesty that they had sent the deed to Morris, at Anthony, together with the note given for the rent. Morris was instructed to deliver the deed only upon the payment of the note as well as of the purchase-price. On September 26 Hardesty wrote as follows :
“Just received a letter from one Charley Morris. Who is Morris and what figure does he cut in our deal, ordering me to get my money out of the Bank of Hazelton and carry it around over the country and to hunt him up and take up deed ? I stated in my letter to you that your money was in the Bank of Hazelton ; to send the deed there and collect your money. I have n’t the time to go and hunt up other parties in this deal unless there is something in it. My time is -worth money to me at present.. Send deed to the Bank of 'Hazelton and I will fix up the matter. Hoping to hear soon.”
Hardesty, however, did call upon Morris and offer to pay $ 1100 for the deed, but refused to pay the note. He said to Morris that he did not consider that there was anything due on the note ; that he was entitled to the land for $1200, clear of all encumbrances. On the receipt of Hardesty’s letter of the 26th, Clendenin & Co. wrote to him that they would direct Morris to send the papers to the Hazelton bank. . But on the next day they wrote him again, saying that, having heard from Morris that he had declined to pay the amount demanded for the note and deed, thby would leave the papers at Anthony, and, unless they were taken up by the following Monday, would order their return. In this letter the matter of the rent is discussed at length. On October 2 Hardesty wrote that he had offered Morris $1100 for the deed. In this letter he did not refer to the note. On the same day Clendenin & Co. wrote to him, again refusing to send the papers to the Bank of Hazelton and giving him until October 6 to take them up at Anthony. On October 7 Hardesty wrote to Clendenin & Co. as folmws :
“I have just been over to the Bank of Hazelton and find the deed is n’t there yet for the Davis land. I received a letter from you advising me to go to Hazel-ton and take up those papers. I want you to understand that I will not have anything to do with Morris in this matter. Now, I will give you until the 15th of the month to send the deed to the Bank of Hazelton, as you agreed to do. I had to borrow part of the money to settle the interest business and it is an expense to me right along. If you did n’t want to sell the land to me for '$1200 clear of all encumbrance, why did you do it ? Or if you did n’t intend to send deed to Hazelton at all, why did you say so ? Now, I will refer you to my letter of September 28. You had a chance then to return my check if you didn’t want to sell the place for $1200, which you did n’t do, and now you are into it. You will find $1100 in the Bank of Hazelton to finish, paying for that land, any day between this and the 15th of October.”
On October 8 Clendenin & Co. sent Hardesty a check for $50, retaining the remainder of the $100 he had paid them, claiming it upon the rent. On the 10th Hardesty returned their check and began his action for damages.
It thus appears that while at one time the correspondence between plaintiff and the owner’s agents showed an offer to buy and an unconditional acceptance, thus making a valid contract, plaintiff himself repudiated this agreement and insisted upon imposing additional conditions; that in the course of the new negotiations which followed, and before a further agreement had been reached, the requirement was made in behalf of the owner that plaintiff should pay the year’s rent — in effect that he should take the land subject to the lease ; that this demand was never afterward withdrawn and was never acceded to. There was, therefore, no contract that could be enforced in this action, even apart from any question of the au-, thority of the agents to make it. Plaintiff waived whatever rights he might have asserted under the terms of the original agreement, and a subsequent agreement was never reached.
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
Johnston, C. J. :
George Overton was convicted of carrying on the business of. a huckster without a license, in violation of a city ordinance of Kansas City. It ordained that the license of a huckster or hawker for each six months should be thirty-five dollars, and that each person engaged in helping or assisting a huckster or hawker in the sale of his wares should pay a'license of fifteen dollars for each six months. It also contained a clause providing that nothing in the ordinance should apply to a person who is personally selling the product of his own or leased land.
In his appeal he attacks the validity of the ordinance upon a number of grounds. The first objection is made under the provision that no ordinance shall contain more than one subject, which shall be clearly expressed in its title. The ordinance treats of a single subject, namely, the imposition of a license-tax on hucksters and hawkers, and the title explicitly points out the subject of the enactment. . The fact that the enforcement of the ordinance may operate to regulate as well as provide revenue does not indicate two subjects nor make it obnoxious to the fundamental rule.
The next objection, that the-legislation granting to cities power to levy a license-tax is invalid because it does not contain restrictions to prevent the abuse of the power, is not tenable. There are restrictions imposed, and the objection made is fully answered in City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, 47 Am. Rep. 486.
It is next contended that the ordinance is ineffectual for lack of publication. It provided that it should be in force from and after its publication in the Kansas City, Kan., Neius. While that publication appears to be- a general newspaper which had been issued for over two years, its circulation was quite limited. There were issued about 500 papers of the weekly edition, and only 102 of the daily edition, in which the ordinance in question was published. Because of the limited circulation it is contended that the publication was insufficient and that the ordinance was therefore inoperative.
The claim of the appellant is that the sufficiency of the publication is to be measured by section 1, chapter 239, Laws of 1901, a general provision regulating the printing of legal notices in a newspaper of the county having a general circulation therein, while the city contends -that the governing statute is section 855, General Statutes of 1901, which specifically provides that the ordinances of a city of the first class shall be published in a newspaper printed within the city. The former provision requires publication in a newspaper of general circulation in a county, and one which has been published for at least a year, while the latter only requires publication in a newspaper, without prescribing the extent of the circulation or the length of time the newspaper shall have been published. The former makes a publication in any newspaper published in the county sufficient, while the latter requires publication to be in a newspaper printed within the city which enacts the ordinance. The former is general, applying to what are designated as legal notices and advertisements, while the latter is specific, applying only and particularly to city ordinances.
The act of 1901, which is an amendment of chapter 156 of the Laws of 1891, is a later enactment than the one providing for the publication of city ordinances, and it is contended that it operates to abrogate or repeal the earlier provision. Ordinarily, • .an act treating a matter solely and specially is not affected by a later act covering a wider field in general terms and only touching the matter in the special act in a general and incidental way. It will not'do so unless the provisions of the general act clearly indicate that it is a substitute for the special and particular legislation. Prom an examination of the two acts it is plain that the legislature did not intend that the provision as to the publication of. legal notices should cover or affect city ordinances. This, in fact, has already been determined in City of Pittsburg v. Reynolds, 48 Kan. 360, 29 Pac. 757, where it was held that chapter 156 of the Laws of. 1891 had no application to the publication of city ordinances. While the ■ act interpreted in that decision has been amended by the act of 1901, the provisions which we are considering have not been materially modified, and therefore the case cited is controlling here. It is only necessary, therefore, that the publication should be regarded as a newspaper to meet the requirements of the law. It was issued at regular stated intervals, contained the current news and .matters of general interest, including the local happenings of the city, and a great many proposals and notices concerning the grading and paving of streets and other works of internal improvement. Although the News was very limited in circulation, we think it must be held to be a newspaper, within the meaning of the statute, and therefore the. objection to the publication of the ordinance cannot be sustained.
An attack is made on the ordinance imposing the license-tax on the ground that it is unjust and unreasonable in its terms and denies to hucksters and hawkers equal protection and privileges. There is legislative authority to impose license-taxes on hucksters as well as almost all other occupations and lines of business. While the tax imposed appears to be large, we cannot, say that it is so unreasonable and oppressive as to be invalid. As was said in Fretwell v. City of Troy, 18 Kan. 271, the mere amount of a tax does not prove its invalidity. Many things enter into the determination of what constitutes a just and reasonable license-tax, and the amount is necessarily left largely to the judgment and discretion of the municipality. It has been held that a license-tax may be imposed on occupations as a matter of regulation, and also for the purpose of obtaining revenue to meet the general expenses of the city. (City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288, 47 Am. Rep. 486; In re Chipchase, Petitioner, 56 id. 357, 43 Pac. 264; In re Martin, 62 id. 638, 64 Pac. 43.)
The expense of inspection and regulation, the amount of the city indebtedness and the necessary cost of carrying on the municipal government enter into the question of whether, the tax is reasonable and just, and these are considerations for the mayor and council, rather than for the courts. It does not appear that the tax imposed is in excess of the necessities of the city, nor that it is prohibitive or destructive of the licensed business. In such a case the reasonableness of the tax must be left to the municipal authorities. The City of Cherokee v. Fox, 34 Kan. 16, 7 Pac. 625, was an attack on a hawker’s license which required the payment of $2.50 per day as a license-tax. It was contended that the ordinance imposing it was unjust, partial and oppressive in its operation, but its validity was sustained. (See, also, Fretwell v. City of Troy, supra ; City of Caldwell v. Prunelle, 57 Kan. 511; 46 Pac. 949.)
The final contention is that the ordinance is invalid because it makes unjust discriminations. The only exception contained therein is one making it inapplicable to persons personally selling the product of their own or leased lands. It is competent for the legislature to make classifications and distinctions which rest on a reasonable basis. The ordinance in question applies to itinerant traders who have no fixed places of business, but who travel from house to house, peddling goods purchased from others. A farmer or gardener who sells the growth or products of his own farm or garden does not come within this class. The vending of the products of the farm or garden in such cases is regarded to be incidental to the principal business of farming and gardening, and it is well settled that they do not come within the meaning of an ordinance requiring the payment of a license for huckstering and peddling in a city. The classification is not arbitrary, as there is a reasonable distinction between the producer who sells his own products and the middleman or itinerant trader who sells what others have produced. (People v. Sawyer, 106 Mich. 428, 64 N. W. 333; Davis & Co. v. The Mayor and Council of Macon, 64 Ga. 128, 37 Am. Rep. 60 ; Burr & Co. v. The City of Atlanta, 64 id. 225; Commonwealth v. Gardner, 133 Pa. St. 284, 19 Atl. 550, 7 L. R. A. 666, 19 Am. St. Rep. 645 ; Homewood v. City of Wilmington, 5 Hous. [Del.] 123; Lansford Borough v. J. A. Wertman, 18 Pa. Co. Ct. 469; Roy v. Schuff, 51 La. Ann. 86, 24 South. 788 ; 15 A. & E. Encycl. of L., 2d ed., 294.)
■The ordinance makes no exception in favor of soldiers of the civil war, and hence the question discussed by counsel does not arise in this case.
We find no error, and therefore the judgment of the district court will be affirmed.
All the Justices concurring, | [
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Per Ouriam:
This was an action brought by Gf. W. Coffee, now deceased, against plaintiff in error, a physician, for malpractice. A recovery was had in the court below. There are twenty-four assignments of error. We will consider only those which are material.
The petition was not defective because of a failure to Rver that defendant below was a physician at the time he treated his patient. The petition alleged that “ W. C. Bower is a physician and surgeon engaged in the practice of medicine and surgery, . . -. and has been so engaged for several years last past.”
The testimony of Coffee, plaintiff below, and Doctor Dykes, as to the length of time it took the latter to catheterize plaintiff, was not introduced to compare the skill of the two doctors. It was proper to show the treatment received by Coffee after Doctor Bower gave up the case.
The hypothetical question asked Doctor Slagel, respecting the effect of a puncture of the urethra in the prostate region by a catheter not properly sterilized, was not wholly without foundation in the evidence. The jury might have inferred from the fact that Doctor Bower did not immerse his instruments in boiling water that they were in a septic condition. (Roark v. Greeno, 61 Kan. 299, 59 Pac. 655.)
There^ was no error in the hypothetical question put to Doctor Relihan, The interrogatory was based upon facts fairly within the history of the case, as detailed by Coffee and others. (Roark v. Greeno, supra.)
The court instructed the jury fairly and narrowed the issue down to the question of negligence. We cannot say that the instructions refused worked any prejudice to defendant below.
The motion for a new trial was properly overruled. The newly-discovered evidence was merely cumulative. The matter contained in the affidavits of the jurors was not competent to impeach their verdict.
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
This action was brought by Peter A. Hartig to restrain the city of Eudora, a city of the third class, Charles Albright, street commissioner, and Frank Schaffer, marshal of said city, from entering upon the lands described in his petition 'and opening streets and alleys thereon. All the lands described in plaintiff’s petition were once within the corporate limits of the city of Eudora, and the streets in question had been surveyed, platted and dedicated to the public. After the rendition of the judgment Peter A. Hartig died, and the cause was regularly revived in the name of plaintiffs. The city prosecutes error.
Many exceptions were saved to the ruling of the district court, and are urged here, but the decision of one question will finally determine the rights of the parties. Plaintiff in error contends that, while this land was embraced within the corporate limits of the city of Eudora, the commissioners of Douglas county vacated the streets and alleys which the city and its officers are about to open.. Upon this question the court below made the following findings :
“On July 7, 1883, the plaintiff, with fifty-seven others, presented to the board of county commissioners of Douglas county, Kansas,'a petition asking that body to vacate First street, between I and H streets; Second street, between I and E streets ; Third street, between F and 0 streets; D and E streets, between the Wakarusa and Kansas rivers ; also the alleys in blocks 102, 103, 104, 106, 109, 140,141, 142, 174,176, 177, and 210, which petition was granted by said board on August 6, 1883. All of said streets and alleys were embraced and included in the real estate in controversy. Said order of the board of county commissioners granting said petition has never been revoked or appealed from, except that about one year later the said board made an order revoking the first order. The last order was made without notice to any one. The said petition was presented and the order was made under and pursuant to chapter 115a of the Laws of 1885. ”
The city of Eudora contends that the commissioners had no power to vacate such streets and alleys, but that if they had, the order was afterward set aside; that the commissioners had no authority to open streets or alleys in an incorporated city either by setting aside former orders vacating such streets or otherwise ; consequently, if the order of July 7, vacating the streets and alleys, was within the power of the commissioners, they could not thereafter annul or set it aside by any subsequent order. To ascertain whether the commissioners had power to vacate streets and alleys in such cities in 1883, reference must be had to the statute as it then existed. We find that chapter 108, General Statutes of 1868, conferred power upon the commissioners to vacate streets and alleys in towns and villages ; that chapter 26, Laws of 1869, is the first general charter act providing for the incorporation and government of cities of the third class, and by subdivision 34 of section 29 of that act, the power to vacate streets and alleys was conferred upon such cities in the following language : ■
“To open, widen or otherwise improve or vacate any street, avenue, alley or lane within the limits of the city, and also to create, open and improve any new street, avenue, alley or lane.”
This latter act was amended and revised. Chapter 108, General Statutes of 1868, was repealed by chapter 60, Laws of 1871. By section 55 of that act, power was conferred upon the mayor and council “to open, widen, extend or otherwise improve any street, avenue, alley or lane; to create, open and improve any new street, avenue, alley or lane ; and also to annul, vacate or discontinue the same, whenever deemed necessary or expedient.”
In 1876 the legislature enacted chapter 134, which is entitled “An act providing for the vacation of streets, alleys and other public reservations.” Section 3 reads:
“Whenever it shall be desired to vacate any street, alley or other public reservation in any improved town site not embraced in any incorporated city, the person, persons or corporation so desiring shall give notice by advertising for six consecutive weeks in a weekly newspaper of general circulation in said town, that, at the next regular session of the county commissioners of the county in which such town is located, a petition will be presented to said commissioners praying the vacation of such street, alley or other public reservation, describing the same properly.”
This section applies to improved town sites not embraced in any incorporated city. Under that act, the commissioners had no power to vacate the streets and alleys embraced in the corporate limits of the city of Eudora. In 1877, chapter 19Q, Laws of 1877, was enacted, which is entitled “An act providing for* the vacation of streets, alleys, and other public reservations.” Section 3 reads:
“Whenever it shall be desired to vacate any block, lots, park, reservation, street or alley, or any part of such block, park, reservation, street or alley, in any improved town site, the person, persons or corporations so desiring shall give notice by advertisement, for four consecutive weeks, in a weekly newspaper of general circulation in said town, that at the next regular session of the county commissioners of the county in which such town is located, a petition will be presented to said commissioners praying the vacation of such blocks, lots, park, reservation, street, alley, or any part of such block, park, lots, reservation, street or alley, describing the same properly.”
By this act, which omits the clause “not embraced in any incorporated city,” found in chapter 134, Laws of 1876, the commissioners are granted the power to vacate the streets and alleys in any improved town site. The only difference between chapter 134, Laws of 1876; and chapter 190, Laws of 1877, is the omission from the latter of the clause ‘‘not embraced in any incorporated city.” It appears that the latter act was passed expressly to confer upon the commissioners power to vacate streets and alleys in any incorporated town site, whether such streets and alleys are embraced in the corporate limits of a city or otherwise. This is the only construction that can be given these statutes which offers any reason for the enactment of the act of 1877. In support of this contention, chapter 66, La¡ws of 1893, seems applicable. Section 1 reads:
“Where any town site, or portion of a town site, containing more than five acres, has been heretofore vacated by the board of county commissioners or by act of the legislature, and such town site, or a portion of a town site, is a part of a city of the first, second, or third class, and included within the corporate limits of such municipal corporation, then, from and after the passage of this act, the town site, or portion of a town site containing more than five acres, thus vacated, shall no longer be a part of such municipal corporation, nor included in the corporate limits thereof.”
The legislature evidently was of the opinion that the commissioners had at some time possessed the power to vacate streets and alleys embraced within the corporate limits of a city; otherwise it would not have inserted the clause removing from the corporate limits of cities territory in which the commissioners had previously vacated streets and alleys.
In 1897 the legislature enacted chapter 267 (Gen. Stat. 1901, ch. 115). This act conferred such jurisdiction upon the district court, but did not repeal either the act of 1871 or the act of 1877. Neither the act of 1871, which conferred upon cities of the third class power to vacate streets and alleys, the act of 1877, which conferred such power upon the commissioners, nor the act of 1897, which conferred the same power upon the district court, is exclusive. Since all of these acts stand, it must follow that each tribunal named may exercise such power when called upon. The legislature may confer such power upon as many different tribunals as it may deem expedient, and any of such tribunals may exercise such jurisdiction.
In Baldwin v. Green, 10 Mo. 410, an action was brought against Baldwin for a failure to work the roads over which Green was overseer. The only question presented was, Did the act incorporating Platte City divest the county court of Platte county of its jurisdiction over that part of the road lying within the corporate limits of the town? The act of incorporation contained an enumeration of powers vested in the board of trustees. In the syllabus it was said:
“An act incorporating a town and vesting the authorities of the town with certain powers does not divest the state or county courts of powers vested in them by a genóral law, unless the act of incorporation declares the powers vested in the corporation to be exclusive . ”
In Hornaday v. The State, 68 Kan. 499, 503, 65 Pac. 656, in speaking of the same power being conferred upon two different bodies of trustees, the court said:
“We can see no good reason why the trustees for the different asylums, commonly known as the state board of charities, should not be given power to condemn lands necessary for the erection of buildings for institutions, the care of which comes within their jurisdiction. The conferring of such power is a matter of legislative discretion, which may be exercised by lodging the same in any number of boards or tribunals authorized to act in behalf of the state. In the statute authorizing the condemnation of lands for railway purposes two methods for determining the value are provided, one by the board of county commissioners acting as appraisers, and the.other by three commissioners selected by the district judge.”
In the case of Shoemaker v. Brown, 10 Kan. 383, 392, it was said :
“It is a general rule that a mere grant of jurisdiction to a particular court, without words of exclusion as to other courts previously possessing the like powers, will only have the effect of constituting the former a court of concurrent jurisdiction with the latter.”
In the City of Ottawa v. Rohrbaugh, 42 Kan. 253, 21 Pac. 1061, this court construed section 3 of the act of 1877 to apply to tracts of land surveyed and subdivided into lots and blocks by streets and alleys which had never been improved by occupancy or buildings or had been only partially improved, but not to such extent as would authorize the organization of a city, town, or village, and where there existed no corporate authority. We have no doubt of the power of the commissioners to vacate streets and alleys situated as described in that opinion. But, as heretofore said, the act of 1877 was passed expressly to amend that provision of the act of 1876, and to confer upon the commissioners the power to vacate streets and alleys in any incorporated town site, whether within or without the corporate limits of a city. This construction gives force and effect to both acts. We are of the opinion thát if the attention of the learned judge who wrote that opinion had been called to those particular provisions of the two acts, the decision in that case would have been otherwise. It was within the power of the board of county commissioners to make the order of July 7, 1888, vacating the streets and alleys in the city of Eudora.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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T.he opinion of the court was' delivered by
JohnstoN, C. J. :
The principal question determined in this case was the validity of the sale of the inining property by E. B. Shackelton to his wife and by Richard Ward to his sister, as upon that sale the validity of the mortgage of the Galena National Bank depends. The general verdict in favor of the bank in question acquits the vendors of the property of any bad faith or fraud in the transaction. No special questions as to their good faith and honesty were ■submitted to the jury, but the general finding covers those as well as all other elements necessary to support the verdict, which are not inconsistent with the special findings that were made. The jury did find that the circumstances at the time of the sale were such as to put reasonably prudent persons upon inquiry, and that G. M. Shackelton and Maggie Ward were not purchasers in good faith, but at the same time they found that these purchasers paid not only a valuable consideration for the property but that the price paid was adequate. It results, therefore, from the findings and verdict that .the vendors made an honest sale of the property, and while the vendees did not act in good faith in some particular not stated they did pay the fair value of the property, and also that the bank from which the mortgage loan was obtained had no knowledge of any fraud in 'the transfer and acted in good faith in the premises. Under these circumstances, the attack on the findings and the claim that the mortgage was invalid cannot be upheld. The vendors and their creditors lost nothing by the transfer. The vendors made an honest transfer for an adequate consideration and were able to respond to their creditors as-well after as before the transfer. Again, according to the general verdict, there is nothing in the case which impeaches the action of the bank or the mortgage under which it claims.
Assuming that the vendees were not honest in the purchase of the property it would not destroy the validity of the mortgage. The bank, under the verdict being innocent of any fraud, is protected on the principle that fraud is only prejudicial to those who participate in it.’ A mortgagee of a fraudulent vendee,, without knowledge of the fraud, is protected and treated as an innocent purchaser to the extent of the mortgage debt. (Wilson v. Fuller, 9 Kan. 176 ; Scheble v. Jordan, 30 id. 353, 1 Pac. 121; Farlin v. Sook, 30 id. 401, 1 Pac. 123, 46 Am. Rep. 100 ; Dolan, Sheriff, v. Van Demark, 35 id. 304, 10 Pac. 848 ; Kellogg Co. v. Horkey, 61 Neb. 751, 86 N. W. 497, 14 A. & E; Ency cl. of L., 2d ed., 288.)
It is contended that the district court lost jurisdicl tion of the case because it was not tried at the March term of the court at Galena. Under chapter 156 of the Laws of 1901 terms of court were provided'to be held at Columbus and Galena, within the county of Cherokee. There is some confusion in the statute as to the disposition to be made of cases pending at the passage of the act, but, however that statute may be viewed, the mere fact that the case was not tried at a particular term did not deprive the court of jurisdiction. But one district court existed in the county, and the fact that it sat in two places did not create two jurisdictions. It does not appear that any prejudice was suffered by the plaintiff by the postponement of the case, and hence there was no material error.
The rulings of the court as to the amendments of the pleading afford no ground for reversal, as the trial court is given very large discretion in that respect.
Complaint is made that the witnesses C. M. Shack-elton and Maggie Ward were allowed to state, in answer to an inquiry, that the property in controversy belonged to them, and it is said that, as this was a conclusion of the witnesses and the principal question which the jury were called to determine, it was error. It is true that where the ownership of property is the question at issue it is seldom competent to p'rove that fact by the bare assertion of the fact itself. (Hite v. Stimmell, 45 Kan. 469, 25 Pac. 852.) In this case, however, these questions were followed by an extended examination of the same witnesses, in which they gave in detail the circumstances of their purchase and the manner in which they had acquired the property. Under these circumstances, the error, if error there was, is not material or prejudicial. (Solomon Rld. Co. v. Jones, 34 Kan. 443, 8 Pac. 730.)
The other objections to rulings on testimony are not material.
No error was committed by the court in charging the jury, nor do we find anything in the errors assigned which affords ground for reversal.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
This was an action of ejectment. Charles Seymour Grenfell and Harvey Ranking, trustees, were the assignees of a note for the sum f10,000, and a mortgage to secure its payment, executed to the Equitable Mortgage Company by Anderson Gray and Sarah, his wife. The property involved was 800 acres of land in Sumner county. The note was due June 1, 1893. ■In.default of payment, Grenfell and Ranking, as trustees, on February 8, 1895,, commenced an action on the note and to foreclose the mortgage. Before this, and on December 29, 1894, Anderson Gray, the mortgagor, was sentenced to be hanged for murder in the . first degree. Gray and his wife and a son, Edwin,, were made parties defendant in the foreclosure suit,. but no service of summons was had on Gray. After he was taken to the penitentiary, waiting exeeu-' tion, plaintiffs in the foreclosure suit, by leave of _ the court, made three other children of Anderson Gray parties defendant, on the theory that they had inherited1 an interest in the land after the sentence of death had ’ been passed on their father.
None of the parties defendant in the foreclosure action made any appearance except one Dorsey, who claimed to be the owner of the land under a deed from-^ Gray. This deed was shown on the trial to have been given to Dorsey to indemnify him as bondsman of Grayi? . and was in legal effect a mortgage. In October, 1895,. judgment was rendered on the note for.the sum of $13,235.50, and a decree entered ordering the mort-. gaged real estate sold to satisfy that amount, together, with interest and costs. The property was sold by. the sheriff on June 29, 1896, and bought by theEquita-. ble Securities Company. The sale was confirmed and;, a deed executed by the sheriff to the purchaser on Sep- . tember 11, 1896. About this time the Securities com-f pany, through its agents and tenants, went into-peaceable possession of the premises. It has paid. alht taxes on the land since 1892.’
In January, 1897, Anderson Gray was granted an: absolute pardon by the governor. On September 10 of the same year he began this action of ejectment in-1 the district court of Sumner county against the Equi-.. table Mortgage Company, Grenfell and. Ranking,. r trustees, Dorsey and wife, the Equitable Securities-^ Company, and the tenants of the latter, to recover . possession bf the mortgaged land, with rents and p'fbfits. A change of venue was taken to Sedgwick comity. He recovered judgment for possession and for $1950 rents:and profits. Defendants below complain here that the judgment was erroneous.
"“The case of Stouffer v. Harlan, post, 74 Pac. 610, disposes of the important and controlling question presented. It was there held that one who assumes possession bf land under color of foreclosure proceedings believed by him to be valid,' however defective they may be in fact, cannot be dispossessed in an action of ejectment by the mortgagor before payment of the mortgage debt. A full discussion of the rights bf a mortgagee in possession will be found in the opinion in that case, with many authorities oh the question referred to and their application considered. It is decisive of the present controversy.
1 The Equitable Securities Company having bought the land at the sheriff’s sale under the decree of foreclosure, and having entered thereon peaceably, was entitled to all the rights of a mortgagee in possession. A sale under the decree operated as an assignment to the purchaser of the interest of the mortgagee in the premises. ' (Stark et al. v. Brown, 12 Wis. 572, 78 Am. Dec. 762; Brobst v. Brock, 10 Wall. 519, 19 L. Ed. 1002 ; Sheld. Subr. 2d ed. § 31 ; Bryan v. Brasius, 162 U. S. 415, 16 Sup. Ct. 803, 40 L. Ed. 1022.)
While counsel who instituted the foreclosure suit misinterpreted the statute respecting the estates of cbnvicts, yet we have no doubt of their good faith in so doing'. A defense was interposed in the court below, founded on the highest principles of equity and right; To permit a recovery of this land' by the mdrtgagdr without payment of the money which he received from the mortgage company, and which he in the most solemn form covenanted and agreed to pay, would be a perversion of equitable rules not to be countenanced in a court of justice.
The claim is made that the plaintiffs in error are not entitled to be heard in this court because in the joint answer filed by Grenfell and Ranking and the Equitable Securities Company the former, as trustees, in effect disclaimed, and when the joint motion for a new trial was passed on, it being no error to ■overrule it as to parties disclaiming, it was also properly overruled as to the Equitable Securities Company. The better rule is contrary to the contention of counsel. (14 Encyc. PI, & Pr. 872, 873, and note; Boehmer v. Big Rock Irr. Dist., 117 Cal. 19, 48 Pac. 908.) The record shows that when the-motion for a new trial filed by the parties named was overruled “the defendants and each of them saved an exception.” We consider this form of an exception sufficient to save all rights of each of the parties joining in the motion.
The objection that the case prepared for this court was not made by the tenants, parties defendant below, and served on counsel for defendants in error, is highly technical. The record for this court was duly served on such tenants by counsel for plaintiffs in error, and said tenants are parties to the-proceeding in error here.
The judgment of the court below will be reversed, with directions to proceed further in accordance with the views expressed in this opinion.
All the-Justices concurring. | [
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The opinion of the court was delivered by
GreeNE, J. :
The plaintiff commenced this action to recover a judgment against George W. Wheatley and Pearl M. Wheatley upon the recitals in a chattel mortgage. The defendants filed separate demurrers to the petition, which were sustained and judgment rendered thereon against the plaintiff for costs. To reverse this judgment proceedings in error are prosecuted.
The material and substantial allegations of the petition, briefly stated, are that in March or April, 1899, George W. Wheatley became indebted to the plaintiff in the sum of $6000, and on the 1st day of March, 1900, to evidence such indebtedness, he executed his note, á copy of which was attached to the petition; that plaintiff was still the owner of the note and that it had not been paid; that, as a part of the same transaction and to secure the payment of the note, George W. Wheatley and Pearl M. Wheatley 'executed and delivered to plaintiff their chattel mortgage on- certain property therein described. A copy of the mortgage was attached to the petition. That part of it which is material here was as follows :
1. “Provided always, and these presents are upon this express condition, that if said parties of the first part shall pay or cause to be paid unto the said party of the second part, or to his executors, administrators or assigns, the aforesaid sum of six thousand (6000) dollars, according to the terms of one certain promis-, sory note and payable at the Citizens’ Bank, of Galena, Kan., said note bearing date March 1, Í900, with interest at the rate of six per cent, per annum from date of March 1, 1900, and which note the said party of the first part hereby agrees to pay, then these presents and everything herein contained shall be void, anything herein' contained to the contrary, notwithstanding.
‘ ‘And it is hereby mutually covenanted and agreed between the parties hereto that if default be made in the payment of said sum of money or any part thereof, or interest thereon according to the tenor and effect of said note when the same becomes due and payable, or upon failure to conform to, or comply with, any of the conditions or agreements herein mentioned, then the whole sum of money hereby secured shall, at the option of the legal holder or holders thereof, become due and payable at once without notice. And it is further agreed that in case of sale or disposal, or attempt to sell or dispose of the goods and chattels hereby-mortgaged, or removal of, or attempt to remove,-the same from the county aforesaid, or an unreasonable depreciation in value, or if from any cause the security shall become inadequate, or the party of the second part shall deem himself insecure, then and thenceforth it shall be lawful for the said party of the second part, his executors, administrators or his assigns or his authorized agent, to enter upon the premises of the said party of the first part, or any other place or places wherein said goods and chattels aforesaid may be, to remove and dispose of the same and all the equity of redemption of the said party of the first part, at .public auction or private sale, to the person or persons who shall offer the highest price for same, and out of the avails thereof to retain the full amount of said obligation with interest thereon, according to the conditions thereof, together with all reasonable cost and expenses attending the same, rendering to said party of the first part or his legal representatives, the surplus money (if any there shall be), anything herein to the contrary notwithstanding. And until default be made as aforesaid, or until such time as the said party of the second part shall deem himself insecure as aforesaid, the said party of the first part to continue in peaceable possession of all the said goods and chattels, all of which, in consideration thereof, he engages shall be kept in as good- condition as the same now is, and taken care of at his expense.
2. “And if from any cause said property shall fail to satisfy said debt and interest aforesaid said party of the first part hereby agrees to pay the deficiency.”
The specific provisions of the mortgage relied upon for a personal judgment against defendants we have marked “1” and “2.”
The mortgaged property was sold and the proceeds applied’so far as it would go to the payment of the note.
It was not the intention of the pleader to state a cause of action against George W. Wheatley on the note. Whatever facts are stated in the petition concerning the note are only incidental to stating a cause of action upon the mortgage. Plaintiff contends that one holding a note secured by a mortgage containing a stipulation to pay the debt may bring his action and recover upon the promise in the mortgage independent of the note. To this we do not agree. A petition could not be drawn that would state a cause of action against George W. Wheatley for the debt upon the mortgage. His original promise to pay is in the note and not in the mortgage, and a personal judgment could not be obtained against him for the debt in an action not founded upon the note. The amount he shall pay, the rate of interest and when the debt shall mature are all contained in and controlled by the note. As to George W. Wheatley, the mortgage was but for a defeasible conveyance of his property to secure the performance of his promise as and at the time specified in the note. In this state a separate action cannot be maintained against the maker of a note upon the promise to pay contained in a mortgage which accompanies it. (Swenson v. Plow Company, 14 Kan. 387; Burhans v. Hutcheson, 25 id. 625, 37 Am. Rep. 274; Lewis v. Kirk, 28 id. 497, 42 Am. Rep. 173; Berry v. Berry, 57 id. 691, 47 Pac. 837, 57 Am. St. Rep. 351.) An examination of the petition, however, convinces us that incidentally to stating a cause of action against George W. Wheatley on the mortgage a good cause of action is stated against him on the note, and we sup: pose the plaintiff is entitled to the benefit of such facts, notwithstanding he pleaded and relied upon them for another purpose. The petition being suffi cient as to George W. Wheatley on the note, the demurrer as to him should have been overruled.
A different question arises as to the liability of Pearl M. Wheatley upon the mortgage. As to her there is no promissory note : her promise is in the mortgage. If she can be held at all for the debt, it is because of the binding force of the conditions in the mortgage and the purpose for which it was given. The provision of the mortgage marked “1” contains a definite and specific promise by both the mortgagors to pay the note described in the mortgage at its maturity, and the provision marked “2” is a promise to pay the debt in case the mortgaged property shall, when sold, bring an amount insufficient for that purpose. The petition alleges that this property was sold and the proceeds thereof were insufficient to pay the debt. Thereupon the personal liability of Pearl M. Wheatley to pay the debt became fixed.
It is not necessary that the obligation of a surety be written upon the same piece of paper with that of the original promisor. It is just as effective and obligatory when written upon a separate sheet. The vital question in actions arising out of such transactions is,. Was it the intention of the party to be bound as' surety? It is alleged in the present case that the execution of the note and mortgage was one contemporaneous act. The promises in the mortgage that the1 parties thereto would pay the note at maturity or would pay it in case the proceeds of the mortgaged property, when sold, should prove .insufficient, are alleged in the petition to be parts of one transaction, and are specific enough to make a prima facie case against Pearl M. Wheatley and sufficient to withstand an attack by demurrer. For these reasons the court erred in sustaining the demurrer of Pearl M. Wheatley to the petition.
The cause is therefore remanded, with instructions to set aside the judgment and overrule both demurrers.
Johnston, 0. J., Smith, Cunningham, Burch, Mason, Atkinson, JJ., concurring. | [
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The opinion of the court was delivered by
Smith, J. :
Edward LaRue, son of the plaintiff in error, was insured in the sum of $ 1000 by the Kansas Mutual Life Insurance Company under a policy which contained the following condition :
“Military or Naval Service. — The insured under . this policy is permitted to serve in the militia or in the military or naval force of the United States in time of peace without prejudice to his policy.; and he may so serve in time of war by giving the company notice in, writing, and paying an extra premium therefor, not to exceed three per cent per annum upon the amount insured. -Butshould such notice not be given and the extra premium for war hazard not be paid at the time the risk is incurred, the company will be liable 'for' the reserve only on this policy, computed according to the actuaries' table of mortality and four per cent, interest.”
In September, 1899, the policy being in force, LaRjie enlisted in the volunteer service of the United States ánd Ayent with his regiment to the Philippine islands. No extra premium was paid on the policy. In .May, 1900, he was killed at the village of Loculan in the island of Mindanao, by a blow from a weapon known as a bolo, in the hands of an insurrecto. Such facts appeared in the proofs of death given to the company.
■ This was an action by the mother of the deceased, and beneficiary under the policy, to recover the full amount of the insurance. She was defeated in the trial court.
Plaintiff below offered to prove that Loculan, the place where the assured was killed, was in a region where there was no armed resistance against the forces of the United States; that the insured, with his company, was sent there from the island of Luzon, after a period of active service, for-the purpose of having an opportunity to rest; that the soldiers stood guard with empty guns ; that prior to the death of the insured there was no disturbance of any kind on that island or at that place. The offer of this proof was Rejected, on the ground that the court took judicial notice that the inhabitants of the island of Mindanao were at the time in a state of insurrection against the sovereignty of the United States government.
The argument of counsel for plaintiff in error is that the condition requiring notice to the company and payment of an extra premium by a policy-holder serving in the military forces in time of war was to enable the company to protect itself against the extra hazard to life resultant on increased danger to which the insured might be subject when engaged in actual warfare. This contention is illustrated by counsel in supposing that the deceased had lost his life at Fort Riley, in. this state, after enlistment, and while his regiment was awaiting orders to move to the Philippine islands. In such case, it is urged, the fact that the United States nlight have been engaged in war when the insured died would not be deemed material. Whatever the rights of the plaintiff in error might have been in the hypothetical case assumed by counsel it is unnecessary to discuss.
We judicially know that under the treaty of Paris between the United States and the kingdom of Spain, signed December 10, 1898, the Philippine islands became a part of the territory of the United States, and that after that time the inhabitants of those islands were in a state of insurrection, against our government. The- existence of war is a political question and not a judicial one. Courts take notice, without proof, of the acts of the different political departments of the government. (See Phillips v. Hatch, 1 Dill. [C. C.]. 571, Fed. Cas. No. 11,094.)
In passing on a claim of Lieutenant Stickle for property lost en route from West Point to Manila, the war department, in December, 1901, through Secretary Root, announced :
“The insurrection in the Philippines against the sovereignty of the United States and the authority of the government of the Philippine islands is of such character and extent as requires the United States to prosecute its rights by military force, and therefore creates the condition of war in said archipelago.”
This expression, however, was made at a date subsequent to the death of LaRue.
On July 4, 1902, the president issued a proclamation of amnesty as follows :
“Whereas, The insuri’ection against the authority and sovereignty of the United States is now at an end, and peace has been established in all parts of-the archipelago, except in the country inhabited by the Moro tribes, to which this proclamation does not apply ; and
“Whereas, During the course of the insurrection against the kingdom of Spain and against the government of the United States persons engaged therein, or those in sympathy with or abetting them, committed many acts in violation of the laws of civilized warfare, but it is believed that such acts were generally committed in ignorance of those laws and under orders issued by the civil or insurrectionary leaders : . . .
“Now, therefore, be it known, That I, Theodore Roosevelt, president of the United States of America, by virtue of the authority and power vested in me by the constitution, do hereby proclaim and declare, without reservation or condition, except as hereinafter provided, a full and complete pardon' and amnesty to all persons in the Philippine archipelago who have participated in the insurrection aforesaid.”
The Moro tribes mentioned in the preamble of the proclamation inhabit the island of Mindanao, where the insured was killed. - The existence of an insurrection there was in this form expressly recognized by the government.
It being established that an insurrection existed in 1901 and 1902, the question still remains whether courts will take knowledge of such insurrection at- a prior date, in the absence of a formal declaration of war. In Prize Cases, 2 Black, 635, 666,17 L. Ed. 459, the supreme court of the United States has said.:
“Insurrection against a government may or may not culminate in an organized rebellion, but a civil Avar always begins by insurrection against the lawful authority of the government. A civil war is never solemnly declared ; it becomes such by its accidents— the number, power and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory ; have declared their independence ; have cast off their allegiance ; have organized armies ; .have commenced hostilities against their former sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish their liberty and independence, in order to become a sovereign state, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason. .”
“As a civil war is never publicly proclaimed, eo nomine, against insurgents, its aptual existence is a fact in our domestic history which the court is bound to notice and to know.
“The true test of its existence, as found in the writings of the sages of the common law, may be thus summarily stated : ‘When the regular course of justice is interrupted by revolt, rebellion, or insurrection, so that the courts of justice cannot be kept open, civil war exists and hostilities may be prosecuted on the same footing as if those opposing the government were foreign enemies invading the land.’ ’’
The .hostile opposition which continued in the Philippine islands after, the treaty of Paris was in the nature of a civil war which, as stated in the above opinion,'begins by insurrection, and courts take judicial notice of it as a fact in history. In City of Topeka v. Gillett, 32 Kan. 431, 437, 4 Pac. 800, Mr. Justice Valentine, speaking for the court on the subject of judicial notice, said :
“Courts may take judicial notice of the census returns, of the general history of the country, of what the members of the legislature ought to know-when passing the statute which the courts are called .upon to construe; and, indeed, of what all well-informed persons ought to know".”
Every well-informed person knows the history of the late war with Spain and its results. The accession of foreign territory is a part of the world’s history. The existence of an insurrection in the newly acquired islands which continued against the authority of the United States after that territory had been obtained from Spain is an event in our national career which every schoolboy knows. Courts would stultify themselves by requiring proof of such public matters, concerning which judges are informed in common with all other persons who read.
Knowing judicially that there was a state of war against the authority of this nation in the Philippine islands immediately after they were acquired from Spain, in 1898, we also know by recitals in the president’s proclamation that the insurrection had not ended' in 1902, so far as the island of Mindanao was concerned. While stationed on this island the command to which LaRue was attached was in a country whose inhabitants were in a state of hostility to the national authority which he was enlisted to defend. The warlike spirit of these inhabitants increased the peril of a soldier, active or at rest, within that territory in the service of a country to which such insurgents disclaimed allegiance.
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
CunNIngham, ,T. :
The defendant in error was plaintiff below. His action was for the recovery of damages to a pasture field by a fire set out by defendant’s locomotive. He had judgment, which plaintiff in error seeks now to reverse. The first claim of error is that plaintiff was guilty of misconduct in connection with the jury. During the introduction of defendant’s evidence the court said:
“I think we will take a recess here, and I will send the jury out to view the premises again. I sent the jury yesterday to view only a part of the farm; I think I was in error in that. Mr. Bowman has carriages here, and I will let the jury go and see the entire farm.”
The carriages were procured at a livery-stable owned by one of the jurors, and the misconduct suggested is in two particulars : (1) The first time the jury went to look at the premises, upon the suggestion of the defendant, they walked, and the second time the plaintiff furnished carriages for their use; this, it is claimed, would tend to influence them in favor of the plaintiff. (2) It is contended that the juror owning the livery-stable from which the conveyances were procured would certainly be influenced by reason of their having been hired from him.
The purity of the jury trial cannot be too safely guarded. It is the theory, and should be the practice as nearly as it is possible, considering human infirmities, that a juror to whom the issues arising between litigants are submitted should be unprejudiced and without the least inducement, save that disclosed in the evidence, to influence his verdict. This is required not only as a safeguard to the individual litigant’s rights, but as a matter of public policy. The latter consideration is perhaps much greater than the former, for, when confidence in the incorruptibility and impartiality of juries is destroyed, our social and judicial fabric is vastly weakened. Courts should not tolerate the slightest suspicion of improper conduct on the part of a litigant tending to corrupt or improperly to influence a jury. This principle is well established and should never be overlooked. Its application, however, must be determined by the circumstances of each case.
In this case it seems that a more extended view was to be taken by the jury on its second trip than on the first, so that it w;as much more convenient, if not necessary, to have conveyances for them. It appears from the affidavit of the plaintiff that he had frequently used livery teams during a number of years prior to this time ; that he had procured them at the livery-stable owned by the juror; that monthly bills for the use of such teams were presented and had been paid by him in the regular course of business ; that on this occasion, in procuring the teams used, he had communicated with the person in charge of the stable and not with the juror himself, and there is no showing that the juror had' any knowledge of the matter except such as we might reasonably suppose would be conveyed to him by seeing the teams in use. Nothing was concealed. The arrangement was announced by the court and received its indorsement; the procuring ' of the teams at the stable belonging to one of the jurors was in accordance with a regular business custom, and not extraordinary. About the entire transaction we see no indication that the plaintiff was endeavoring to use any undue influence upon the jury, or that the jury'was. likely to be influenced by it. Suppose the jury had been carried to the premises in one of defendant’s trains — a practice not infrequent — it would be a hard rule that would require us, for this reason, to set aside a verdict in its favor.
In Vane et al. v. City of Evanston, 150 Ill. 616, 37 N. E. 904, the prevailing party furnished a lunch at a hotel, and it was shown that this luncheon was ' without cost or charge to the jurors, and, as one of them who made an affidavit understood it, was to be -paid for by the prevailing party. On the counter-showing it was made to appear that the jury could not return to their usual quarters in time to get their usual dinner and that the arrangement was made at the suggestion of the court. The court concluded that it did not affirmatively appear that the successful party was guilty of any intentional wrong, and in laying down the rule said :
“It does not, however, follow, that customary offices of civility, and .ordinary hospitality or courtesy, extended by the successful litigant, when not designed or calculated to influence the juror or jurors in their consideration of the case, and which are devoid of suspicion, will afford sufficient ground for setting the verdict aside.”
In Gale agt. New York Central & Hudson R. R. Co., 58 How. Pr. 385, the facts of the alleged misconduct were that during a recess of the court one of the jurors, desiring to return home, asked permission of the plaintiff to ride with him. To this the plaintiff consented and they rode together for some distance along with one of the plaintiff’s witnesses. It was shown that the case on trial was not spoken of or discussed. Relative to the matter the court said :
“If the plaintiff, with a view of influencing the juror by placing him under obligations to him, had sought this opportunity so to do, a new trial would be granted. In such a case the court should see that an attempt had been made to improperly influence, and it would not stop to inquire whether the wicked effort had or had not been successful, but would assume that the party had, at least partly succeeded in that which he attempted.
“When, however, the court is satisfied that there has been no attempt by the successful party to unduly influence a juror, either by conversation, or by placing him under obligations, and that his action has not in fact been improperly influenced, then, even though the act may have been indiscreet, the court will not disturb the verdict.”
In Hilton v. Southwick, 17 Me. 303, 35 Am. Dec. 253, the prevailing party, in going to his home, conveyed in his own wagon one of the jury who lived in the same direction. No conversation relating to the cause took place between them, and the act seemed to be one of neighborly kindness not out of the ordinary course, and done without any purpose to influence the juror. The court strongly announced the principle that the purity of the jury must be guarded with the greatest jealousy, and said: “If there appeared the least attempt on the part of the plaintiff to seek and influence the juror the verdict would be set aside.” But, concluding that no sinister motive was apparent, it refused to set aside the verdict. In the case at bar much less suspicion attaches, as there is nothing here of a covert nature.
In Gale v. Railroad Company, supra, the court, in commenting upon the Hilton case, remarked:
“The principle upon which the verdict in Hilton agt. Southwick was sustained — that the act done was not an officious one thrust by the prevailing party upon the juror for the purpose of procuring his good will, and thus influencing action, but it was the result of neighborly courtesy and kindness, without any evil intent whatever, is not only sound in reason, but it and similar reasons have frequently guided and controlled the judgments of courts.”
See, also,-the cases announcing the same principle cited in the above-quoted cases; and also Ford v. Holmes, 61 Gra. 419; Central Railroad Company v. Wiggins, 91 id. 208, 18 S. E. 187.
We have been cited to many discussions where intoxicating liquors have been given or tendered as a treat to jurors. The tendency of the courts seems to be, and perhaps properly so, to view this practice with much more suspicion than the ordinary civilities due from one person to another, and these cases can hardly be accepted as determinative or aptly illustrative of the question in hand. We think that the practice in respect to the matter under discussion ought to be very carefully guarded by trial courts, but are inclined to the view that in this case neither a wrong purpose on the part of the plaintiff nor culpable bias on the part of the jury resulting from his actions was sufficiently shown to require us to overturn the conclusion of the trial court.
It is further claimed that conversation was had or remai’ks were made by the plaintiff in the presence of the jury while they were viewing the premises.' This, however, was denied by the plaintiff and the sheriff, and the conclusion of the trial court upon this disputed question is conclusive.
Some . four other assignments of error were presented. We have given them all very careful consideration and find no material error in them, and conclude that no general good will be accomplished by their specific discussion.
The judgment of the lower court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
CunNinghaM, J. :
Plaintiff below brought this action to recover his damages resultant upon personal injuries inflicted by reason of the negligence of the defendant. As elements of such damages he claimed actual expenses as follows: $65, hospital bill; $258, doctor bill; $175, medicines and other incidental expenses ; $1000, for loss of time. The balance of $8450 was the total amount claimed for his suffering and permanent injury. The jury returned a verdict of $800. . Upon the plaintiff’s motion this was set aside and a new trial granted, the court giving the following reason therefor : “ Because the verdict is not sustained by sufficient evidence, and is contrary to law, in this, that the verdict is too small, the same not being equal in amount to the actual pecuniary inj ury to plaintiff, as shown by the evidence.”
The record discloses that the plaintiff expended the amounts claimed for actual expenses, a total sum of $498. The value of the time which he lost was not established by evidence which gave to the jury any adequate basis to determine the same. Indeed, the evidence upon this point required the allowance of little more than a nominal amount, it showing only that the plaintiff at the time of his injury was, and had been for about two weeks before, engaged in the manufacture of vinegar, the value of the business de pending upon the profits; that he was detained from the business a year; that his share of the profits during the two weeks before the accident would amount to about seventy-five dollars per month ; that the value of the services of a person to take his place and do the work which he had been performing was seventy-five dollars per month. The evidence is entirely blank as to what relation the plaintiff sustained to the business in which he was engaged ; whether the business was a profitable or losing one during the time he was un- , able to look after it; whether he employed any person to take his place. For all that is shown by the evidence, he may not have beón a loser to the amount of' . a farthing by reason of being kept from his business. While the presumption may be that he was, yet the evidence gives no basis for calculating the amount.
The sole error urged here is the granting of the motion for a new trial. It is urged that this was error because of the language of section 307 of the code of civil procedure (Gen. Stat. 1901, § 4755), which, reads:
“A new trial shall not be granted on account of the-smallness of the damages, in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.’’
We are here confronted with a positive denial of' power in the court to grant a new trial in certain cases. The statute has assumed to regulate the matter of the granting of new trials. In section 306 (Gen. Stat. 1901, § 4754), eight grounds are enumerated for which new trials may be granted and none of' them includes the right to a new trial on account of the smallness of the assessment of recovery except the-fifth, where it is provided that a new trial may be had for that reason in actions upon a contract or for the injury or detention of property. It seems that the code makers, not content with leaving out a provision for a new trial in cases like the one now under discussion, added the positive prohibition to the granting of such motions in cases enumerated in section 307. It is claimed, however, and it would seem that the court below based its action upon such claim, that where the damages awarded do not equal the actual pecuniary injury sustained, a new trial may be granted even in such excepted cases, and that the last clause of section 307 serves to enlarge the prohibition contained in the first part and is a grant of power to give new trials where a sum is awarded not equal to the actual pecuniary injury sustained. We very seriously question the correctness of this interpretation of the rule, and are inclined to the view that the last clause of section 307 is a limitation upon the powers granted in section 306, rather than an enlargement of the power denied in the former provision of section 307. In Hubbard v. The Town of Mason City, 64 Iowa, 246, 20 N. W. 173, the court, in commenting upon a provision of a statute identical with ours, said :
“This is an absolute limitation upon the power of courts to grant new trials in the cases referred to in the statute. But it does not follow that the courts are required to grant new trials where the damages do not equal the actual pecuniary injury sustained.”
The case of Shoff v. Wells, 1 Neb. 168, was an action for damages in assault and battery. The evidence showed an actual damage of $55. A verdict of $17.50 was rendered ; a new trial was granted. The supreme court, in commenting upon the provisions of a statute identical with our own,1 said :
“The reading and interpretation contended for by the counsel for the defendant in error is that, in an action for damages for an injury to the person or reputation, as well as in all other actions, the damages must equal the actual pecuniary injury sustained. This claim is opposed not only to the letter but to the obvious spirit of the section. In cases of assault and battery, libel and slander, so many matters in aggravation or justification are disclosed upon the trial, that it is left for the jury to determine, in view of all the circumstances, what should be given as damages. With their findings courts rarely interfere. Scarcely a case can be found where a new trial has been granted because of the smallness of the damages assessed. This section, we think,.is but declaratory of the practice which has so long obtained. The case must be remanded with directions to reinstate the first verdict, and to set aside all proceedings subsequent thereto.”
In Sharpe v. O’Brien et al., 39 Ind. 501, 505, under a statute the same as ours, the court remarked:
“In actions for injuries to the person or reputation, no matter how small ,the damages may be, whether they equal the pecuniary injury sustained or not, the court cannot, for that reason, grant a new trial.”
This case overruled a former case in that court in which the contrary view was taken, and is cited and approved in a later case, Gann v. Worman, 69 Ind. 458.
The supreme court of Kentucky, in Taylor v. Hower, 12 Bush, 465, held to the view that in actions of this kind a new trial may be granted where the verdict does not equal the pecuniary injury sustained.
That this case is one “for an injury to the person,” and thus falls within the provisions of the quoted section, and that the new trial was granted on account of the smallness of the damages, there is no fair ground for debate. Why, then, was not the action of the court in granting a new trial erroneous under its terms ? The rule may be hard, and in some cases maybe productive of injustice, but that is a consideration to be addressed to the lawmakers and not to the law interpreters.
We are quite persuaded that the court erred in granting the new trial, whichever view we may take. From the language of the section it must be clear that before a plaintiff in such an action could have a new trial, even under the view adopted by the Kentucky court, the burden would fall upon him to. show that there was ,an inadequacy in the verdict to meet the actual injury sustained. In this case, as we have seen, we are left entirely at sea as to the amount of the injury occasioned the plaintiff by the loss of time. His other actual injuries were his expenses, amounting to $498. This left $302 to be applied elsewhere. It may be that in the absence of adequate data upon which to estimate the value of his lost time the entire amount was awarded to him for personal injuries. If so, in any view, the section quoted would prohibit the court from granting a new trial.
Stripped of unnecessary words, .the reason assigned by the court for the granting of the new trial- is that the verdict did not equal the amount of the actual pecuniary injury to plaintiff as shown by the evidence. This amount not being so shown by the evidence, the reason, of course, must fail. •
The court should have overruled the motion and entered judgment upon the verdict. Its judgment is reversed and this course ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
On February 12, 1901, an information was filed against George B. Stevens ip the district court of Harper county. The intention of the prosecutor in said information was to charge appellant with being the owner and keeper of a common nuisance in the city of Anthony, Harper county, Kansas, under section 4, chapter 165, Laws of 1887 (Gen. Stat. 1901, §2468).
Defendant filed his motion to quash the information, on the ground, first, that said information was vague, indefinite and uncertain as to the offenses charged ; second, that several offenses were improperly joined and set forth in one count of the information. This motion was heard and by the court sustained on April 22, 1903. The county attorney was given-leave, over the objection of defendant, to amend the information, and an amended information, charging the defendant in two counts with keeping and maintaining a com mon nuisance at each of the two places described in the original information, was filed on April 23, 1903. Defendant then filed his motion to quash the amended' information on the ground, first, that it did not state facts sufficient to constitute a public offense ; and second, that it was a departure from the original information. The motion to quash was overruled by the court, to which ruling the defendant excepted.
Defendant then filed a plea in abatement, alleging, in substance, that the amended information filed against him on April 23, 1903, was not an amendment of the original information filed against him on February 12, 1901, but was a total departure from it; that the only crime attempted to be charged in the supposed information was the crime of being the keeper of a common nuisance, as defined by section 4, chapter 165, Laws of 1887 (Gen. Stat. 1901, §2463) ; that said law defining the crime with which he was sought to be charged in the original information was repealed by section 1, chapter 232, Laws of 1901 (Gen. Stat. 1901, §2493).
Defendant in his plea in abatement further averred that at the time of the repealing of section 4, chapter 165, Laws of 1887 (Gen. Stat. 1901, §2463), there was no sufficient information or proceeding pending against him charging him with the offense attempted to be charged in the amended information; that the original information filed against him failed to charge him with the offense or crime of being the owner or keeper of a common nuisance, as defined by the law in force at the time of filing the original information. To this plea in abatement a demurrer was filed, and sustained by the court, to which ruling the defendant excepted. A trial was had upon the amended information, and on September 19, 1903, defendant was convicted on both counts of the amended information, and sentenced to imprisonment in the county jail for a period of thirty days and to pay a fine of'$100 on each count. Defendant .appeals to this court, and assigns error in the rulings of the trial court in overruling his motion to quash the amended information and in sustaining the demurrer of the state to his plea in abatement. A motion to dismiss the appeál is filed in this court, but we do not deem it available.
Chapter 232, Laws of 1901, took effect March 1, 1901. Section 9 of that act repeals all acts and parts of acts inconsistent therewith and contains no saving-clause as to pending prosecutions, or otherwise. Section 4 of chapter 165, Laws of 1887 (Gen. Stat. 1901, § 2463), under which defendant was prosecuted and convicted, contains both a criminal and civil remedy for the suppression and abatement of common nuisances. Section 1 of chapter 232, Laws of 1901 (Gen. Stat. 1901, § 2493), contains a criminal remedy only for the suppression and abatement of common nuisances. In section 4 of the act of 1887, it is the owner or keeper of such nuisance who is defined as being the-offender. In section 1 of the act of 1901 it is the person who maintains or assists in maintaining sucln common nuisance who is defined as being the offender. The fine in each of said sections, upon conviction, is the same; but under the former, upon conviction, the maximum jail sentence is ninety days, while under the latter, upon conviction, the maximum jail sentence is six months. Because of changes in the nature of the offense, and because of the change in the penalty prescribed, section 4,- chapter 165, Laws of 1887 (Gen. Stat. 1901, § 2463), was repealed by section 1, chapter 232, Laws of 1901 (Gen. Stat. 1901, §2493). (The State v. Estep, 66 Kan. 416, 71 Pac. 857.)
If, as contended by defendant, the original information was so defective as not to have charged him with an offense under section 4 of chapter 165, Laws of 1887 (Gen. Stat. 1901, § 2463), the trial court committed error in not sustaining defendant’s motion to quash and in sustaining the demurrer of the state to the plea in abatement.
We have carefully examined the original information. It is in artistically drawn, and does not use the language of said section 4 in charging defendant with being the owner or keeper of such common nuisance, and is somewhat open to the charge of being indefinite. We are of the opinion, however, that the averments of this information are such that a proceeding was commenced, within the meaning of section 7342, General Statutes of 1901; that under said section the right survived to the state, under the order of the trial court, to amend the original information and prosecute defendant under the information as amended ; that the amended information was not such a departure from the original infoiunation as to be fatal to it; that the court committed no error in refusing to sustain defendant’s motion to quash the amended information, or in sustaining the demurrer of the state to the plea in abatement.
A more serious ^question arises, however, upon defendant’s assignment of error to the ruling of the trial oourt in overruling his challenges for cause to jurors who sat and served at the trial. The record contains .a statement that
“On the trial of said cause the evidence disclosed and proved that on the morning of the 30th day of January, in the year 1901, there occurred in the city of Anthony, in said county, what was known as a ‘joint smashing/ and that a number of persons carrying hatchets, hammers, etc., did break into the building described in the first count of the amended information filed in this cause, and did break and destroy a large amount of property; and that a large percentage of the property so destroyed consisted of intoxicating liquors ; that the property so destroyed in said building, including said intoxicating liquors, belonged to and was owned by the defendant/’
The following are questions propounded by defendant to the juror R. C. Haskins upon his voir dire— a juror who sat and served at the trial of said cause —and his answers thereto :
“Ques. You heard along some time in the latter end of January or first of February of 1901 of what was known as the smashing of intoxicating liquors here in the city of Anthony? Ans. Yes, sir; I believe I did.
“Q. Did you read about it at the time-? A. Yes; sir.
“Q,. Read that Mr. Stevens had some property destroyed by a mob at that time? A. Yes, sir.
“Q,. Well, did that lead you to form the opinion that Mr. Stevens, who had his property destroyed, was probably engaged in the violation.of the prohibitory law at that time? A. Yes, sir ; I think it did.
“Q,. And you have that opinion at this time, don’t you? A. Yes, sir.
“Q,. That. Mr. Stevens, who had his property destroyed at that time, was engaged in the violation of the prohibitory-liquor law? A. Yes, sir.
“ Q. And probably the keeper or maintainer of what is known as a joint? A. Yes, sir.
“ Q. Are you acquainted with- Mr. Stevens? A. No, sir.
“Q. If it should transpire that the defendant is the same Mr. Stevens you heard of — the same man that 'had the property destroyed — you would have an opinion, as far as that fact appears, that he was at that time engaged in the violation of the prohibitory-liquor law? A. Yes, sir.”
Defendant challenged this juror for cause, and the court overruled the challenge and permitted the juror to sit and serve upon the trial. Like questions to the jurors P. E. Roy, 0. F. Debord and R. Behrens met with similar responses, and each 'of these jurors was by defendant challenged for cause ; each such challenge wras overruled by the court, and each juror sat and served upon the trial, over the objection of defendant. The record further shows that defendant, in impaneling the jury, exhausted all his peremptory challenges on others offered as jurors. Did the trial court commit error in overruling the challenges to these jurors for cause?
The defendant was entitled to jurors who had not formed an opinion with reference to whether these places, on account of their having been raided by “joint smashers,” were places where intoxicating liquors were being unlawfully kept, sold, or drank, as a beverage, in violation of the act of 1887. So far as the jurors named were concerned, it was only necessary to prove that these were the places that had been broken into by the parties at the time engaged in “joint smashing.” That being done,'so far as these jurors were concerned, the state had made its case against defendant. He was entitled to be tried by a jury to whom it would have been necessary for the state to prove, by legal and competent evidence, that the places described in the amended information were places where intoxicating liquors were unlawfully kept, sold, or drank, as a beverage, in violation of the law, and that defendant was the owner or keeper thereof. The record clearly discloses that the jurors named, from their answers on their voir dire, were disqualified to sit and serve upon the trial in the court below. (The State v. Miller, 29 Kan. 43; The State v. Beatty, 45 id. 492, 25 Pac. 899; The State v. Snodgrass, 52 id. 174, 34 Pac. 750 ; The State v. Beuerman, 59 id. 586, 53 Pac. 874; The State v. Start, 60 id. 256, 56 Pac. 15 ; The State v. Otto, 61 id. 58, 58 Pac. 995.) For error of the court in overruling the challenge of appellant to said jurors for cause, the judgment of the court below will be reversed and the case remanded for a new trial.
Johnston, C. J., Smith, Burch, JJ., concurring. | [
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The opinion of the court was delivered by
Burch, J.:
Under, a contract with the plaintiff below, the Kansas City, Wyandotte & Northwestern Railroad Company constructed upon its right of way a switch for the use of the former, who paid the cost of its construction in the sum of $150. The agreement of the parties was that if the railroad company, its successors or assigns, desired to abrogate the arrangement and take possession of the switch the plaintiff below should then be repaid the amount he had expended for its construction. As soon as completed he took possession of the switch, and it was thereafter treated by the contraóting company as his private track.
At the date of the contract the property of the railroad company was subject to a mortgage which was afterward foreclosed in a suit in a federal court, to which the plaintiff was not a party. Pending the foreclosure proceedings a receiver was appointed and placed in charge of the road. This officer at all times respected the plaintiff’s possession and exclusive claim to the switch. The purchasers at the foreclosure sale conveyed the property to the defendant, the Kansas City Northwestern Railroad Company, who ousted the plaintiff from the use and possession of the switch, and refused to reimburse him for his outlay in its construction. Is a judgment of a court of competent jurisdiction of this state for $150 in favor of the plaintiff and against the defendant warranted by the law ?
The railroad company claims the plaintiff’s remedy lay in the federal court. During the pendency of the foreclosure proceedings the plaintiff had no cause of action against any one. He had his switch, and until it was taken away from him he had no grievance requiring redress. No doubt the federal court might have required its receiver to take possession of the switch and the plaintiff would have been compelled to seek relief in that forum. But this was not done, and he continued in the enjoyment of his rights until after the road had been sold and then sold again.
The railroad company further claims that it was not a party to the original contract, and in no sense privy to it, and hence that it was not bound to pay the plaintiff anything.
The plaintiff was a stranger to the foreclosure suit. Therefore, he was not bound by any of its proceedings, and none of his rights was affected by any of its orders or decrees. As to him, the purchasers at the foreclosure sale acquired nothing, but the right to divest him of the switch upon the payment of $150. They and their grantees took the privilege and the burden together. The plaintiff’s possession was notice of his rights, and every purchaser of the property was bound to respect them.
The railroad company claims, however, that the plaintiff could not have any possession of the switch which would give notice of his rights, assuming for itself an immunity equal in rank with that of the public from the loss of its highways by adverse possession. This, however, is not a case of founding a title upon adverse possession, and the switch involved is not a public highway like a wagon road. The right to occupy the portion of the right of way covered by the switch could be granted in the same manner that the right to build and occupy an elevator or mill might have been granted. To make the plaintiff’s possession open, visible, and notorious, it was only necessary that it should be such as the location, character and use of the property required, and this the evidence of the plaintiff proved him to have. The plaintiff was entitled to this possession or to $150. The defendant, having taken the one, must give him the other.
The railroad company also claims that to allow the plaintiff to recover virtually defeats the first-mortgage lien to the extent of his claim. But the plaintiff has taken nothing whatever from the bondholders. The proceeds of the sale of the road have not been and ■will not be depleted by him in any respect. Nor will the defendant lose anything it has purchased. The plaintiff paid for this switch. The original company, ■or any one holding under it, could acquire absolute control of it by paying him its cost. This situation was not affected in any respect by the suit to which the plaintiff was not a party, and the defendant, who purchased with notice, can take the property under no other terms.
Minor claims of error with respect to the introduction of secondary evidence and proof of the authority of an agent are not well founded.
The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
Among the many restless rushings to and fro of fretful man upon the earth was a Sunday excursion in July, 1901, from St. Joseph to Excelsior Springs, Mo., and return, conducted by the St. Joseph & Grand Island Railway Company. The little town of Gower, located some fourteen miles from St. Joseph, contributed eight or ten young men to the ferment of the teeming train. The schedule gave the day to the excursionists at the Springs. On the return homeward in the evening it soon became distressingly apparent that the Gower boys had abused their holiday into a drunken spree. Hilarity was presently succeeded by effrontery, which readily descended to vulgarity, and tended constantly to reach the pitch of maudlin fuss and quarrel. They surged back and forth along the aisles of the cars with swagger and oath and a hubbub of babble, and a fanfaron-ade of clubs they had cut for canes, corrupting the air with the fumes of liquor and of cigarettes, hectoring men and insulting women, entirely beyond the endurance of the rasped nerves and galled sensibilities of the decent people on the train. Some of the passengers were intimidated and made afraid. Many protests and appeals were made to the trainmen, whose efforts to preserve order were quite feeble. Passengers themselves remonstrated with the young men, and one of them, after witnessing an indignity to a young woman, collared a rowdy and took him out of the car.
Because the St. Joseph passengers interfered with the prerogative of the Gower boys to be vulgar and vicious and vile, the latter became incensed, and turned their distempered thoughts to the subject of-revenge. They cursed the St. Joseph people, and swore they would, get even when they got off the train at Gower. Many persons in many parts of the train heard these threats and heard them repeated many times. They kept saying they would fix the St. Joe people when they got off at Gower — they would even up with the St. Joe people — they would have revenge on the St. Joe people when they got off the train. This threatening talk continued for a long time before the town of Gower was reached. The train officials frequently passed by while it was going on. One man who went through the train with the conductor heard it, and many men and women heard it in the presence of the conductor.
Upon its arrival 'at Gower the train had stopped but a moment until these threats were being carried out. No sooner had the Gower party alighted than some of them assailed the persons who remained upon the train with a fusilado of cinders and gravel and dirt thrown through the open windows, and which, scattering, beat noisily against the outside of the cars. Men and women suffered alike, and one gentleman was struck on the side of the head with a rock. Other of the ruffians walked forward and back, ramming their rude canes into the car and punching the passengers. As he did so one of them ejaculated, “How do you like that ?” While this was going on one of the two conductors in charge of the excursion assisted the passengers to alight and then walked to the forward end of the train, where the other conductor was found reading orders to the engineer. As the train started both conductors stepped on the steps at the front end of the first passenger-car, where they remained until a switch had been passed and closed, and then they went inside the car. This constituted the sum total of their watchfulness over the human beings in their care.
As passengers on the train that night were Ada Spangler, a maiden of 17 year's, and her escort, Joseph Manon. Their homes were in St. Joseph. They occupied a seat together in the forward part of the second passenger-coach from the engine, and though certain ugly circumstances of the turmoil of that night had transpired near them, they had not become involved in it themselves. The air was pleasanter near the window, and she sat on that side of the seat. It was nearing ten o’clock when they approached Gower, and she had been leaning her head upon an improvised pillow he had made for her, but had not been asleep. At Gower they were both sitting upright, and while the train was standing still heard the storm of cinders and gravel striking against the side of the car. During the confusion, one of the Gower boys came to their open window and thrust his club cane through it, striking her in the breast, and causing her to cry out “Oh.” Mr. Manon immediately closed the window, and just after the train had started a heavy iron burr from off a bolt, hurled by the hand of one who dropped his cane to do so, came crashing through the glass and struck her in the eye. She fell forward, and as he caught her, all limp and apparently unconscious, and endeavored to support her head with his arm, the fluid portions of her eye ran out upon his hand.
Upon the trial of an action for damages brought against the railroad company for this injury, a demurrer to the evidence from which the foregoing facts are gleaned was sustained, and Miss Spangler brings the case here for review.
The law of the case is clear enough.
“It is the duty of a railroad company carrying passengers to provide for their quiet and comfort, and secure them against' the annoying and offensive conduct of other passengers ; and where the conduct of a passenger is such as to render his presence dangerous to fellow passengers, or such as will occasion them serious annoyance and discomfort, it is not only the right, but the duty, of a railroad company to exclude such passenger from its train.” (A. T. & S. F. Rld. Co. v. Weber, Adm’r, 33 Kan. 543, 6 Pac. 877, 25 Am. Rep. 543.)
This duty to make passengers secure is not limited to conduct exhibited in the interior of the train, but applies to assaults coming from the outside of the car as well. If the danger threatens from alongside the car, it. should be averted precisely the same as if impending on any of its platforms or in any of its apartments. It would be a lame rule, indeed, whichrequired nothing more than that a vicious person should be put off the train, and then left raging up and down its length, firing missiles through its windows. The Gower boys could have been separated from the orderly and sober part of the passengers while on the train, and when discharged from the car could have been sent away from it, and kept away from it until it was safe to proceed. For this purpose the conductor had the right, if necessary, to call upon all the trainmen and such passengers as were willing to assist. While not an- insurer of the safety of its passengers, the railroad company was bound to exercise the strictest diligence in protecting them.
“ If the conductor did not do all he could to stop the fighting, there was negligence. Whilst a conductor is not provided with a force sufficient to resist such a. raid as was made upon the train in this instance, he* has, nevertheless, large powers at his disposal, and,, if properly used, they are generally'sufficient to preserve order within the cars, and to expel disturbers of' the peace. His official character and position are a. power. Then he may stop the train and call to his-assistance the engineer, the firem’an, all the brakemen,. and such passengers as are willing to lend a helping-hand, and it must be a very formidable mob indeed, more formidable than we have reason to believe had obtruded into these cars, that can resist such a force: Until at least he has put forth the forces at his disposal, no conductor has a right to abandon the scene-of conflict. To keep his train in motion and busy himself -with collecting fares in forward cars, whilst a general fight was raging in the rearmost car, where' the lady passengers had been placed, was to fall' far short of his duty.” (Pittsburg, Fort Wayne & Chicago Railway Co. v. Hinds, 53 Pa. St. 512, 517, 91 Am. Dec. 224.)
These rules,.however, are subject to the qualification that the carrier shall know of the threatened-injury, or shall have opportunity to know of it, or-reasonably might have anticipated, under all the circumstances, that it would happen. (5 A. & E. Encycl. of L., 2d ed., 553 ; Flint v. Norwick and N. York Transportation Co., 34 Conn. 554, Fed. Cas. No. 4873.)
In Fetter on Carriers of Passengers, volume 1, section' 96, the subject is summed up in the following-manner :
“Carriers of passengers are not insurers of'thé-entire immunity of their passengers from the misconduct of fellow passengers/or of strangers, any more- than they are insurers of the absolute safety of passengers in other respects. Nor can the carrier be held liable for such misconduct on the principle of respondeat superior, as in the case of the misconduct of his servants. But although the doctrine is of comparatively recent growth, it is now firmly established that a carrier of passengers must exercise the same high degree of care to protect them from the wrongful acts of their fellow passengers, or of strangers, that is required for the prevention of casualties in the management and operation of its trains, namely, the utmost care, vigilance, and precaution, consistent with the mode of conveyance and with its practical operation. While not required to furnish a police force sufficient to overcome all force, when unexpectedly and suddenly offered, it is the carrier’s duty to provide help sufficient to protect the passenger against assaults from every quarter which might reasonably be expected to occur, under the circumstances of the case and the condition of the parties ; and, having furnished such force, the carrier is chargeable with their neglect in failing to protect a passenger from assaults by strangers. This strict rule of duty must, however, be applied in view of the relation which the carrier sustains to all the passengers, and the circumstances of each particular case Calling for its exercise. Knowledge of the existence of the danger, or of facts and circumstances from which the danger may be reasonably anticipated, is necessary to fix a liability upon the carrier for damages sustained in consequence of failure to guard against it.” .
Such being the law applicable to the facts, the question remains whether or not the facts disclosed were sufficient to entitle the plaintiff to the verdict of a jury upon them. A critical analysis of the testimony is not necessary. From the evidence relating to the character, condition and conduct of the young men, it is reasonable to conclude that some depredation was to be committed upon the St. Joseph pas.sengers at Gower. It is fairly inferable that the conductor knew, or should have known, of this danger, and hence that he should have exercised the highest vigilance and diligence to subvert it; that he failed to employ to. that end any of.the means at his command, and that the plaintiff’s injury was the result of his negligence.
Therefore, the judgment of the district court is reversed, with the direction that anew trial be granted.
All the Justices concurring. | [
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The opinion of the court was delivered by
MásoN, J. :
This was an action brought to enjoin the collection of city taxes upon real property which at one time was within the city of Hutchinson, but which the owners claim has been legally taken out of the corporation. The district court granted the injunction and the city brings the matter here for review. The proceedings for placing the land outside the corporate limits were had under chapter 267 of the Laws of 1897 (Gen. Stat. 1901, §§7894-7903), and the contention of the city is that this statute is void because it attempts an unconstitutional delegation of legislative authority. Defendants in error claim that the statute has been upheld repeatedly by this court against this objection. This, in a sense, is true, but a review of the authorities will discover that the case presents a question to which heretofore the attention of the court has not been directed specifically.
The first case directly involving any feature of the question was City of Emporia v. Smith, 42 Kan. 433, 22 Pac. 616, which arose under section 1 of chapter 69, Law's of 1886 (Gen. Stat. 1901, §1052),' but in which it was merely decided that the power given to the legislature by section 21 of article 2 of the Kansas constitution, to confer on the tribunals transacting county business powers of local legislation and administration, is not exclusive, but that such powers, with reference to the change of city boundaries might be conferred on the mayor and councilmen.
The next case was Callen v. Junction City, 43 Kan. 627, 23 Pac. 652, 7 L. R. A. 736. This arose under the same statute, which reads as follows :
‘ ‘ That whenever the city council of any city of the second class desire to enlarge the limits thereof from the territory adjacent thereto, said council shall, in the name of said city, present a petition to the judge of the district court of the county in which such city is situated, setting forth by metes and bounds the territory sought to be added, and asking said judge to make a finding as to the advisability of adding said territory to said city. Upon such petition being presented to said judge, with proof that notice of the time and place said petition shall be so presented has been published for three consecutive weeks in some newspaper published in said city, he shall proceed to hear testimony as to the advisability of making such addition ; and upon such hearing, if he shall be satisfied that the adding of such territory to the city will be to its interest, and will cause no manifest injury to the persons owning real estate in the territory sought to be so added, he shall so find; and thereupon the city council of said city may add such territory to said city by an ordinance providing for the same ; providing, that no such proceeding shall be necessary where the territory sought to be added is subdivided into lots and blocks, but in such cases the city council of such city shall have power to add such adjacent territory to said city by ordinance.”
It was urged that the statute was void inasmuch as it attempted to confer legislative powers upon a judicial officer. The opinion reviewed at length the conflicting authorities bearing on the question and upheld the statute on the theory that the legislative power to determine, as a matter of policy, whether a tract of land should be added to the city was conferred by it upon the mayor and council, under the restrictions that it should not be exercised in'any case where it would not be to the interest of the city, or where a manifest injury would be caused to property-owners, and that whether these conditions existed was a judicial question, properly left to the determination of the district court. The principle is that while the court may be said to decide whether a change ought to be made the council determines whether it shall be made. The legislative- fiat proceeds from the council and not from the court.
The next cases were Huling v. The City of Topeka, 44 Kan. 577, 24 Pac. 1110, and Hurla v. Kansas City, 46 id. 738, 27 Pac. 143, arising under section 1 of chapter 99, Laws of 1887 (Gen. Stat. 1901, § 724), which is similar to the section quoted, but applies to cities of the first class, and the action of the court is made to follow, instead of precede, that of the council. The part directly in point reads as follows :
“Thereupon said court shall determine whether said publication has been made as herein required, and shall then consider said ordinance, and by its judgment either approve, disapprove or modify the same, first hearing all objections, if any, and proofs, if any, offered by said city or persons affected by said ordinance. Should said ordinance be approved or modified by said court, then the limits or area of said city shall be enlarged or extended as therein designated, from the date of such approval or modification ; but should it be disapproved entirely, then the limits or area of the city shall remain unaffected by said proceedings; but should the same be approved entirely, or modified and approved, the judgment of said court shall stand, and the limits of such city shall be extended as is in said judgment specified.”
In each case it was held, following the decision in Callen v. Junction City, supra, that the power conferred on the court was judicial, not legislative.
Among other cases which also follow the Junction City case are City of Emporia v. Randolph 56 Kan. 117, 42 Pac. 376, and Eskridge v. Emporia, 63 id. 368, 65 Pac. 694, although in the former case Mr. Justice Allen dissented, and Chief Justice Martin, who wrote the opinion, stated that if the question had been a new one he would have taken the other view.
It should be observed that all of these cases are based upon statutes authorizing changes of boundary to be made by the mayor and council, subject to certain findings made by the court. But the statute involved in the present action is very different. So far as it is here material it reads as follows (Gen. Stat. 1901, §§7896, 7897, 7899, 7900)
“ § 7896. Whenever it shall be desired to vacate any block, lot, park, reservation, street or alley, or any part of such block, park, reservation, street or alley, in any improved town site, or exclude the same, or any unplatted farm land from the boundaries of any city of the first, second, or third classes, the person, persons or corporation so desiring shall give notice by advertisement for four consecutive weeks in a weekly newspaper of general circulation in said town, and published in the county in which said lots, blocks and parks are situated, that at the next regular session of the district court of the county in which such town is located a petition will be presented to the said district court praying the vacation of such block, lot, park, reservation, street, alley, or any part of such block, park, street or-alley, and the exclusion of un-platted farm land from such corporate boundaries, describing the same properly.
§7897. Upon the presentation of such petition the court shall hear such testimony as is produced before it, and such other testimony as it may wish to hear; and if upon the hearing of such testimony the court is satisfied that due notice has been given as required by this act, and that no public or private right will be injured or endangered, it shall order such street, alley, or other public reservation, or any portion or portions thereof, describing the same, to be vacated, or such corporate boundaries to be changed by the ex- elusion of such lands therefrom, by an order entered upon the journal of such proceedings. . . . And in case of an order changing such city boundaries, shall certify the same to the mayor and council of such cities, who shall thereupon, by proper ordinance record such change."
“ § 7899. Any party to any proceeding herein shall have the' right to have any matters of fact in controversy in said proceedings submitted to the determination of a jury in the district court of the county where the property is situate.-
“§7900. That the terms ‘public loss. or inconvenience/ or ‘public right/ shall not be construed to extend to the taxes which may be levied upon the land vacated or excluded."-
It will be seen that the power to determine whether the land involved shall be taken out of the city, unless it may be said to be conferred upon the court, is not conferred upon the council or any public body or officer, but upon the petitioners, who are not in terms required even to' be residents upon, or owners of,' the tracts affected. But under the reasoning of the cases already referred to the court is not given, nor could it lawfully be given, the power to change the corporate boundaries. The only matters left to its determination (or to that of a jury, if any party so desire) are the questions whether due notice has been given and whether any private or public right will be injured or endangered by the proposed change.
This statute was first before the court in Brook v. Blue Mound, 61 Kan. 184, 59 Pac. 278, but the only attack then made upon its validity related to the title, which was held sufficient. It was again considered in In re Robinson, 62 Kan. 426, 63 Pac. 426, where it was held that the findings of the jury were binding on the court, and that a petition under the act cannot be denied on account of the rights of holders of city bonds being endangered by granting it, or on account of loss of taxes to the city. No other question was discussed in the opinion, which criticized the meager presentation of the law made by counsel on both sides. In City of Winfield v. Lynn, 57 Pac. 549 (not officially reported), the constitutionality of the statute was again affirmed by this court, but without extended discussion, and upon the assumption that it was within the doctrine of Callen v. Junction City, supra.
The precise question here involved, therefore, seems not to have been considered in any of the cases cited. It is this: Is it competent for the legislature to authorize an individual to effect a change in the boundaries of a city, provided that, after publishing notice of his intention to do so, he can induce a jury in the district court to find that, no public or private right will be endangered, the loss of taxes to the city and of -security to its bondholders being excluded from consideration? In the cases arising under the statutes authorizing the mayor and council to change the city boundaries, subject to conditions to be determined by the court, the doubtful question was whether a legislative power was thereby. conferred upon the court, since it was authorized to pass upon the expediency of the proposed measure. But here there is no such, question. Under the statute now involved the court has no discretion; it examines but one question — whether the proposed change would injure or endanger public or private rights, leaving out of consideration any possible right of the city or its bondholders to look to the property affected for taxes, and if this is answered in the negative it must register the will of the petitioner, just as the council is in express terms required to record it by ordinance. The legislative power is not devolved upon the court, but upon the individuals seeking the change.
In Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416, a statute requiring the improvement of a public road to be made when petitioned for by a certain number of individuals was held void on the ground that it sought to vest legislative powers in .the petitioners. While Mr. Justice Johnston dissented, the dissent was based upon the grounds that the stat-. ute really left to the county commissioners the final decision as to whether the improvement should be made, a construction not accepted in the majority opinion, and that the petitioners exercised no legislative power. We. think the principle of that case reaches the facts of this, and are constrained to hold that for the reason indicated the act of 1897 is unconstitutional, so far as it attempts to authorize territory to be taken from the city upon the petition of individuals, subject only to the findings of fact for which it provides.
If the statute had prescribed affirmative conditions upon which owners might have their lands disconnected from the city as a matter of right, the existence of the conditions to be passed upon by the court, a 'very different question would be presented. For instance, if its provisions were that any unplatted farm land lying in a city should be excluded from the corporate boundaries on petition of the owner whenever its character as such should be shown in appropriate proceedings in the district court, it might be considered that the legislature had itself determined that such land ought not to be included within the limits of a city because of its character, and so, in effect, made its retention unlawful, and afforded means by which the owner might procure an authori tative declaration to that effect, the judicial determination merely establishing that the legislative enactment applied to his property. But such is not the effect of the statute, although some of its language might so indicate. The affirmative provisions are that “whenever it shall be desired to vacate any block, lot, park, reservation, street or alley, or any part of such block, park, reservation street, or alley, in any improved town site, or exclude the same, or any unplatted farm land from the boundaries of any city,” a petition shall be presented and notice given, and if certain findings are made the court shall order the “corporate boundaries to be changed by the exclusion of such lands therefrom.” In the present case the property in question is shown to be farm land, but this is not material, since the statute does not make it so; and in view of this fact the reasoning suggested as applicable under a different statute — a statute making the change of boundary dependent upon the character of the property affected —cannot be applied here.
True, the present act provides for detaching only tracts as to which a finding shall be made which is in form affirmative — that the change will not endanger rights other than those relating to taxes. . But this attribute is essentially negative. It does not serve to ■distinguish one tract from another. It could probably be applied to most city property. Perhaps only in very exceptional cases could it be said that it makes any difference to the public or to individuals whether a particular tract is in or out of a city, apart from the consideration that property so situated as to share in the benefits of city government ought also to share in its expenses. It cannot be conceived that the legislature intended by this act to exclude from the corporate limits of all the cities in the state all tracts of land of which it cannot be said that some public or private right other than those relating to taxation depends upon their retention. Under the provisions of the act the will that the corporate boundaries shall be changed proceeds not from the legislature or from the council, but from the signers of the petition, who are under no official responsibility, and of whom no other qualification is required than that they desire the change. These provisions are therefore void.
The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.
Smith, Cunningham, Greene, Burch, JJ., concurring.
Johnston, C. J., dissenting. | [
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Per Curiam:
Plaintiffs’ petition contained two causes of action. With some stretch of liberality in construction, we may say that the first states an action in ejectment for the recovery of certain real estate, in behalf of all the plaintiffs. We have greater difficulty in determining that the second cause states facts sufficient upon which to base any claim for relief; but allowing that it does, it would be for ■equitable relief to set aside a deed obtained through fraud, duress, or undue influence. It contains no allegation what•ever warranting the giving of any relief to any of the plaintiffs except Emelia New.
A demurrer on several grounds was interposed to this petition. One ground was that different causes of action were improperly joined therein. The court below sustained -the demurrer, and this action is now assigned as error.
We find no warrant in our statutes for the joining of these causes of action. Section 83 of the code (Gen. Stat. 1901, §4517) permits the joinder of legal and equitable causes of. action in several clauses of the same petition, where such actions arise out of the same transaction or are •connected with the same subject-matter; but the causes of action so united must affect all the parties to the action, ■except in actions to enforce mortgages or other liens. It is therefore clear that the interest of Emelia New in the ■ejectment, stated in the first cause of action, joined, as it is, with the interests of all the other plaintiffs, would not warrant her in joining with that cause of action a second one, in equity, to set aside a deed in which she alone is interested. It may be that the pleader thought he was stating facts •connecting all of the plaintiffs in this second cause of ac-iion, but a very cursory reading of it will show how far he ■failed in doing so.
The demurrer was properly sustained upon the ground here commented upon, by which we do not mean to say,, however, that it may not have been properly sustained on several other grounds pleaded.
The judgment will, be affirmed. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This in an appeal from a conviction of felonious wounding as defined by K. S. A. 21-435. The material facts as disclosed by the record are not in serious dispute and are presented in their chronological order.
The defendant, Lonnie Ray Floyd, was married and moved to Illinois January 28, 1967. While there he was employed as assistant manager for General Electric Credit Corporation in Mount Prospect, Illinois. He moved back to Wichita, Kansas, in July or August, 1969. He stayed with his father for a time on Douglas Avenue and then moved to 1502 Jump Street, Wichita, where he was living at the time of the occurrence in question. His household goods had not been unpacked. He and his wife were having marital trouble and her whereabouts does not appear in the record.
On Saturday evening, August 16, 1969, Floyd returned to his home at approximately 5:00 o’clock after one or two interviews for employment. He worked on some résumés for a time, purchased some food and later that evening went to his father’s home. There was no one at home so he went in and read the paper.
He started home about 12:00 o’clock midnight, but decided to stop at Sunset Lounge, where he had a membership, to have a drink. He had two or three .drinks during the evening and played some pool.
At about 12:30 a. m. the complainant, Kenneth Campbell, and Vernon Berry and Thomas Lowe, having finished work at the Cessna Air Craft Company, came to the Sunset Lounge to buy two cases of beer which they intended to take to a friend’s house. While they were at the Lounge, Campbell, who did not know Floyd, challenged him to a game of pool. They played two games for $1 a game and Campbell won and Floyd paid him. They then played two games for $5 each and Campbell won both games. Floyd did not have the money to pay Campbell. Floyd suggested he would go out to his car and get a check. Campbell accompanied him. No checks were found. Campbell then took Floyd’s pool cue, which was in a broken-down position. Floyd suggested they go to an all-night filling station where he traded and he would cash a check. Campbell kept Floyd’s cue in his hand. Campbell rode in the car with Floyd and told Berry and Lowe to drive his car and follow them. When they reached the filling station, Campbell grabbed the keys out of Floyd’s car and followed him into the station still holding Floyd’s cue. The filling station did not have a blank check. Floyd then suggested they go to another station a mile or two west. When they arrived, the station was closed. Campbell took the keys from Floyd’s car and, still carrying the pool cue, went back and talked to his friends. He then returned and told Floyd that his time was up — that he had one more stop, and he had better have the money. Floyd was frightened and while pretending to look for an open filling station, was looking for a police car. Not finding a police car, he proceeded to a place on Luther Street, which was two blocks across the area south from his home on Jump Street —he did not want Campbell and his friends to know where he lived. Floyd was becoming more frightened all the time— Campbell and his friends were talking in loud voices to the effect that his time was up and he better produce a check or they would take his watch and rings. Campbell said the last time a man tried to run out on him, “I split his head open.” Before crossing the area between the houses to his residence, Floyd unlocked the trunk of his car and put his house keys in a sack where he had a small caliber gun. He had purchased the gun in Chicago where he experienced difficulty in a riot and when someone tried to enter his home. Floyd took the sack from the trunk and as he started north to his residence, Campbell said, “If you’re not back in five minutes, we’re going to get you.” Floyd ran to his home — jumping fences— and got a check on a bank in Illinois where he kept an account and also a check on a bank in Kansas City where he had an account while working there after leaving Illinois.
Floyd then came back to the car with the checks and the gun in his pocket. When he arrived at the car, Campbell demanded that he make the check out for $20. Floyd protested, but at Campbell’s insistence he made out the check for $20 because he was afraid. Campbell then asked Floyd for some identification. At this point, the testimony of Campbell and Floyd is in conflict, and the record states Campbell testified:
“I was in front of the automobile in a squat position and Mr. Floyd was to my right and had his billfold in his hands showing me his driver’s license. It was an Illinois driver’s license. He said something to the effect that ‘I don’t have to take this crap’ and the next thing I remember is hearing a gunshot and feeling it. I felt a thud which I assumed was a bullet. At that time I was on the ground. Just before I was shot the defendant was to my right about an automobile length away.
“When I heard the gunshot it took my breath away and I felt something on my left side. After that I got up and ran to the car and I don’t know where the defendant was.
“When I got back to the car he was approximately at my right front fender telling Vern Berry and Tom Lowe to stay where they were and pointing what I assume was a gun. He told Berry to stay in the car and said don’t get out of the car or I’ll shoot you too, or something to that effect. He told me to get in the car and get out of there. I was on the other side of the car opposite to him and opened the door and got in the back seat and told Vern Berry to drive, that I was hurt. We drove to the corner and made a left hand turn and went to the next comer and made another left hand turn and stopped and woke some people up and told them to call the police and an ambulance. While we were standing there we saw the defendant drive by.”
Floyd testified:
“. . . I pulled out my billfold, and we both went down to the right front of the car. He was next to the car, next to the headlights facing south. I was on the other side of the headlight facing north, facing Campbell. We were real close together there. I had a hold of my billfold, and, he had a hold of maybe the comer of the billfold and he also had the check and he is comparing those and he said, ‘Have you got any more identification?’ I said, ‘Yes,’ and I started flipping through my billfold and I have, I don’t know maybe five or six credit cards, driver’s license, a draft card, social security and I don’t recall which ones I showed him and I closed the billfold and was in the process of putting it back in my pocket, and Campbell — well, in the process of Camp bell looking at the identification and the check someone yelled out of the car again, ‘Why don’t you take his watch and rings as collateral for the check,’ and I don’t think Campbell answered. At this point I was just sticking my billfold back in my pocket and Campbell said, 1 want your billfold too and your credit cards,’ and I said, ‘Oh, no,’ I said, ‘You’re not taking my billfold or my credit cards,’ and I just got through placing the billfold in my pocket. He reached up and grabbed me around the neck or the throat and he threw me up against the front of the car. I was half on the car and half on the pavement. I really don’t know what was supporting me, either the car or the pavement, and he, I don’t know, was trying to strangle me or choke me or something, and I got scared and I threw my left arm out at him and kind of shoved him away and back up and at the time I was backing up I pulled the gun out of my pocket and I said, ‘Hold it.’ He paused for a second and he leaped at me, and I jumped back, and that is when the gun discharged, and he fell right by me, slumped by me . . .”
Campbell’s friends helped him into his car, and Floyd testified:
“. . . [A]t this point they said, ‘We have your license number,’ and they said either, ‘I’m going to kill you for this,’ or, ‘We’re going to get you for this,’ and they drove off. I put the gun back in my pocket and . . . got in my car, turned to the left there at that deadend street, went down the first block to the right, turned right again, went back over to Jump Street and went home.”
Floyd further testified that as he drove home he passed Campbell’s car where it had stopped to call an ambulance. He was scared and does not remember what he did for awhile. He stated,
“. . . I had visions of them coming back to get me and I turned all the lights out in the house and just waited and watched.”
Floyd called his attorney that same morning. His attorney told him to stay in the house and do nothing. The attorney called back and said he had talked to Detective Moreland and had arranged for a meeting of the three of them Monday morning at 9:30 o’clock. Floyd dressed and went to church and then decided to go to the races. He was about two blocks from home when he started to return for his rings and watch which he had forgotten. He was then arrested by Detective Moreland. The arrangement for the Monday morning meeting with the police was not disputed.
Floyd was asked and he answered the following questions:
“Q. After you called your attorney were you acting on his advice from that point forward?
“A. Yes.
“Q. And you knew that this following Monday then that you were going to go down and talk to the police?
“A. Yes.”
Floyd was charged with felonious assault as defined by K. S. A. 21-431. He was convicted of the lesser offense of felonious wounding as defined by K. S. A. 21-435. He was sentenced to one year in the Sedgwick County jail and placed on probation. The defendant then perfected this appeal.
Appellant’s statement of points raise thirteen claims of trial errors. Point No. 6 reads:
“The court should not have instructed the jury as to flight since there was no evidence that the defendant fled to support such an instruction and it was contrary to the evidence of both plaintiff and defendant.”
If the appellant is correct in this contention, other alleged errors will not require attention. The district court instructed the jury:
“You are instructed that flight raises the presumption of guilt. Therefore, if you find from the evidence that the defendant, soon after the commission of the offense alleged in the Information, fled to avoid anrest and trial, you may take that fact into consideration in determining his guilt or innocence. His flight, if he did flee, is not sufficient in itself to establish guilt, but a circumstance which you may consider in determining the probabilities of his guilt or innocence. The weight to which that circumstance is entitled is a matter for the Jury to determine in connection with all the facts brought out in the case.
“The defendant has a right to explain his flight upon some theory; and you are to say whether there is a sufficient explanation of it in this case. If he fled and his flight is unexplained, the law says it is a fact that may be taken into account against the defendant upon the theory that one’s conscience teaches him to know whether he has done right or wrong in a given cause.”
The appellant contends the first sentence of the instruction is erroneous as a matter of law. We so held in State v. Moffitt, 199 Kan. 514, 524, 431 P. 2d 879, where a similar instruction was given; however, we also held that the instruction did not prejudice the rights of the appellant.
The contention in the instant case presents a more serious question. A careful review discloses no evidence that the appellant “fled to avoid arrest and trial.” The evidence is to the contrary. He left the scene and went two blocks to his home because he was afraid of Campbell and his companions. That was early Sunday morning. He called his attorney and arrangements were made for him to contact the police Monday morning. He then went to church and upon returning, called his younger brother about going to the races. His brother was not at home, so he decided to go alone. He was acting on his attorney’s advice and knew Monday morning he was “going down to talk to the police.” The testimony was corroborated by Detective Moreland who testified:
“Prior to the time I set up surveillance on Mr. Floyd’s house I was contacted by a lawyer that said he was Mr. Floyd’s lawyer. He told me that he’d have Mr. Floyd in my office on Monday morning for me to talk to. It is not my responsibility to wait for people to be brought to me, my job is to find people immediately. That is what I was doing there.”
It is always improper to instruct a jury upon matters which are not in issue, even though the instruction correctly states the law. Rut this error o£ the court does not require a reversal unless it can be said that it was prejudicial to the rights of the defendant. (State v. Thompson, 119 Kan. 743, 241 Pac. 110.)
In State v. Linville, 148 Kan. 142, 79 P. 2d 869, it was held:
“Instructions given to the jury should be based on the evidence in the case, and held, it is reversible error to instruct the jury as to the crime of manslaughter in the second degree and to submit such issue to the jury when the evidence in the case wholly fails to establish such crime.” (Syl. ¶ 1.)
The rule has been applied in a civil case where an instruction was given on unavoidable accident. (Paph v. Tri-State Hotel Co., 188 Kan. 76, 360 P. 2d 1055.) In the Paph case the court stated:
"After a careful review of the evidence the court has concluded there is nothing in the record presented to indicate anything other than that the accident in question was caused by the negligence of one or the other, or both, of the parties involved in the action. Moreover, in the face of that situation, it is convinced the decisions to which it has referred throughout this opinion compel a conclusion the submission of the instruction on unavoidable accident was prejudicial error which required the granting of her motion for a new trial.” (l.c. 84.)
The posture of the case now before us, particularly the question of self defense, was such that the giving of the instruction on flight to escape arrest and trial without evidence of such flight affected the substantial rights of the defendant and constituted prejudicial error.
The judgment is reversed with instructions to grant a new trial. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action in mandamus seeking to compel the State Savings and Loan Commissioner (defendant-appellee) to forfeit the corporate existence of the State Savings and Loan Association (intervenor) for its failure to make home loans during the calendar years 1967, 1968 and 1969.
The issue presented involves the construction of K. S. A. 17-5228, which reads:
“Any association, which shall not commence business within six months after date upon which its corporate existence shall have begun, or after having commenced business shall fail for a period of three years to make home loans, shall forfeit its corporate existence, unless the commissioner, before the expiration of such six months’ period, shall have approved the extension of time, not to exceed an additional six months’ period, within which it may commence business, upon a written application stating the reasons for such delay. No such extension shall be granted after the expiration of such additional six months’ period. Upon such forfeiture the certificate of incorporation shall expire and all action taken in connection with the incorporation thereof, except the payment of the incorporation fee, shall become void. Amounts paid on accounts, less expenditures authorized by law, shall be returned pro rata to the respective investors.” (Emphasis added.)
State Savings and Loan Association (hereafter referred to as “State Savings”) was chartered under the Kansas Savings and Loan Code (K. S. A. 17-5101 et seq.) in 1923. It commenced business, received deposits, made home loans, kept its charter alive and complied with every law of the State of Kansas up to May 2, 1966. State Savings did not, however, make any home loans during the calendar years 1967, 1968 and 1969, this being the only charge made against it in the petition. It was contended in the trial court that this failure on the part of State Savings to make home loans during the three year period in question resulted in (a) the forfeiture of State Savings’ corporate existence, (b) the expiration of State Savings’ certificate of incorporation, (c) the voiding, ab initio, of all actions taken in connection with the incorporation of State Savings, except for the payment of the incorporation fee, and (d) the legal necessity of returning, pro rata, all amounts previously paid by State Savings’ depositors into their accounts, less expenditures authorized by law.
The trial court did not agree with the plaintiffs’ interpretation of the statute in question and entered judgment in favor of the intervenor. The plaintiffs’ have duly perfected an appeal.
On appeal George W. Greenwood and Topeka Savings and Loan Association (appellants) and Jack Estes, State Savings and Loan Commissioner of the State of Kansas, take the position that the corporate charter of State Savings was automatically forfeited under 17-5228, supra, because it failed to make a home loan within the three years just mentioned. Counsel for those parties argues that the statute is mandatory, and if at any time during the life of the corporation it fails to make a home loan for a period of three years, the charter is automatically forfeited.
Counsel for State Savings contends 17-5228, supra, is an organizational statute only and requires only that a savings and loan association having commenced business must complete its organization by commencing to make home loans ivithin a period of three years after the date it commences business.
In our opinion the trial court correctly construed 17-5228, supra, denying the relief sought by the appellants.
A hasty reading of 17-5228, supra, would suggest two possible constructions. One construction is that the period of three years commences immediately “after having commenced business,” the other construction is that the three year period may be at any time during the corporate life of the savings and loan association, after it has commenced business. We do not think the latter is the proper construction of the statute for the following reasons.
It is to be noted that the statute in question provides for a rather drastic forfeiture. It is an established rule that forfeitures are not favored in the law and that statutory provisions for the forfeiture of corporate charters must be strictly construed. (City of Topeka v. Water Co., 58 Kan. 349, 49 Pac. 79; 19 C. J. S., Corporations, § 1651, and see also Storm v. Barbara Oil Co., 177 Kan. 589, 282 P. 2d 417.)
Before applying the rule of strict construction to 17-5228, supra, it is to be observed that a savings and loan association, as its name clearly implies, has a two-fold business purpose. It is a place for the public to deposit their “savings” to earn interest, and it is a place where the public can obtain “loans” when they need additional capital. In order to organize a savings and loan association, therefore, it is logical that the new association must enter into both the savings business and the loan business.
A careful reading of 17-5228, supra, together with such additional considerations as its title and placement within the State Savings and Loan Code, clearly demonstrates that this statute is designed solely to cover organizational problems. It requires simply that a new savings and loan association, rather promptly after incorporation, enter both the savings business and the loan business. It requires that a new association enter the savings business within six months after its incorporation, and that it enter the loan business within three years after it has entered the savings business. The specific wording of the statute alone compels this conclusion, in fact, the precise phrase relating to the making of home loans within the first three years of the association s business life reads as follows: “. . . or after having commenced business shall fail for a period of three years to make home loans, . . .” This phrase is separated from the rest of the statute by commas, thus indicating its completeness as one independent concept or thought.
The appellants argue this phrase means that every savings and loan association, irrespective of the length of time it has been in business, and without regard to the volume of business which it may have done in the past, or which may still be existing on its books, must make home loans in intervals no greater than three years; and if any such association should fail to do so, its complete existence is automatically forfeited, all of its prior acts are voided (not merely voidable) and after subtracting lawful expenses, any remaining funds in the hands of the association must be divided pro rata and returned to its investor-depositors.
K. S. A. 17-5228 was enacted by the Kansas Legislature as section 29 of chapter 133 of the Laws of Kansas 1943. The act was designed to be a general and all inclusive enactment to govern all of the business dealings of every savings and loan association from its formation through its disolution. The legislature subdivided the code into eight separate articles as follows: 1. Definitions; 2. Incorporation and Organization; 3. Management; 4. Capital; 5. Powers; 6. Supervision; 7. Fees; and 8. Miscellaneous. It is significant that section 29 (now 17-5228, supra,) is included in article 2, the section dealing solely with Incorporation and Organization. Once a savings and loan association has engaged in business, it is subject to the supervision of the savings and loan commissioner under article 6. Under this article the commissioner is empowered to order and direct the discontinuance of some violation or unsafe practice, where such activity is brought to his attention. He is also authorized to appoint a conservator to take charge of the association and manage its business until the board of directors is permitted to resume management, or until the association is reorganized, or until a receiver has been appointed to liquidate its affairs.
The heading to 17-5228, supra, was supplied by the legislature— “Forfeiture of charter for nonuse”. This heading implies that there has been no use put to the charter, and not that it has been put to use and the association’s business practices have subsequently become unsafe or that it has conducted its affairs in an illegal manner. The clear implication of the heading is that 17-5228, supra, governs forfeitures in those cases where there has been no use put to the charter, and the code leaves to other sections (within article 6) the problem of governing those situations where the affairs of associations must be wound up and its business life terminated because of unsafe or illegal practices.
The general rule in the construction of a statute is that the intention or purpose of the legislature is to be determined not from any single section, or from isolated or particular portions, but from a general consideration or view of the act as a whole. Accordingly, in order to determine the legislative intent, all of the material parts of the same act and all of its provisions or sections must be construed together and in harmony with each other. (Wenger v. Taylor, 39 Kan. 754, 18 Pac. 911; and Thoman v. Farmers & Bankers Life Ins. Co., 155 Kan. 806, 130 P. 2d 551.) Thus, in determining the meaning of 17-5228, supra, careful consideration must be given to the savings and loan code in its entirety.
When a new savings and loan association begins business, it first acquires a charter, it next acquires money from persons who want to invest in the association by opening a savings account; after acquiring funds, the association then begins loaning money in the form of home loans. When an association first commences business, by acquiring money from its depositors, but prior to the time that any home loans are made, the assets of the association consist solely of money and the liabilities of the association consist solely of organizational and operational expenses and accounts payable arising out of its depositors’ savings accounts. Once the association has fully entered into the savings and loan business by beginning to make home loans, however, assets of the association would consist primarily of accounts receivable evidenced by promissory notes, secured by mortgages arising out of loans made, while its liabilities continue to consist of operational expenses and accounts payable evidenced by the saving accounts held by its various investor-depositors.
The savings and loan code is quite specific as to the procedures to be followed and the disposition to be made of the assets and liabilities of savings and loan associations during the subsequent life of the corporation, where a state savings and loan association is converted into a federal savings and loan association (K. S. A. 17-5531 et seq.), or where such associations merge (K. S. A. 17-5541 et seq.), or where an association is reorganized (K. S. A. 17-5548 et seq.), or where an association undergoes dissolution (K. S. A. 17-5553 et seq.), or in instances where an association has been taken over temporarily by a conservator or a receiver for the purposes of straightening out its affairs, or reorganizing, or liquidating. (K. S. A. 1971 Supp. 17-5614 et seq.).
It does not seem logical that the legislature intended a state savings and loan association operating as a going concern should automatically forfeit its charter without making some specific provision for the servicing of its mortgage loans. The statute here in question simply provides that amounts paid on accounts, less expenditures authorized by law, shall be returned pro rata to the respective investors. The statute obviously does not contemplate what should be done in the event of a forfeiture after the corporation has been a going concern for an extended period of time.
If the legislature had intended to provide for an automatic forfeiture of a corporate charter of a savings and loan association upon its failure at any time for a period of three consecutive years to make home loans, it could and would have specifically done so.
The statute here in question provides that upon a forfeiture as dictated, the certificate of incorporation shall expire and all action taken in connection with the incorporation of the association, except for the payment of incorporation fees, shall become void.
If the appellants’ construction of 17-5228, supra, were adopted: (1) What is to become of outstanding promissory notes in favor of the association? Are they void and uncollectable and the borrowers discharged thereunder? (2) If 17-5228, supra, were to be applied to cases such as these, what is to become of the mortgages running in favor of the forfeited association? Clearly this statute would make them void ab initio, having been made to a corporation which in legal effect never existed. (3) What is to become of the real estate owned by such an association and used as its offices and a place of business? Not being money, it cannot be returned to the investors under 17-5228, supra, which makes no provision for a conservator or other person authorized to sell the property. The deed to the property would stand in the name of a corporation which never existed under the law.
It seems clear to us the forfeiture provisions of 17-5228, supra, were intended by the legislature to apply only during the incorporation and organizational phase, rather than at some later time during the period of corporate existance after the corporation engaged in full scale business operations.
The State Savings and Loan Commissioner testified it was entirely possible a savings and loan association might not be able to make a home loan because its funds were all committed. It must also be recognized that in time of great financial stress it might be imprudent business practice for a savings and loan association to make home loans during some three year period. Such a situation may well have existed during the depression of the 1930’s. In such a situation it does not seem logical the legislature intended that a savings and loan association would automatically forfeit its charter.
For the above reasons we have concluded the failure of State Savings to make home loans during the calendar years 1967, 1968 and 1969, did not result in an automatic forfeiture of its corporate charter under the provisions of K. S. A. 17-5228.
The appellants contend the court erred in refusing to admit an attorney general’s opinion into evidence and in ignoring its probative value. Actually the trial court admitted one former Kansas Attorney General’s opinion in evidence, but not Exhibit 14, which was another opinion, together with related letters. These opinions were not evidence. They are occasionally cited in briefs in the same manner as judicial authorities.
While an opinion of an attorney general may be persuasive, it is neither conclusive nor binding, and the recipient of it is free to follow it or not as he chooses. The opinions of the attorney general have in no sense the effect of judicial utterances (7 Am. Jur. 2d, Attorney General, § 8.)
In Leddy v. Cornell, 52 Colo. 189, 120 Pac. 153, the Colorado court held the construction placed upon a statute by the opinion of an attorney general was neither conclusive nor binding upon the courts, and in circumstances where such an opinion was without authoritative legal support, it should not be approved or followed. This is the rule followed in Kansas.
The judgment of the lower court is affirmed.
Prager, J., not participating. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from a decision of the district court affirming an order of the Kansas Employment Security Board of Review finding Marie T. Dailey was entitled to maximum unemployment compensation benefits upon her retirement at age sixty-five. Marie T. Dailey will be referred to as Dailey, Southwestern Bell Telephone Company as Bell, and the Kansas Employment Security Board of Review as the Board.
Broadly stated, the issue is whether one who wishes to continue working is entitled to unemployment benefits after retirement under a mandatory retirement plan which is part of a union-management agreement.
Dailey entered Bell’s service in 1938 as a telephone operator. At that time Bell had adopted and was maintaining a “Plan for Employees’ Pensions, Disability Benefits and Insurance.” The plan called for retirement at age sixty-five, which was known by Dailey. In 1941 an agreement was made between Bell and the Union (Communications Workers of America, AFL-CIO), of which Dailey was a member, that no change would be made in the “plan” without the consent of the Union.
On February 1, 1969, Dailey, having reached the age of sixty-five, was retired. Her retirement pension amounted to $85.56 per month and on May 31, 1969, it was raised to $125.00 per month. She is also receiving social security payments in the sum of $146.00 per month. Her salary prior to retirement had been $105.50 per week.
On February 28, 1969, Dailey filed an application for unemployment benefits. On March 3, 1969, an examiner found she was disqualified. On appeal, a referee reversed the decision of the examiner. On review by the Board, it was found that Dailey was entitled to unemployment benefits. The decision of the district court was in accord with the Board and Bell has appealed to this court.
The jurisdiction of this court on review of the action of an administrative body is not in question. The parties agree that the issue hereinbefore stated is a question of law and as such is subject to judicial review under K. S. A. 1971 Supp. 44-709 (i).
A large portion of the monies used for administration of the unemployment benefit laws comes from taxes on employers. The method of assessing and collecting these taxes is set out in K. S. A. 1971 Supp. 44-710, et seq., which establishes an employer’s “experience rating.” The experience rating is determined by the number of times ex-employees obtain benefits without periods of disqualification. If there is no period of disqualification the employer’s account is charged with the full amount which the claimant receives. If the claimant is disqualified for any statutory reason he is disqualified “For the week in which he left work . . . and for the six (6) consecutive weeks which immediately follow such week: . . (K. S. A. 1971 Supp. 44-706 [a].) After the seven-week period has passed, the claimant is then permitted to receive unemployment compensation if he still meets the eligibility requirements. Payments are not charged to the experience rating of the employer when claimant leaves his employment voluntarily without good cause. (K. S. A. 1971 Supp. 44-710 [c].) The result is that the employee who voluntarily left the labor market through no fault of the employer may be allowed a limited amount of compensation, but the employer will not be taxed for these payments.
Eligibility conditions are found in K. S. A. 44-705 (now K. S. A. 1971 Supp. 44-705), which sets forth five requirements. Eligibility is frequently questioned under requirement (c) which provides claim ant “is able to work, is available for work, and is making reasonable efforts to obtain work.” Bell does not question Dailey’s eligibility under this statute.
Disqualifications for benefits are found in K. S. A. 44-706 (now K. S. A. 1971 Supp. 44-706.) When a disqualification rule applies, a claimant may still be eligible to receive benefits, but not for the full twenty-six weeks. This case involves Dailey’s disqualification. The pertinent part of the statute reads:
“An individual shall be disqualified for benefits:
“(a) For the week in which he left work voluntarily without good cause and for the six (6) consecutive weeks which immediately follow such week: Provided, That if an individual leaves work by his own action because of domestic or family responsibilities, not including pregnancy, self-employment or to retire because of disability or old age, or to attend school such individual shall be disqualified for benefits until he again becomes employed and has had earnings of at least eight (8) times his weekly benefit amount.”
The issue presented in this appeal is one of first impression in this state. It might be advisable, however, to review our unemployment benefit cases to the extent they might bear on the issue in this case.
In Clark v. Board of Review Employment Security Division, 187 Kan. 695, 359 P. 2d 856, the claimant, having reached mandatory retirement age, was retired on a pension from his employer, Skelly Oil Company. The case was decided against the claimant on the eligibility issue of availability for work. We did not consider the effect of the mandatory retirement. We did state, however, that the public policy of the state is to “. . . protect against involuntary unemployment — that is, to provide benefits for those who are unemployed through no fault of their own and who are willing, anxious and ready to support themselves and their families, and who are unemployed because of conditions over which they have no control; . . .” (p.698.)
In Goodyear Tire & Rubber Co. v. Employment Security Board of Review, 205 Kan. 279, 469 P. 2d 263, we considered a vacation shutdown of two weeks and said:
“Under a collective bargaining agreement which authorized the employer to shut down all or part of its plant for two weeks for vacation purposes, and those employees eligible to a vacation were required to take their vacations during the shutdown period, unless they elected to defer all or part of their vacation to the following year, or had scheduled their vacation for some other time during the vacation year, in which case they were considered on a leave of absence,’ it is held, that employees who elected to take their vacations at some other time than during the shutdown period were voluntarily unemployed and, thus, were not eligible for unemployment compensation benefits under the law.” (Syl. f 2.)
This was a four-three decision. The dissent was principally based on K. S. A. 44-718, which provides “No agreement by an individual to waive, release, or commute his rights to benefits or any other rights under this act shall be valid. . . .” It was said:
“. . . The holding of the majority now makes an employee’s eligibility for benefits dependent upon the niceties of expression found in each collective bargaining agreement and disregards the conditions of eligibility specifically enumerated in the act. Actually, the court’s interpretation of the agreement in question amounts to a waiver of rights to which an employee is otherwise entitled. Such agreements are invalid under the provisions of the act.” (p. 291.)
In Pickman v. Weltmer, 191 Kan. 543, 382 P. 2d 298, we said the provisions of the Kansas Employment Security Law should receive a liberal interpretation.
In Southwestern Bell Telephone Co. v. Employment Security Board of Review, 189 Kan. 600, 371 P. 2d 134, we held that lump sum payments on termination of employment pursuant to a collective bargaining agreement did not render employees ineligible for unemployment compensation benefits. We also stated that need of the claimant was not a prerequisite to eligibility.
Our approach to the issue is set by the rule of liberal interpretation. (Pickman v. Weltmer, supra.) The public policy of the state is to “protect against involuntary unemployment.” (Clark v. Board of Review Employment Security Division, supra.) Lump sum payments on termination of employment pursuant to a collective bargaining agreement do not render an employee ineligible and need of an employee is not a prerequisite to eligibility. (Southwestern Bell Telephone Co. v. Employment Security Board of Review, supra.) The effect of Goodyear will be later discussed.
Turning to other case law, we find the first mandatory retirement case to reach the appellate courts was Campbell Soup Co. v. Div. of Employment Security., 13 N. J. 431, 100 A. 2d 287 (1953). The opinion was written by Mr. Justice William J. Brennan, Jr., now of the Supreme Court of the United States. This case squarely presented the question of whether workers who were required to retire on pension at age sixty-five by a collective bargaining agreement left work voluntarily without good cause so as to be disqualified for unemployment compensation. The court held the workers had left their employment involuntarily and were awarded benefits. The court considered the use of the word “voluntary”, considered the controlling effect of a union contract as to the individual, and considered the effect of a statute similar to our K. S. A. 44-718. The court said:
“. . . The act therefore visits no penalty upon the worker who voluntarily quits suitable work if he has good cause for leaving, and only the limited penalty imposed by subsection 5 (a) if he leaves without good cause. The Legislature plainly intended that the reach of die subsection was to be limited to separations where the decision whether to go or to stay lay at the time with the worker alone and, even then, to bar him only if he left his work without good cause. The claimants here did not choose of their own volition to leave the employ of Campbell Soup Company when they were separated. They left because they had no alternative but to submit to the employer’s retirement policy, however that policy as presently constituted was originated. Their leaving in compliance with the policy was therefore involuntary for the purposes of the statute.
“The fact, given controlling effect by the Appellate Division, that the claimants through their agent, the union, voluntarily subscribed to the contract is made unimportant by this interpretation of subsection 5 (a), manifestly required in order to limit its operation within the apparent intention of the Legislature, having in mind, also that the act is to be liberally construed to further its remedial and beneficent purposes. . . .
“This design to protect and serve the common interest is also evident in R. S. 43:21-15, providing that ‘Any agreement by an individual to waive, release, or commute his rights to benefits or any other rights under this chapter shall be void.’ While the treating as voluntary of a worker’s leaving at the appointed time pursuant to the contract may not bring the contract within section 15, yet in practical effect the contract operates as an advance surrender of benefits, and an interpretation of subsection 5 (a) to embrace such leaving is clearly inconsistent with the attainment of the statutory objectives. If an understanding as to the duration of employment were to have that effect, countless claimants would be disqualified for benefits. Applicants for work very frequently must take jobs which the employers tell them at the time will engage their services for only a stipulated period. It would not be suggested that voluntary acceptance of such work, knowing in advance its fixed duration, constitutes the leaving of it at the agreed time a voluntary leaving for the purposes of subsection 5 (a). The agreement by which the claimants were to leave the employ of Campbell Soup Company at age 65 is equally ineffective for that purpose.” (pp. 435, 436, 437.)
The decision in Campbell Soup did not remain unchallenged. Five years later in Bergseth v. Zinsmaster Baking Co., 252 Minn. 63, 89 N. W. 2d 172 (1958), the court held claimants were disqualified for voluntarily leaving their employment under facts similar to those in Campbell Soup. The court emphasized the fact that the question of whether retirement should be mandatory or optional at age sixty-five had been submitted to the union membership at a regular meeting and a majority had voted in favor of the mandatory provision. The claimants contended they were not in accord with the union contract and that they desired to remain on the job, and were forced to retire against their wishes. The claimants had not worked for the employer long enough to be entitled to pension payments, but each received $200.00 severance pay. The employer took the position that the claimants’ retirement was voluntary, stating he would not have retired them had he not been required to do so by the union contract. The court said:
“. . . By and large, if the contract contains reasonable provisions encompassing appropriate subjects for collective bargaining and is properly negotiated by the authorized agent and properly ratified by the union membership, it will be deemed to be the voluntary act of each individual member of the union, including any dissenters. . . .
“Any other result would destroy the principles of collective bargaining and render union-management contracts meaningless. We have already indicated that we would uphold these agreements in Jackson v. Minneapolis-Honeywell Regulator Co. 234 Minn. 52, 47 N. W. (2d) 449. There, unemployment benefits were denied to a union member who was not entitled to vacation pay when his employer’s plant was closed down pursuant to a contract with his union because of a lack of the necessary length of service. We held that the claimant’s unemployment during that period was voluntary in view of the existence of the union contract. The principles enunciated in the Jackson case apply even more forcefully in the instant case. Unemployment compensation is designed as a cushion against the vagaries of sporadic losses of work for employees who are genuinely attached to the labor market and who fully expect to return. Retirement benefits, on the other hand, look to a withdrawal from the labor market and more nearly approximate a reward for past services.” (pp. 66, 70, 71.)
In disposing of the effect of a Minnesota statute similar to our K. S. A. 44-718, the court said:
“Nor does § 268.17, subd. 1, stand in the way of the pension provision of the contract here under consideration. This section provides that any agreement to waive, release, or commute an individual’s rights to benefits shall be void and precludes an employer from accepting or requiring such a waiver. The agreement in the instant case, however, does not waive rights to benefits to which employees would otherwise be entitled. Rather, it is an agreement for the voluntary termination of employment and is, therefore, not prohibited.” (p. 72.)
The dissent of Mr. Justice Murphy in this case calls attention to the opposing views as to the meaning of this statute. He said:
“It is my view that the majority opinion wrongly construes the pension agreement as containing, by implication, a provision which is clearly invalid under the law. It seems to me that this conclusion must necessarily follow from the provisions of § 268.17 which prohibit the waiver or release of rights to benefits under c. 268. This view is not inconsonant with Jackson v. Minneapolis-Honeywell Regulator Co. 234 Minn. 52, 62, 47 N. W. (2d) 449, 454, where the employee’s enforced leave was a condition of his employment under an agreement for paid vacations. As that decision points out, ‘There is an important distinction between an agreement for a leave or vacation shutdown which gives rise to no unemployment compensation benefits and a collusive agreement that unemployment compensation benefits be waived.’ In the Jackson case, the relation of the employer and employee was not terminated. In the case before us, the termination is final. Here the pension contract determines in effect that the employee is no longer qualified for his employment. The construction by the majority denies to the employee the benefits which have accrued to him under the law over a period of many years of service.” (pp. 73, 74.)
The Campbell Soup case and the Bergseth case created a foundation for a controversy that has continued to rage to the present time. Each of these views has found support among the cases which followed.
The principal cases holding for the granting of benefits under similar facts as in Campbell Soup are: Reynolds Metal Company v. Thorne, 41 Ala. App. 331, 133 So. 2d 709 (1961), cert. den. 272 Ala. 709, 133 So. 2d 713; Employment Security Com'n v. Magma Copper Company, 90 Ariz. 104, 366 P. 2d 84 (1961); Jenkins v. Review Board of Indiana Emp. Sec. Div., 211 N. E. 2d 42 (Ind. 1965); Gianfelice Unempl. Compensation Case., 396 Pa. 545, 153 A. 2d 906 (1959) (Warner); St. Joe Paper Company v. Gautreaux, 180 So. 2d 668 (Fla. App. 1965).
The principal cases holding for the denial of benefits as in Bergseth are: Kentucky Unemploy. Ins. Com’n v. Kroehler Mfg. Co., 352 S. W. 2d 212 (Ky. 1961); Lamont v. Director of the Division of Employment Security., 337 Mass. 328, 149 N. E. 2d 372 (1958); Ivy v. Dudley, 217 N. E. 2d 875 (Ohio 1966).
There are no significant statutory differences which have a material bearing on the reasoning of these cases. It would add little to the body of the law of this state to set out the basis on which these cases differ in their conclusions in view of the decision later made herein. An annotation dealing with this question appears in 90 A. L. R. 2d, pp. 842, 843, where the annotator makes this observation:
“It is suggested that the approach of the Pennsylvania and New Jersey courts, recognizing that simple principles of agency law are not completely applicable to the relationship between empoyee and union, especially in view of the statutory provisions prohibiting waiver of benefits, is preferable. . . .
“. . . As has been pointed out by a number of commentators, the rationale of some of the courts in denying benefits to claimants dismissed without fault on their part, because a collective bargaining agreement called for such dismissal and because the employer was not at fault, shows a primary concern with the effect of the dismissal on the employer’s experience rating rather than with the underlying economic and humanitarian purposes for which the unemployment laws were enacted.”
We are impressed by the strong support given Campbell Soup by writers of articles appearing in law reviews. For the benefit of the scholars who have been stimulated by the legal problem in this case, we list the following: 28 N. Y. U. Law Rev. 1332 (1953); 5 Syracuse L. Rev. 286 (1954); 53 Michigan Law Rev. 849 (1955); 4 U. C. L. A. Law Rev. 438 (1957); 34 Notre Dame Lawyer 466 (1958); 39 Roston University Law Rev. 124 (1959); 64 Dickinson Law Rev. 71 (1959); 59 Columbia Law Rev. 209 (1959); 49 Calif. Law Rev. 580 (1961); 14 Alabama Law Rev. 470 (1961).
We have tried to place the problem in proper perspective as it comes before this court. We believe the issue in this case is controlled by K. S. A. 44-718. What is a proper construction of this statute prohibiting an agreement to waive, release, or commute rights to benefits? The above quotations from Campbell Soup and Bergseth disclose the opposing views on the meaning and application of like statutes. In Gianfelice Unempl. Compensation Case., supra, (Warner), it was said:
“Moreover, we believe that the labor-management agreement cannot govern our determination in this case for another reason. The Unemployment Compensation Law was enacted to alleviate the hardships attendant upon unemployment . . . It is a remedial statute designed to provide support for workers who are unemployed except for those disqualified by one of the specific provisions of § 402 . . . This provision renders invalid any agreement by an employee to waive or release any of his rights under the act. It is our view that if the labor-management agreement were able to be relied upon to disqualify Gianfelice as a voluntary quit’ when his separation from work was not in fact voluntary, the agreement would be invalid to such extent.
“These analogous examples illustrate the principle we here apply. Where a statute of the Commonwealth expresses a public policy designed to alleviate a condition of possible distress among the public or a segment thereof and explicitly proscribes waiver of the benefits of the act, no private agreement, however valid between the parties, can operate as such a waiver. Here, the provisions of the agreement under which Gianfelice had to retire, while legiti mate conditions of employment and binding between Gianfelice and the Warner Company, cannot thwart a clearly-expressed state statute under which Gianfelice is entitled to benefits.” (pp. 552, 554.)
The opposing view was expressed in Kentucky Unemploy. Ins. Com’n v. Kroehler Mfg. Co., supra. It was said:
“The Commission has questioned the voluntary agreement to participate in the retirement plan as being in violation of KRS 341.470 (1), prohibiting an agreement to waive, release, or commute any benefits payable under Chapter 341, Unemployment Compensation. Reliance is placed on the Warner case. In addition to what has already been said concerning the voluntariness of the agreement, similar arguments were rejected in the Massachusetts, Minnesota, and Wisconsin cases cited. The agreement was not considered as a waiver by the Minnesota and Wisconsin courts, but was deemed an agreement for the voluntary termination of employment. The agreement here did not constitute a waiver under KRS 341.470 (1).” (p. 215.)
Bell maintains that we have squarely decided this point by our expression in the majority opinion in Goodyear, where we said:
“This agreement is not one to waive rights to benefits to which an employee otherwise would be entitled; rather, it is one whereby the employees agreed to a voluntary absence from work if they chose to exercise that right. Such an agreement cannot be interpreted to mean an agreement to waive, release or commute benefits as prohibited by the employment security act. (K. S. A. 44-718; Jackson v. Minneapolis-Honeywell Regulator Co., 234 Minn. 52, 47 N. W. 2d 449.)” (p. 285.)
This raises the question of whether K. S. A. 44-718 should have the same application in retirement cases as in a vacation shutdown case such as Goodyear. The Arizona Supreme Court dealt with this problem in Employment Security Com'n v. Magma Copper Company, supra. Because it strikes at the heart of the problem in this case we quote at length from this opinion:
“It is readily apparent that the above discussed decisions cannot be reconciled. But we think the better view is expressed in the Campbell Soup and Warner Co. cases which focus upon the volition and intent of the individual workman at the time his employment is terminated. Construing a collective bargaining agreement’s retirement provisions so as to deny benefits to one required to retire thereunder but willing and able to work violates at least the spirit if not the language of A. R. S. § 23-784, supra.
“It is argued, however, that the decision of this court in Beaman v. Bench, 75 Ariz. 345, 256 P. 2d 721 (1953) requires denial of benefits in the instant case. In Beaman it was held (as in the Moen and Jackson cases, supra,) that employees who had not worked long enough to earn paid vacations were not entitled to unemployment benefits during a company shutdown for two weeks while other workers took paid vacations. There is language in Beaman to the effect that the shutdown was in effect due to union insistence upon strict compliance with the terms of the contract respecting vacations and that there fore the claimants were voluntarily unemployed as if they had asked for the layoff themselves.
“There is a great difference, however, between a two-week layoff for vacations and mandatory retirement which is a permanent severance of the employer-employee relation. Further, a vacation period, paid or otherwise, is commonly regarded as part of an employee’s overall compensation. For these reasons we regard neither the result in nor the rationale of Beaman as controlling in this case.
“The Arizona Employment Security Law declares ‘economic insecurity due to unemployment ... [to be] a serious menace to the health, morals and welfare of the people of this state.’ A. R. S. § 23-601. One is just as unemployed and necessitous between jobs at 65 (or older) as he is at age 25. And an increasing segment of our labor force is now made up of those, such as claimants here, above the age of 65.
“Of course, the short term benefit provided by unemployment insurance is at best a poor substitute for any comprehensive solution of the problem of the aging worker. But if it helps in any small measure to ease the plight of those forced to change occupations after a lifetime of service the legislative purpose is fulfilled.
“There is no express or implied disqualification in A. R. S. §§ 23-775 to 23-777 for receipt of income from employer pension plans. Nor do we find any public policy which prevents claimants from receiving both the pension income and the temporary unemployment benefits. Indeed, the contrary is indicated. For in 1941 the Employment Security Law was amended to no longer disqualify one who also receives wages in lieu of notice and/or workmen’s compensation benefits. And in 1952 the disqualification for receipt of old age benefits under the federal social security law was abolished. If the legislature sees no evil in duplication of benefits by the government we will not manufacture a prohibition against overlapping from private sources.
“Here claimants met all of the tests of eligibility as provided in A. R. S. § 23-771. We hold that their leaving work was involuntary in the statutory sense. It thus follows that the appellee’s experience rating account is subject to charges for the benefits due claimants. . . .” (pp. 110, 111.)
In construing different statutes contained in the Unemployment Security Act the legislative intent is determined from a general consideration of the whole act. In determining legislative intent the court may properly look to the purpose to be accomplished, the necessity and effect of the statute. (Tilley v. Keller Truck & Implement Corp., 200 Kan. 641, 438 P. 2d 128.) K. S. A. 44-702 reads in part:
“As a guide to the interpretation and application of this act, the public policy of this state is declared to be as follows: Economic insecurity, due to unemployment, is a serious menace to health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. . . .”
For further statements as to the history and purpose of the act, see Whitehead v. State of Kansas Labor Department, 203 Kan. 159, 453 P. 2d 11. As stated in K. S. A. 44-702, as well as in Clark, the purpose of the act is to prevent involuntary unemployment.
The claimant in this case, on reaching sixty-five years of age, was retired. It is conceded that she was able to work, was available for work, and was making reasonable efforts to obtain work. She became involuntarily unemployed unless Bell’s policy adopted by the collective bargaining agreement, made her retirement voluntary. If voluntary, the retirement had to result from an agreement between Bell and Dailey or between Bell and the union of which Dailey was a member.
The statute prohibits an agreement to waive, release, or commute benefits. It also states such an agreement is void. These words require no dictionary search for their meaning. The difficulty arises when some courts attempt to rationalize these words in order to prevent a workman from collecting a pension as well as unemployment benefits. Even if we concede that the collection of funds from two sources is not desirable, we cannot place a strained construction on the statute in order to accomplish this end. We said in In re Estate of Pyke, 199 Kan. 1, 427 P. 2d 67:
“. . . [R]unnmg through all of our cases are the positive statements that the public policy of this state is founded in the Constitution and the statutory enactments, and that this court is not warranted in reading into the plain statutory provisions an exception which those statutes themselves in no way suggest, or in holding they mean something else merely because the result under the particular circumstances leaves something to be desired.” (p. 14.)
It is our view that a collective bargaining agreement or any other agreement is invalid to the extent that its provisions are construed to waive, release, or commute unemployment compensation benefits. We adopt and approve Campbell Soup, Gianfelice Unempl. Compensation Case (Warner), and Magma Copper in their application and construction of statutes similar to our K. S. A. 44-718.
Bell’s contention that such a conclusion is contrary to Goodyear is apparent. Although we disapprove the statement in Goodyear as to the application of K. S. A. 44-718, we recognize a distinction between vacation shutdown, which is temporary, and retirement, which is permanent. Under the facts in Goodyear, we can see merit in an argument that the employees were not available for work and were not members of the general labor market. We can also see merit in an argument that an employee on vacation status would not conscientiously seek other full time, permanent employment. While we approve the result in Goodyear, we can no longer agree with the basis upon which the court reached that result.
Judgment is affirmed.
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|
The opinion of the court was delivered by
Owsley, J.:
This is an action to enforce payment of an alimony and child support judgment. The plaintiff obtained a judgment against the defendant garnishee by reason of its failure to file an answer and its failure to withhold payment of wages to defendant, contrary to the order of garnishment. The defendant garnishee appeals.
In March of 1969, in connection with a divorce decree, judgment was entered for alimony and child support against the defendant McCreery. In November of 1970 a garnishment order with the statutory form of answer was served on the garnishee Curran & Co. through its resident agent in Kansas. Using the statutory form, the garnishee filed its answer in the following manner:
“ANSWER OF GARNISHEE
COLORADO
“STATE OF TT-ANSAS; COUNTY OF ARAPAHOE, SS:
“Curran & Co., being first duly sworn, say that on the 1st day of December, 1970, it was served with an order of garnishment in the above entitled action, baa áel-wercd a© mosey? peseeaai property? md^tc^^oa<bclonria^* 1234S’ ri^bte^ercdita a/fe/a Kcrmit A¥r M-cGrccry? t© fea siseo rcccivlaff salé O-rder- ©£ yn.rriiBb-meat? aad that the following is a true and correct statement:
“(1) (Money or Indebtedness Due) It holds money or is indebted to said Defendant, as of the date of this Answer, in the following manner and amounts, to-wit: None_
“(2) (Personal Property in Possession) It has possession of personal property, goods, chattels, stocks, rights, credits, or effects of said Defendant, as of the date of this Answer, described and having an estimated value as follows to-wit: None__
“(3) (To be answered if the relationship between the Garnishee and the Defendant is an employment relationship.)
“(a) Defendant is paid weekly X every two weeks--— semimonthly - monthly- (designate one).
“(b) This Answer covers earnings (defined as wages, salary, bonus or commissions) for the period_day of not applicable, 19-, through -day of-, 19--
“(c) Total gross earnings due for the period covered by (b) above are ........................................ $ —0—
(d) Amounts required by law to be withheld
1— Federal Social Security Tax ......... $_
2— Federal Income Tax................ .
3— State Income Tax................. .
4— Railroad Retirement Tax ............ .
Total ............................................. $__
(Deduct only those items listed above)
“(e) Disposable earnings for the period covered by (b) above are ........................................ $ —0—
(c) minus (d)
“(†) Average gross earnings for normal pay period as designated in (a) above .............................. $ 300,30
(g) Average disposable earnings for normal pay period as designated in (a) above after deduction of applicable items designated to be withheld in (d) above but this time, compute an average of withholding for a normal pay period as in (a) above .................................. $ 228.28
“I will hold the above described moneys or other items in my possession until the further order of the Court.
“Cubban & Co. — Garnishee
By: /s/ H. L. Boren_
Name of Officer: Secretary-_
Treasurer_
“Subscribed and sworn to before me this 21st day of December, 1970.
My commission expires: August 7,1974.
“/s/ Carol J. Wiedmeier Notary Public
“Instructions to Garnishee:
“This form is provided for your convenience in furnishing the Answer required of you in the Order of Garnishment. If you do not choose to use this form, your Answer, under oath, shall not contain less than that prescribed herein. Your Answer must be filed with the Clerk of the above-named Court within the time prescribed in the Order of Garnishment.
“The defendant’s attorney advised us that since Wayne McCreery was working in Utah, was a resident of Utah and was paid from our Utah office, that we could not legally withhold his Utah wages he had earned there without an order from a Utah court. Our legal counsel concurred with Mr. McCreery’s attorney; therefore, we were unable to withhold wages due him as at December 1, 1970.
“Curran & Co.
/s/ H. L. Boren”
Thereafter, plaintiff filed a motion for judgment alleging the garnishee had failed to file an answer in the manner specified in the statute and had failed to withhold payment of the indebtedness. On February 5, 1971, the garnishee filed a motion for leave to file further answer in event its answer was found insufficient and alleged its failure to file a proper answer was the result of excusable neglect. The court, in its journal entry of February 11, 1971, made the following finding:
“3. By reason of its disregard of the Order of this Court and by reasons of its failure to file an Answer herein in the manner specified in K. S. A. 60-718, Plaintiff is entitled and is hereby granted judgment against the Garnishee, Curran & Co., for the amount of Plaintiff’s judgment against Defendant as set out in the Journal Entry of Judgment filed herein. None of said judgment has been paid by Defendant.”
K. S. A. 1971 Supp. 60-718 provides that: “Within twenty (20) days after service upon him of the order of garnishment the gar nishee shall file his verified answer thereto with the clerk of the court stating the facts with respect to the demands of the order. . . .” The statute also provides that: “. . . If the garnishee fails to answer within the time and manner herein specified, the court may grant judgment against garnishee for the amount of the plaintiff’s judgment or claim against the defendant, but if the claim of the plaintiff has not been reduced to judgment, the liability of the garnishee shall be limited to the judgment ultimately rendered against the defendant: ...”
If the document filed by the garnishee constituted an “answer” within the meaning of the statute the plaintiff was not entitled to judgment. We have had no occasion to consider what is encompassed by an “answer” within the contemplation of this statute.
It is noted that the garnishee crossed out that provision of the statutory form which required it to state that no money, etc., had been delivered to defendant since the garnishment order was received. The statement at the bottom of the answer of the garnishee was to the effect that the defendant was working in the State of Utah, was a resident of the State of Utah, and was paid in the State of Utah; and that the garnishee, on advice of counsel, could not withhold wages without an order of the Utah court. It is apparent that the garnishee was attempting to explain why a portion of the statutory form was deleted.
We do not propose to answer the legal question raised by the answer of the garnishee; however, we do not deny the right of the garnishee to raise this issue. The statutory form was not suitable for this purpose. In order to raise the issue the defendant had to modify the form since the crossed out portion provided no alternative.
The information required in the statutory form should be provided, but we feel the modification of the form is justified when a legitimate issue cannot otherwise be properly presented to the court. In fact, the deleted portion of the form had no greater weight than its counterpart in the order of garnishment. The garnishee was under the same obligation to the plaintiff, regardless of whether the deleted portion was in the answer or was not in the answer.
Based on this reasoning, we conclude the answer filed by the garnishee was not defective and the trial court erred in entering judgment in favor of the plaintiff.
We can see justification for a judgment in favor of the plaintiff when the garnishee completely ignores the garnishment order as occurred in Buzbee v. Allen County State Bank, 191 Kan. 112, 379 P. 2d 250. We can see no justification for employing the harsh results of substituting one debtor for another after a garnishee has submitted himself to the jurisdiction of the court. In this situation, even though a garnishee fails to supply information of a material nature to the interests of the plaintiff, the plaintiff has remedies and the court has jurisdiction to enforce those remedies. We are referring to an order of the court directing garnishee to furnish the information, a direct request for admissions, the submission of written interrogatories, or the taking of oral depositions. Under these circumstances, the plaintiff has not been denied any rights that did not exist at the time the order of garnishment was issued.
In Jones v. Main, 196 Kan. 91, 410 P. 2d 303, the defendant garnishee made a note on the garnishee’s summons that he had no money due the principal defendant and filed it with the clerk. We held that this constituted an appearance which entitled the garnishee to a three-day written notice under K. S. A. 60-255 (a) before a default judgment could be entered against the garnishee. The following language of the opinion is pertinent:
“We deem it unnecessary to decide the question of whether the somewhat unorthodox pleading filed by Perfecto, apparently pro se, fulfills all the requirements of the answer which the statute directs is to be filed by a party who has been garnisheed. Assuming, for the sake of argument, that the instrument under scrutiny in this case does lack certain statutory essentials, we believe it is nonetheless sufficient to constitute an appearance within the purview of 60-255 (a), . . .” (p. 92.)
The answer of the garnishee in the instant case was more extensive in content than the limited statement in Jones. In view of this we are fully justified in concluding an appearance was made by the garnishee here.
In the case of Durfee Mineral Co. v. City Nat. Bank of Temple, (1922 Tex. Civ. App.), 236 S. W. 516, the court considered the issue of whether an insufficient answer conferred jurisdiction on the court and stated:
“. . . However, this article is not regarded as applicable to the present case, for the very simple reason that the garnishee did not fail to make answer to the writ. It filed a written answer, which was defective in several important particulars, it is true; nevertheless, it was an answer, and constituted the company’s legal appearance in the court a quo. It was sufficient to give jurisdiction to that court over the person of the garnishee, and to enable it to try and adjudicate the issues properly arising thereunder. . . .
“We see no distinction, in principle, as to the rule in garnishment cases and in other classes of cases upon the question we are considering. The filing of an answer, however defective, constituted legal appearance, and conferred jurisdiction over the person. This the garnishee might have prevented, and it might have availed itself of the statutory right to have another writ issued to take its deposition in answer to interrogatories, by refusing or failing to answer the original writ of garnishment. This it did not choose to do, but filed an answer. Even if the effect of sustaining the exceptions to the answer was to leave the garnishee without any answer to the merits, it would not affect the question of the court’s jurisdiction to proceed with the cause.” (pp. 517, 518.)
See also, 6 Am. Jur. 2d, Attachment and Garnishment, § 350, p. 806.
In Gard, Kansas Code of Civil Procedure Annotated, § 718, p. 598, the author comments on K. S. A. 60-718 as follows:
“The provision found in the former law for the taking of a default judgment against the garnishee, when he fails to answer, for the full amount of the plaintiff’s judgment or claim, is retained in this section. It seems a harsh penalty for default. But it has always been a part of the Kansas law and affords the only remedy which would be realistic. In the absence of an answer and an opportunity to take issue with it the plaintiff has no way of finding out what property or indebtedness is involved, or its value. Consequently there is no basis for a default judgment against the garnishee for what he owes to the defendant, as it cannot be ascertained. An alternative would have been to require the garnishee to present himself for interrogation, as in the former procedure on execution. But the inconvenience of this seems more burdensome than to continue the risk of a default judgment for failure to answer.”
We would add to Judge Gard’s comments that as long as a garnishee submits himself to the jurisdiction of the court the discovery provisions of the code give ample tools to the plaintiff to protect and enforce all rights intended to be provided to support his interests. Whenever a garnishee makes an appearance in an action no judgment should be entered against him without providing an opportunity to fully answer and present his defenses.
The judgment is reversed and remanded with directions to permit plaintiff to join issues with the garnishee’s answer by reply or other appropriate pleading. | [
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The opinion of the court was delivered by
Kaul, J.:
The four plaintiffs-appellees brought this action to recover damages resulting from the defective construction of basements in each of the houses which plaintiffs had purchased from defendant-appellants, M. W. Renollet and Renollet Homes, Inc. After a jury trial, judgment was rendered in favor of each plaintiff against both defendants. Thereafter defendants perfected this appeal.
In their amended petition, plaintiffs alleged two causes of action, the first of which charged defendants with negligence in the construction of each of plaintiffs’ homes. Plaintiffs further alleged that each home was built under the supervision and control of defendant M. W. Renollet, while acting as agent of Renollet Homes, Inc., and that due to his negligence the basement of each home was so constructed that during periods of normal rainfall, water leaked into the basement of each house, remained on the floor and caused damage to the floor and walls of each basement.
For their second cause of action against both defendants, plaintiffs alleged that defendants impliedly and expressly warranted that the homes being purchased by plaintiffs were reasonably fit for the purpose intended and free from defects. Plaintiffs further alleged that the homes were in fact defective and that defendants breached an implied and/or express warranty with each of the plaintiffs. Plaintiffs alleged that each of them had been damaged in the amount of $5,000 and prayed for judgment jointly and severally against defendants.
In their answer to plaintiffs’ amended petition, the defendants denied negligence and further alleged that plaintiffs’ first cause of action (negligence) was barred by the statute of limitations; and with respect to plaintiffs’ second cause of action, defendants alleged that the homes described in plaintiffs’ petition were warranted against defects for a period of one year and were not warranted thereafter.
After pretrial discovery proceedings, consisting of depositions and interrogatories, were completed a pretrial conference was held and a comprehensive order approved by counsel for both parties was filed. The pretrial order set out with specificity the stipulations of the parties, the claims of plaintiffs with respect to both defendants, and the questions of law and fact to be determined.
According to the pretrial order the parties stipulated that the homes were constructed under the supervision of M. W. Renollet and that during a period of time when he was hospitalized his wife, Marie Renollet, and his son, Calvin Renollet, also supervised con struction. It was also stipulated that the houses were not constructed with lateral lines.
The pretrial order further showed that plaintiffs relied on six acts of alleged negligence on the part of defendants, including failure to test the level of the water table at the homesites, failure to install lateral lines or to use other means to prevent basement leakage, and failure to comply with FHA regulations regarding prevention of basement water problems.
With respect to breach of contract, the pretrial order shows that plaintiffs relied on alleged breaches of their respective purchase contracts in defendants’ failure to comply with the FHA specifications.
The case came on for trial to a jury on June 1, 1970. During the course of the trial, the court required plaintiffs to elect between the theories of implied warranty and breach of contract; plaintiffs elected breach of contract and the case was submitted to the jury on negligence and breach of contract with respect to both defendants.
The jury returned verdicts for McFeeters $3,318.80; Wattenbarger $3,098.96; Etter $3,292.76; and Van Dyke $3,086.96.
The evidence disclosed that defendant M. W. Renollet was President of Renollet Homes, Inc., a corporation engaged in the business of building houses in the Wichita area, particularly in the Southwest part of the city wherein the subject homes were constructed. The plaintiffs came in contact with M. W. Renollet when he showed each of them a model home constructed on the tract he was developing. Thereafter, on various dates from July 3, 1967, through August 19, 1967, each of the plaintiffs executed contracts with Renollet Homes, Inc. for the construction of houses similar to the model home. Three of the contracts provided that the houses were to be built in compliance with plans and specifications approved by the Federal Housing Authority, hereafter referred to as FHA. The remaining contract (McFeeters) provided that the house was to be built according to plans and specifications approved by the Veterans Administration, hereafter referred to as VA.
Plaintiffs moved into their respective homes between September 1967 and May 1968. In May 1969 each of the plaintiffs observed water seeping into their basements through small cracks in the basement floor and some water leaking in through the perimeter joint around the basement where the floor joins with the basement walls. Plaintiffs would remove the water but within a few hours it would return and collect to a depth of one-half to one and one-half inches over the entire floor of each of plaintiffs’ basements. Evidence of plaintiffs showed that water covered the basement floors during most of the summer of 1969, in spite of plaintiffs’ repeated attempts to clear their basements of water. The water receded in the fall of 1969, but again appeared in March of 1970 and remained until the date of the trial in June 1970.
On appeal defendants specified five points of error, one of which pertaining to the bar of the statute of limitations, has been abandoned. In their brief defendants phrase the issues on appeal in this fashion:
“The principal questions to be decided upon this appeal fall into two general categories, one is the President of the corporation, M. W. Renollet liable in his individual capacity, and personally liable for acts of negligence as a corporate officer, Number two, is the corporation liable for negligence and breach of contract as claimed by the plaintiffs.”
Defendants strenuously argue that defendant M. W. Renollet cannot be held to be individually liable; that his actions were those of a corporate officer only; and that the trial court erred in overruling his motion for judgment at the close of plaintiffs’ case.
From our examination of the pleadings and the pretrial conference order, it appears that plaintiffs charged defendant Renollet personally with negligence, while supervising the construction of their homes in that (1) he failed to properly test or determine the water table on the homesites prior to commencing construction; and (2) he failed to install lateral drainage lines in compliance with FHA and VA specifications or to use alternative means to prevent leakage in the basements. Plaintiffs contended that Renollet failed to perform the duty he owed directly to them, to act with reasonable care once he undertook to act in supervising the construction of their homes.
It is true, as defendants suggest, that a director or officer of a corporation does not incur personal liability for its torts merely by reason of his official character. If, however, an officer commits or participates in the commission of a tort, whether or not it is also by or for the corporation, he is liable to third persons injured thereby, and it does not matter what liability attaches to the corporation for the tort. (19 Am. Jur. 2d, Corporations, § 1382, p. 778.) It is well settled in this jurisdiction that an officer or agent of a corporation who violates a duty owed to third persons is liable to such persons. (Duensing v. Leaman, 152 Kan. 42, 102 P. 2d 992; and Dowell v. Railway Co., 83 Kan. 562, 112 Pac. 136.) In Russell v. American Rock Crusher Co., 181 Kan. 891, 317 P. 2d 847, we said:
“An agent cannot escape liability to third persons by pleading he acted at the command or on account of the principal. This is for the reason that the tort liability of the agent is not based on the contractual relationship between the principal and agent, but on the common law obligation that every person must so act or use that which he controls as not to injure another. . . .” (p. 895.)
In support of his position defendant Renollet cites the recent case of Green v. Devoe Sales, Inc., 206 Kan. 238, 477 P. 2d 944. In that case plaintiffs Greens attempted to impress individual liability on Devoe Treadwell, President of Devoe Sales, Inc., for damages stemming from the fraudulent sale of a mobile home. The evidence disclosed that the transactions concerning the sale were between the Greens and various representatives of Devoe Sales, Inc. There was no evidence that Treadwell participated in the transaction other than in a representative capacity in executing the sales contract for the corporation in his capacity as president. We said:
“. . . Generally corporation officers are not individually liable upon contracts wherein the corporate name is signed and is followed by the name of an officer of the corporation to which are added words denoting his representative capacity. (19 Am. Jur. 2d, Corporations, § 1345, p. 751.).” (pp. 245-246.)
The Green case is clearly distinguishable from the instant case wherein tibe evidence shows that M. W. Renollet personally participated in the tortious acts complained of. We have examined other cases cited by defendants and find them to be either distinguishable on the facts or not in point on the issue presented here.
Defendants next contend that as to Renollet Homes, Inc., the theories of contract, implied warranty and negligence were inconsistent and that the trial court committed reversible error in refusing to require plaintiffs to elect between their theories prior to the close of defendants’ case when plaintiffs did elect to stand on negligence and breach of contract. The record is not clear as to precisely when the trial court required plaintiffs to elect. Plaintiffs claim the order to elect was made at the close of plaintiffs’ evidence and further that in any event the order was erroneous since, under the evidence of this case, their theories were not inconsistent. Defendants, on the other hand, claim that the order to elect was not made until the close of their evidence and that they were put to disadvantage in attempting to defend against all three theories. The only reference to election made by the trial court which we are able to find in the rather confusing record is a comment of the trial court at the close of defendants’ evidence when, apparently, defendants renewed their motion. The trial court is quoted in the record as follows:
“And the Court did require, and has required, plaintiff to elect between his theories of breach of warranty and breach of contract. And plaintiff has elected to proceed on the theory of breach of contract, rather than breach of warranty when given that option by the Court. It was not a voluntary election on the part of the plaintiff, it was one after the Court ruled that, and I’m now recording that I did rule yesterday that he had to take an election. And I am not trying to preclude Mr. Sherwood from stating his opposition in that rule, I’m just stating the reasons for it now.”
Regardless of when plaintiffs were required to elect, defendants have not shown prejudice. The positions of the parties, as shown in the pretrial order which governs the subsequent course of the action (Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380; and Brown v. Hardin, 197 Kan. 517, 419 P. 2d 912) is that plaintiffs were claiming breach of implied warranty in substantially the same particulars as the acts of negligence alleged— thus defendants could not have been prejudiced in presenting their defenses. Actually there is no inconsistency in plaintiffs’ theories as framed in the pretrial order in this case. This was not a situation such as appeared in Lehigh, Inc. v. Stevens, 205 Kan. 103, 468 P. 2d 177, wherein it was held that a litigant could not rescind a contract because of a breach of warranty and in a later action seek to recover damages for the same breach.
In the case at bar, plaintiffs, in order to establish breach of implied warranty, were required to show negligence on the part of defendants in failing to use due care and skill in performing the particular work involved. Thus, the theories of negligence, breach of implied warranty or contract, were not inconsistent as the issues were framed and presented here. We find appropriate this statement in the recent case of Gilley v. Farmer, 207 Kan. 536, 485 P. 2d 1284:
“. . . Whatever the rule may be elsewhere, this court has been consistent in holding that where a person contracts to perform work or to render a service, without express warranty, the law will imply an undertaking or contract on his part to do the job in a workmanlike manner and to exercise reasonable care in doing the work. (Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986.)
“Where negligence on the part of the contractor results in a breach of the implied warranty, the breach may be tortious in origin, but it also gives rise to a cause of action ex contractu. An action in tort may likewise be available to the contractee and he may proceed against the contractor either in tort or in contract; or he may proceed on both theories. . . .” (p. 542.)
Defendants’ next contention concerns the trial court’s failure to instruct concerning an “act of God.” The record does not disclose that a requested instruction was filed. However, we find a statement of the trial court, apparently made immediately before the case was submitted to the jury, as follows:
“The motion with respect to the instruction on act of God is overruled on the basis that the Court doesn’t feel there is any evidence in the case to sustain such an instruction.”
Assuming the matter was properly presented to the trial court, its refusal to instruct on an “act of God” is fully supported by the record. Defendants’ argument appears to be that fluctuations in the level of the water table in the area of the new houses was a result of an “act of God.” The evidence concerning the water table simply was that it rose and fell from time to time. The evidence on the point consisted primarily of the testimony of M. S. Mitchell, Superintendent of the Wichita-Sedgwick County Flood Control Project. He testified that the water level was normally higher in the spring and early fall and lower in the winter and at times during the midsummer. He said his office maintained 15 test wells in and around Wichita to determine the level of ground water each week. Well No. 13 was located about a mile from the homesites. Mitchell testified that the correlation of this test well and the water table at the homesites area would be very similar. He further testified that if inquiry had been made in the summer of 1967 regarding the level of the water table at test well No. 13 he would have advised anyone inquiring of the drainage problem in the area. Testimony that there may have been fluctuations or a gradual increase in the level of the water table is not sufficient evidence to support an “act of God” defense.
An “act of God” to be a defense must be an intervening cause which was not foreseeable and consequences of which could not be prevented. (Lee v. Mobil Oil Corporation, 203 Kan. 72, 452 P. 2d 857.) An “act of God”, as known in the law, is an irresistible superhuman cause, such as no reasonable human foresight, prudence, diligence and care can anticipate and prevent. (Huebert v. Federal Pacific Electric Co., Inc., 208 Kan. 720, 494 P. 2d 1210; Lee v. Mobil Oil Corporation, supra; and Garrett v. Beers, 97 Kan. 255, 155 Pac. 2.)
In their fifth specification of error defendants contend that as a matter of law the evidence fails to disclose that defendants breached the contracts or were guilty of negligence in the construction of plaintiffs’ houses.
In their argument, defendants suggest that the rule of caveat emptor should apply, thus exempting them from liability in this case. It appears that defendants seek to apply the ancient rule of caveat emptor with respect to sales of real property to the instant case. Defendants direct our attention to an annotation appearing in 25 A. L. R. 3d p. 383 dealing with the subject of the liability of a builder-vendor for damages occasioned by defective conditions. We have examined the cases discussed in the annotation referred to and find that the overwhelming majority of modern cases do not sustain defendants’ position. The author of the annotation makes this observation:
“It has been noted that while most courts still adhere to the proposition that in the usual, normal sale of lands and old buildings the ancient doctrine of caveat emptor applies, the decided trend of modem decisions is to make a distinction with respect to a vendor who is also the builder of a new structure, and that where the vendor is also the builder, he is today, by the weight of modem authority, held liable for damages and injuries occurring after the surrender of title and possession, on one or more of three theories: (1) implied warranty; (2) an imminently dangerous condition caused by negligence in construction; and (3) concealing or failing to disclose to his vendee any condition which involves unreasonable risk to persons on the land if the vendee does not know or have reason to know the condition of the risk involved and the vendor knows or has reason to know of the condition. . . .”
(p. 391.)
The rationale of the cases is summarized in this fashion:
“Similarly, it has been said that the trend of recent judicial decisions is to invoke the doctrine of implied warranty of fitness in cases involving sale of new houses by the builder; that the old rule of caveat emptor does not satisfy the demands of justice in such cases; that the purchase of a home is not an everyday transaction for the average family, and in many instances is the most important transaction of a lifetime; and that to apply the rule of caveat emptor to an inexperienced buyer, and in favor of a builder who is daily engaged in the business of building and selling houses, is manifestly a denial of justice.
“When a vendee buys a development house from an advertised model, he clearly relies on the skill of the developer and on its implied representation that the house will be erected in a reasonably workmanlike manner and will be reasonably fit for habitation, and since he has no architect or other professional adviser of his own, he has no real competency to inspect on his own, his actual examination is, in the nature of things, largely superficial, and his opportunity for obtaining meaningful protective changes in the conveyancing documents prepared by the builder-vendor is negligible.” (pp. 391, 392.)
The case at bar was submitted to the jury on the theories of negligence and breach of contract. There was ample evidence to support liability on either or both theories. The testimony of superintendent Mitchell, previously referred to, and that of Charles McAfee, an architect familiar with home construction in the area, is sufficient to support the jury’s verdict on the theory of negligence. McAfee testified that drainage problems have continuously existed in the area; that a reasonably prudent contractor would not commence construction in the area without first attempting to determine the level of the water table; that there were several ways it could be checked — (1) by securing a test by an independent testing laboratory and (2) by digging a hole several feet below the bottom of the basement and observing the hole for a period of time.
In his deposition, which was read to the jury, defendant M. W. Renollet said:
“ ‘There were not any tests made to determine the depth of the water. . . . I was the first one to build houses with basements in this block. Knowing today that the water table comes up too high. I would not put basements in these houses unless I could raise the house a couple or three feet higher.’ ”
The evidence that M. W. Renollet failed to make the tests that a reasonably prudent contractor would have made under the circumstances is ample to support the jury’s verdict with respect to the negligence of both defendants.
With respect to breach of contract, the pretrial conference order discloses that the parties stipulated that none of plaintiffs’ houses were constructed with lateral drainage lines. The purchase contracts provided that McFeeters’ house was to be built under plans and specifications approved by VA, the other three houses under FHA plans. The VA and FHA had identical minimum construction requirements for foundation drains (lateral lines). Before commencing construction, defendant Renollet submitted plans to FHA and VA, respectively.
With regard to footing drains in the FHA plans there is some dispute in the evidence. Lloyd Montgomery, Chief Architect for the Kansas Office of FHA, testified that the fifth page of the plans indicated that footing drains were to be installed beneath the basement floor; that after the plans were submitted to FHA, an unidentified FHA processor had marked “not anticipated” on page five of the plans and drew a line to the portion of the plan re garding footing drains. Montgomery testified, however, that the notation “not anticipated” had later been scratched out and the comment written “this is in 2014 cost and should be required.” Montgomery explained that this meant the drains were included in the FHA cost projection. Montgomery further explained that deletion of drains from the plans required a filing by the builder of an FHA form 2577 requesting an acceptance of changes from the approved plans and descriptions of materials. He further testified that he had reviewed each of the three subject files and was unable to locate any form 2577 executed on any of these homes.
Donald Southerland, construction analyst for VA, testified that VA had minimum construction standards that were identical to those of FHA. He further testified that the McFeeters’ file disclosed that drain tile under the basement floor was called for by his house plans.
Since it was stipulated that none of the plaintiffs’ homes were constructed with lateral lines, we believe the evidence referred to is sufficient to support a finding of breach of contract.
The judgment is affirmed. | [
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Per Curiam:
This action stems from a tax foreclosure action filed by the board of county commissioners of Sedgwick county pursuant to K. S. A. 79-2801, et seq. At issue is the validity of the proceedings as they affect a particular tract of land sold at sheriff’s sale to Violet Lemon.
Neither the deceased landowner nor her legal representative was ever personally served with summons in the action and the crux of the matter is whether service by publication was properly obtainable under the circumstances. The landowner’s present legal representative sought, unsuccessfully, to void the sale and this appeal ensued.
Appellant filed his record on appeal and brief in this court, citing inter alia, as precedent for reversal, Isenhart v. Powers, 135 Kan. 111, Syl. ¶ 3, 9 P. 2d 988; Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶¶ 5 & 6, 434 P. 2d 858.
Eventually the purchaser at the.tax sale filed in this court the following motion:
“Comes Now the appellee, Violet Lemon, and moves the Court for an order and mandate of the Court granting the appellant the relief requested and restoring the parties to their previous status.
“In support of her motion appellee represents to the Court that appellee is persuaded of the correctness of appellant’s position; that accordingly she has authorized and directed her counsel to acquiesce in an order granting appellant the relief prayed for, namely:
“1. An order setting aside the tax foreclosure sale and restoring the property to appellant’s decedent;
“2. An order setting aside any condition to such restoration;
“3. An order refusing confirmation of the tax foreclosure sale.
“Appellee waives any brief or oral argument.”
Thereafter, the appellee board of county commissioners filed its request to be excused from filing brief and making oral argument. Neither appellee has made further appearance.
In view of this posture of the appeal and in reliance upon the cited authority, the judgment is reversed and the cause is remanded with directions to grant the relief requested by appellee Violet Lemon. | [
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Per Curiam:
This is an original proceeding in discipline against the respondent, Elmer J. Schumacher, of Topeka, Kansas, in which the State Board of Law Examiners recommended a six month suspension from the practice of law.
The five complaints against the respondent were processed by the State Board of Law Examiners under Rules No. 201 to No. 205 inclusive, adopted by this court May 21, 1968, and revised November 15, 1969. (See 203 Kan. uv to lvh and 205 Kan. lex to lxii. ) After investigation and hearings a hearing panel report was filed. The report was adopted by the Board. The respondent took exceptions. The present proceeding in discipline was then filed and docketed as provided in Rule No. 206 (205 Kan. lxh).
The facts surrounding these five complaints were fully investigated. They were set forth as “Findings of Fact” in the report of the hearing panel. The report was received and adopted by the Board of Law Examiners on May 6, 1971. Highly summarized the facts found by the Board are as follows:
COMPLAINT (1) JACQUELINE D. MCKINLEY
This complaint arose from respondent’s employment by Mrs. McKinley to collect child support payments ordered in a divorce action in the state of Colorado. The matter was pending in respondent’s office from December, 1969, to December, 1970, before respondent learned an order had previously been entered in Colorado abating all child support payments. Throughout the year this employment was pending there appears to have been a lack of diligence on the part of respondent. Mrs. McKinley complained about the unavailability of her attorney and the absence of progress re ports. Although not condoning respondent’s lack o£ diligence, the Board concluded no discipline should be imposed because the $50.00 fee paid by Mrs. McKinley was applied on services subsequently rendered in an adoption proceeding.
COMPLAINT (2) the letterhead
The respondent prepared and used a letterhead which contained in the upper left hand corner the legend, “Former Kansas Workmens Compensation Commissioner.” The use of this letterhead continued for some time. In at least one instance an objection to the use of such letterhead was made by an opposing counsel. Respondent continued its use. The Board found that respondent’s protracted use of the letterhead was a violation of the Code of Professional Responsibility, DR 2-102 (A-4) which prohibits self aggrandizement. (See Rules of the Supreme Court No. 501, 205 Kan. lxxvh. )
COMPLAINT (3) the boundary line dispute
Respondent represented certain landowners in a boundary line dispute. The dispute gave rise to much animosity between adjoining landowners. Respondent served a purported “Notice by County Surveyor to Landowners” upon opposing parties using the certified mails. It bore the caption of an action in the District Court of Shawnee County. No such action had been filed in the district court. The name of the county surveyor was typed at the bottom of the notice. The county surveyor had not been consulted and had not authorized the issuance of the notice. A second “Amended Notice” had been prepared and sent by respondent. No survey had been requested in the county surveyor’s office. The opposing attorney inquired as to the name of the person conducting the survey. The respondent refused to give him any information. The opposing attorney then obtained a restraining order to prevent further abuse of process and to end the harassment of his clients from the serving of unauthorized notices.
The Board concluded that respondent was guilty of abuse of process and that he had engaged in conduct involving misrepresentation and resulting in prejudice to the administration of justice.
(Id. DR 1-102 [A-4] and [A-5]; DR 7-102.)
COMPLAINT (4) taylor tort claim
Respondent accepted employment from a husband for the purpose of collecting from his client’s wife on a tort claim. The client had been injured when his wife intentionally ran over him with a car during a marital disagreement. Summary judgment was entered against respondent’s client on the ground the parties were husband and wife when the incident occurred and tort liability did not exist. Respondent filed notice of appeal to this court. At a time when the appeal was subject to dismissal for failure to file a designation of record and statement of points respondent obtained $100.00 from his client as expenses for an appeal. The appeal was declared abandoned in the trial court. The client did not learn of the dismissal of the appeal until he personally inquired of the court some nine months later. The employment had been undertaken on a contingent fee basis.
The Board concluded that respondent’s conduct adversely reflected on his fitness to practice law (Id. DR 1-102 [A-6]), that he had neglected a legal matter entrusted to him (Id. DR 6-101 [A-3]) and that he failed to seek the lawful objectives of his client for which he had been employed (Id. DR 7-101 [A-l]).
COMPLAINT (5) community investment company v. wilson
Respondent represented a defendant against whom a judgment for $276.50 was entered upon a promissory note. Respondent thereafter filed a notice of appeal to the Supreme Court of Kansas. The appeal was dismissed because the amount involved was less than the jurisdictional amount required. Thereafter, the defendant was ordered to appear in the district court on a motion in aid of execution. She did not appeal because of the advice of the respondent. Then both the defendant and the respondent were ordered to appear. Neither appeared. Thereafter, respondent filed a motion for an order to vacate the order requiring appearance. He failed to appear and present the same. The court issued a “show cause” order and a bench warrant was issued to assure respondent’s presence in court. Sanctions were imposed against the respondent by the trial court. Respondent was ordered to pay the costs of the proceedings and a fee of $100.00. The fee was for the purpose of reimbursing opposing counsel for time needlessly spent in court as a result of sham and frivolous pleadings filed by respondent. Four and a half months later respondent was cited for contempt in failing to pay the costs and the fee. After service of the citation payment was made.
The Board found respondent’s. conduct was improper in that he had taken such action on behalf of his client when he knew or when it was obvious that such would serve to harass another (Id. DR 7-102 [A-l]), in that he knowingly advanced a defense that was unwarranted under existing law (Id. DR 7-102 [A-2]) and in that he appeared in his professional capacity before the district court and intentionally or habitually violated established rules of procedure (Id. DR 7-106 [C-7]).
The recommendation of the Board for six months suspension was based on the second, third and fourth complaints. It concluded the trial judge had dealt properly with the fifth complaint and no additional discipline was recommended thereon. Six months suspension from the practice of law was the discipline suggested by the Board to this court.
We need not detail the evidence in the record. We find clear and satisfactory proof of acts by respondent warranting disciplinary action as required in proceedings of this nature. (See In re Phelps, 204 Kan. 16, 17, 459 P. 2d 172, cert. den. 397 U. S. 916, 25 L. Ed. 2d 97, 90 S. Ct. 922, and In re Ratner, 194 Kan. 362, 399 P. 2d 865.) Accordingly respondent’s contention that there was insufficient evidence of the violations is without merit.
Respondent contends that the attorney general conducted an improper investigation of the charges pending against respondent and failed to supply him with a report of the investigation.
The investigation required in this proceeding under Rule No. 204 (c), (d) and (f) was under the supervision of a panel of three members of the State Board of Law Examiners. They were assisted at the hearing by an assistant attorney general as provided for in Rule No. 205 (g). A full transcript of this hearing was available to respondent upon request as provided for in Rule No. 206 (d). Any prior investigation by the investigator or by the assistant attorney general was for their own purposes in verifying the facts and preparing for the panel hearing. The respondent was given copies of the complaints well in advance and was afforded a full opportunity to defend against them at the panel hearing. Respondent was present and took part in that hearing. Subsequent thereto he filed supplemental affidavits. These were considered by the board and appear in the record. We fail to see how respondent was prejudiced from a lack of communication with the attorney general’s office. The rules of this court relating to the investigation, hearing and notice were complied with.
Respondent next contends the use of the letterhead containing the legend, "Former Kansas Workmens Compensation Commis sioner”, is recognized and permitted by Rule No. 501 of this court under DR 2-102 (A-2).
DR 2-102 (A-2) reads:
“A brief professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters pertaining to the professional office of a lawyer or law firm, which may be mailed to lawyers, clients, former clients, personal friends, and relatives. It shall not state biographical data except to the extent reasonably necessary to identify the lawyer or to explain the change in his association, but it may state the immediate past position of the lawyer. It may give the names and dates of predecessor firms in a continuing line of succession. It shall not state the nature of the practice, except as permitted under DR 2-105.”
It is apparent the respondent is confused in this regard. The rule refers only to professional announcement cards which may be mailed once to a limited circle of personal friends and professional acquaintances. It does not relate to the form of a letterhead.
It has become commonplace for many lawyers to participate in government service. It is proper for a member of the profession to explain his absence from private practice, where such is the primary purpose of the announcement, by a brief and dignified reference to the prior employment. Any such announcement should be limited to the immediate past connection of the lawyer with the government, and be made upon his leaving that position to enter the private practice. (See American Bar Association Opinion 301 [1961].)
DR 2-102 (A-4) is the rule which applies to the form of letterheads. The pertinent part of that rule reads:
“A letterhead of a lawyer identifying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, associates and any information permitted under DR 2-105. A letterhead of a law firm may also give the names of members and associates, and names and dates relating to deceased and retired members. . . .”
A lawyer should not hold himself out publicly as a specialist oías limiting his practice. Under DR 2-105 when a lawyer is admitted to practice before the United States Patent Office he may use the designation of patent or trademark attorney. The only other exception is when he is actively engaged in the admiralty practice, and in that case the use of the term admiralty lawyer or attorney on his letterheads is permitted. (Id. DR 2-105 [A-l].) Respondent’s listing of his former position on the letterhead is not permissible.
Respondent finally contends that since the “Boundary Line Dispute” was later litigated in court the Board was without jurisdiction to usurp the role and function of the trial court.
No authority is cited by the respondent to support this conclusion. The case in the trial court was between the party litigants over a boundary line. The complaint on which disciplinary action was taken involved out-of-court acts by the respondent prior to litigation. These are separate and distinct matters.
The power to disbar or discipline attorneys for causes arising after their admission to practice in this state rests inherently and exclusively in the Supreme Court of Kansas. (In re Phelps, supra; State v. Barrett, 207 Kan. 178, 483 P. 2d 1106.) This inherent power was recognized and underscored by the legislature in K. S. A. 7-111 as amended. The State Board of Law Examiners was created and empowered to assist the court in such matters. (Id. Rule No. 201 [a].) There is no merit to respondent’s contention that the Board was without jurisdiction to entertain these disciplinary proceedings.
There remains only the question of the severity of the discipline to administer. After carefully reviewing the facts surrounding the five complaints this court feels, that although more severe discipline might be justified, the recommendations of the State Board of Law Examiners should be accepted.
In handling the boundary fine dispute respondent engaged in conduct involving misrepresentation and abuse of process which tends to prejudice the administration of justice. His handling of the Taylor tort claim reflected adversely on his fitness to practice law in that he neglected a legal matter entrusted to him and failed to seek the lawful objectives of his client for which he had been employed. The improper use of the letterhead constituted self aggrandizement. Respondent’s actions in the Wilson matter evidenced attitudes of the respondent which were even more serious in nature, although no discipline was recommended by the Board and none is imposed by reason thereof.
Accordingly Elmer J. Schumacher is suspended from the practice of law for a period of six months from the date this opinion is filed.
rr is so ordered.
Owsley and Prager, JJ., not participating. | [
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Per Curiam:
The plaintiff-taxpayer filed a statutory action under K. S. A. 79-2005 to recover $8,018.83 in taxes paid under protest for the year 1970. The taxes were paid to the county treasurer of Johnson County on the London Square Apartments. The tax protested came from a levy on additional improvements placed on the real estate during the year 1969. The taxpayer received no notice of an increase in valuation for the improvements until May 15,1970. K. S. A. 79-1412a, Third provides that when the assessed value of any parcel of real estate is changed from the preceding year the county assessor shall notify the taxpayer by mail on or before May 1st.
The trial court entered summary judgment for the plaintiff-taxpayer. The court held the mailing of notice on or before May 1st was a condition precedent to the valid assessment of any tax to be levied on the basis of an increase in valuation.
The notice of the increased valuation was mailed by the assessor on May 13, and it was received by lie taxpayer on May 15.
The defendants (county officials), seeking to uphold the assessment and the tax, attack the sufficiency of the written protest and contend the provisions of the notice statute are directory — not mandatory. They point out that the written protest fails to cite any statute making the assessment and levy invalid. The protest con tains no allegations of fraud or illegality. The defendants conclude that since the written protest is insufficient under K/S. A. 79-2005 the petition attempting to state a claim thereon must be held insufficient as a matter of law.
The pertinent part of the written protest filed by the taxpayer reads as follows:
‘The reason for this protest is that the first valuation statement in 1970, which was mailed March 17, 1970, showed a total value of land and improvements of $374,600, which is admitted to be valid. On May 15, 1970, a subsequent valuation statement was mailed raising the land and improvements value to $665,600, the entire change being reflected in the improvements, which change from $350,000 to $641,000 is protested. See attached Exhibit. This later statement was mailed after the May 10th date on which appeals could be made to the County Board of Equalization, thereby foreclosing any opportunity to challenge the increase in valuation. There has been no new construction or added improvements on the property during the year of 1970 which would justify any change in valuation pursuant to K. S. A. 79-417, nor under any other statutory provision.”
The protest statute, K. S. A. 79-2005, provides:
“(1) Any taxpayer before protesting the payment of his taxes, shall be required, at the time of paying said taxes, to make and file a written statement with the county treasurer clearly stating the grounds on which the whole or any part of said taxes are protested, and shall further cite any law, statute, or facts on which such taxpayer relies in protesting the whole or any part of such taxes and mail a copy . . .” (Emphasis added.)
In the present case the written protest merely states the notice of increased valuation was mailed “after the May 10th date on which appeals could be made to the County Board of Equalization.”
No statute requiring notice of an increased valuation is mentioned in the protest or in the petition. The taxpayer’s conclusion, that May 10th is the final date on which appeals can be made to the county board of equalization, is not supported by reference to any statute. We note that under K. S. A. 79-1602, then in effect, the date of final adjournment for the board is June 15, and after that time the board could not change an assessed valuation placed on property.
The last sentence of the quoted portion of the protest refers to K. S. A, 79-417. This is a statutory provision which enables the county to recover taxes on property which has escaped assessment. The county clerk is authorized to charge taxes, which were overlooked in a prior year, against the real estate by placing the same on the tax roll in any subsequent year. In the last sentence of the protest filed the taxpayer states that no improvements have been added to the real estate during the year 1970.
This would not be a valid basis for protest of the taxes assessed and levied in 1970. The 1970 taxes are determined by the assessed valuation on January 1, 1970. (K. S. A. 79-309.) The notice of a change in valuation for 1970 tax purposes would reflect improvements placed on the property during the preceding year, 1969.
Certain statutory duties are placed upon the county assessor. Mailing notice of changes in valuation is one of his duties. K. S. A. 79-1412a, Third provides:
“County assessors shall perform the following duties:
Third. Notify each taxpayer on or before May first by mail directed to his last known address as to the assessed value placed on each parcel of his real property: Provided, That after 1956 such notice shall be sent only when the assessed value of any parcel has been changed from the assessment shown for the preceding year. Failure to receive such notice shall in nowise invalidate the assessment.”
The last sentence of this provision is noteworthy. The legislature in directing the assessor to mail notices provided that a failure to receive a notice of change in valuation should “in nowise invalidate the assessment.” In interpreting the meaning and effect of this statute it would not be reasonable for this court to hold the assessment is invalid because the notice was received two weeks late, when the legislature has said failure to receive the notice shall in nowise invalidate the assessment. This latter statement appears another way for the legislature to say the provision for mailing notice is directory, not mandatory.
In City of Hutchinson v. Ryan, 154 Kan. 751, 121 P. 2d 179, the rule of construction, as to directory or mandatory provisions in statutes, is stated as follows:
“In determining whether statutory provisions are mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system and dispatch of the public business, the provision is directory.” (Syl. f 1.)
Under this rule we hold the notice provision, K. S. A. 79-1412a, Third, is directory rather than mandatory. See also Board of Education v. Barrett, 101 Kan. 568, 167 Pac. 1068; School District v. Clark County Comm'rs, 155 Kan. 636, 127 P. 2d 418; and Shriver v. Board of County Commissioners, 189 Kan. 548, 370 P. 2d 124. Having concluded the notice statute is directory, a delay of two weeks in mailing the notice of change in valuation would not result in an invalid assessment.
There is a statute which provides a means of enforcing the statutory duties of assessors. In case of willful neglect of duty an assessor may be charged with a misdemeanor and a fine may be imposed upon conviction. (K. S. A. 79-1418.)
The written protest filed in the present case was legally insufficient in the particular's previously discussed. For cases relating to the sufficiency of tax protests see Millhaubt v. McKee, 141 Kan. 181, 185, 40 P. 2d 363; Kansas Gas & Elec. Co. v. Dalton, 142 Kan. 59, 67, 46 P. 2d 27; and Henderson v. Montgomery County Comm’rs, 147 Kan. 64, 67, 75 P. 2d 816.
Since the statutory protest on which this action was based is legally insufficient, the petition filed is fatally defective as a matter of law. Accordingly the judgment of the lower court is reversed and the case is remanded to the district court with directions to enter judgment for the defendants. | [
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The opinion of the court was delivered by
Kaul, J.:
Plaintiffs-appellees brought this action to enjoin defendant-appellant, the county attorney of Morris County, from proceeding against them under tihe provisions of the Kansas Buyer Protection Act, K. S. A. 1971 Supp. 50-601, et seq., hereafter referred to as the act. Specifically, plaintiffs prayed that defendant be restrained “from taking any statements, evidence or depositions” pursuant to subpoenas to plaintiffs, which had been issued by defendant under the provisions of K. S. A. 1971 Supp. 50-605.
On May 27, 1970, the trial court granted a temporary restraining order which was attacked by a motion to dismiss and vacate. After a hearing on defendant’s motion, the trial court entered a judgment permanently restraining defendant from proceeding further against the plaintiffs under the “Consumer Protection Act” (Buyer Protection Act). Thereafter, the defendant perfected this appeal.
The proceedings stemmed from a verified complaint filed with the county attorney by Arthur Davis, a resident of Morris County.
The gist of the complaint reads as follows:
“I listed the following described real estate, to-wit:
“The Northwest Quarter (NW Yi) of Block One (1) Mackinzie Addition in the City of White City, Kansas.
for sale with R. W. Hunter as the real estate broker, Mr. Hunter did not sell the property for more than a year after I had listed it with him. He came to me one day and indicated that he had a buyer and wondered if I would take less than $1,000.00 for it. I said no. He then asked if I would take $1,500.00 for it and I said yes. It was sold to his daughter, Ruby Mann of Sldddy, Kansas.
“Within just a few days after the deal was made I find that Mrs. Mann sold the property to Leon D. Williamson and his wife for $2,500.00 which would mean $1,000.00 profit for them.
“On a later date Mr. Hunter offered to return his broker’s fee for selling the property for me to his daughter.”
Following the filing of the complaint the county attorney caused subpoenas to be served on R. W. Hunter and Mr. and Mrs. (Ruby) Hubert M. Mann, directing them to appear before the county attorney to answer questions propounded to them concerning the sale of the Davis real estate and that they bring with them all records and papers relevant to the transaction. At this point plaintiffs filed their action seeking to restrain the county attorney. Plaintiffs claimed the subpoenas were not authorized by 50-604 and 50-605; and further that only the attorney general had authority under the statutes specified to issue the subpoenas.
The trial court found that the county attorney was authorized to issue subpoenas under the act (State v. McPherson, 208 Kan. 511, 493 P. 2d 228), but held that a transaction involving the sale of real estate situated in Kansas was not within the purview of the act, and, for that reason, permanently enjoined the county attorney from proceeding pursuant to the subpoenas.
Plaintiffs did not appear or file a brief with this court on appeal.
Defendant presents one narrow issue on appeal. It is stated in his brief in this fashion:
“Whether the word merchandise’ as defined in K. S. A. 1969 Supp. 50-601 (b) includes real estate located in the State of Kansas.”
The statute referred to reads as follows:
“(b) The term ’merchandise’ includes any objects, wares, goods, commodities, intangibles, real estate situated outside the state of Kansas or services;”
After hearing the arguments of counsel, the trial court ruled:
“All right, gentlemen. I happened to have had this very question on here on the merchandising, and I must be consistent, and I think real estate within Kansas falls without the purview of the act, and, in fact, it’s 21-551, and I think there is a specific reason why real estate outside of the state is covered, that’s because of advertising for land to sell you swamps in Florida and what have you. This was the purpose of it.
“I think further that the County Attorney, and so rule, does have a right to bring the action if he had a proper subject matter, and that it’s not limited or restricted to the County Attorney — or, Attorney General, excuse me, but, of course, the Court has found that he doesn’t have a proper subject matter.”
We are constrained to agree with the trial court.
Defendant makes several arguments on appeal, including an assertion that Kansas real estate could be included within the definition of the words “objects” or “commodities” as they are used in the statutory definition of “merchandise.” If the statute was silent concerning real estate his argument might be persuasive; however, the statute specifically mentions real estate and if the legislature had intended the term “merchandise” to include real estate wherever situated it could have said so rather than specifically referring only to real estate situated outside the state. The specific reference to real estate must control over the general terms “objects” or “commodities.”
Defendant says that it seems unreasonable that the legislature intended that the act apply to fraudulent transactions involving real estate located outside Kansas and yet did not intend application to the same fraud in a similar situation involving Kansas real estate. As the trial court pointed out, defendant overlooks the fact that there are other Kansas statutes affording remedies for fraud arising from transactions concerning Kansas real estate.
Defendant further argues that since the purpose of the act is the elimination of fraudulent practices in sales that it should be liberally construed to include sales of Kansas real estate to accomplish the policy of eliminating all fraudulent practices in connection with sales. While this may be the broad policy of the act we are precluded, by well-established rules governing the interpretation of statutes, from searching for another meaning to give a statute when the language used is plain and unambiguous.
In the case of Alter v. Johnson, 127 Kan. 443, 273 Pac. 474, Chief Justice Johnston stated the applicable rule in these terms:
“. . . In interpreting a statute the safer rule for us to follow is to ascertain the true intent of the legislature. That intent is to be derived in the first place from the words used, and when that intent is apparent and is appropriate to the obvious purpose of the act we should give that intent effect rather than to search for another meaning, although we might think some other policy would be more effectual. . . .” (p. 447.)
See, also, City of Overland Park v. Nikias, 209 Kan. 643, 498 P. 2d 56, Hand v. Board of Education, 198 Kan. 460, 426 P. 2d 124.
The language of the statute under consideration is plain and its purpose to reach nonresident sellers or agents who engage in fraudulent practices in attempting to sell out-of-state real estate to Kansas buyers is obvious.
We hold that Kansas real estate does not fall within any of the items specifically enumerated as being included in the term “merchandise” by the provisions of K. S. A. 1971 Supp. 50-601(h).
It should be noted that in arriving at the conclusion announced herein, we are not unmindful of the rule announced in State, ex rel., v. Rohleder, 208 Kan. 193, 490 P. 2d 374, that the district courts of this state cannot prevent the attorney general or a county attorney from performing the duties required of them by statute. In the instant case the restraint was directed only at subpoena proceedings under 50-605, supra, in connection with a transaction, not within the scope of the “Buyer Protection Act.” The restraint here has no bearing on the authority or duty of the county attorney with respect to the enforcement of the laws of the state of Kansas.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from the denial of a petition requesting a writ of mandamus and a declaratory judgment. The appellant requested the Edwards County district court to declare a hospital bond election to be a valid election, and requested that a writ of mandamus issue to the county commissioners of Edwards County directing them to issue and sell the general obligation bonds as authorized by a special bond election.
The record discloses that over the past several years citizens of Edwards County had become concerned about the adequacy of the existing Edwards County hospital to meet the medical needs of the area served by that hospital. This concern eventually ripened into an application for the construction of a new hospital in Edwards County.
On January 21, 1971, the health facilities planning committee of the Southwest Central Region Health Planning Council reported favorably on the Edwards County hospital application.
On February 25, 1971, the Edwards County hospital board of trustees met to consider construction of a fifty bed hospital. A motion to recommend construction of a new hospital based upon a finding of need for the construction thereof failed to receive a majority vote of the trustees, however, the board of trustees did pass a resolution by unanimous vote which recited the following facts:
“Be It Resolved; Whereas the Edwards County Hospital Board of Trustees have this 25th day of February, 1971, by a majority, voted not to recommend the issuance of general obligation bonds for the construction of a new hospital and remodeling of the present hospital, we none-the-less, desiring not to be the sole judge of said proposition, request the Edwards County Board of County Commissioners to call a special election for April 6, 1971 and let the electorate of Edwards County make their decision.”
On March 1, 1971, the board of county commissioners of Edwards County, Kansas, met in regular session with two hospital trustees present. The county commissioner moved to accept the resolution of the hospital trustees and this was done by a unanimous vote of the county commissioners.
At this same session, the county commissioners adopted and approved a resolution which reads in pertinent part as follows:
“Whereas, said hospital trustees have found that a need exists for more and improved hospital facilities within said county and have requested the board of county commissioners of said county to submit to the qualified electors of said county the proposition of said county issuing general obligation bonds of said county to acquire a site and construct, equip and furnish an addition to said hospital and to issue $100,000.00 of bonds under K. S. A. 1970 Supp. 19-15,116 to remodel the existing hospital building; and
“Whereas, the estimated cost of acquiring a site, constructing, equipping and furnishing an addition to said hospital is $1,027,300.00; and
“Whereas, said board of county commissioners finds that an addition to said hospital is needed and should be constructed and that the qualified electors of the county should have submitted to them the proposition of said county issuing its general obligation bonds in an amount not to exceed $1,027,300.00 to acquire a site and to construct, equip and furnish said addition; and
“Whereas, said board of county commissioners further finds that said County should issue bonds in the amount of $100,000.00 under K. S. A. 1970 Supp. 19-15,116 to remodel the existing hospital building; and
Whereas, said board of county commissioners has authority to call such an election pursuant to K. S. A. 19-1878 and finds that said proposition should be submitted at a special election to be held in conjunction with municipal and school district elections to be held on the 6th day of April, 1971. . . .” (Emphasis added.)
(It should be noted the county commissioners made a false recital in their resolution in that the hospital trustees did not find a need existed for more and improved hospital facilities.)
The county commissioners attempted to rectify their false recitation in the resolution of March 1, 1971, by adopting a resolution at their June 7,1971, meeting which stated,
“Number 4 — Whereas: to be expunged and in lieu of, for a true record, be stated that the Board of County Commissioners adopted a request that an election should be submitted to the people as provided in the second resolution submitted by the Board of Trustees of the Edwards County Hospital.
“Number 6 — Whereas: To be expunged from the record and in lieu thereof submit the true statement that the Board of County Commissioners made no findings that a hospital is needed and should be constructed, but did accept the second resolution by the Edwards County Hospital Board of Trustees referred to in minutes of March 1,1971 and stated:
“Be It Resolved—
“Whereas: The Edwards County Hospital Board of Trustees have this 25th day of February, by a majority, voted not to recommend the issuance of general obligation bonds for the construction of a new hospital and remodeling of the present hospital, we none-the-less, desiring not to be the sole judge of said proposition, request the Edwards County Board of County Commissioners to call a Special Election for April 6, 1971 and let the electorate of Edwards County make their decision.”
Notice of said election was published in the Kinsley, Kansas, Mercury for three consecutive weeks with the first publication being on March 11, 1971, and the last publication being on March 25, 1971. The issuance of the bonds was approved at the election by a vote of 1,150 to 824.
On May 28, 1971, at a regular meeting the board of county commissioners refused to adopt a resolution instructing the county attorney to proceed with the issuance and sale of such bonds. Instead the county commissioners voted to issue $400,000 worth of bonds.
Thereafter the county commissioners requested an attorney general’s opinion on the sufficiency of the proceedings leading to the election. The attorney general responded on August 5, 1971, with an opinion which informed the county commissioners the proper steps were not taken; that the bond election was void, and that the attorney general would not approve the issuance of any bonds under such an election.
On application of J. Ryron Meeks, the regularly elected county attorney of Edwards County, that a special county attorney be appointed to investigate the bond election proceedings by reason of his disqualification (Mr. Meeks having previously on March 1, 1971, associated himself with the bond attorney employed under contract with the board of county commissioners of Edwards County for the issuance and sale of general obligation bonds authorized by the bond election here in controversy), the district judge, Maurice Wildgen, on July 6, 1971, appointed Louis James as special county attorney for Edwards County, and empowered him to investigate all matters relating to the election, authorization and issuance of general obligation bonds for the Edwards County hospital. Mr. James transmitted a letter to district court Judge Maurice Wildgen dated August 27, 1971, in which he said,
“Pursuant to your Order appointing me as Special County Attorney of Edwards County for the special purpose of investigating all matters with relation to the election, authorization, and issuance of general obligation bonds for the Edwards County Hospital I have made an investigation of the facts and the law involved and wish now to report my findings and conclusions.
“. . . On August 17, 1970, The Board of County Commissioners appointed a Board of Hospital Trustees pursuant to K. S. A. 19-1803. This was for the purpose of enabling a bond election to be called pursuant to K. S. A. 19-1878, which authorizes such an election after the Board of Trustees have certified to The Board of County Commissioners that proceeds from previous bonds and taxes are insufficient to build an addition to the present or build and equip a new hospital. Such certification must also contain the amount of funds necessary. On February 25, 1971, the Hospital Trustees voted not to recommend the issuance of bonds for the construction of a new hospital but did request the Board of County Commissioners to call a special election to decide the bond question. On March 1, 1971, the Board of County Commissioners adopted a resolution calling for a special bond election, citing as their authority K. S. A. 19-1878. The election carried by a vote of 1150 to 824. On May 28, 1971, a proposed resolution to issue the bonds authorized by the election failed for lack of a second. A subsequent motion to issue $400,000.00 in bonds was adopted.
“At the time I commenced my investigation the situation was at a stalemate. The Commissioners were not moving forward with the issuance of bonds, the County Attorney had disqualified himself, and the Attorney General’s office had not responded to requests for a written opinion. The need for an authoritative interpretation of the situation for the guidance of The Board of County Commissioners and the taxpayers of Edwards County was apparent so I proceeded to determine the method for obtaining such an interpretation. . . .
“. . . Since the facts were clear that none of the procedural requirements of K. S. A. 19-1878 were followed (no written certification was received from the Board of Trustees, no certification was published in the County paper, no protests were received from the taxpayers) I concluded an appropriate means to obtain the necessary guidelines for the Board and the people of Edwards County would be the filing of an action to enjoin the issuance of the bonds. ... In the opinion of the Attorney General the election was void and the registration of the bonds would not be approved by his office. The Board of County Commissioners advised that they would abide by this opinion.” (Emphasis added.)
The court apparently accepted Mr. James’ report as nothing further was done until J. Byron Meeks suggested a judicial determination should be made. The court then appointed Mr. Paul L. Aylward as a second special county attorney for Edwards County on October 6, 1971.
Mr. Aylward, after his appointment as special county attorney for Edwards County, filed a petition in the Edwards County district court which sought a writ of mandamus directing the defendant’s to issue the bonds as well as a declaratory judgment stating the bond election to be valid. After submission of briefs by both parties, the case was argued before an assigned district judge. Thereafter judgment was entered for the defendants on January 5, 1972, and the appellant has duly perfected its appeal.
K. S. A. 19-1878 provides in pertinent part that,
“Whenever a county hospital has been established,in any county under the provisions of article 18 of chapter 19 of the General Statutes of 1949, and acts amendatory thereof and supplemental thereto, and bonds have been issued or a tax levy made by the county as authorized by the election establishing such hospital, the board of county commissioners of said county shall, upon receiving the written certification of the board of trustees of said hospital, that proceeds from the bonds issued or taxes levied, plus all other funds available are insufficient to acquire a site, or build an addition to a present hospital or build and equip a hospital of the size and capacity necessary to supply the needs of said county and stating the amount needed to complete the erection and equipping of said hospital, issue additional bonds of said county if said original funds were raised by tax levy, make an additional tax levy. . . . Provided, That before the issuance of any such bonds or the levying of any such tax the board of county commissioners shall cause to be published once a week for three (3) consecutive weeks in any paper of general circulation within said county, a notice which shall contain such written certification of said board of trustees of such hospital and shall state that unless protests are received, signed by twenty-five percent (25%) of the legal electors of said county and filed with the county clerk of said county within sixty (60) days after the first publication of said notice, that the said county commissioners will issue the amount of bonds or levy taxes sufficient to raise the amount of money requested in said written certification.
“If within sixty (60) days after the first publication of said notice, protests signed by twenty-five percent (25%) of the legal electors of said county, as determined by the total vote for governor at the last general election are filed with the county clerk of said county and are found by the board of county commissioners to contain the requisite number of protesters, the board of county commissioners shall within sixty (60) days thereafter, call a special election at which election the question of issuing the said bonds or of levying the said taxes shall be submitted to the electors of said county as provided by law: . . .
“If the majority of the electors voting at such election vote in favor of issuance of such bonds or levying said taxes or if there shall be no protest signed by twenty-five percent (25%) of the said electors, filed with the county clerk within sixty (60) days, the board of county commissioners shall proceed to issue and sell said bonds. . .
It is abundantly clear from the record the authority upon which the board of county commissioners was proceeding to establish an addition to the hospital facilities in Edwards County was K. S. A. 19-1878. The March 1st resolution of the county commissioners was couched in the legal phraseology of this statute, and it attempted to supply the necessary statutory finding the board of hospital trustees refused to make; the resolution directing the special bond election stated it was to be held pursuant to 19-1878, supra; the publication notice set forth the election was called under the authority of 19-1878, supra; and the ballot referred to the authority of 19-1878, supra, for the issuance of the bonds.
Unfortunately the conditions specified in the statute to authorize the bond election were not fulfilled. The hospital trustees did not find that a need existed for more and improved hospital facilities in Edwards County. The false recital by the board of county commissioners in their resolution of March 1st (later expunged) could not supply the certification required, and the board of trustees of the hospital, having declined to make the requisite finding under the statute, could not shift this duty to the county commissioners or to the electorate.
An analagous situation was presented in Stewart v. Gish, 109 Kan. 206, 198 Pac. 259, where the court held the call for an election, to be held after the creation of a rural high-school district, to vote upon the erection of a building is required to be made by the board of such district, and such an election held upon call of the county commissioners is a nullity.
The events leading up to the election and procedures followed are not mere irregularities that can be overlooked, as urged by the appellant, but show a complete failure to follow the prescribed statutory steps which confer jurisdiction on the board of county commissioners to call a special election under K. S. A. 19-1878. The failure to comply with the statutory requirements renders the bond election void.
Where a statute authorizes the holding of an election only on the taking of a prescribed step, this prescribed step constitutes the foundation for holding the election and an omission to take it renders the election a nullity. The issuance and registration of bonds thus irregularly voted by the electorate can not be compelled by a writ of mandamus. (Greeley County v. Davis, 199 Kan. 1, 160 Pac. 581; and 29 C. J. S. elections, § 68.)
Any voter who took the trouble to check the statute cited by the county commissioners as authority for the bond election would have been misled, not only by the statute but also by the March 1st resolution. The voter would be led to believe the board of hospital trustees had made the requisite determination of need. This would make a difference in the attitude of the voters on the bond issue. (See, City of Coffeyville v. Robb, 165 Kan. 219, 194 P. 2d 475; and Eastern Kansas Utilities, Inc., v. City of Paola, 165 Kan. 558, 196 P. 2d 199.)
The appellant contends the bond election did substantially comply with the K. S. A. 19-1878 because it states the bond election under that statute is to be held as provided by law. The appellant argues under K. S. A. 1971 Supp. 19-15,116 the election is to be called, held and bonds issued in the manner provided by the general bond law. But there is no way these proceedings may be transformed into proceedings under 19-15,116, supra. It would be impossible to circumvent K. S. A. 10-112 which sets forth what recitals must be made in the bonds to impart absolute verity that all proceedings and conditions precedent have been had and performed to authorize their issuance and make them negotiable.
The appellees challenge the appointment of Paul L. Aylward as a second special county attorney for Edwards County, contending the appointment was void because K. S. A. 19-711 does not authorize continuing appointments of special county attorneys. They argue the appointment of Louis James as a special county attorney precluded the subsequent appointment of Mr. Aylward because Mr. James was empowered to use his own discretion in the matter at hand.
On the facts here presented the appointment of Mr. Aylward as a second special county attorney by the court was erroneous. Under 19-711, supra, Louis James was already appointed and acting as special county attorney. No conflict existed between Mr. James and the board of county commissioners of Edwards County. The only apparent conflict was between J. Byron Meeks and the results of the investigation by Mr. James.
After a special county attorney has been appointed and has acted upon the matter for which he was specifically appointed, and he has exercised the discretion which necessarily rests in a public officer, a second special county attorney cannot be appointed merely because the elected county attorney or the court is dissatisfied with tibe action taken by the first appointed special county attorney. A special county attorney becomes a public officer and as such his discretionary acts and decisions cannot be controlled by the court. Louis James in his discretion as special county attorney decided that a mandamus action should not be brought. His discretionary decision cannot be reversed by appointing a second county attorney to make an opposite decision.
The county attorney exercises the powers of an attorney general within his county. (State, ex rel., v. Baker, 156 Kan. 439, 134 P. 2d 386.) Here Louis James was authorized to exercise these powers in the matter of tihe hospital bond election.
Mandamus will not lie to control discretionary acts of public officers. (Hatcher s Kansas Digest, Mandamus § 25 and cases cited therein.)
The appointment of Paul L. Aylward as special county attorney by the district court was void. Since no statute authorized his appointment, he was not validly acting as a public officer, and he had no right to invoke the powers of the state in a mandamus proceeding.
The lower court’s determination of this matter as indicated by its journal entry is substantially in accordance with the foregoing opinion.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, C. J.:
The appellant, Albert F. Masqua, was charged with the offenses of murder in the first degree (K. S. A. 1971 Supp. 21-3401) and forcible rape (K. S. A. 1971 Supp. 21-3502). Venue was changed from Jackson County to Jefferson County. A jury found the appellant guilty of both crimes; he was sentenced to life imprisonment for the first degree murder conviction and a term of not less than five nor more than twenty years for the forcible rape conviction — the sentences to be served consecutively.
The parties have stipulated to an agreed statement of facts which is found in the record on appeal. The following is a summary of those facts necessary for a disposition of this case.
On August 19, 1970, the body of Eva M. Shields, an elderly woman, was discovered in the bedroom of her home in Holton, Kansas. Following examination and autopsy, it was concluded that she had been the victim of forcible rape and had been murdered. The time of death was ascertained to have been the evening immediately prior to the discovery of her badly beaten body.
Subsequently, on August 20, 1970, the appellant was arrested for vagrancy in Whiting, Kansas. The arrest was made without warrant in a house under the management and control of Melvina Banks, the appellant’s aunt. The house was owned by Mrs. Banks’ sons. At the time of Masqua’s arrest for vagrancy, he was alone in the house and did not have Mrs. Banks’ permission to be there, nor did he have the permission of anyone to be in the house. Rather, the record shows he was a resident of Hiawatha, Kansas, and was renting a room at the R&M Hotel in Hiawatha. Seized without warrant was a quantity of clothing found at the house where Mas-qua was arrested. The clothing was suppressed as evidence, the state making no objection to the suppression.
On August 21, 1970, Don Collins, Jackson County sheriff, and James Malson, of the Kansas Bureau of Investigation, entered the house in Whiting where the appellant was arrested for vagrancy. They had previously been given permission to enter and search by Melvina Banks who, as indicated above, had the management and control of the premises. She had given Collins and Malson the key to the house, and her husband and one of her children accompanied them as they searched. No warrant was issued in connection with the search.
While searching the attic entryway of the house, a pair of trousers was discovered. It was necessary to stand on a table to enter the attic through a trap door in the kitchen. The attic was very dusty; however, the trousers, found some distance back from the attic door, were not. Believing there were bloodstains on the trousers, they were seized and forwarded to the K. B. I. laboratory in Topeka for analysis.
The appellant was convicted of vagrancy; but, because the statute was repealed effective July 1, 1970, the sentence was attacked in habeas corpus proceedings on August 31, 1970, and the appellant was released upon order of the district court.
Upon his release from incarceration on the vagrancy charge, Masqua was forthwith arrested on the charges of first degree murder and forcible rape. A preliminary hearing was held and he was bound over for trial. An Information was filed October 1, 1970, and when arraigned, the appellant entered a plea of not guilty.
The appellant’s motion to change venue was sustained by the district court after concluding that because of pretrial publicity and apparent passion and prejudice against Masqua in the community, there was substantial doubt whether he could receive a fair trial in Jackson County.
Preceding the trial and pursuant to K. S. A. 1971 Supp. 22-3216, the appellant moved to suppress the trousers seized and the evidence derived therefrom. The district court found the search was made with the consent of Mrs. Banks, the person who had control of the house, and the appellant had no standing to object to the seizure as he had no possessory interest or right of control in the premises. The state introduced into evidence the trousers over the objection of the appellant. He here contends the district court erred in refusing to suppress the trousers.
This court is of the opinion the ruling of the district court was proper. The appellant was not legitimately on the premises in question. In fact, the record shows that he was a trespasser in the house at Whiting. As he has claimed no interest in the premises, either possessory or proprietary, he has no standing to invoke the constitutional guaranty from unreasonable searches and seizures. (State v. Edwards, 197 Kan. 146, 415 P. 2d 231; Wheeler v. State, 202 Kan. 134, 446 P. 2d 777; State v. Grimmett & Smith, 208 Kan. 324, 491 P. 2d 549.) Moreover, the record clearly shows the law enforcement officers sought and received the consent of the person who had the management and control of the premises as a condition precedent to searching the house; they were given the key to the premises, and were accompanied on the search by the proprietor’s husband and child. It is evident from the record that any objection to the search was voluntarily waived by Mrs. Banks; therefore, it must be concluded the appellant cannot now object. (State v. Pierson, 202 Kan. 297, 448 P. 2d 30; State v. Boyd, 206 Kan. 597, 481 P. 2d 1015; State v. Boyle, 207 Kan. 833, 486 P. 2d 849.)
During the trial the state proffered evidence in its case in chief consisting of the testimony of two women to the effect they had been forcibly raped and sexually molested by the appellant. Prior to admitting the evidence, the district court, in chambers, required the county attorney to state the purpose of the proffer and made lengthy inquiry into the state’s justification for offering the testimony. Counsel for the state advised the court, the appellant, and his counsel, that the proffer was made pursuant to K. S. A. 60-455 to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident on the part of the appellant in the commission of the alleged forcible rape of Eva M. Shields. The court concluded the evidence was admissible for the purpose of showing the appellant’s identity, motive, opportunity, intent, preparation, plan and knowledge. Counsel then moved the court pursuant to K. S. A. 60-445 to exercise its discretion and exclude the testimony of both women. The court, having ruled the evidence was admissible, stated it would not exercise its discretion to exclude the evidence pursuant to the statute. Thereupon, the trial was resumed in the courtroom in the presence of the jury.
The evidence of both women was then presented. One woman, referred to as Mrs. X, testified that she was in her home in Holton in September, 1969; that appellant was present and he grabbed her and threw her to the floor and forcibly had sexual intercourse with her against her will, and that she did not report the rape to the police because she was afraid the appellant would return and beat up her and her husband. The second woman, referred to as Mrs. Y, testified that on July 30, 1967, she attended an Indian powwow near Kansas City, Missouri, and that about sundown the appellant grabbed her from behind and dragged her ten or twelve feet toward a picnic bench and threw her to the ground; that he attempted to have sexual intercourse with her against her will; that she struggled with appellant, and when she screamed for help he hit her about the face and head several times with his fist, breaking her glasses and injuring her head.
The district court admitted the evidence of both women and cautioned the members of the jury at the time it was admitted that they might consider the evidence only for its value, if any, as to the circumstances bearing upon the appellant’s motive, opportunity, intent, preparation, plan, knowledge and identity or absence of mistake or accident. The jury was given a limiting instruction as to the purpose of the evidence and the extent it might consider such evidence in arriving at its verdict.
Counsel for the appellant made no objection as to the scope of the instruction concerning the testimony of Mrs. X. and Mrs. Y, and the propriety of the instruction is not before us. The instruction was not erroneous as a matter of law (State v. Morgan, 207 Kan. 581, 485 P. 2d 1371), and it became the law of the case upon the appellant’s acquiescence. (State v. Barbour, 142 Kan. 200, 46 P. 2d 841; State v. Booker, 197 Kan. 13, 415 P. 2d 411; State v. Patterson, 200 Kan. 176, 434 P. 2d 808; State v. Booker, 200 Kan. 166, 434 P. 2d 801, cert. den. 391 U. S. 965, 20 L. Ed. 2d 879, 88 S. Ct. 2031; State v. Little, 201 Kan. 94, 439 P. 2d 387; State v. Roy, 203 Kan. 606, 455 P. 2d 512; State v. Potts, 205 Kan. 47, 468 P. 2d 78.) However, we enter our caveat to the district courts that instructions concerning the purpose of evidence of similar offenses should only include those elements of K. S. A. 60-455, which appear to be applicable under the facts and circumstances. Those elements which are obviously inapplicable should not be instructed upon.
The appellant contends the district court erred in admitting into evidence the testimony in question because its probative value was substantially outweighed by the prejudicial nature of the recitations. This court disagrees. K. S. A. 60-445 reads:
“Except as in this article otherwise provided, the judge may in his discretion exclude evidence if he finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.”
The evidence was relevant to the charge of forcible rape against the appellant, and he was in no position to claim surprise. The names of both women were endorsed on the Information when it was filed in the district court of Jackson County on October 1, 1970. The appellant was represented by able counsel, and the trial did not commence in Jefferson County until December 10, 1970. It cannot be said that the appellant did not have opportunity to investigate the testimony of the two women, or to anticipate that their evidence would be offered. Moreover, while independent of the charges in question, the testimony reflected offenses of a similar character; under proper instructions outlining the purpose of such testimony it was admissible as showing identity, guilty knowledge, intent, plan or mode of operation, and motive. (K. S. A. 60-455; State v. Lewis, 195 Kan. 389, 405 P. 2d 796; State v. Poulos, 196 Kan. 287, 411 P. 2d 689, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63; State v. Mader, 196 Kan. 469, 412 P. 2d 1001; State v. Crowe, 196 Kan. 622, 414 P. 2d 50; State v. Darling, 197 Kan. 471, 419 P. 2d 836; State v. Morgan, supra; State v. Martin, 208 Kan. 950, 495 P. 2d 89.)
The appellant offered evidence at the trial that he had been drinking beer in a tavern in Holton the night of the murder. He contended he was intoxicated, but there is no evidence indicating the specific degree of intoxication — the evidence merely shows that he purchased beer. Steve Haug testified he had gotten into an argument with the appellant in one of the taverns that night. When asked on cross-examination whether the appellant was intoxicated, Haug responded, “I would think, yes, but I don’t know.” The appellant did not testify, and Haug’s testimony was the only evidence concerning the matter of intoxication.
Counsel requested that the district court instruct the jury not only on first degree murder, but also on second degree murder and manslaughter. The request was premised upon the argument the appellant was intoxicated on the night in question, and the jurors should be given opportunity to ascertain whether the principle of diminished responsibility would be applicable. The district court refused to instruct the jury as requested, the conclusion being that the appellant was either guilty of murder in the first degree or was innocent of any degree of homicide.
It is argued that failure to instruct on second degree murder and manslaughter was error. The point is not well taken. The district court has an affirmative duty to instruct on lesser included offenses even in the absence of a request by defense counsel or the prosecution; however, that duty arises only where the omitted instruction is required by the evidence and under circumstances where the appellant might reasonably have been convicted of a lesser offense if the instruction had been given. (State v. Winters, 81 Kan. 414, 105 Pac. 516; State v. Mason, 208 Kan. 39, 490 P. 2d 418.)
The facts do not merit a conclusion the instructions on second degree murder and manslaughter were appropriate. The evidence showed the victim was horribly and viciously beaten about the head, face, neck and body. Eleven ribs on one side and three on the other side were broken. Her face was a bloody pulp. The evidence was uncontradicted she was raped during her lifetime near the time of her murder. The district court stated, “. . . now, under these circumstances, the inescapable conclusion is that the defendant is either guilty or he is not guilty of murder in the first degree.” The defense was that (1) the defendant did not commit the offenses, and (2) if he did, he was intoxicated. As indicated, Haug’s testimony merely inferred the appellant was intoxicated, but he could not state definitely. The only evidence of any extreme intoxication came from an admission after the defendant was charged with murder in the first degree at Holton, that, “I .did it, but the state is going to have to prove it,” and that, “I was so drunk I didn’t know what I was doing.” One who is voluntarily intoxicated cannot escape the consequences of the commission of a crime merely upon the fact he is intoxicated unless he is so intoxicated that he is utterly devoid of consciousness or awareness of what he is doing. Since the appellant did not take the stand, admissions made by him to the effect he was "so drunk he did not know what he was doing” could be considered self-serving and would not be so cogent as to require the giving of the instruction requested. To have given the instruction on the lesser offense "would have permitted the jury to speculate on a degree of homicide not in the case upon any theory.” (State v. Zimmer, 198 Kan. 479, 504, 426 P. 2d 267, cert. den. 389 U. S. 933, 19 L. Ed. 2d 286, 88 S. Ct. 298.)
More compelling, however, is the character of the charges against the appellant. The state’s theory was that he had committed a murder while perpetrating a felony (forcible rape). Homicide while committing a felony is the statutory equivalent to the deliberation and premeditation essential to murder in the first degree. It follows that if the appellant was present at the rape, the mere participation in that felony would supply the elements of .deliberation and premeditation, both of which must be absent from second degree murder and manslaughter. Either the rape was perpetrated by the appellant and he necessarily is responsible for the murder, or he was not present at the rape where the killing occurred and not guilty of any degree of homicide. (State v. Kornstett, 62 Kan. 221, 61 Pac. 805; State v. Clough, 70 Kan. 510, 79 Pac. 117; State v. Zimmer, supra.)
We find no error in the record and the judgment is affirmed.
Kaul, J., not participating. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from an order of the district court dismissing an appeal from a misdemeanor conviction in the court of common pleas of Sedgwick County.
On October 14, 1971, defendant-appellant entered a plea of nolo contendere to a charge of possession of marijuana (K. S. A. 65-2501, et seq. [Repealed, Laws of 1972, Chapter 234 (Laws of 1972, Chapter 235, amending Chapter 234)]) in the court of common pleas of Sedgwick County. Defendant’s plea was accepted. He was sentenced to six months in the county jail and his appeal bond fixed at $1,000.00. On the same day defendant filed his notice of appeal to the district court.
The record discloses that defendant’s case came on for docket call in the district court on December 27, 1971. Defendant did not appear, but his attorney was present and answered the call of the docket. A colloquy ensued between the court and defendant’s counsel which appears in the record as follows:
“Mr. Hughey: Your Honor, can the court inquire if the defendant is present?
“The Court: Is Scott Cade in the court room, Scott Cade? He’s not present.
“Mr. Hughey: Your Honor, that is for trial.
“The Court: Well, as I understand, he’s not present. It’s a misdemeanor?
“Mr. Hughey: Yes, it’s a misdemeanor, an appeal from the court of common pleas.
“The Court: And if he’s tried and convicted, there is no way that we can sentence him, is that right?
“Mr. Hughey: Well—
“The Court: The court is going to dismiss the appeal.
“Mr. Hughey: All right, Your Honor. Let the record show that we object to dismissing the appeal. We take the position he ought to have his bond forfeited and we’re ready to go to trial.
“The Court: Appeal dismissed; defendant didn’t appear in person.”
Thus, the narrow question presented is whether the trial court on docket call abused its discretion in dismissing defendant’s appeal for his failure to appear in person.
Presence of defendant under the new Kansas Code of Criminal Procedure is governed by the provisions of K. S. A. 1971 Supp. 22-3405 which read:
“(1) The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law. In prosecutions for crimes not punishable by death, the defendant’s voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes.
“(2) The defendant must be present, either personally or by counsel at every stage of the trial of a misdemeanor case.” (Emphasis supplied.)
Under subsection (2) it seems clear that defendant’s presence by counsel is sufficient at the trial of a misdemeanor case. The state argues, however, that where — as here — the misdemeanor case is before the district court on appeal, K. S. A. 1971 Supp. 22-3405 must be read together with K. S. A. 1971 Supp. 22-3404 (1), which provides that misdemeanor cases in the district court, including appealed cases, shall be tried in the manner provided for the trial of felony cases. Thus, the state maintains defendant must be present at all stages of the trial. From this premise tire state proceeds to argue the district court did not err in dismissing defendant’s appeal for his failure to appear in person.
K. S. A. 1971 Supp. 22-3404 reads:
“(1) The trial of misdemeanor cases in the district court, including appealed cases, shall be in the manner provided for the trial of felony cases.
“(2) The trial of misdemeanor cases in a state court other than the district court shall be to the court unless a jury trial is requested by the defendant. Such request shall be in writing and shall be filed at least 48 hours prior to the time set for trial.
“(3) A jury in a misdemeanor case tried in a state court other than the district court shall consist of six members unless the defendant requests a jury of twelve or another number is agreed upon by the parties. The parties may agree in writing, at any time before the verdict, with the approval of the court, that the jury may consist of any number less than the number originally impaneled.
“(4) Trials in the municipal or police courts of a city shall be to the court.
“(5) Except as otherwise provided by law, the rules and procedures applicable to jury trials in felony cases shall apply to jury trials in misdemeanor cases.”
K. S. A. 1971 Supp. 22-3404 prescribes the method of trial of misdemeanor cases not only in district courts but in all courts. K. S. A. 1971 Supp. 22-3405 deals with the presence of defendant and in subsection (2) specifically with the presence of defendant at the trial of a misdemeanor. The two statutes deal with different subjects, one, method of trial, the other presence of defendant. While 22-3404 (1) provides for trial of a misdemeanor in district court in the manner provided for trial of felony cases, it contains no provision pertaining to the presence of defendant. Subsection (5) of 22-3404 directs that jury trials of misdemeanor cases (in any court) shall be tried under rules and procedures applicable to jury trials in felony cases, as in the case of subsection (1) no reference is made to the presence of defendant. In other words, 22-3404 governs the method and procedure for the trial of misdemeanor cases, while 22-3405 ( 2), on the other hand, governs the presence of defendant. We see no inconsistency or contradiction in the statutes.
This is the first appearance of K. S. A. 1971 Supp. 22-3405 before this court, however, it is so similar in form and substance to its predecessor K. S. A. 62-1411 [Repealed, Laws 1970, Chapter 129], that decisions construing the force and effect of the first enactment may be regarded as sound and controlling precedents. (Bishop v. Board of County Commissioners, 188 Kan. 603, 364 P. 2d 65.)
K. S. A. 62-1411 read as follows:
“No person indicted or informed against for a felony can be tried unless he be personally present during the trial; nor can any person indicted or informed against for any other offense be tried unless he be present, either personally or by his counsel.”
At the time of the decision in State v. Johnson, 82 Kan. 450, 108 Pac. 793, 62-1411 appeared in identical form as Sec. 207, Gen. Stat. 1901, § 5649. In considering the necessity of the personal presence of defendant in a misdemeanor trial the court had this to say:
“We conclude that in misdemeanor cases in this state, where the defendant is under bond to appear and answer the charge at a certain day and hour, it is within the discretion of the court, if the defendant appears by counsel and request a trial, to proceed with such trial; that if the offense is one for which imprisonment is to be inflicted in case of conviction, the discretion should ordinarily be exercised by refusing to proceed with the trial. In any event, in such a case, the defendant must be present at the time sentence is pronounced. . . .” (pp. 457-458.)
See, also, State v. Hall, 138 Kan. 460, 26 P. 2d 265; State v. Sexton, 91 Kan. 171, 136 Pac. 901; and State v. Forner, 75 Kan. 423, 89 Pac. 674.
What has been said herein does not limit the rule often stated by this court, that courts have the inherent power to dismiss a case because of failure to prosecute with due diligence, under circumstances which warrant dismissal. (City of Ogden v. Allen, 208 Kan. 573, 493 P. 2d 277; and City of Wichita v. Catino, 175 Kan. 657, 265 P. 2d 849.) The extent of our holding is that where a misdemeanor conviction has been appealed to the district court and the defendant appears by counsel, it is an abuse of discretion to dismiss the appeal on the sole ground that defendant has not appeared in person at the call of the docket.
The judgment of the district court dismissing the appeal is reversed and the cause is remanded with directions to reinstate the appeal.
It is so ordered. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a conviction on three counts of violating the law prohibiting any person from having or keeping in his possession any opium, or coca leaves, or any compound, salt derivative, or preparation thereof, and prohibiting the sale of any of those drugs.
The first count charged the possession of opium, coca leaves, and of comipounds and salt derivatives and preparations thereof. The second, third, and fourth counts charged sales of those drugs. The jury returned a verdict of guilty on the first, third, and fourth counts, and the defendant was sentenced thereunder.
1. When the trial was commenced, the defendant orally asked for a continuance on the following grounds:
“Mr. Van Dyne: Your Honor, the first thing I desire to call your attention to is that I do not represent these parties. I have never been employed in the case and I am' not their attorney. It is true I am in the office of the lawyer that was employed. Mr. Scott was employed in this case shortly after their arrest, and I have never been paid one cent. Mr. Scott has no notice of this case being set. He left here a week ago last Tuesday and has been in Oklahoma. He was in Oklahoma City first and then went from there to Tulsa and he is now in Wewoka and oh his way to Wakita, and is engaged in the trial of a case. He has had no notice and it is absolutely impossible for him to be here; also, on the Fleming case the people are here. They have looked for him to represent them. I have had no dealings with the people and I know nothing of the facts in the case other than in a summary way. I have had no opportunity to get ready for trial. I don’t think in this case I can really do justice for these defendants. Mr. Scott is familiar with the facts and ig prepared and ready for trial as soon as he returns to Topeka. . . . Now, I desire to request a continuance for the reason, first, that counsel representing the defendant has had no notice of any kind that the case was set for trial, and had he known of the case being set for trial, he would have been here and been ready; that he is now engaged in the trial of a lawsuit in Wewoka, Oklahoma, as I understand it, wherein parties by the name of Jones are involved. Those are the grounds I am asking a continuance on.”
There was no written application for a continuance.
Section 62-1414 of the Revised Statutes provides that “continuances may be granted to either party in criminal cases for like causes and under the like circumstances as in civil cases.” A continuance on the grounds stated in the application of the defendant is a matter largely within the discretion of the trial court. In Bliss v. Carlson, 17 Kan. 325, the court said:
“The matter of continuance is largely within the discretion of the trial court, and its ruling thereon will be sustained unless it appears that such discretion has been abused.” (See, also, Nelson v. Hoskinson, 106 Kan. 601, 604, 189 Pac. 165; State v. Waldron, 118 Kan. 641, 645, 236 Pac. 855; Roseberry v. Scott, 120 Kan. 576, 581, 244 Pac. 1063. Numerous other cases might be cited.)
It was the duty of the defendant to know when her case was set for trial. It was not incumbent on the county attorney, the clerk of the district court, nor the court, to notify the defendant of that time. The fact that counsel for the defendant was then engaged in other matters which prevented his presence at the trial did not compel the court'to grant a continuance. Under these circumstances, this court cannot say that the trial court abused its discretion in refusing to grant a continuance on the oral application of the defendant.
2. The sufficiency of the evidence to sustain a conviction is questioned. There was evidence which tended to prove that a witness for the state together with an associate gave to one Frank Carter marked money with which to buy morphine and that “two decks of morphine” were delivered to the witnesses by the defendant, and that the articles delivered were morphine sulphate. The witness testified that he could tell morphine sulphate by tasting it, that he tested the articles purchased and that they were morphine sulphate. It is argued that there was no chemical analysis of the articles sold and that the testimony of the witness was insufficient to prove that those articles were morphine sulphate. This is an old objection which has been often mlade in another field of criminal law and is one that never had any substantial foundation for its existence and has long since ceased to be regarded as of any force. The evidence was sufficient to establish that the articles sold were morphine sulphate.
3. The defendant says:
“The counsel for the state in this case prejudiced the jury by remarks with reference to offering marked one-dollar bills. The court undoubtedly erred by admitting said one-dollar bills in evidence as against this defendant, when the said one-dollar bills were found in the possession of a Mr. and Mrs. Fleming, of North Topeka, and Mr. and Mrs. Fleming were not charged in this information and were not witnesses in the case, but were strangers to this lawsuit. And .there was not a syllable of evidence to connect the defendant in this case with Mr.' and Mrs. Fleming.”"
Part of the statements made in this complaint are not supported by what is said in the abstract, but even if all of them were true, they are not sufficient to justify this court in reversing the judgment. The evidence showed that the morphine sulphate was purchased with marked money and that in response to that purchase the defendant delivered the morphine sulphate to the purchaser.
4. We quote from the defendant’s brief:
“The court committed prejudicial error ... by overruling defendant’s motion to quash the information in said case, in that: The information was sworn to by the county attorney on information and belief and no bill of particulars was attached to said information as provided by law.”
No motion to quash is set out in the abstract of the defendant, . neither is there any statement contained in it that one was made or filed. The plaintiff’s abstract contains the following statement made by counsel for the defendant:
“I desire to make a motion, your honor, to quash the information as filed in the Carter ease, for the reason that it fails to state a public offense; that it is improperly sworn to and that the warrant issued, based upon the complaint of that kind, is absolutely void and the arrest is illegal and unlawful.”
The information was verified on information and belief. Upon her arrest, the defendant gave bond for her appearance. In State v. Miller, 87 Kan. 454, 124 Pac. 361, the court said:
“By giving a recognizance for his appearance at court without objection to the sufficiency of the warrant, the defendant waives the defect in the verification of the complaint, and the irregularity in issuing the warrant upon a complaint verified only upon information and belief.” (See, also, State v. Edwards, 93 Kan. 598, 599, 144 Pac. 1009; State v. Cole, 93 Kan. 819, 821, 150 Pac. 233; State v. Griggs, 103 Kan. 344, 173 Pac. 908.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action in the district court of Marion county, Kansas, to recover on a judgment entered in behalf of plaintiffs against defendants in the circuit court of Jackson county, Missouri.
This action was begun on January 12, 1925. The Missouri judgment had been entered on January 19, 1915, lacking only a week of the ten years’ time limit when such judgment became barred, dormant, and presumptively paid by the provisions of a Missouri statute to that effect.
Defendants’ demurrer to plaintiffs’ petition was overruled, and they answered, setting up pertinent Missouri statutes and pleading that at the time defendants’ answer was filed—
“That said' judgment is now dead and has no force or effect under said statutes of Missouri as the same have been interpreted by the courts of Missouri, and that no action could be maintained thereon under the statutes of Missouri and no process could now be issued thereon under the laws of the state of Missouri, and under said laws the plaintiffs are barred from enforcing said judgment and this court under the statutes and laws of Missouri is barred from enforcing said judgment and barred from maintaining this action and has no jurisdiction or authority in law to maintain this action or to render any judgments herein upon said judgment in favor of the plaintiffs and against these defendants.”
The evidence adduced by the litigants, subject to questions of competency, consisted of an authenticated copy of the Missouri judgment, and certain excerpts from Missouri statutes and decisions of the supreme and appellate courts of that state. The litigants stipulated that from January 19, 1915, until December 15, 1921, defendants were continuously out of the state of Kansas, and that they had continuously resided in Kansas since that latter date.
Jury waived; trial by the court; judgment for plaintiffs; appeal.
Under the usual specifications of error, defendants press upon our attention certain propositions of law, either of which according to their view requires a reversal of this judgment, viz.:
“First, the judgment sued on became finally dormant after the commencement of this action and before the defendants were required to answer and [such] . . . dormancy is a bar to plaintiff’s recovery.
“Second, that under the Missouri statutes relating to judgments after ten years which had fully run destroyed plaintiff’s right of action on the judgment sued on.
“Third, the judgment sued on is under the Missouri statute conclusively presumed to be paid.”
By the law of Missouri, execution may issue on a judgment at any time within ten years after its rendition (1 R. S. Mo. [1919] § 1564); and judgments are presumed to have been paid and satisfied after the expiration of ten years from the date of their original rendition; and unless timely revived, no execution, order or process can be issued thereon, “nor shall any suit be brought, had or maintained thereon for any purpose whatever.” (1 R. S. Mo. [1919] § 1341.) To keep- a judgment alive in Missouri (subject to exceptions not here pertinent) scire facias must be sued out at some time within the ten-year period, and after the expiration of ten years from the rendition of the judgment no scire facias shall issue. (1 R. S. Mo. [1919] § 1557.)
Among the Missouri decisions called to the trial court’s attention, and to ours, to show the application of these statutes, were Cobb v. Houston, 117 Mo. App. 645; Davis v. Carp, 258 Mo. 686; Kansas City v. Field, 270 Mo. 500. We have read these cases. Cobb v. Houston holds that while absence from the state suspends the operation of the statute of limitations, it has no effect upon the statutory presumption of payment after the lapse of twenty years (now ten years) from its rendition. Kansas City v. Field, supra, so far as we are presently concerned, was merely a judicial application of the statutory rule that execution cannot issue on a ten-year-old judgment which had not been revived within that period. Davis v. Carp, supra, like Cobb v. Houston, supra, held that a judgment over ten years old was presumably paid, and since the alleged nonresidence, absconding and concealment of the judgment debtor relied on by appellant to toll the statute was not established, the legal proposition involved in the case at bar was not decided.
Vide the interesting situation which developed in the enforcement of a Kansas-judgment in Missouri, Berkley v. Tootle, 163 Mo. 585, contemporaneously with Berkley v. Tootle, 62 Kan. 701, 64 Pac. 620.
But more particularly helpful in the solution of our present problem was St. Francis Mill Co. v. Sugg, 169 Mo. 130, which had been the subject of litigation over a long period of years; and, while complicated in its details, it was essentially a suit founded on certain judgments. The statutory presumption of payment of judgments over twenty years old was invoked. The court said:
“Appellants also contend that the judgments on which this suit is founded are now more than twenty years old and are conclusively presumed to be paid. (R. S. 1899, secs. 3722 and 4297.) The judgments on which the plaintiffs base their suit were rendered in 1871, 1872 and 1873, and this suit was begun in 1875. For the purposes of this suit the statute of limitations ceased to run in 1875, and the time covered by the pending of the suit is not to be taken into account either to create a bar by limitation or to raise a presumption of payment.” (p. 136.)
The pertinent section of the syllabus reads:
“The time covered by the pending of a suit to set aside a deed as being fraudulent of the rights of the grantor’s creditors, is not to be taken into account either to create a bar by limitation to such suit, or to raise a presumption that the judgment in favor of the creditors on which the suit is founded is paid.” (§ 4.)
This Missouri doctrine is in accord with our own decisions, which hold that statutes of limitation, including in that term statutes making judgments dormant after the lapse of a specified time without execution, do not run against a judgment during any portion of the time an appropriate judicial proceeding is pending to enforce it. (Kothman v. Skaggs, 29 Kan. 5; Steffens v. Gurney, 61 Kan. 292, syl. ¶ 4, 59 Pac. 725; Treat v. Wilson, 65 Kan. 729, 70 Pac. 898; Bank v. Edwards, 84 Kan. 495, syl. ¶ 1, 115 Pac. 118; McLain v. Parker, 88 Kan. 717, 722, 129 Pac. 1140.)
This Missouri case accords also with what appears to be the prevailing rule. (Davis v. Foley, 60 Okla. 87, L. R. A. 1917A, 187, and note.) Defendant quotes an excerpt from Newell v. Dart, 28 Minn. 248, which holds that the commencement and pendency of an action in the nature of a creditor’s bill within the ten-year period of the Minnesota statute of limitation to reach property not subject to execution will not operate to continue the life of a judgment beyond that period. Neither the case nor the rule there stated is quite in point; but in Sandwich Manuf'g Co. v. Earl, 56 Minn. 390, it was squarely held:
“Where an action is commenced upon a judgment within ten years from the time of its rendition, it may be maintained and completed after the expiration of such ten years.” (Syl. 3.)
This rule is cited with approval in Gaines v. Grunewald, 102 Minn. 245, 247, and harmonizes with Kansas law as laid down in Treat v. Wilson, supra, and our own cases above cited. In Treat v. Wilson, also, the cases of Reeves v. Long, 63 Kan. 700, 66 Pac. 1030, and Smalley v. Bowling, 64 Kan. 818, 68 Pac. 630, pressed upon our attention by defendant, are discussed, and Mr. Justice Pollock, speaking for the court, makes it plain that neither of those cases is pertinent here.
It seems also that the law of Missouri accords with ours on the related proposition that (subject to Civ. Code, § 21) a cause of action arising in a foreign jurisdiction is governed by the limitation prescribed by the law of the forum. (Miller v. Connor, 177 Mo. App. 630. See Bauserman v. Charlott, 46 Kan. 480, 26 Pac. 1051; Rice v. Moore, 48 Kan. 590, 30 Pac. 10; Nickel v. Vogel, 76 Kan. 625, 635, syl. ¶ 2, 92 Pac. 1105; Perry v. Robertson, 96 Kan. 96, 150 Pac. 223; Hornick v. Catholic Slovak Union, 115 Kan. 597, and citations, 224 Pac. 486; 34 C. J. 1109.)
When this action was begun in Marion county, Kansas, the ten-year limitation governing. Missouri judgments still had one week to run. Therefore the cause of action was then alive, and commencement of this action within time saved the cause of action from the operation of the statute of limitation, whether that of Missouri or Kansas be applied, and the judgment of the trial court was correct.
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The opinion of the court was delivered by
Harvey, J.:
This is an action upon an abstracter’s bond, There was a judgment for plaintiffs. The sureties have appealed. There is no controversy over the facts, which are substantially as follows:
Howard Marty, an abstracter in Wallace county, filed his abstracter’s bond October 4, 1915, and the same was approved by the board of county commissioners. The bond was in the penal sum of $5,000 and was conditioned as required by the statute (R. S. 67-243), to which it referred. It did not specifically name the term for which it was to be in force. It was signed by Howard Marty as principal and by H. C. Bouslog, Ed Carter and George H. Wood-house as sureties.
More than five years after this bond was given and approved, and in January, 1922, Marty, as an abstracter, compiled and certified an abstract of the title to a quarter section of land in Wallace county, which abstract showed the fee simple title to be vested in Howard Marty clear of all incumbrances. Relying upon the abstract as so certified, plaintiffs loaned Howard Marty $1,000, secured by a mortgage upon the land. The mortgage was recorded March 9, 1922, after which the abstract was brought to date by Marty and recertified by him as an abstracter, and then showed the mortgage to plaintiffs to be a first, and the only, lien upon the land. The abstract was inaccurate in that it did not show incumbrances recorded prior to the maldng and certification of the abstract. The amount of the prior incumbrances exceeded the value of the land. Howard Marty, the mortgagor, was insolvent. Plaintiffs, relying upon the abstract and certificates of Marty as an abstracter thereon, were damaged the full amount of the loan which they made, because of the failure of Marty as an abstracter to show the prior incumbrances of record. On October 2, 1922, Marty gave a new abstracter’s bond, signed by himself as principal and by E. E. White, Plugo E. Nelson, G. A. Hays, Peter Robidoux and Robert Hoss as sureties. This bond was for the penal sum of $5,000, was conditioned as required by the statute (R. S. 67-243), to which it referred, but limited the time covered by it “from October 4,, 1920, to October 4,1925.” Plaintiffs in .November, 1922, learned the situation as to the prior incumbrances upon the land and the giving of the new abstracter’s bond, and sued Marty and the sureties upon both bonds for the damages sustained, and recovered a judgment against all defendants. Marty, -the principal on the bonds, did not appeal. The sureties upon the bond given October 2,1922, have not appealed. Perhaps they regard their liability as having been correctly determined, in accordance with the doctrine announced in McMullen v. Loan Association, 64 Kan. 298, 67 Pac. 892, and allied cases; but whatever may be their reason for not appealing, the question of their liability is not before us.
The sureties upon the bond filed and approved October 4, 1915, have appealed. They contend they are not liable, under the law, for damages sustained by plaintiffs because of omission in abstracts compiled and certified by Marty in January and March, 1922, more than six years after the bond was filed and approved. The question must be determined from our statute and from the bond in question. Our statute (R. S. 67-243) requires the giving of a bond by a person who intends to engage in the business of abstracting, and provides the amount of the bond, who shall approve it, the parties indemnified by it, and the nature of the injury or damage for which the bondsmen are liable. The bond in question conforms to the statute in these respects, and these provisions are not in controversy upon this appeal. The statute does not fix a term for which an abstracter’s bond shall be given, but does provide that the county commissioners “shall require a new bond by such abstracters once in five years.” Appellants contend this limits the term of the bond to five years from the date it is filed and approved. In this appellants are in error. All this provision does is to impose a duty upon the board of county commissioners to require a new bond once in five years — it does not purport to fix the term of the bond. So far as this provision is concerned the abstracter can give a bond for one year and renew it, or give a new one, annually, in which event the board of county commissioners would have no occasion by virtue of this statute to require a new bond. Or the abstracter might give a bond for five years, or for a longer term, as for ten years, or without any term being named in the bond, as the bond in this case, in which event the board of county, commissioners shall require a new bond, at some time not more than five years after it was given. But this is simply a duty imposed by statute upon the board of county commissioners. The statute does not provide the bond shall expire at the end of five years after it is given, or that liability upon the bond shall cease if the board of county commissioners fail or neglect to perform their statutory duty. An abstracter is not a public officer (Allen v. Hopkins, 62 Kan. 175, 179, 61 Pac. 750; 1 C. J. 367). No statute fixes the term for which a person may engage in the business of making abstracts; the person determines for himself how long he will engage in that business. Appellants contend that an abstracter’s bond is a statutory bond and “makes the abstracter and his sureties liable in the manner and to the extent provided for in the statute, which is, in effect, read into the bond,” quoting from Arnold & Co. v. Barner, 91 Kan. 768, 139 Pac. 404. This is all true. The statute fixes the “manner and extent” of liability, and its terms are, in effect, read into the bond. But the statute nowhere fixes the term during which liability upon the bond shall continue, nor the time -such liability shall cease. It does impose a duty upon the board of county commissioners to require a new bond, once every so often, but does not provide that upon a neglect of the performance of such duty liability shall cease upon a bond previously given for an indefinite term. The bond in question in this case was given for an indefinite term. No new bond had been given, and nothing else had transpired to cause liability thereon to cease at the time the inaccurate abstract was compiled and certified which caused plaintiffs’ damage in this case; hence, appellants were liable for such damage.
Duration of liability on a bond ordinarily depends upon the terms of the bond (9 C. J. 40). A bond containing no limitation of time as to the liability created, given to secure the faithful performance of a named person who has no fixed term of office, position or employment, continues in force until it is discharged in some appropriate manner. (9 C. J. 45, 46; Bank v. Honey, 58 Kan. 603, 50 Pac. 871; Snattinger v. Topeka, 80 Kan. 341, 102 Pac. 508.)
Appellants say the land, to which the abstract of title was made in this case, was owned by Marty and under the statute (R. S. 67-245) he was authorized to make an abstract of the title thereto, without giving an abstracter’s bond. That is true, but he did not make the abstract as owner. He compiled and certified to it as an abstracter, and as an abstracter he and his bondsmen are bound.
Appellants contend that the giving of the second bond, October 2, 1922, which by its terms related back and covered the time when the acts were done which caused damages to plaintiffs in this case, has the effect of releasing them from liability. But this is inaccurate. Liability of appellants had accrued before this second bond was given, and the fact that sureties upon the later bond became liable does not release appellants of liability. It may be of help to appellants to have the sureties upon the second bond also liable, but that is another question. It does not relieve appellants of liability.
Finding no error in the record, the judgment of the court below is affirmed.
Cases No. 26,931, Grace S. Waterman, and G. H. Struble, C. B. Stiger and Charles Benesh, partners, engaged in business under the firm name of Struble & Stiger Loan and Investment Company, Appellees, v. Howard Marty, George H. Woodhouse, Ed Carter and H. C. Bouslog, Appellants; No. 26,933, Louise Blinn, and G. H. Struble, C. B. Stiger and Charles Benesh, partners, engaged in business under the firm name of Struble & Stiger Loan and Investment Company, Appellees, v. Howard Marty, E. E. White, Hugo E. Nelson, G. A. Hays, Peter Robidoux, Robert Hoss, Appellees, and H. C. Bouslog, Ed Carter and George H. Woodhouse, Appellants; No. 26,934, Clara M. Perry, and G. H. Struble, C. B. Stiger and Charles Benesh, partners, engaged in business under the firm name of Struble & Stiger Loan and Investment Company, Appellees, v. Howard Marty, George H. Woodhouse, Ed Carter, H. C. Bouslog, Appellants; and No. 26,935, Ethel Marean Stotts, and G. H. Struble, C. B. Stiger and Charles Benesh, partners, engaged in business under the firm name of Struble & Stiger Loan and Investment Company, Appellees, v. Howard Marty, George H. Woodhouse, Ed Carter and H. C. Bouslog, Appellants, are similar to the case of Turbett et al. v. Marty et al., just decided, present the same legal questions, were consolidated with that case for hearing in this court, and each of them is affirmed upon the authority of that case. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by one claiming to be a holder in due course upon two instruments which are alike and which read as follows:
“$2500.00. Little River, Kansas, March 31, 1920.
“Six months after date I promise to pay myself $2500.00 Twenty-five Hundred Dollars, for value received, with interest at 6% per annum.
50c canceled revenue stamps. John Hardy.
“Indorsed: John Hardy.”
The defense was that the instruments were executed by fraud and were without consideration. The case was tried to the court upon an agreed statement of facts to the effect, (1) that the two instruments were obtained from defendant by the false and fraudulent pretense of one Bushnell, and were without consideration, and (2) if the instruments sued upon are negotiable instruments plaintiff is entitled to recover; if they are not negotiable instruments defendant is entitled to recover. The court rendered judgment for defendant, and plaintiff has appealed.
The case was here (Foley v. Hardy, 119 Kan. 183, 237 Pac. 925; 42 A. L. R. 1064) upon a demurrer to the petition. There the question of the negotiability of the instruments was not before us. It was held that the petition stated a cause of action, without regard to whether the instruments were negotiable, or nonnegotiable. An instrument is not void for the sole reason that it contains no words of negotiation; it may still be a valid instrument and be declared on as such. (8 C. J. 153.)
On this appeal the sole question before us is whether the instruments are negotiable instruments. It will be noted that the instruments do not contain words of negotiation; that is, they are not made payable to the order of the payee or to bearer, nor .do they contain any words of similar import. Our statute provides:
“An instrument to be negotiable must conform to the following requirements: ... (4) must be payable to order or to bearer. . . . (R. S. 52-201.)
“The instrument is payable to order where it is drawn payable to the order of a specified person or to him or his order.” (R. S. 52-208.)
The legislature has authority to declare what instruments shall be negotiable and what instruments shall not be negotiable. (Farmers Sav. Bank v. Neel, 193 Ia. 685.) Our legislature has adopted what is commonly known as a uniform negotiable instruments law. Substantially the same statute has been enacted in each of the other states of the union. Whether a particular note is negotiable is to be determined by consulting the negotiable instruments- law. In 8 C. J. 114, it is said:
“In. order to determine whether an instrument is negotiable in those states which have adopted the negotiable instruments law, it is necessary to refer to the provisions thereof, since it expressly provides that the only instruments that are negotiable are those complying with the requirements of such act.”
And at page 153:
“The negotiable instruments law provides that an instrument, in order to be negotiable, must be payable to order or -to bearer. . . . Under this statute a note payable to a person named, without any added words, is not negotiable.”
See, also: (King Cattle Co. v. Joseph, 158 Minn. 481; Whatley v. Muscogee Bank, 197 Ala. 402; Bottman v. Hevener, 54 Cal. App. 485; Johnson v. Lassiter, 155 N. C. 47; Gilley v. Harrell, 118 Tenn. 115; Aamoth v. Hunter, 33 N. D. 582; Montvale v. People’s Bank, 74 N. J. L. 464.)
The negotiable instruments law was adopted for the purpose of establishing uniformity in the law pertaining to negotiable instruments. (First State Bank of Nortonville v. Williams, 164 Ky. 143.) The purpose of the law, among others, is to establish definite rules by which persons dealing in bills and notes may, by examining an instrument, know whether or not it is a negotiable instrument. Perhaps some of the rules respecting negotiable instruments are arbitrary (Killam v. Schoeps, 26 Kan. 310), but they should be followed, for, to hold otherwise, would make the law of no force.
An instrument, to be negotiable, need not follow the exact language of the statute, but any terms are sufficient which clearly indicate an intention to conform to the requirements of the statute. (R. S. 52-210; Quast v. Rugglet, 72 Wash. 609.) These instruments not only are not made payable to order or to bearer, but they contain no other words or terms which indicate either clearly, or with lack of clearness, an intention to conform to the requirements of the statute.
Appellant discusses the reasons for the several statutory requirements of negotiability from which the conclusion is reached that there is no valid reason for the statutory provision that an instrument to be negotiable “must be payable to order or to bearer” (R. S. 52-201), or contain other language of similar import (R. S. 52-210). It is not necessary to analyze this discussion. It was to avoid discussions, or controversies over reasons for negotiability, which sometimes reached one conclusion and sometimes another, that it was deemed wise to designate by statute the provisions which must be contained in an instrument in order for it to be negotiable. One now may ignore theoretical discussions of reasons for negotiability, and look to the statutory provisions. If the instrument conforms to the statutory requirements of a negotiable instrument it is negotiable; if it does not do so it is not negotiable. The only reason which need be given for the conclusion reached is that the statute so provides. It is sufficient that the law is so written: Ita lex scripta est. (In re Rolfs, Petitioner, 30 Kan. 758, 762, 1 Pac. 523.)
Appellant cites R. S. 52-209:
"The instrument is payable to bearer . . • . (5) when the only or last indorsement is an indorsement in blank.”
And argues that since defendant indorsed these instruments in blank, i. e., by simply signing his name on the back of them, the instruments became payable to bearer. This argument is not sound. The word “instrument” as used in the statute quoted (R. S. 52-209) means negotiable instrument (R. S. 52-102). It has no application to nonnegotiable instruments. (Johnson v. Lassiter, supra; Wettlaufer v. Baxter, &c., 137 Ky. 362.) To hold that an instrument, which is nonnegotiable because of the lack of words of negotiation, may be made negotiable by the blank indorsement of the payee, would render nugatory the mandatory provisions of the statute (R. S. 52-201) that an instrument to be negotiable “must be payable to order or to bearer.” A nonnegotiable instrument is not rendered negotiable by a blank indorsement. The effect of the indorsement of a nonnegotiable instrument is to transfer the title — it does not create the statutory contract of an indorser provided by the negotiable instruments law. (Newer v. First Nat. Bank of Harlem, 74 Mont. 549; Jossey v. Rushin, 109 Ga. 319; Shelley v. Baker, 125 Ga. 663; Barger v. Farnham, 130 Mich. 487; Dollar v. International Banking Corp., 13 Cal. App. 331; Allison v. Hollembeak, 138 Iowa 479; McEwen v. Black et al., 44 Okla. 644; Bright v. Offield, 81 Wash. 442.)
Our statute recognizes “myself” notes in this way:
' . . When a note is drawn to the maker’s own order, it is not complete until indorsed by him.” (R. S. 52-1701.)
And such a note, when completed by the indorsement of the maker, becomes in effect a negotiable note payable to bearer. (Leach v. Urschel, 112 Kan. 629, syl. ¶ 5, 212 Rac. 111.)
But these instruments were not drawn “to the maker’s own order”; they were drawn to the maker. Hence they do not come within this provision of the negotiable instruments law.
The annotation in 42 A. L. R. 1067-1071 accords with the conclusion here reached.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to recover taxes paid. It was tried to the court. Judgment was rendered for defendant. Plaintiff has appealed.
There is but little controversy over the facts, which are substantially as follows: The plaintiff, and others who assigned to him their claims, own land adjoining the right of way of the Union Pacific Railroad Company in Pottawatomie county. They had a controversy with the railroad company as to the width of the right of way through their lands. The railroad company had fenced a strip 100 feet wide, but claimed that its right of way was 400 feet wide. Plaintiff, and his assignors, contested that claim. They claimed the land, outside of the fenced 100-foot strip, as parts of their respective farms. They had possession of the land so claimed, tilled or otherwise handled it as part of their respective farms, received the rents or profits therefrom, and paid the taxes thereon under such claim of ownership, and without protest for many years. This controversy was decided, so far as these lands were concerned, in favor of the railroad company and against plaintiff and his assignors, by a decision of the district court of Pottawatomie county in October, 1922. Up to that time (and for more than a year later), only the 100-foot strip for the railroad company right of way was deducted from the acreage of the land of plaintiff and his assignors for the purpose of taxation, the balance of the right of way being taxed to plaintiff and his assignors who were claiming it, as parts of their respective farms. In November, 1923, plaintiff, and his assignors, requested defendant to deduct, for taxation purposes, the balance of the acreage of the right of way from their respective farms. This was done. They also made claim for the taxes they respectively had paid upon such acreages for the years 1920, 1921, 1922, and for a refund, or reduction, for 1923. These claims were denied. They then presented an application to the state tax commission for an order on defendant for the return of such taxes. This order was made, so far as it applied to the 1923 taxes, but was refused as to the taxes for prior years, for the reason that, under the statute (R. S. 79-1702), the power of the commission in the correction of such errors ceases on August 1 of the year succeeding the year -when the assessment was made and the taxes charged which are the basis of the tax grievance. The defendant complied with this order and refunded the taxes of 1923.
The property of the Union Pacific Railroad Company was assessed each year here in question by the state tax commission as personal property, as provided by statute (R. S. 79-601 to 79-609), but the record does not disclose whether the state tax commission, in making such assessment, considered the right of way of the railroad company through the lands of plaintiff and his assignors to be 100 feet wide, as fenced and used by the railroad company, or 400 feet wide, as claimed by the railroad company. The railroad company each year here in question paid all taxes levied upon its property as assessed by the state tax commission.
The county clerk is required to make out all real estate assessment rolls that may be required for the several assessment districts in his county, and the statute (R. S. 79-408) requires “that in making said rolls for assessment he shall deduct the acreage of all lands used for railway right of way.” The agreed facts in this case show that the county clerk had done just what the statute requires for the years here in question and prior thereto; that is, he had deducted from the acreage of the respective tracts constituting the farms of plaintiff and his assignors “all lands used” for the right of way; that is, the 100-foot strip fenced and used as such right of way. That is all he was required or authorized by the statute to deduct. There was a contest over the ownership of the remaining 300 feet, not fenced or used by the railroad company. Whether this land should have been assessed by the local assessor as real property, or by the tax commission as personal property, depended upon who owned it. Possibly it should have been assessed by the local assessor to the railroad company, if owned by it and not used in the operation of its railroad. (Railroad Co. v. Wyandotte County, 101 Kan. 618, 168 Pac. 687.) ■ But we are not called upon to decide that question, and shall not do so. If the land belonged to plaintiff and his assignors, as claimed by them, the assessment of the land to them was proper. In any event, the assessment rolls for the years in question were made up by the county clerk, as required by statute. Plaintiff and his assignors evidently deemed it prudent on their part to pay the taxes each year upon the land claimed by them as against the rail- ■ road company, in support of their claim of the ownership of such land, and they did so without protest.
The county acts in the collection of taxes not only for itself, but as agent for the state, cities, townships, school districts, and other municipal subdivisions of the state authorized to levy taxes. It retains for its own use only a part of the money collected, and disburses the remainder. It is inequitable to permit a person to pay to the county taxes, without protest and under a claim of ownership of the property taxed and the right and duty to pay taxes thereon, and long after the county has expended its own portion of the taxes collected and disbursed the remainder to the state and other tax levying subdivisions thereof, then to claim that the taxes should not have been assessed or collected. (37 Cyc. 1176, 1177; see Phillips v. Jefferson Co., 5 Kan. 412.)
This is not a case of one paying taxes on land which was not subject to taxation. In this case the property was subject to taxation, whether it belonged to the railroad company or to plaintiff and his assignors. Here was a contest over the ownership of taxable property. Possibly both parties paid taxes on it in support of their respective claims of ownership. It is not clear that the railroad company paid taxes on it, for it is not clear that a 400-foot right of Avay was assessed to the railroad company. It is clear that plaintiff, and his assignors, paid taxes on the land the title to which was in controversy. Now, having lost in the controversy over the title to the land should they be permitted to recover from the county the taxes so paid? It seems clear they should not. The taxes were not paid under protest. No claim is made that the payment was made under duress or by reason of fraud. The payments were voluntary. Plaintiff, and his assignors, knew what they were doing, and wanted to do it. They knew the land, the title of which was in controversy, was assessed to them; they wanted it so assessed, and to pay the taxes thereon, in support of their claims of title. The county received the money so paid and used or disbursed it before any claim was made for its repayment. It cannot now be recovered. (Wilson v. Allen County, 99 Kan. 586, 162 Pac. 1158.) Some other questions are argued,- but it' will not be necessary to discuss them.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action, which was here before on a question of the • sufficiency of the petition (116 Kan. 374, 226 Pac. 714), was brought by plaintiff, W. F. Farrar, formerly station agent at Oswego for the Missouri, Kansas & Texas Railway Company, against defendant, Fred Perkins, to recover a balance due as freight charges on nine carloads of lambs (2,600 head) which were shipped by one Pitman from California to Oswego, and received and taken from the custody of the railway company, and this plaintiff, as its agent, on November 10, 1920, by this defendant, without payment of the proper freight and feed charges thereon, some $3,918.78.
The shipments had not been prepaid, and defendant surrendered no bill of lading in receipt for the lambs. He merely sent his employees to the stock pens of the railway company, into which they had been unloaded from the stock cars, and took possession of the lambs and drove them away. Within a day or two, plaintiff as station agent for the railway company, sent a messenger to collect the charges. Defendant refused to pay on the pretext that he was not the designated consignee, and that the consignor Pitman had promised defendant that he, Pitman, would pay the transportation charges.
The railway company chose to hold plaintiff responsible for the uncollected freight charges rather than to adopt its agent’s grievance as its own and take upon itself the burden of collecting its due from defendant. The matter hung fire for several weeks, from November 10, 1920, until February 17, 1921, while plaintiff tried to induce.defendant to pay. Defendant tried to get the consignor to pay, and the railway company threatened plaintiff with the loss of his job unless payment was forthcoming. Eventually on February 17,1921, defendant agreed to and did pay half the freight bill and plaintiff himself furnished the other half of the money. Thus the railway company received its due, whereupon it promptly discharged the plaintiff from its service.
Plaintiff brought this action, alleging the foregoing facts and other incidental matters of no present concern.
Defendant filed a lengthy answer, which contained a general denial, and among other matters pleaded that if any bill of freight charges was due it was by Pitman the consignor and not by defendant; that the payment of one-half the freight bill by defendant was merely to protect the plaintiff to that extent, and that a contract of settlement, exhibit A, was effected between the plaintiff and defendant, and — ■
“The defendant avers that at no time was he indebted to the receiver of said railroad for any freight or other transportation charges, which fact was well known to the plaintiff herein; that he advanced said money to plaintiff personally, at the request of the plaintiff, and for his accommodation, and with the understanding and agreement that said money was to be refunded to him upon the collection of the same from the said Pitman. . . .
“Defendant avers that said written agreement was a compromise agreement, made for the purpose of settling and adjusting a disputed claim; was made in good faith, and with a fair and full understanding of the facts and circumstances surrounding the whole transaction by both parties thereto. . . .
“Defendant avers that the said sheep were billed to one - Pitman, at Kansas City, Mo., with permission to unload at Oswego, Kan.; that at the time of the delivery of said sheep to defendant by the said Pitman at Oswego, Kan., defendant had, in bank in Texas and was retaining the same until after the delivery of the sheep and adjustment of all claims, if any, against them, the sum of about $3,000, money of the said Pitman, when he had fully complied with the terms of his contract with defendant; that said money was held for such purpose until more than ten days after the said sheep' were delivered to defendant, and that during said ten days plaintiff made no demand upon defendant for any freight charges, and defendant knew nothing about any claim for such alleged charges; . . .
“Defendant further avers that at the time of the said signing of the said written agreement, copy of which is attached to the last amended petition, marked ‘Exhibit A,’ the plaintiff was the agent of the receiver of the Missouri, Kansas & Texas Railroad Company, at Oswego, Kan., and had full power and authority, as such agent, to collect any and all freight due the said receiver of said railroad company, and to settle and adjust claims for freight due the said receiver.
“That on the 17th day of February, 1921, the said plaintiff, as the duly authorized agent of the said receiver, demanded of and from defendant freight on a certain shipment of sheep, in the sum of $3,918.78; that the defendant then informed plaintiff that he did not owe anything for freight on sheep, and then declined to pay the same. That after some negotiations between the plaintiff and the defendant the defendant said to plaintiff, in substance, that rather than have litigation he would pay to plaintiff, on account of such alleged freight, the sum of $1,859.39, in full payment and discharge of all claims against him on account of such freight; that after some conversation the plaintiff agreed to accept from defendant the said sum of $1,859.39 in full payment and satisfaction of said alleged claim, and the defendant agreed to and did pay to plaintiff said sum of money, and said contract was signed and accepted-by both parties, in full payment and satisfaction of said alleged disputed claim, and the matter was fully closed.
“That no fraud was practiced in the signing of the said contract; no duress in the signing thereof, but the same was signed freely, with a perfect understanding and agreement of all the facts, and for the purpose of settling and adjusting a contested claim, and avoiding litigation, wherefore by reason of 'the premises the defendant prays that plaintiff take nothing herein, and that defendant recover his costs.”
The agreement referred to in the pleadings reads:
Exhibit A.
“Whereas, there is a misunderstanding about the payment of freight and feed on 2,600 lambs shipped from California about November, 1920. It is agreed between W. J. Farrar and Fred Perkins that each pay one-half of the freight, and when the freight is collected from T. L. Pitman or the Pitman Live Stock Company, it shall be diyided equally between said Farrar and Perkins. If the freight shall be paid in sheep or lambs and there is a loss on them, the loss shall be shared equally and all expense in collecting, including attorney fees if any, shall be shared equally.
“With this agreement said Farrar acknowledges the receipt of $1,859.39 from Perkins, which is paid to him with the understanding that he advance an equal amount this day. “W. J. Farrar.
“Fred Perkins.
“Executed at Oswego, Kan., this 17th day of February, 19-21.”
• On the issues joined, a jury was waived and the cause was heard at length on many incidental and relatively minor or immaterial details. At the conclusion of the evidence, the pleadings and conceded facts showed that the defendant had received the nine carloads of lambs, and that although he was not designated as consignee in any bill of lading pertaining to the shipments, he did take into his possession the nine carloads of lambs without satisfying the legitimate charges of the carrier.
Informal findings of fact were made by the court, the most significant of which read:
“Q.2. Did the defendant, Fred Perkins, ever present to the railroad company or a representative thereof, any bill of lading for the sheep? . . .
“By the Court: I will answer question 2 in this way: From the circum stances surrounding the entire transaction the court infers that Mr. Perkins did not present to the railroad company a bill of lading for the sheep in question.
“By Counsel fob Defendant: You remember one proposition that is clear in your mind — that these sheep were shipped by F. L. Pitman and billed to T. L. Pitman. Bow could Perkins have the bill of lading?
“By the Court: I don’t think it is very material. I will leave that finding as it is. I think the fair inference is that Mr. Perkins, while there is no direct testimony that I remember upon the point that he did or did not present a bill of lading or even that he had any, I think the fair inference is that he (Perkins) never presented any to the railroad company. . . .
“Q. 4. Did defendant Perkins, at the time he took possession of the sheep, have good reason for believing, and did he believe, that the freight and feed charges on same had been paid to the railroad company? . . .
“By the Court: My impression from the testimony is this: That at the time Mr. Perkins got the sheep that he believed that Pitman was to pay the freight. . . .
“Q. 13. Did Farrar receive, on the 16th day of February, 1921, a letter from one Thompson, informing Farrar, in substance, that he was about to lose his position as station agent for the railroad company on account of the unpaid freight bill?
“By the Court: Referring to it by its proper exhibit, whatever it is, the court finds that that letter was received by the plaintiff. I am finding that that exhibit was received by the plaintiff, at about the time or within the due course of the mail, from the date it bears.
“Q. 14. . . . Was plaintiff Farrar suffering mental anguish and worry, by reason of having received that letter from said Thompson, when he had his talk with Perkins, with reference to the freight on the 17th of February, or whatever the date was?
“By the Court: The court finds that the plaintiff Farrar was worried after receiving the letter referred to in regard to the probability or the probable loss of his position. . . .
“The court finds from all of the circumstances, as they appeared there, that Perkins probably realized and understood the same as any other person would realize and understand, that Mr. Farrar was afraid of losing his position and was worried on account thereof.”
Judgment was entered for defendant, and plaintiff appeals.
Before addressing ourselves to appellant’s assignment of errors in detail it will be well to take note of a few simple and pertinent features of the law of carriers bound to affect this lawsuit and which may completely control it, regardless of certain subordinate matters which occupied much time in the trial below and still encumber this appeal.
The modern law of carriers is largely the result of federal and state legislation of the last quarter of a century. Most of the common-law rights, remedies and duties of shippers and carriers have been superseded by modern statutes. One specific matter which is regulated by statute with censorious particularity is that of freight rates. The carrier may not charge more and may not accept less than the regularly authorized freight tariffs permit. If the correct freight charge is not paid the carrier is bound to exhaust its available remedies to collect the balance due, and compromises which would or might savor of favoritism or of rebates to particular shippers are against public policy. Like a tax collector, the railway company must collect the proper charge and may not settle for less. Primarily a consignor is the person bound to pay the freight charges, but the consignee is likewise bound if he accepts the shipment, and one who receives the shipment as if he were the consignee stands in no better position than the nominally designated consignee. On various pertinent phases of this general subject, see the interstate commerce act (U. S. Comp. Stat. 1918, §§ 8564, 8565, 8594) and the public utilities act (R. S. 66-107, 66-109, 66-138; Mollohan v. Railway Co., 97 Kan. 51, 54-56, 154 Pac. 248; Railway Co. v. Stannard & Co., 99 Kan. 720, and citations, 162 Pac. 1176; Easdale v. Railway Co., 100 Kan. 305, 308, 164 Pac. 164; Railway Co. v. Wagner, 102 Kan. 817, 172 Pac. 519; Kennedy v. Railway Co., 104 Kan. 129, 133, 179 Pac. 314; Case v. Union Pac. Rld. Co., 119 Kan. 706, 241 Pac. 693; Farmers Grain Co. v. Atchison, T. & S. F. Rly. Co., 120 Kan. 21, 28, 245 Pac. 734; Pittsburg &c Ry. Co. v. Fink, 250 U. S. 577, 63 L. Ed. 1151; N. Y. Cent. R. R. Co. v. York & Whitney Co., 256 U. S. 406, 65 L. Ed. 1016; Union Pac. R. Co. v. American Smelting & Refining Co., 202 Fed. 720; Great Northern Ry. Co. v. Hyder, 279 Fed. 783; Western & Atlantic Ry. Co. v. Underwood, 281 Fed. 891; Galveston H. & S. A. Ry. Co. v. Lykes Bros., 294 Fed. 968; Pennsylvania R. R. Co. v. Titus, 216 N. Y. 17, L. R. A. 1916E, 1127; N. Y. C. R. R. Co. v. Ross Lumber Co., 234 N. Y. 261; Waters v. Pfister & Vogel L. Co., 176 Wis. 16).
These elementary but fundamental principles of the modern law of carriers govern this case. Since defendant received these nine carloads of live stock and exercised dominion over them, driving them away from the railroad stockyards as if he were their owner or the regularly designated consignee, and thus deprived the railway company of its lien thereon, defendant cannot avoid payment of the carrier’s lawful charges; and since he has so far paid but half of them the balance must now be forthcoming.
We have not failed to note carefully the argument of appellee which seeks to uphold the trial court’s judgment. It mainly proceeds on the theory that the matter in controversy is one of purely private concern between these litigants. It is far from that. In its legal aspects, it involves an important phase of public policy; and since the pleadings and uncontroverted evidence concede that defendant received these nine carloads of stock, and that he has paid only half of the carrier’s lawful charges, defendant is liable absolutely. The latest authoritative decisions do not even admit a qualification of this rule to arise from the fact that the consignee or party accepting the shipment was misled into believing that the proper charges had been paid. (Pittsburg &c Ry. Co. v. Fink, supra; N. Y. Cent. R. R. Co. v. York & Whitney Co., supra.) In Great Northern Ry. Co. v. Ryder, supra, the syllabus reads:
“A consignee, who is not at any time the owner of goods shipped, who has not agreed with either the shipper or the carrier that he will pay the freight, and who accepts the goods on the carrier’s mistaken representation that the freight has been prepaid, is bound by such acceptance to pay the freight; shipper, carrier, and consignee all being agents and trustees for the public in the matter of the enforcement of freight rates.”
The fact that the lambs were not billed to defendant is immaterial. He accepted them as if they were billed to him. (Pennsylvania R. R. Co. v. Titus, supra.) What business had he — any more.than Tom, Dick or Harry — to meddle with these nine carloads of live stock unless he was prepared to assume the responsibilities of ownership or those of a regularly designated consignee? Defendant’s liability for the carrier’s charges does not merely arise out of an implied contractual relationship with the carrier, but because he accepted the nine carloads of live stock from the railway company,, charged with knowledge that the lawful tariff rates thereon were a lien on the shipments, and that the carrier could neither ask more nor accept less than the full tariff charges thereon.
At the conclusion of the trial below there remained no material dispute of fact of present concern. The trial court’s special findings do not and could not affect this main question. In so far as the findings of fact are against the plaintiff on the incidental matters of private damage set up in plaintiff’s petition, he is, of course, concluded by those findings.
Touching the compromise set out in exhibit A, it was altogether ineffective to release and discharge defendant from his unqualified liability for the carrier’s proper charges, not merely because of plaintiff’s duress nor because as agent for the railway he had no authority to compromise, but because such compromise was against public policy and in breach of statutory law. If that compromise had been effected with plaintiff’s principal, through its president and board of directors, it would likewise have been wholly without legal effect.
That feature of appellee’s defense based upon his private contract with Pitman, consignor, that Pitman and not defendant should pay the freight charges, is sheer sophistry. Neither the railway company nor plaintiff as its agent was bound by that contract. The case of Western & Atlantic Ry. Co. v. Underwood, 281 Fed. 891, is particularly pertinent and instructive. A potash company shipped.goods in interstate commerce to Underwood, its agent, on a bill of lading reciting that the freight had been prepaid. On arrival it was discovered that the full charges had not been paid, and a small additional sum was demanded from Underwood. He stated that the goods were to be paid for by the shipper, and that he did not owe the freight, but to avoid delay and confusion would pay the sum demanded, if it was all, and did pay it on that understanding. Some months later it was discovered that $93 additional was due according to the lawful tariff, which sum was demanded of Underwood, and on its refusal the action was begun. The syllabus reads:
“A consignee cannot accept delivery of an interstate shipment of goods without incurring liability for the earner’s lawful charges, known or unknown, supposed to be prepaid or otherwise, and no matter what the consignee’s actual relation to the shipper is.”
In the opinion it was said:
“That the consignee cannot accept delivery without incurring liability for the carrier’s charges, known or unknown, supposed to be prepaid or otherwise, and no matter what the consignee’s actual relation to the shipper is, appears a harsh rule, but is seemingly established by authority. If by the shipper’s omission the consignee is thus made liable for a charge which as between him and the shipper should not be borne by him, his recourse is on the shipper. The carrier is not bound by their private rights in the transaction, whether known or unknown to it, nor by any mistake or misrepresentation occurring, but under the law may look to the shipper as the original contractor to pay and to the person who as consignee accepts the goods and becomes by statute liable to discharge the lien thereon until the lawful charges are satisfied.” (p. 893.)
The judgment of the district court is reversed and the cause remanded with instructions to enter judgment for plaintiff for $1,-959.39, with interest thereon from February 17, 1921, at 6 per cent per annum. | [
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The opinion of the court was delivered by
Smith, J.:
For the error of the court in denying the motion to strike out the irrelevant defenses the judgment should' be reversed. While neither the verdict nor judgment seems to have been based on these alleged defenses, there was evidence offered with reference to them, and the plaintiffs in error were evidently prejudiced thereby. They were entitled to a trial on the issues tendered by the petition and cross-petitions, stripped of every irrelevant matter.
The defendant John Sample was allowed to testify, over the objection of plaintiff, to communications had with the deceased while the relation of husband and wife existed between them, and also to testify in his own behalf to transactions had with the deceased personally, the adverse parties being heirs at law of such deceased and having acquired their title to the cause of action immediately from her. It is claimed, however, that the attorney for the adverse parties waived these objections by transcending the bounds of cross-examination and asking the witness about other communications and transactions not referred to in the examination in chief, and this in a measure is true.
However, the following special findings of the jury, regardless of the general verdict, entitle the grandchildren to a judgment of partition as prayed for, viz.:
“(11) Ques. Did Sample, in June, 1892, by general warranty deed, convey the said southwest quarter of section 26 to Maria Sample? Ans. Yes, in trust for John Sample.
“(12) Q. Did he know at that time that some creditor was threatening suit upon a note, and did he expect that such creditor would come onto him for a debt upon which he was surety? A. Yes.
“(13) Q. Did Maria Sample inform the purchaser in the presence of Sample that she owned the said southwest quarter of section 26? A. She informed the purchaser that the deed was in her name.
“(14) Q. Did Thiessen, the purchaser, pay all the purchase-money for said southwest quarter of section 26 to said Maria Sample ? A. Yes.
“(15) Q. Did Maria Sample, on the 26th day of February, 1902, refuse to allow any of the proceeds of the said land, either the notes and mortgage or money, to be placed in the name of John Sample, and was he angry on that account? A. Yes.”
“(18) Q. Was the land in controversy paid for by the money paid to Maria Sample by Thiessen when he purchased said southwest quarter of section 26? A. Yes.”
“(21) Q. Did Maria Sample agree to hold the land in controversy in trust for John Sample? A. Yes.
“ (22) Q. If you answer ‘yes,’ when and where was said agreement made? And was it verbal or in writing? A. It was verbal, but no evidence as to time or place.
“(28) Q. If you answer question 21 ‘yes,’ do you find that such agreement was proved by circumstantial evidence? A. Yes.
“ (24) Q. If you answer question 23 ‘yes,’ state upon what circumstances you base same. A. General circumstances.
“ (25) Q. Did Maria Sample have the money in her name in the bank of McPherson, and did she issue and deliver the check in payment for the property in controversy? A. Yes.”
Where land is conveyed or caused to be conveyed by a husband to his wife, he paying the entire consideration out of his own funds, there is no resulting trust presumed in his favor. To establish a resulting trust through a verbal agreement the evidence must be so clear and conclusive as to overcome the evidence of the deed, and such agreement must be made at or before the time of the conveyance.
None of these conditions exists in the case at bar. The land was conveyed to the wife, not by the husband, but by others; not by request, even of the husband, but in consideration of the purchase-price, which was paid by her out of funds received from other lands to which she had the title — her sole right to which funds she had asserted adversely to him, and to which he, after protest, had assented.
The judgment is reversed and the case is remanded, with instructions to render judgment in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
In this case the plaintiffs in error make no specific allegation of error, unless it be in saying that the court erred in giving instruction No. 6, which is not set out in full, nor is a reference made to the page of the record where it can be found. It is also said “that the instructions given by the trial court on adverse possession were erroneous as applied to this case,” and no further indication is given as to the instructions referred to, either by setting them out in full, giving their number, or referring to the page of the record where they can be found.
It is true the record in this case is not large, and this court has carefully considered the errors supposed to be referred to by the plaintiffs in error, and should affirm the decision were they passed upon. However, as there seems to be a growing disregard of the simple requirements of the rules of this court, which often imposes upon the court much unnecessary labor and annoyance in searching records, which would be ob viated were the rules complied with, we take this occasion, since no injustice is done thereby, to call attention to this matter, and, for the reasons given, dismiss this case.
All the Justices concurring. | [
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Per Curiam:
This case is in all respects similar to Ogg v. Glover, ante, p. 247, except that the office involved is that of city treasurer. Applying the principles announced in that case to the count of ballots in this gives the plaintiff 587 votes and the defendant 559. Judgment is therefore rendered for the plaintiff. | [
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|
The opinion of the court was delivered by
Burch, J.:
This proceeding is brought to compel a district judge to settle and sign a case-made after his term of office has expired. In the district court the motion for a new trial was denied on December 22, 1904, and at the same time the following order was made:
“At which time plaintiffs were given thirty days to make and serve a case-made for the supreme court of the state of Kansas, and the defendant given five days after service to suggest amendments, the case to be signed and settled on two days’ notice of either party at any time thereafter.”
The judge’s term expired on January 9, 1905. The case was served On January 20, 1905. Amendments were suggested on January 25, and afterward but on-the same day notice was served that the case would be settled and signed on January 28. On that day, the thirty-seventh after the making of the order, the judge refused to act in the premises on the ground that he no longer had jurisdiction to do so. The order involved is quite similar to the one discussed in the case of Mowery v. Bank, 67 Kan. 128, 72 Pac. 539, which reads as follows:
“Plaintiffs are allowed till and including the 1st day of February, 1902, to make and serve a case-made for appeal to the supreme court, and the defendant is allowed till and including February 28, 1902, to suggest amendments thereto; case to be- settled and signed thereafter on five days’ written notice by either party.”
This order was made on November 1, 1901, and the judge’s term expired in January, 1902, before any notice of settlement or signing had been given. The difference between the indefinite general term “thereafter” and the indefinite general phrase “at any time thereafter” is not sufficient to form the basis of a principle. In all other essential respects the facts in Mowery v. Bank, 67 Kan. 128, and in this case are strictly analogous. Although the attorneys in Mowery v. Bank made no point upon the word “thereafter,” Mr. Justice Pollock, speaking for the court, made the following clear statement of the law:
“As the order of the trial judge did not fix the time for the settlement of the case, but left the date of settlement uncertain, contingent upon the giving of the written notice of the time and place of settlement by counsel, and as the time for the settlement of the case remained undetermined and unfixed at the date .of the expiration of the term of office of the trial judge, we are constrained to hold that the petition in error must be dismissed for want of jurisdiction in this court.”
In Butler v. Scott, 68 Kan. 512, 75 Pac. 496, Mr. Justice Mason made the following equally perspicuous declaration:
“The object of the provision in question is to pre serve the jurisdiction of the trial judge, after his term has expired, not for an indefinite time, but only during a fixed and certain period. If, when his term expires, a time has been fixed within which the case is to be settled, and as in this case there has been no extension of time, that is the limit of his jurisdiction; he may settle the case within that time, but not later. And if, when his term expires, no provision has been made as to the time of settlement, but a time has been fixed within which the case is to be made, that time, including that given for suggesting amendments, is the limit of his jurisdiction; he may settle the case within that time, but not later.”
It is impossible to say that the wholly undefined and indeterminate period of “any time” means a fixed and ascertained time within which counsel might, by giving notice, end the uncertainty as to when the case would be settled. Nor is it possible, under the language of the statute and of the decisions quoted, to say that the two days’ notice of settlement and signing, which might be given at will at any time and which might be delayed indefinitely, constituted any portion of a time actually fixed when the judge went out of office.
The court is not inclined to reverse the decisions referred to, and numerous others of like import. The various attacks made by the plaintiff upon the statute governing the case cannot be supported, and the writ of mandamus is denied.
All the Justices concurring. | [
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The opinion of the court was delivered by
Graves, J.:
On March 20, 1905, a petition was presented to the mayor and council of the city of Hutchinson requesting that a specified portion of Main street in that city be paved with vitrified brick, giving the width of street that the petitioners desired to have paved, the material to be used, the limit of cost, the manner of payment, and other particulars concerning the proposed pavement. This petition was accepted, and an ordinance was immediately enacted providing for the construction of the pavement, the ordinance being designated as ordinance No. 618.
On June 19, 1905, bids for the construction of this pavement had been received by the committee appointed for that purpose, but the committee, being unable to agree, referred the same to the council, which at once rejected all bids received under said ordinance. At the same meeting a petition was presented asking for the construction of a “bitulithic pavement” upon the same portion of Main street. This petition was accepted, and an ordinance designated ordinance No. 629 was immediately passed providing for the construction of the last-mentioned pavement and repealing ordinance No. 618. The usual steps were taken under ordinance No. 629, and a contractor is now at work making the “bitulithic pavement.”
The plaintiffs, who own real property abutting upon this pavement, obtained an alternative writ of mandamus from this court, on the 21st day of August, 1905, and they now ask that a peremptory writ issue directing the defendants to cease work on the “bitu lithic pavement” and construct one of vitrified brick, in accordance with the petition of March 20, 1905.
The plaintiffs claim that the only power which a mayor and council have to provide for the pavement of a street is given by section 1068 of the General Statutes of 1901, and that this statute when properly construed means that the petitioners may state in their petition the kind of pavement desired, the material to be used, the manner of construction, the width of street to be paved, and the maximum cost thereof, and that the mayor and council will be bound thereby if such petition be accepted and acted upon.
It is therefore contended that after the adoption of ordinance No. 618, and the proceedings had thereunder, the mayor and council were powerless to entertain any other petition or to consider any other kind of pavement, and the attempted repeal of ordinance No. 618 and the enactment of ordinance No. 629, and all subsequent proceedings, were absolutely void. The statute referred to is as follows:
“When the mayor and council shall deem it necessary to grade, pave, curb, gutter, or regrade, repave, recurb, or regutter, any street, alley, or avenues, or any part thereof, within the limits of the city, for which a special tax is to be levied as herein provided, said mayor and council shall by resolution declare such work or improvement necessary to be done, and such resolution shall be published in the official paper of the city for five consecutive days, if the same is a daily, and for two consecutive weeks, if the same is a weekly, and if a majority of the resident owners of real property liable to taxation for such improvement shall not within twenty days thereafter file with the city clerk their protest in writing against such improvement, then the mayor and council shall have the power to cause such improvements to be made and to contract therefor, and to levy the taxes' therefor as provided by law, and the work may be done during or after the collection of the special assessments, as may be deemed proper by the mayor and council; also, whenever a majority of the resident owners of real property liable to taxation for the improvement peti tion the mayor and council to pave, grade, curb, gutter or otherwise improve any street, alley, or avenue, of any part thereof, the mayor and council shall cause said work to be done, shall contract therefor, and levy the taxes therefor as provided by law; provided, that the cost of paving, grading, curbing, guttering and otherwise improving the areas and squares formed by the crossing of streets, as well as the cost of making any of said improvements in streets, alleys and avenues running along and through city property, shall be paid for by a general tax levied by the mayor and council upon all the property of the city.” (Gen. Stat. 1901, § 1068.)
We do not agree with the plaintiffs in the construction of this statute. We think that one, and perhaps the principal, object of this law was to restrain overzealous mayors and councilmen from pushing special improvements into localities where the resident property-owners do not want or need them, and by this provision such owners are given the right to say when such improvements shall be made. We do not think, however, that this statute contemplates that such petitioners may compel the mayor and council to construct any particular kind of improvement or control the details thereof.
The office of the petition is to inform the proper tribunal that the petitioners want the improvement made. This act on their part authorizes the improvement to be made of such kind and quality as may be determined by the mayor and council. Whatever the petition may contain as to the character of such improvement must be taken as mere advisory suggestions, which may or may not be followed. By this we do not mean that the mayor and council may under all circumstances, when a paper called a petition is filed with them, proceed to construct the special improvement asked for and disregard the statements of such paper as to the kind of improvement and the details of its construction. A paper might be so filed which would amount to a mere proposition, instead of a pe tition, within the meaning of the statute. The signers of such a paper might indicate that they wanted the proposed improvement provided it could be made for the price and of the kind stated, and not otherwise. This would not be a petition within the purview of this statute, and such paper might be properly rejected. How far the mayor and council would be bound by the provisions of such a paper if it were accepted and acted upon is a question not involved here, and we express no opinion thereon. The papers involved herein, called petitions, are properly so designated, and do not contain the objectionable features suggested. Where, as in this case, the decision depends upon the first construction of a statute, authorities directly in point are not to be expected, and none have been cited. We have given the language of the statute the meaning which to us seems to be the most reasonable, and the most in harmony with the purpose .of the law relating to this general subject.
The mayor and council are elected directly by the people. They have the general supervision over the streets and alleys in the city; they are in a situation to know the needs, wishes and financial condition of resident citizens, and courts must assume that in the discharge of their official duties they will fairly consider and justly regard the rights of all persons affected thereby; and placing this work in their hands seems so appropriate that, in the absence of a clear and express indication of such purpose, we cannot assume that the legislature intended to place this important duty in the control of petitioners who simply represent themselves, and are under no official or other obligation to protect the interests which the public have in such pavement, rather than in the control of these official representatives of the people. While the petitioners who in a large measure pay for these improvements are deeply interested therein, it is at the same time a matter of great importance to the general public, who pay for the pavement in the areas and squares made by the crossing of the streets, and who use the streets for both business and pleasure, that all the streets in the city shall be of good quality, uniform in kind and construction, and such as will meet all the reasonable requirements of public use.
When a petition is presented to the mayor and council that body may deal with it the same as with any other question. Action thereon may be reconsidered, ordinances amended or repealed and new enactments made the same as when dealing'with any other subject of municipal legislation. If the authorities of Hutchinson were satisfied that a mistake had been made in adopting the vitrified-brick pavement provided for in ordinance No. 618, the early correction of such mistake would seem to be a very proper proceeding, and any rule of law that would prevent such action should be avoided rather than followed. At the time this correction was made the whole matter was yet in an indeterminate condition and wholly within the control of the mayor and council, no outside or third parties had been affected, and no vested interests could be injuriously affected by such correction, and therefore no good reason existed for not making the same.
It is urged that the petition of March 20, 1905, is still pending notwithstanding the repeal of ordinance No. 618, and that this is the only legal petition authorizing the construction of pavement; that the number of signers on the petition of June 19, 1905, has become so reduced by withdrawal and otherwise that it has ceased to have any legal force. This, however, under the statute as we construe it, is immaterial. The petition of March 20, 1905, if legal, and we think it is, fully authorizes the work now in progress. The petition of June 19, 1905, if legal; of which we express no opinion, also authorizes such work. It is apparent from the numerous petitions presented that the resident property-owners are a unit upon the question that Main street ought to be paved. They are divided as to the best kind of pavement, and we think the proper tribunal has decided this question for them. As to when and under what circumstances petitioners can withdraw their names from a petition is a matter of little importance, for if the attempted withdrawal from the petition of June 19, 1905, was proper, then the petition of March 20, 1905, still stands, and justifies the work now being done; if not, then the other petition stands, and authorizes such work; so this question need not be considered.
Another objection to the construction contended for by the plaintiffs is that if it should prevail the statute would be unconstitutional for the reason that it would delegate legislative powers to the petitioners. (Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 34 Pac. 416; Hutchinson v. Leimbach, 68 Kan. 37, 44, 74 Pac. 598, 63 L. R. A. 630.)
The claim is made by the defendants that the plaintiffs have no right to maintain this action — that it should have been brought in the name of the state; but we think that the special interest that they have in the improvement being made takes them out of the general rule relating to mandamus cases, and they may maintain this action in their own names. The writ is denied.
All the Justices concurring. | [
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Per Curiam:
In each of the above-entitled cases the record shows that more than thirty days elapsed after the service of notice of appeal before the filing of a transcript in this court. (The State v. Teissedre, 30 Kan. 476, 2 Pac. 650; The State v. Caton, 71 Kan. 855, 80 Pac. 938.)
Each of the cases is dismissed. | [
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Per Curiam:
William Y. Smith recovered judgment against the city of Garnett for damage resulting to him from falling on a defective sidewalk. The petition stated:
“That ... a certain public highway and street, known and designated as Seventh avenue, was, at the time the plaintiff received the injuries herein complained of, and for a long time prior thereto . . . had been, a public highway and stréet; . . . that along the south side of said avenue, street, and highway, and along the north side of lot eleven (11), in block seventy-three (73), in said city of Garnett, there was at the time of the injury hereinafter complained of, and a long time prior thereto, a certain sidewalk used by said city for the free use and passage of all persons on foot and at all times; . . •. that on August 29, 1902, while passing over, along and upon said sidewalk and street, without fault or negligence upon his part, plaintiff was tripped by one of the loose boards of said sidewalk at the point on said street as aforesaid.”
These allegations are sufficiently definite as to the place on the sidewalk where the plaintiff received his injuries.
In respect to his injuries the petition stated that plaintiff “was thrown with great force and violence to the ground — knocked down — and two ribs on his right side broken or fractured, his left knee dislocated, his right arm strained, and the right side of his back, just above his right kidney, bruised.” No error was committed by the court in refusing to require plaintiff to make his petition more definite in this particular. From these allegations the defendant was sufficiently informed of the plaintiff’s injuries to have a physician examine these parts to ascertain if any injuries had been sustained, and their extent.
The court overruled the defendant’s demurrer to the plaintiff’s evidence. Error is predicated on this. It is the theory of the defendant that the evidence introduced by the plaintiff proves that he was guilty of contributory negligence in going upon this walk, which he knew was defective, when by crossing the street he might have- traveled upon a perfectly safe walk. It is not contributory negligence for one to walk upon a defective sidewalk; in doing so, however, he must exercise ordinary care — such care as an ordinarily prudent man would exercise under similar circumstances. (Langan v. City of Atchison, 35 Kan. 318, 11 Pac. 38; City of Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893; Maultby v. City of Leavenworth, 28 Kan. 745; City of Topeka v. High, 6 Kan. App. 162, 51 Pac. 306; City of Wichita v. Coggshall, 3 Kan. App. 540, 43 Pac. 842; Osage City v. Brown, 27 Kan. 74.)
It is also contended that the court erred in refusing to give certain instructions. These referred to the duty imposed upon the plaintiff to exercise care in traveling upon a sidewalk that he knew to be defective. While these instructions may have stated the law correctly, the court did not omit to give proper instructions upon this question. ■ Therefore, there was no prejudicial error in refusing to give those asked by the defendant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sued the defendant for the conversion of a herd of cattle. Judgment was rendered for the defendant upon the following findings of fact and conclusions of law:
“FINDINGS OF FACT.
“ (1) That at the times hereinafter mentioned plaintiff was and still is a national bank located at Concordia, Cloud county, Kansas; that the defendant was and still is a Kansas corporation engaged in the livestock commission business in Kansas City.
“(2) In the month of October, 1902, A. W. Miller was the owner of seventy (70) head of cows and heifers. H. J. Eppler was the son-in-law of said Miller, and resided at the time on a farm belonging to the said Miller in Cloud county, Kansas; that the said seventy (70) head of cattle were, some time during the month of October, 1902, delivered by said Miller to said Eppler under the following agreement, viz.: Miller was to remain the owner of the cattle; Eppler was to have possession of them, and have, as his, whatever he added to them in weight or value. There was no agreement on Eppler’s part that he would feed the cattle in any amount or for any certain time. The evidence does not show on what day of the month in October, 1902, this arrangement between Miller and Eppler was made, nor the day when the cattle were delivered by Miller into the possession of Eppler; but the evidence does show that the cattle were in the possession of Eppler when the mortgage, a copy of which is hereinafter set out, was given to plaintiff bank. There was no agreement between Miller and Eppler which gave Eppler authority to sell said seventy head of cattle, or to dispose-of them or receive the proceeds from the sale thereof, and Miller at no time consented that Eppler should have or exercise any such authority over the cattle.
“(3) On the 22d day of October, 1902, said H. J. Eppler was indebted to the plaintiff, the First Nationel Bank of Concordia, upon two promissory notes, one dated November 15, 1901, for $3718.50, on which there was at that time due about $2058.50, and extended to January 15, 1903; the other note, dated October 22, 1902, for $316.50, was due January 15, 1903.
“ (4) On said 22d day of October, 1902, H. J. Eppler executed the chattel mortgage to the said First National Bank of Concordia, a copy of which is as follows: [Here follows chattel mortgage.] There is no evidence at all that at the time said Eppler executed said mortgage to the plaintiff bank he had fed to the cattle in controversy any amount of feed whatever, or added anything to their weight or value, unless it be the statement in said mortgage to the effect that the cattle were ‘being fed’ by him.
“(5) On the 30th day of January, 1903, said H. J. Eppler had a public sale on the premises described in •said chattel mortgage, and at said sale the then managing officer of the plaintiff bank was present and acted as clerk of the sale. Some cattle were sold; horses were sold, and also feed, household goods, and other property. It was a sale made by Eppler with a view, at the time known to said officer of the plaintiff bank, of leaving the state of Kansas and moving from Cloud county. The proceeds of the property sold— • cash, notes, and accounts — were kept by the plaintiff bank in payment of the indebtedness due from Eppler to said bank, and were properly applied and credited on the notes secured by the chattel mortgage above recited, leaving a balance due on the larger note of more than $2200.
“(6) The said managing officer of said bank made no inquiry at the time concerning the seventy head of cattle in controversy here, and in fact did not make any specific inquiry concerning them until after they were sold in Kansas City, as hereinafter recited.
“(7) On the 2d day of February, 1908, said A. W. Miller, with said H. J. Eppler, and their servants, had said seventy head of cattle loaded on cars at Hollis, Kan., a station in Cloud county, Kansas, and shipped consigned to defendant company; at the same time other cattle and hogs were shipped. Part of the shipment was made in the name of H. J. Eppler as consignor, and part in the name of Eppler & Wheeland, as consignors. Miller supposed the cattle were to be shipped in his name, and believed they had been so shipped, and immediately telegraphed defendant company that the cattle had been shipped and requested that the proceeds be credited to his account in the National Bank of Belleville, Kan.
“(8) The defendant company had no actual notice of the existence of the mortgage made by Eppler to. the plaintiff bank as aforesaid, or that plaintiff bank had or claimed to have any interest in, or lien upon, said seventy head of cattle or the proceeds thereof. Having been notified by Miller that he claimed the proceeds of the cattle as his own, and demand being made upon defendant by Eppler that the money be paid to him, defendant refused to pay the money to-either without the consent of the other, and within a few days thereafter did pay over the money upon the. joint draft of the two — that is, said Miller and said Eppler.
“ (9) That in all the transactions involving the sale of said cattle and payment of money defendant acted in good faith, without any knowledge at all of any claim on the part of plaintiff bank against said cattle, but paid the proceeds of the entire shipment of cattle and hogs on the joint draft of Miller and Eppler.
“(10) There was due from said H. J. Eppler to the plaintiff bank, at the time the defendant paid over the proceeds of the sale of the seventy head of cattle as. aforesaid, the sum of about $2000 on account of the promissory notes hereinbefore described.
“(11) The seventy-three head of cows and heifers and one bull which were in the shipment hereinafter referred to were sold by the defendant company for the gross sum of $2392.45, from which, by consent of the parties, is to be subtracted the proportionate part of freight, yardage, feed and commissions paid out, which was in the aggregate $168.57, and which, taken from the gross sales of the seventy-four head of cattle, would leave $2223.88; from this subtract the selling price of the bull, and the pro rata amount representing the selling price of three of the remaining seventy-three head of cattle, would leave the net amount arising from the sale of the seventy head of cattle $2104.64. At the time Miller turned these cattle over to Eppler they were of the value of $1309.25, which, taken from the sum last above, leaves as the amount to which Eppler is entitled out of the proceeds $795.39, under the agreement, as hereinbefore recited, wherein Eppler was to have simply the amount which he added to the value of the cattle, and this $795.39 represents the added value. Miller furnished $553.66 in feed and in money with which to purchase feed for these cattle.
“(12) Prior to the commencement of this action demand was made by plaintiff of the defendant for the return of the cattle in controversy, which demand was not complied with.”
“CONCLUSIONS OP LAW.
“(1) The arrangement between Miller and Eppler, at the time it was entered into, was a mere gratuity on the part of Miller, and amounted to a mere license given to Eppler to take and feed the cattle and have simply the amount which he added to the value of the cattle. There being an entire absence of any proof that, at the time of making the mortgage in controversy, Eppler had fed anything to the cattle or added anything to their weight or value, the court finds that the mortgage in controversy is void as to the defendant herein.
“(2) The mortgage in controversy does not purport on its face to cover any accruing or after-acquired interest of Eppler in the cattle in controversy, and there being an entire absence of proof that at the time of making the mortgage he had any interest, plaintiff cannot take anything under the mortgage.
“(3) On the findings of fact hereinbefore made, the court declares as a conclusion of law that the defendant is entitled to judgment.”
It is argued here that the portion of the second finding relating to the ownership of the cattle is unsupported by the evidence; that notwithstanding such finding the transaction between Miller and Eppler was in law a sale, and not a bailment; and that the plaintiff’s mortgage was a valid lien upon any future interest which Eppler might acquire in the cattle by virtue of the contract with Miller.
The plaintiff’s entire claim to the cattle rests upon the following descriptive provision of its mortgage: “Also my equity in the seventy head of cattle being fed by me, belonging to A. W. Miller.” From this it is apparent the plaintiff cannot identify the property sued for except through the instrumentality of a document which unequivocally asserts Miller’s ownership.
When the mortgage was given Eppler doubtless understood the full extent of his interest in the cattle. It well may be assumed that both mortgagor and mortgagee desired that the instrument defining their rights should speak the truth. It is not likely that the mortgagee would accept an instrument containing statements less advantageous than the truth would warrant. It would be a matter of great surprise if the plaintiff should take a mortgage expressed to be on Eppler’s equity in Miller’s cattle if the cattle in fact belonged to Eppler. The ácceptance of the mortgage, its retention and its enforcement against other property make up the equivalent of an admission by the mortgagee of the truthfulness of its declarations. Such admission lacks the quality of conclusiveness because the recital in question is merely descriptive and not contractual, but its evidential value is very great, and all of its probative force is opposed to the plaintiff’s claim. The only witness who testified directly to the agreement under which Eppler obtained the cattle was Miller himself. Together with other testimony, he gave the following:
“Ques. Was the arrangement between you and Eppler in reference to this seventy head a verbal or written arrangement ? Ans. Why, it was verbal.
“Q. Now, you may state in your own language the arrangement between you and Eppler as to this seventy head of cows and heifers; in other words, what interest had you, and what interest did he have, in the cattle? A. All the interest that he had in the cattle was just what he put on them; he took the cattle to feed, and what he put on them was all the interest he had in the cattle.
“Q. You mean by that that the increase in weight and value at the time of sale, over the weight and value at the time you turned them over to him, was to belong to Eppler? A. Yes, sir.”
The witness was not in the least confused by the effort of examining counsel to relate the question of ownership to that of a division of proceeds following a sale:
“Ques. At that time, Mr. Miller, what financial interest had you in those cattle — those seventy head of cattle? By that I mean, what amount of money was to be paid to you before there was to be anything coming to Eppler on this seventy head of cattle? Ans. The cattle were mine. Well, there was $1309.25.”
A letter written by Miller to the defendant, and introduced in evidence by the plaintiff, is entirely consistent with his testimony and with his claim of ownership :
“Answering yours of the 1st in reference to H. J. Eppler, will say that the seventy head of cows belonged to me. I furnished the money to pay for them and they cost $1309.25. Eppler was to have all he put on the cattle, and whatever they sold for above the $1309.25 was his equity. If there was any mortgage on these cattle, I was not aware of it.”
The plaintiff attempts to draw unwarranted inferences from other testimony relating to -the computation of the pecuniary shares of Miller and Eppler in the property, but none of the statements made is incompatible with the court’s finding. The following are the strongest:
“Ques. On payment of the sum of $1309.25, who had the remaining interest in the seventy head of cattle? Ans. Well, I suppose Mr. Eppler did.
“Q. You had no other interest, on payment of that amount due? A. Nothing more than I loaned him some money to buy corn with to feed them.”
These questions and answers do not even suggest that Eppler owned the $1309.25 interest in the property before that sum was paid to Miller. On the contrary, the implication is that even upon payment of the amount stated Eppler would not become the proprietor of the cattle, but only of the remaining interest, viz., what he had put on them; and indeed this is true, since it was not within the contemplation of the parties that there should be an actual ascertainment and segregation of Eppler’s interest until the cattle were marketed. They were bought to be fed and sold. They were bought with Miller’s money, and he owned them. The increment only belonged to Eppler. Whenever they were sold Miller was to receive out of the selling price their original cost, and Eppler was to receive the remainder.
There is much in the record to corroborate this view. The evidence all being in the form of writings and depositions, the case is presented here in practically the same aspect as the one which it bore in the district court. (Cheney v. Hovey, 56 Kan. 637, 642, 44 Pac. 605.) In such a case the findings of the district court are entitled to consideration, and in doubtful cases its decision may turn the scales in favor of affirmance. (Robinson v. Melvin, 14 Kan. 484; Macfarland v. Buck, 27 Kan. 783.) If the evidence be conflicting the findings will not be disturbed unless clearly overborne by the weight of the evidence. (Moore v. Pye, 10 Kan. 246.) But in many instances evidence of the character described may be canvassed in the same manner as if the proceedings were original in this court. (Robinson v. Melvin, 14 Kan. 484; Moore v. Pye, 10 Kan. 246; Durham v. C. C. & M. Co., 22 Kan. 232, 243; Keith v. Stetter, 25 Kan. 100, 101; Woodward, Faxon & Co. v. Clark, 30 Kan. 78, 2 Pac. 106.) Such a course has been pursued in this cause, with the result that the finding of the district court is fully approved.
Inasmuch as Miller and Eppler agreed that the full extent of Eppler’s interest in the cattle should be merely the additional weight he might succeed in producing, the courts are powerless to enlarge that interest. Whenever parties themselves define the limits of their rights and obligations the compact controls, and there is no room for the application of a legal theory to the contrary.
“A special contract of bailment prevails, in determining the liabilities of the parties, as against general principles of law applicable in the absence of express agreement.” (Butler v. Greene, 49 Neb. 280, 68 N. W. 496.)
It is true that the question of what the legal effect of a provision in a contract may be is one of law. But the law cannot say, for example, that a gratuitous agreement allowing a man the fleeces which he may grow in a year upon the backs of his neighbor’s sheep licenses him to supply his table with mutton from the flock. The law cannot override the will of the parties and compel the passing of title when they have agreed! otherwise. (Metropolitan Nat. Bank v. Benedict Co., 20 C. C. A. 377, 74 Fed. 182, 185; Harris v. Coe et al., 71 Conn. 157, 41 Atl. 452.)
In this case, if after all of Eppler’s feed had been consumed the cattle had gained nothing, he would have had no claim upon them; and if through no fault of his all of them had died, Miller could have recovered nothing from him. He paid nothing, and entered into no obligation to pay. One of the fundamental elements of a sale is wanting. There was no price to be paid and to be received. “A sale, of necessity, implies a consideration or price.” (The State v. Muntz, 3 Kan. 383, 386. See, also, Union Stock-yards & Transit Co. v. Western Land & Cattle Co., 7 C. C. A. 660, 59 Fed. 49.) Conceding that Eppler might have been entitled to keep the cattle upon paying to Miller their original cost, he was uncfer no obligation to do so, and could not have been compelled to do so. He held the property at Miller’s risk, and not his own.
The plaintiff insists upon the literal meaning and application of the expressions “return” and “restoration” of the property as ordinarily used in distinguishing bailments from sales — the purpose of the parties in this case being to market the cattle after they were fattened. But a sale on the market, instead of an actual return of the property, is a common incident of bailments (24 A. & E. Encycl. of L. 1026), and delivery to a third person by agreement with the bailor, express or implied, satisfies this requirement of the definition of bailment. (5 Cyc. 169.)
The simple statement of the case of Scott v. Shultz, 67 Kan. 605, 73 Pac. 903, distinguishes it. The inapplicability of the conditional-sales áct of 1901 is shown by the case of Harris v. Coe et al., 71 Conn. 157, already cited, and the argument which in effect reads into the plaintiff’s mortgage the words “subject to a verbal mortgage to A. ,W. Miller” in place of the words “belonging to A. W. Miller” confutes itself.
When Eppler took the cattle he had no interest in them beyond an opportunity, which was not mortgageable. When the plaintiff took its mortgage he had not, so far as the evidence shows, added a pound in weight or a penny in value to the cattle. Therefore, he was still the proprietor of nothing, and the mortgage was void for want of a thing to be mortgaged. The case is analogous in many respects to that of Robinson v. Haas, 40 Cal. 474. Robinson delivered to Rood 2000 sheep to be herded and cared for during a period of three years. At the end of that time the original number was to be returned, and the increase was to be divided equally. At a time when the original size of the flock had been diminished by several hundred head Rood undertook to sell to Haas. The court held that the transaction between Robinson and Rood was a bailment, and that because there was no increase Rood had nothing to sell and Haas acquired nothing from him.
“It is not within the power of any person to mortgage property which does not exist or which does not belong to him. He cannot mortgage property which is afterward to be created, or purchased, or procured. He can only mprtgage property which at the time is in existence, and to which he has a title.” (Cameron, Hull & Co. v. Marvin, 26 Kan. 612, 628.)
(See, also, Long v. Hines, 40 Kan. 220, 16 Pac. 339, 10 Am. St. Rep. 189; Townsend v. Allen, 62 Kan. 311, 313, 62 Pac. 1008, 52 L. R. A. 323, 84 Am. St. Rep. 388.)
The mortgage did not in terms express a purpose that it should attach to any interest in the property • which Eppler might afterward acquire, and if it had done so the plaintiff failed to. perfect its inchoate right by subsequently taking possession.
“The rule in Kansas is that to affect the after-acquired property the mortgage must contain an express provision binding such after-acquired property, and even where there is such an express provision in the mortgage the rights of third persons are not affected thereby unless the mortgagee takes actual possession of the after-acquired property before it is purchased by third persons or seized by creditors, and that if such third persons purchase it or such creditors seize it before the mortgagee takes such actual possession thereof, the third persons or- creditors obtain the better right thereto. (Dayton v. Bank, 23 Kan. 421; Live Stock Co. v. Guthrie, 50 Kan. 467, 474, 31 Pac. 1071.)” (New England Nat. Bank v. Northwestern Nat. Bank, 171 Mo. 307, 324, 71 S. W. 191, 60 L. R. A. 256.)
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered' by
Graves, J.:
This case involves the validity of a road. The plaintiff in error Smallwood, having no outlet from his premises, petitioned the board of county commissioners to locate a road sixteen and one-half feet wide from his premises over a forty-acre tract of land owned by the defendant in error to a public highway. The petition was signed by twenty other householders, as in ordinary cases. All the steps prescribed by law for the establishment of a public highway were taken under this petition. The petition was the ordinary printed form, with the word “private” written before the word “road.” This word “private” also appeared in the published notice of the filing of the petition, and in the proceedings of the commissioners, but a full and specific description of the road proposed, stating its width, the point of beginning and termination, and the land upon which it was to be located, was given in the petition, notices, and other proceedings. The landowner met with the viewers and presented a claim for $300 as damages sustained by him on account of the location of the road. The viewers reported that the route was practical, and of public utility, and recommended the establishment of the road. They awarded the landowner $56.80 as damages.
On December 14, 1903, the board of county commissioners, in regular session, after considering the report of the viewers and other proceedings, found that the road was of public utility, and ordered that it be established as a public highway and opened for public travel when all costs were paid. The landowner was allowed the amount of damages awarded by the viewers. Instead of appealing from the award of damages the owner filed a petition in error in the district court, with a transcript of the proceedings had before the commissioners, and asked that the action of the board be vacated as without authority and void. The district court granted the prayer of the petition. Smallwood and the commissioners come to this court by petition in error and ask that the judgment of the district court be reversed.
The landowner claimed in the district court, as he does here, that as the proposed road was designated in the petition and other papers as a private road no jurisdiction was conferred upon the board to locate and establish a public road, and therefore all action taken under the petition was illegal and void.
This is the controlling question presented. The same proposition was considered by this court in the case of Howard v. Schmidt, 70 Kan. 640, 79 Pac. 142, and decided adversely to the contention of the defendant in error. The use of the word “private” in the designation of this kind of a road is a matter of very little importance, and should not mislead any one. There is no such thing in this state as a private road in the sense that the land of one person can be appropriated to the exclusive use and ownership of another. The words “private road,” therefore, when used in such sense, express no force or meaning. In a certain sense, however, the road in question is a private one, and the designation “private road” as aptly as any other term describes its character. This road was evidently applied for and established under section 6044 of the General Statutes of 1901, which reads:
“That whenever the premises of any person in this state shall be so completely surrounded by adjoining lands, the property of other persons, as to be without access to any public highway, then such person may petition the board of county commissioners of the county in which such premises lie for a road through some portion of the adjoining lands, and the board shall on the presentation of such petition proceed in accordance with the provisions of the foregoing sections to lay out such road, make returns of plats, and allow damages, if any should be held or allowed, provided said road shall not exceed twenty-five feet in width, and be laid out upon the section or half-section lines when practicable.”
Under this section a valid road may be established which is only sixteen and one-half feet wide. Such a road is not a public highway, as ordinarily understood. Its width is different — its object exceptional. Its principal purpose is to accommodate the petitioner. In a large sense it is a private road, but in a more limited view it is also a public road, in that it provides at public expense a free and open highway by which the general public can go to and from the premises of the petitioner, as business or pleasure may require. This limited use by the public is sufficient to give such a road all the legal characteristics of a public highway. (Ell. Roads & Str., 2d ed., § 192; Masters v. McHolland, 12 Kan. 17; Bankhead v. Brown, 25 Iowa, 540; B. A. & P. Ry. v. M. U. Ry., 16 Mont. 504, 41 Pac. 232, 31 L. R. A. 298, 50 Am. St. Rep. 508.)
The word “private” in the petition does not, therefore, when construed in connection with the general description given therein of the proposed highway, have any controlling significance. (Howard v. Schmidt, 70 Kan. 640.) The road was legally established.
The defendant has objected to the jurisdiction of this court because the record does not show that the amount in controversy exceeds $100, but this objection has been met by affidavits filed with the case-made. (Jones v. Kellogg, 51 Kan. 263, 33 Pac. 997, 37 Am. St. Rep. 278; Railway Co. v. Spaulding, 69 Kan. 431, 77 Pac. 106, 66 L. R. A. 58.)
The judgment of the district court is reversed, the cause remanded, and the court directed to carry out the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
William H. Bush & Co. obtained a judgment against B. A. Adams before a justice of the peace. A transcript of the judgment was filed in the district court. An. execution was issued and levied upon the interest of the defendant in a tract of real estate, which was sold to the plaintiffs, who filed a motion for the confirmation of the sale. Adams and his wife moved to set the sale aside upon the ground that the real estate in question was their homestead, and, as such, exempt from seizure. Upon a hearing the court sustained the claim of exemption and set aside the sale. Bush & Co. prosecute error.
The trial court made detailed findings of fact, and the only question presented is whether the facts so found justify the conclusion that the property, within the meaning of the constitution and statute, was occupied by Adams as a homestead when the transcript was filed in the district court, at which time the judgment otherwise became a lien upon it. The findings disclose, in substance, that some years before this litigation began Adams and his wife resided upon this land — a farm which they owned together. They, however, abandoned the farm as a homestead and moved to Pomona, where Adams engaged in business and where they bought a home in which they lived. A short time before May 16, 1904, Adams failed, and made a general assignment for the benefit of his creditors. At the time of his failure he and his wife concluded to surrender their home in Pomona to the creditors, and to move back to the farm and make that their home, and this intention they never abandoned. They remained in Pomona in the same house — in order to assist the creditors in disposing of the stock and collecting the debts — until October 1, 1904, when they moved to the farm, where they have since resided. While Adams lived in Pomona he kept the farm so rented that he had the right to move back at any time. The judgment against Adams was rendered, and the transcript was filed in the district court, on May 16, 1904. The execution was issued in November, 1904.
In order that property may be exempt on the ground of its homestead character it must be “occupied as a residence by the family of the owner.” (Const, art. 15, §9; Gen. Stat. 1901, §3016.) In Kansas, and in other states having similar constitutional and statutory provisions, it is held that such occupancy need not always be actual or physical. The courts deal liberally with claims of homestead exemption asserted in good faith, but cannot extend the right beyond the language of the law defining it. It is difficult to derive from the decisions a general rule of universal applica tion. In volume 15 of the American and English Encyclopedia of Law, at page 578, it is said:
“A bona fide and clearly defined present intention to acquire and occupy certain premises as a homestead, evidenced by overt acts in fitting them up for such a purpose, and followed within a reasonable time by actual physical occupancy, the delay being only for the time necessary to effect removal to the premises, or to build needed improvements or repairs, or to complete a dwelling-house in process of construction, or the like, render the land exempt as a homestead from the time of its acquisition with such intent.”
The cases bearing upon the matter are collected in notes upon the page cited and that following, and show that the doctrine of constructive possession has seldom been pressed beyond the limits indicated by the text. The defendants in error rely upon the authority óf a line of Kansas decisions of which Monroe v. May, Weil & Co., 9 Kan. 466, is a type. It was there said that “a purchase of a ho’mesteád with a view to occupancy, followed by occupancy within a reasonable timé, receives from the time of purchase a homestead exemption from seizure upon execution or attachment.” The very purchase of a property designed to be used as a homestead is itself, however, an overt act that might under some circumstances tend to give expression to súch purpose. Here that element is entirely wanting, and there is nothing to take its place. If Adams and his wife, by simply making up their minds to regard as their home the farm which they already owned and to move to it as soon as the purpose of á temporary stay in Pomona should bé accomplished, could render it exempt from seizure, then it would follow that premises could be impressed with a homestead character by a mere méntal process unaccompanied by any physical act whatever — a proposition which the authorities uniformly deny. For a somewhat similar case see Savings Bank v. Wheeler’s Adm’r, 20 Kan. 625. Thé surrendéring to the creditors of the premises in Pomona occupied by Adams and his family might be effectual to accomplish the abandonment of that property as a homestead, but it could not of itself give effect to his intention to invest the farm with that quality.
The judgment is reversed, with directions to confirm the sheriff’s sale.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Chester Daniels, a boy not quite eighteen years of age, was injured while in the employ of' the Creamery Package Manufacturing Company. He brought an action against the company, alleging that his injury was due to its negligence, and recovered a judgment for $600, from which the defendant prosecutes error.
The plaintiff worked near a small circular saw, his work requiring him to pass back and forth near it. Upon one occasion, while carrying some boards by it in the course of his employment, the floor being strewn with sawdust, he stepped upon a “cull-head,” or piece of waste board, slipped and fell, and in falling threw out one hand, which came in contact with the saw and was severely mangled. In his petition he alleged that the defendant was negligent in these respects: (1) In failing to provide sufficient light in the room where the machinery was; (2) in allowing the passageway over which the plaintiff was required to go back and forth near the saw to become and remain obstructed; (3) in failing either to remove or'cover the saw whenever, as at the time of the injury, it was not in use.
In response to a special question, however, asking the jury to state fully in what the negligence of the defendant consisted, the answer was returned: “For not removing saw from mandrel or covering it up when not in use.” This is in effect a finding that there was no negligence on the part of the company in respect to the lighting of the room or the obstruction of the passage, and that the company was not derelict toward the plaintiff in any matter other than that specifically named. The jury also found specially that the plaintiff had worked more than a week in this room, during which time he frequently saw the machinery in operation; that he knew of the practice of allowing the saw to run when not in actual use; that he knew and understood the result of getting his fingers against the saw; that he knew the saw was running at the time he was walking toward it and before the time he was hurt.
The defendant contends that these findings compel a judgment against the plaintiff for the reason that they show an assumption on his part of the risk occasioned by the negligence of which he complains. The contention must be sustained. The saw while in motion presented a peril that was obvious to the meanest intelligence. The mere fact that the plaintiff was a minor does not affect the matter. (Bess v. Railway Co., 62 Kan. 299, 62 Pac. 996.) A boy practically eighteen years of age was as capable as an older per son of seeing and understanding such a peril. It is true that in order for him to be deemed to have assumed the risk he must not only have been aware of the conditions that existed but also of the danger that arose from such conditions. But whatever doubt there might otherwise have been upon this score is set at rest by the finding that he knew and understood the result of getting his fingers against the saw. This is in substance a finding that he knew the danger to which he was subjected by the omission of the company to remove the saw when not in use. It is not a sufficient answer to say that he did not know that he was likely to slip or stumble while he was walking by the saw. His fall, not having been occasioned by any negligence of the defendant, was a mere accident, the possibility of the happening of which at that particular place must have been known to him as well as to any one else.
That the employee ordinarily assumes the open and obvious danger incidental to the operation of unguarded machinery is well settled. (See 20 A. & E. Encycl. of L. 117.) The only distinction in this regard between the present case and those there cited must be found in the fact that here the machinery was being operated unnecessarily — at a time when it might as well have been stopped or guarded. But this consideration goes only to the matter of the negligence of the master, and does not affect the attitude of the servant. It is important only because but for it there would be no ground of liability whatever. In most of the cases where a recovery is defeated upon the ground of an assumption of risk by the employee there is some form of negligence shown by the employer that would establish a liability except for the principle of assumption of risk; otherwise there would have been no occasion for invoking that principle.
The findings exculpate the defendant from any negligence except in permitting the saw to run uncovered when not in use. The only consideration that could make this actionable negligence is that it needlessly exposed persons working about it to the danger of injury, if through accident or inadvertence they came in contact with it. This danger was obvious to any one who knew that the saw was running and knew the effect of coming in contact with it. The fact that it was not necessary that it should have been running had no tendency to conceal the danger. The plaintiff, having continued to work in the vicinity of the dangerous saw knowing of the practice of allowing it to run uncovered when not in use, without making objection thereto, carried his own risk of sustaining any injury that might result to him in consequence thereof without further fault on the part of the defendant. He knew that the saw was in motion and unprotected, and would injure him if he came within its reach. In continuing his work under these circumstances he undertook to keep away from it except as he might be prevented or hindered in doing so by some further negligent act or omission on the part of the company, and the finding of the jury that there was no such further negligence precludes his recovery.
The judgment is reversed, with direction to enter judgment for the defendant.
All the Justices concurring. | [
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Per Curiam:
This is a suit to enforce a resultant trust. It was alleged in the petition that Alexander Love, father of the plaintiff, used large sums of money belonging to the estate of his deceased wife, the mother of the plaintiff, and purchased valuable lands therewith, taking conveyances therefor in his own name, enjoyed the rents and profits thereof for many years, and then exchanged a part of them for other lands to the defendant Mitchell, who took the same with notice, and conveyed the remainder, without consideration, to his second wife, the defendant, Annie M. Love. The plaintiff asks that all these conveyances by his father be canceled; that he and his insane brother, the other children having disclaimed, be declared the owners of one-half the lands originally purchased by his father; and that an accounting be had for rents and profits.
This suit was originally commenced by all of the children of Alexander Love and his deceased wife, five in number. Three of them afterward disclaimed any interest in the suit, and one of them was adjudged insane, and his guardian, Charles C. Hoge, was made a defendant, which left James Love the sole surviving plaintiff. Pending the suit Alexander Love died testate, and his widow, Annie M. Love, was appointed executrix of his will, and was afterward made a party defendant.
The defendants deny that Alexander Love received any money from the estate of his deceased wife, and allege that the lands were bought by Alexander Love with his own money. The court upon the trial filed the findings of fact and conclusions of law separately, which are very full and of great length, embracing many facts which in our view cannot be considered, and therefore we refrain from giving them here.
It was shown, and the court found, that Agnes Love, the deceased wife of Alexander Love, at the time of her death had no estate whatever, and Alexander Love at that time was involved largely, having failed in business some time prior thereto, and was in debt about $20,000; that afterward he engaged in business, out of which he made about $40,000, and that the lands in controversy were bought with money so acquired. The findings show that these lands were not bought with money taken from the estate of the plaintiff’s deceased mother, and therefore there was no resultant trust, as alleged in the petition.
Counsel insist, however, that the findings are not sustained by, and ought to be set aside as contrary to, the evidence. To avoid the long-established rule applicable to such cases — that the findings of fact by a trial court, like the verdict of a jury, are final in this court — it is urged that in this case the evidence is all in writing, and can be considered by this court as well as by the trial court, and that the rule above mentioned is intended to apply only in cases where the findings are made from the oral evidence of witnesses. An examination of the record, however, shows that on the trial twelve witnesses were examined orally, one of whom, Annie M. Love, was one of the most important as to these particular facts. She was well acquainted with Agnes Love, deceased, and with her family, was a member of the family of Alexander Love before, at the time of, and since, her death, and was in a position to know more about the financial condition of the plaintiff’s mother at the time of her death than any other witness- except Alexander Love, deceased, whose deposition was read upon the trial. The reason, therefore, for the rule which bars this court from a reexamination of the evidence applies here with especial force.
Alexander Love was appointed administrator of his deceased wife’s estate in the state of Pennsylvania more than four years after her death, and executed a bond as such for $3000. It does not appear that he ever received anything from her estate or did anything further as such administrator.. The conveyances received by him for the lands in controversy were ordinary deeds of general warranty, wherein the land appeared to be conveyed to “Alexander Love, administrator, . . . his heirs and assigns.” The word “administrator,” as used in the deeds, is simply descriptive of the person and is not entitled to any greater significance.
As to a part of these lands an action of ejectment was brought by one Fritz against Alexander Love to recover the same, and the latter filed an answer therein claiming that the land was held in trust by him for his children, naming them. The plaintiff then amended his petition, making the children defendants, to which all the defendants answered by filing a general denial,. and on trial the plaintiff was defeated. Alexander Love had himself appointed guardian of his minor children by his first wife, and through proceedings in the probate court sold a part of the real estate as the property of the children. By reason of these acts and statements of Alexander Love it is urged that he was conclusively bound and estopped from showing otherwise upon the trial of this case. These acts unexplained were probably sufficient to make a prima facie case in favor of the plaintiff, but they were all satisfactorily explained to the district court by the fact that Alexander Love bought all of these lands with his own money.
We think the evidence presented was properly received, and was sufficient to sustain the findings of the court.
It is claimed that Alexander Love received, as guardian, upon the sale of the lands hereinbefore mentioned, $218.75, which belongs to the plaintiff and has never been paid. It was received more than ten years before this suit was commenced, during all of which time the plaintiff might have sued therefor but did not. If any reason appears in the record for this long delay it lies in the fact that no proof was offered to show non-payment, and the inference is that payment was duly made.
We have carefully examined the entire record and find no material error. The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Kansas legislature at its last session enacted a law (Laws 1905, ch. 215) permitting the creation of public corporations known as drainage districts, having power to take certain measures for the protection of property within their boundaries against injury from the overflow of natural watercourses ; this power to be exercised by a board of di- - rectors, chosen by the resident taxpayers, who are authorized to call elections to vote upon propositions to issue bonds to meet the cost of any improvements undertaken. This action is brought in the name of the state, upon the relation of the county attorney, against the persons selected as the first directors of such a drainage district, which has been organized in Wyan dotte county, to oust them from the exercise of the duties attached by the statute to their office, upon the ground that the act referred to is wholly void because it conflicts with the Kansas constitution. The case is submitted on a demurrer to the petition.
The provisions of the act which are claimed to be in conflict with the fundamental law of the state are those prescribing the qualifications of directors and electors of the district. Section 13 provides:
“At all elections and meetings held under the provisions of this act, only persons twenty-one years of age who are taxpayers and residents of the district, regardless of sex, shall be efititled to vote.”
Substantially the same language is also found in section 9. Section 8 reads:
“That all powers. granted to drainage districts incorporated under the provisions of this act shall be exercised by a board of directors consisting of five persons, who shall be freeholders and actual residents of the district, who shall hold their offices for three years and until their successors are elected and qualified, and who shall be chosen at the time and in the manner hereinafter specified.”
Section 7 of the bill of rights includes this restriction : “No religious test or property qualification shall be required for any office of public trust, nor for any vote at any election.” (Gen. Stat. 1901, § 89.)
In behalf of the plaintiff it is asserted that the statute, in requiring directors of the district to be freeholders, and voters to be taxpayers, attempts to impose a property qualification for an office of public trust, and for a vote at an election, within the letter and spirit of the constitutional limitation quoted. The defendants maintain: (1) That the words “election” and “office,” as here used in the constitution, relate only to elections and offices provided for in that instrument, and have no application to elections held in, or officers chosen for, a public corporation created by statute, such as a drainage district; (2) that, even if the provisions attacked are invalid, they may be disregarded without impairing the effect of the remainder of the act. As the court agrees with the defendants in their first contention it will not be necessary to consider the second.
The question whether it is competent for the legislature to confine to taxpayers the right of voting at such elections as are provided by this act must be answered in the affirmative, upon the authority of Wheeler v. Brady, 15 Kan. 26. In that case this court upheld a statute giving women the right to participate in the election of school-district officers, notwithstanding the constitution in granting the general right of suffrage to male citizens only by necessary implication excluded females from its exercise. The decision was based upon the principle that the. constitutional expressions concerning the privilege of voting were intended to apply only to those elections provided for by the constitution itself. In the opinion it was said:
“There is no school-district election or meeting provided for in the constitution; there is no provision as to how school-district officers shall be elected, appointed, or chosen; and we suppose no one will claim that they are, by the terms of the constitution, to be elected at either of the elections provided for in the constitution; hence it would seem that the legislature would have full and complete power in the matter; that the legislature might provide for the election or appointment of school-district officers as it should choose, when it should choose, in the manner it should choose, and by whom it should choose.” (Page 32.)
The soundness of this decision is questioned by counsel for the plaintiff, who allege that it is out of harmony with the view prevailing elsewhere. It has, however, been frequently cited with approval in other jurisdictions. (See State v. Cones, 15 Neb. 444, 19 N. W. 682; Plummer et al. v. Yost et al., 144 Ill. 68, 33 N. E. 191, 19 L. R. A. 110; State, ex rel. Attorney-general, v. Dillon et al., 32 Fla. 545, 14 South. 383, 22 L. R. A. 124; Harris v. Burr, 32 Ore. 348, 52 Pac. 19, 39 L. R. A. 768; State, ex rel. Mills, v. Board of Elections of City of Columbus et al., 9 Ohio C. C. 134.)
The cases of Matter of Gage, 141 N. Y. 112, 35 N. E. 1094, 25 L. R. A. 781, The People, ex rel., v. English et al., 139 Ill. 622, 29 N. E. 678, 15 L. R. A. 131, and Coffin v. Election Comm’rs, 97 Mich. 188, 56 N. W. 567, 21 L. R. A. 662, turned upon different aspects of the question, but cited the Kansas case with approval, and in distinguishing it emphasized the force of the reasoning by which it was sustained.
While the following cases did not in terms refer to Wheeler v. Brady, 15 Kan. 26, they involved substantially the same question and decided it in the same way: Buckner, &c., v. Gordon, &c., 81 Ky. 665; Belles v. Burr, 76 Mich. 1, 43 N. W. 24; Mayor, etc., v. Shattuck, 19 Colo. 104, 34 Pac. 949, 41 Am. St. Rep. 208; Hanna v. Young, 84 Md. 179, 35 Atl. 674, 57 Am. St. Rep. 396, 34 L. R. A. 55; Spitzer v. Village of Fulton, 172 N. Y. 285, 64 N. E. 957, 92 Am. St. Rep. 736; Leflore County v. State, ex rel., etc., 70 Miss. 769, 12 South. 904.
It is true that there are cases which announce a contrary doctrine, but they are neither of so large a number nor of such cogency of reasoning as to shake the authority of the Kansas decision. (See St. Jo. & Denv. City R. R. Co. v. Buchanan Co. Ct., 39 Mo. 485; State v. Constantine, 42 Ohio St. 437, 51 Am. Rep. 833; Black v. Trower & als., 79 Va. 123; Allison v. Blake, 57 N. J. Law, 6, 29 Atl. 417, 25 L. R. A. 480.)
The present case cannot be distinguished from the earlier one upon the ground that here the limitation invoked is express while there it was merely implied, or upon the ground that here the right of suffrage is restricted while there it was enlarged. It is universally held that the enumeration in a state constitution of the classes of citizens who shall be permitted to vote is to be taken as to all matters within the purview of the provision as a complete and final test of the right to the exercise of that privilege, and that the legislature can neither take from nor add to the. qualifications there set out. (15 Cyc. 281, 282, 298; 10 A. & E. Encycl. of L. 573, 576, 577.) The case of Wheeler v. Brady, 15 Kan. 26, was not decided upon the theory that the legislature might extend to women the right to vote for school officers because the constitution did not forbid such enlargement of the voting privilege there granted. On the contrary, the court assumed that the constitutional provision defining qualified electors as male persons of stated attributes operated to bar females from the exercise of the right there referred to as completely as though there had been an express prohibition to that effect, and that the legislature could no more enlarge any right of suffrage conferred by the constitution than it could restrict it. The determination reached was, therefore, necessarily based upon the doctrine that the constitutional rules concerning the right to vote have application only to such elections as are provided for in the constitution itself.
Nor can the present case be withdrawn from the operation of this doctrine by reason of the broad and unqualified language of the prohibition relied upon by plaintiff: “No . . . property qualification shall be required . . . for any vote at any election.” Manifestly it is not necessary to construe this literally as applying to every election whatsoever. It doubtless would not be contended that the sentence relates to the election of the officers of a private corporation, although that is a matter over which the legislature exercises some control. (Gen. Stat. 1901, § 1288.) It would be superfluous to cite instances in which general language of this character has been given a restricted meaning. A typical example is presented in Pape v. Capitol Bank, 20 Kan. 440, 27 Am. Rep. 183, where the requirement that no banking law shall be in force until submitted to a popular vote is held to apply only to banks of issue. (See, also, Fischer v. Moore, 69 Kan. 191, 76 Pac. 403.) A reasonable interpreta tion of the clause here in question seems to confine its application to those elections provided for or referred to in other parts of the constitution. This is in accordance with the view taken of equivalent expressions in cases already cited. In Hanna v. Young, 84 Md. 179, the section of the Maryland constitution under consideration was as follows:
“All elections shall be by ballot; and every male citizen of the United States, of the age of twenty-one years, or upwards, who has been a resident of the state for one year, and of the legislative district of Baltimore city, or of the county in which he may offer to vote, for six months next preceding the election, shall be entitled to vote in the ward or election district in which he resides at all elections hereafter to be held in this state.”
Of this section it was said in the opinion:
“It is contended on the part of the appellant that this section of the constitution plainly comprehends and includes within its express terms all elections, whether state or federal, county or municipal. Yet there is but one municipality mentioned in this section of the organic law, and in fact Baltimore city is the only municipality mentioned eo nomine in any part of the constitution. . . ' . Whilst the constitution (art. 3, § 48) authorizes and empowers the general assembly to create corporations for municipal purposes, it nowhere prohibits the legislature from imposing upon the qualified voters residing within the corporate limits of a town any reasonable restrictions it may deem proper, when seeking the exercise of the right of elective franchise in the selection of its officers. In this respect the power of the legislature is unlimited. The argument advanced at the hearing in this court is to the effect that the act in question is void because the constitution has conferred the right and prescribed the qualifications of all electors in this state, [and] the legislature is without authority to change or add to them in any manner. If the premises of this contention were correctly stated, the argument and sequence would undoubtedly be correct. But, as already observed, the constitution (art. 3, § 48) only in general terms au thorizes the creation of corporations for municipal purposes, and leaves to the legislature the enactment of such details as it may deem proper in the management of the concerns of the corporation, or which may be regarded as beneficial in the government of the same. The constitution of this state provides for the creation of certain offices, state and county, which are filled, either by election or by appointment; and we regard it as an unreasonable inference to suppose that municipal elections held within the state (outside the corporate limits of Baltimore city) can be properly termed elections under the constitution, such as state and county elections; or that the framers of the constitution ever contemplated that article 1, section 1, of that instrument was intended to apply to municipal elections, such as the one now under consideration, which is the mere creature of statutory enactment. . . . It is only at elections which the constitution itself requires to be held, or which the legislature under the mandate of the constitution makes provision for, that persons having the qualifications set forth in said section 1, article 1, are by the constitution of the state declared to be qualified electors.” (Pages 182, 183.)
The case of Belles v. Burr, 76 Mich. 1, involved the construction of a section of the Michigan constitution-reading as follows:
“In all elections every male citizen; every male inhabitant residing in the state on the 24th day of June, 1835; every male inhabitant residing in the state on the 1st day of January, 1850, who has declared his intention to become a citizen of the United States, pursuant to the laws thereof, six months preceding an election, or who has resided in the state two years and six months, and declared his intention as aforesaid; and every civilized male inhabitant of Indian descent, a native of the United States, and not a member of any tribe, — shall be an elector, and entitled to vote; but no citizen or inhabitant shall be an elector or entitled to vote at any election unless he shall be above the age of twenty-one years, and has resided in this state three months, and in the township or ward in which he offers to vote ten days, next preceding such election.”
The court said:
“While it must be conceded that no person can vote for the election of any officer mentioned in the constitution unless he possesses the qualifications of an elector prescribed by that instrument, it does not follow that none but such electors can vote for officers which the legislature has the right to provide for, to carry out the educational purpose declared in that instrument.” (Page 11.)
In Mayor, etc., v. Shattuck, 19 Colo. 104, the court, in interpreting a constitutional provision that certain persons should be entitled to vote “at all elections,” said:
“It is manifest that some restriction must be placed upon the phrase all elections, as used in section 1, else every person having the qualifications therein prescribed might insist upon voting at every election, private as well as public, and thus interfere with affairs of others in which he has no interest or concern. In our opinion the word elections, thus used, does not have its general or comprehensive signification, including all acts of voting, choice, or selection, without limitation, but is used in a more restricted political sense — as elections of public officers.”
In Spitzer v. Village of Fulton, 172 N. Y. 285, the court said of a provision of the constitution giving citizens having certain qualifications the right to vote “for all officers that now are or hereafter may be elective by the people, and upon all questions which' may be submitted to the vote of the people”:
“The contention of the plaintiffs is that the provisions of chapter 269 contain a restriction upon the provisions of article 2 as to the right to vote for elective officers and upon all questions which may be submitted to the vote of the people, and, hence, are violative of its provisions. The obvious purpose of that article was to prescribe the general qualifications that voters throughout the state were required to possess to authorize them to vote for public officers or upon public questions relating to general governmental affairs. But we are of the opinion that that article was not intended to define the qualifications of voters upon questions relating to the financial interests or private affairs of the various cities or incorporated villages of the state, especially when, as in this case, it relates to borrowing money or contracting debts.” (Page 289.)
The Mississippi legislature enacted a stock law which was to become effective in each county upon being approved at a local election, to be participated in by voters having qualifications entirely different from those prescribed for electors by the constitution. The statute was attacked upon the ground that it sought to establish a property qualification for voting and to extend the right of suffrage to persons baired from its exercise by the constitution. In Leflore County v. State, 70 Miss. 769, the court said:
“The provisions of the constitution as to qualified electors, and registering electors, and the election ordinance adopted by the constitutional convention, have been appealed to as rendering unconstitutional the provisions of the code as to a stock law. We reject this view. There is nothing in the constitution or ordinances at war with the stock law. The legislature might pass a stock law for one or all the counties without a vote of the people on the subject. It might empower each board of supervisors to declare such law in force, without vote or petition of the people, and, having plenary power over the subject, was authorized to prescribe the conditions on which the boards might act.” (Page 778.)
The elections referred to in the act under consideration were not provided for by the constitution, nor did the constitution impose upon the legisláture any' duty to make provision for them. They were not required to be held by reason of anything contained in the fundamental law of the state. The drainage district in question is wholly the creation of the legislature, which had practically unlimited discretion in the matter. The statute might have made the office of director appointive instead of elective, and might have made the issuance of bonds dependent upon the will of the taxpayers ns indicated by petition instead of by vote. That the selection of the officers who act for the corporation is decided by the usual electoral machinery, but by a restricted electorate, and that the concurrence of the taxpayers in a bonding proposition is expressed by means of an election, rather than by some other method, do not bring the case within the reason or within the true meaning of the clause of the constitution relied upon by the plaintiff. The elections held to choose officers of a drainage district or to pass upon the expediency of proposed improvements designed for protection against floods are not merely other elections, than those provided for in the constitution; they are of a different character from any therein referred to, and so far dissimilar in their nature that it cannot be supposed that they were within the contemplation of the constitutional convention when the qualifications of electors were under consideration by that body.
It practically follows from the views already announced that the requirement that the directors of the district shall be freeholders is not in contravention of the constitutional limitation forbidding a property qualification for any office of public trust. The words “office of public trust” are equivalent to “public office.” (Ex parte Gregory Yale, 24 Cal. 241, 85 Am. Dec. 62; Conley v. State, 46 Neb. 187, 64 N. W. 708.) The director of a drainage district is in a sense a public officer, but as his office is not one provided for by the constitution, nor even one of the same general character as any that are referred to in that instrument, it must be deemed not to be within the scope of the prohibition. The reasons for giving to the broad expression “any election” a restricted meaning apply with almost or quite equal force to the corresponding one — -“any office of public trust.” As the two phrases are used in the same sentence and in the same connection, it would hardly be reasonable to enforce the restriction in the one case and not in the other.
The demurrer to the petition is sustained.
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Per Curiam:
In this case the principal contentions are that a demurrer to plaintiff’s evidence should have been sustained, and that the court should have directed a verdict for the defendant. In arguing these propositions the defendant does not do what the law requires, viz., take into consideration only those facts and those inferences of fact which are favorable to the plaintiff. On the other hand, its own evidence is frequently brought forward and urged as breaking down the plaintiff’s case, and in every instance in which the plaintiff’s testimony is susceptible of an adverse interpretation it is given that turn, although the jury would have been justified in taking a- different view.
The only question in the case upon which it fairly may be said there is a lack of evidence is that relating to the slipping and tipping of the foot-rest, and the slipping of plaintiff’s foot upon it. But, under the allegations of the petition, the evidence, and the instructions of the court, it was not necessary that the plaintiff should extend her evidence to this detail. The court by instruction No. 10 required her to prove an increase of hazard before she could recover, whether the accident happened through the insecurity of thé foot-rest or not. Other instructions completed the statement of the law upon that subject and the facts fully warranted a recovery upon that ground. This being true, the matter of a movement of the foot-rest became as incidental as, for example, the fact that plaintiff leaned to the left.
One instruction to the jury (No. 7) is criticized in two particulars. It is said the court called the piece of metal placed in front of the pedal of the machine a foot-rest. The attorneys for the defendant so designated it in the course of the trial, and whether it was a die of the machine or not it was a foot-rest, as it was placed and used at the time of the accident.
The other objection to the instruction is stated thus:
“Yet more vicious is the portion of the instruction which allowed a recovery by plaintiff if the blade or die had been placed in front of the machine by a co-employee of the plaintiff without the knowledge or permission of the defendant.”
But such was neither the purpose nor the effect of instruction No. 7. By its express terms it covered only one phase of the case, viz., the inference which the plaintiff was authorized to draw in reference to the use of the foot-rest. By instruction No. 10 the circumstances under which the defendant would become liable in case the plaintiff innocently and justifiably used the foot-rest were stated, and no complaint is made in reference to it.
The proposition of law quoted by the defendant from volume 1 of Labatt on Master and Servant, section 26, is sound, and the controlling principles of the cases cited appear to be correct. But they do not meet or cover the facts of this case.
No useful purpose would be subserved in analyzing the testimony. The assignments of error are not well grounded, and the judgment of the court of common pleas is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action in the district court from which this proceeding in error arose was brought by H. F. Smith to recover damages suffered on account of a fraudulently induced sale of his stock in the Wellington National Bank to its president and managing director, the defendant, John T. Stewart. The sale was made on December 26, 1900, at the price of $150 per share. The trial court found the value of the stock at that time to be $350 per share, and, having determined that the sale was procured by fraud, rendered judgment in favor of the plaintiff for a sum computed upon the difference between the amounts stated, as damages. The chief controversy in this court relates to the manner in which the value o'f the stock at the time of the sale was ascertained.
The case is a companion to that of Stewart v. Harris, 69 Kan. 498, 77 Pac. 277, 66 L. R. A. 261, where the organization of the bank is described, an account of its business is given, and the methods of the defendant in conducting it are set forth. To the recital of facts there made only a brief summary and additional statement are necessary.
On December 26, 1900, 98 of its 500 shares of stock were held by the bank itself. These shares were carried on the books of the bank contrary to law, as charged-off assets. Upon learning the facts the comptroller of the currency ordered the shares to be sold, and this was done at public auction on April 5, 1901, when they were purchased by the defendant for $7000. On July 9, 1901, the defendant sold all his stock (amounting to 445 shares) at the price of- $145,875 per share. In this sum, however, was a ten-per-cent, bonus allowed him by the purchasers for guaranteeing the assets of the bank, and he retained the right to receive all dividends that thereafter might be declared from the collection or sale of charged-off assets. For the years 1897, 1898, 1899 and 1900 the net earnings of the bank aggregated $62,146.70, but for the period embracing the samé years the sum of $44,368.24 was charged off against bad debts and $6370 against the ninety-eight shares of stock referred to. At the time plaintiff sold his stock the sum of $5375.40 derived from the collection of charged-off items was carried in the cashier’s account. Between December 26, 1900, and July 9, 1901, the bank earned $6696.
In May, 1901, a dividend was declared of $120 per share; in April, 1902, a dividend of $25 per share was declared from the proceeds of the collection of charged-off assets; and in March, 1903, a further dividend of $27.31 per share was declared from the proceeds of a sale of the remaining charged-off assets. These dividends were all declared on the basis of 500 shares outstanding.
In arriving at the value of the plaintiff’s stock at the time he sold it the court had the right to disregard the price paid by the defendant for the ninety-eight shares, since their sale was in a manner forced, and on that account could not furnish a just criterion. It had the right to conclude that the plaintiff’s stock was worth the 120 per cent, dividend declared in May, 1901, since the cashier’s account alone was practically able to pay it at any time in the preceding December. The price at which the defendant sold his shares was, in view of all the facts, a fair measure of value on July 9, 1901, and, by allowing for the ten-per-cent, bonus above their value which the defendant received, and deducting from the total value of the stock on July 9, 1901, the earnings after December 26, 1900, and the $7000 received from the sale of the ninety-eight shares, the value of the stock on December 26, 1900, was easily ascertainable. The court, however, appears to have gone further* and held the plaintiff’s stock to include, on December 26, 1900, the additional value of the dividends declared from charged-off assets in April, 1902, and March, 1903. In doing this the court erred.
The mere fact that certain assets were charged off the books of the bank did not indicate that they were utterly worthless. It merely showed that they were not of a character to be available as resources with which to meet the bank’s liabilities. The fact that the defendant in selling his stock reserved the right to dividends which should be declared from this source indicated his judgment' that they were of some value, and probably the court would have been warranted in presuming that they were worth something. But the burden was imposed upon the plaintiff to prove the sum by which they augmented the value of his stock at the time he sold it. He sought to do this merely through the strength of the inference to be derived from the payment of dividends long after the time when his rights became fixed. There is no inflexible rule of law by which the validity of such inference may be determined. The nature of the particular subject under consideration, and the peculiar circumstances and conditions attending it, must in each case control. (The State v. Durein, 70 Kan. 1, 9, 78 Pac. 152, 154; 1 Wig. Ev. §§ 437, 463.)
In this instance the property itself was not of such a nature that stability of value through considerable periods of time could safely be predicated of it. It consisted of real estate, including a large number of town lots, and of notes ranging in amounts from $5 to over $4000. The court would be obliged to say from its own judicial knowledge that, during the time that elapsed between December, 1900, and the payment of the dividends in question, property generally throughout the state appreciated in value. During that time many factors may have contributed to make this real estate salable for the first time since the bank acquired title to it. Many notes may have been paid in whole or in part which could not have been collected by law, and the bank may have been able to realize upon others which the plaintiff would not have taken as a gift had he been required to nurse them to a settlement. Therefore, the contingencies were too numerous and the uncertainties too great for the court to declare that because these assets produced the sums attributed to them in 1902 and 1903 they were worth both those sums in December, 1900.
The defendant should not be charged with the dividends in dispute merely because they accrued upon the stock which the plaintiff sold to him, since any such rule would permit the plaintiff to speculate upon his damages.
In determining the value of each one of plaintiff’s shares on December 26, 1900, it was proper for the court to divide the total value of all the assets by 402, since that was the number of shares then outstanding. If the bank had been closed up and all its assets had been distributed on that date, whatever of value attached to the ninety-eight shares would have been divided among the holders of the remainder of the stock.
The averments of the petition were sufficient to en title the plaintiff to relief on the ground of fraud, and, in view of the manner in which the case was tried and submitted, it was not necessary that the petition be amended in order that the court might render judgment for damages occasioned by the fraud disclosed.
In the light of the foregoing, other errors assigned do not require special discussion. The cause is remanded to the district court, with direction to modify its judgment in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This was a suit brought in the district court of Montgomery county for partition, and to recover the rents and profits of certain real estate, the plaintiff claiming to be the owner of an undivided fifteen thirty-seconds interest in the lands described, and alleging that defendants Henderson and Henderson were in possession and wrongfully and unlawfully kept the plaintiff out of possession, and denied to him any right in, or title to, the same.
If appears that the title to the land was held jointly by John E. Greer and Margaret M. Greer, husband and wife, at the time of the death of John E. Greer, intestate, January 17, 1896; that David P. Greer and Abraham L. Greer, the sons of John and Margaret, were appointed administrators of John’s estate; that in the administration thereof they filed a petition in the probate court asking for an order to sell the real estate in question as the property of John E. Greer, and that the proceeds might be applied in payment of the debts of the deceased. The order was regularly made, and the interest of John E. Greer sold to one A. E. Stich, to whom a deed was made, and the sale was approved and the deed confirmed by the probate court. Afterward, A. E. Stich conveyed the land by a general warranty deed to defendant J. S. Henderson. Soon after the death of John E. Greer, Margaret M. Greer died, leaving a will by which she bequeathed and devised all of her property to her children equally. The will was regularly probated and her estate settled.
After both estates had been settled all of the heirs of John E. and Margaret M. Greer, except Lewis E. Garr and Alta P. Garr, who were the minor children of a deceased daughter, conveyed by quitclaim whatever interest they took under the will and as heirs of Margaret M. Greer to the plaintiff in this suit. The minors were joined as defendants herein, summons was served personally on each of them, and the court appointed T. J. Stanford, Esq., a member of the bar of Montgomery county, as guardian ad litem for the minors, who filed a general denial as their answer.
The defendants Henderson and Henderson filed their answer, which contained four different counts. The first was a general denial. The second admitted that at the death of both John E. and Margaret M. Greer the title to the land was held jointly by them, but pleaded an oral agreement between the Greers and their grantor, A. E. Stich, by which the title held by Margaret M. Greer was held in trust only for John E. Greer. This count also contained allegations tending to plead an estoppel on the part of the heirs of John E. and Margaret M. Greer from claiming an interest in the- real estate, either as heirs of Margaret M. Greer or under the will. The third count pleaded the five-year statute of limitation. The fourth count set out the contract between Ergenbright and the heirs of John E. and Margaret M. Greer, by which he obtained the title under which he now claims, and contended that it was champertous. The plaintiff filed proper replies to each of these alleged defenses. At the trial, when the defendants undertook tó-offer evidence tending to prove an estoppel in pais, the plaintiff objected for the reason that the answer in this respect was not sufficient to permit the introduction of any testimony. This objection was overruled, and evidence was introduced tending to prove such estoppel. After all the testimony had been introduced the court instructed the jury to return a general verdict for the defendants, upon which a general judgment was rendered. The plaintiff prosecutes error.
A motion to dismiss is interposed by defendants Henderson and Henderson on the ground that the two minors, Lewis E. Garr and Alta P. Garr, were not made parties to the suit in the district court. This upon the theory that no showing appears in the record that these defendants were minors, and therefore no authority is shown for the appointment of a guardian ad litem. To this contention we do not agree. This court will presume, in the absence of anything in the record to the contrary, that the court below was informed as to the facts, and acted upon such information in appointing, a guardian for these defendants. Possibly the children were present and the judge saw them, or he may have known them personally. The motion is therefore denied.
The first error complained of by the plaintiff is the overruling of his objection to the introduction of testimony under the defendants’ plea of an estoppel. We think the contention of the plaintiff in error must be sustained. Instead of restating the allegations of the answer that were relied on by the defendants as an estoppel in pais, we prefer to call attention to some of the facts necessary to be incorporated in such a plea that are not contained in the answer. In pleading an estoppel in pais it is incumbent upon the pleader to state the facts on which he relies with precision and exactness. He must show: (1) That the representations were made with the intent to mislead him; (2) that the representations were false; (3) that they were known by the maker to be false; (4) that the pleader did not know of their falsity; (5) that he believed such false representations to be true; (6) that he did in fact act thereon. (Big. Estop., 5th ed., 709; 8 Encyc. PI & Pr. 11; Page & Co. v. Smith, 13 Ore. 410, 10 Pac. 833; Stephens v. Dennett, 51 N. H. 324, 333; Davis v. Davis, 26 Cal. 23, 85 Am. Dec. 157; Buck v. Milford, 90 Ind. 291; Meyendorf et al. v. Frohner et al., 3 Mont. 282; Lumber Co. v. Hardware Co., 53 Ark. 196, 13 S. W. 731.) These facts are all absent from the answer, except that it states that the defendant in good faith relied on the statements set out by way of estoppel.
It is always error for a court to admit evidence, over objection, under a fatally defective statement of facts in a pleading. It may sometimes become a question whether such error is prejudicial; for instance, if several defenses are submitted in one answer, one of which is so defectively pleaded as to preclude the introduction of evidence in support of it, but, nevertheless, the court overrules an objection made thereto and admits such evidence, and the court or the jury make special findings from which it may be said that the verdict or judgment was based entirely upon one or more of the. other defenses, it might be said that the error in the admission of the evidence in support of the defectively pleaded defense was not prejudicial. In the present case, however, both the verdict and the judgment are general. There is no way of determining that both were not founded upon the insufficiently pleaded defense, or, if not, that the evidence admitted thereunder did not largely influence the court in its determination of the rights of the parties. Under such circumstances it cannot be said that the error was not prejudicial.
(82 Pac. 525.)
The judgment is therefore reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
William R. Smith, J.:
The contract for indemnity, entered into between the Order of United Commercial Travelers and the insured, provided that the former should be liable only in the event that a member sustained injury by violent and accidental means which should, “independently of all other causes, immediately, wholly and continuously disable and prevent him from the prosecution of any and every kind of business pertaining to his occupation.” It is quite plain that the evidence did not satisfy these conditions of the agreement. It may be conceded that the circumstances tended to prove that the injury to Mr. Barnes was caused by the swallowing of a pin on July 23, 1902, but there is no showing that between that time and August 4 he did not pursue his vocation in the usual manner, except a statement by the witness Bucher that for a day or two he was absent from the store and was not feeling well. Mrs. Barnes’s testimony was not based on her personal knowledge of plaintiff’s condition between July 23 and August 4. She did not remember of having seen him between those dates. That plaintiff was at his place of business nearly every day assisting in buying goods, looking over the purcháses, and selling some goods for future delivery, was testified to by his brother, a witness presumably favorable to plaintiff’s side of the case.
There was testimony tending to show that plaintiff was not feeling well, or was “under the weather,” a part of this time, but to say that he was wholly and continuously disabled and prevented from prosecuting any and every kind of business pertaining to his occupation would be an unwarranted perversion of the evidence and a contradiction of the solemn assertion made by plaintiff himself before the action was brought. In his verified claim made to the order he stated that his total disability from the prosecution of any and every part of his business began on August 4. The court does not assert, however, that this statement concludes the rights of plaintiff, but regards it as evidentiary only. (Brendon v. Traders & Travelers’ Acc. Co., 84 Hun, App. Div. 530, 82 N. Y. Supp. 860.) Not having testified in his own behalf, we are at liberty to presume that, had he done so, plaintiff would have adhered to his sworn statements made to defendant to obtain payment of his claim. Furthermore, the case seems to have been tried by counsel representing Mr. Barnes on the theory that it was immaterial whether total disability occurred before August 4. In the examination of the witness Nathaniel Barnes, counsel for defendant inquired of one of the plaintiff’s attorneys: “Do you contend that he was not sick before August 4?” The other replied: “Why, I don’t know anything about it, and I care less.”
In Smith v. Select Friends, 62 Kan. 75, 61 Pac. 416, 53 L. R. A. 934, the court had before it a case where a member of a fraternal order was entitled to payment of a benefit for disability by accident when he became “totally and permanently disabled from following his usual or regular business, occupation, or profession.” By an accidental discharge of a gun the insured, who was a druggist, lost his left arm, which was amputated at the shoulder-joint. It was held that no indemnity could be recovered. It was said:
“He cannot recover under the contract of insurance which fixed the right of one party and the liability of the other unless he has sustained a total disability— that is, a complete disability to carry on the business of a druggist.” (Page 78.)
Among the cases cited with approval in Smith v. Select Friends, 62 Kan. 75, are Saveland v. The Fidelity & Casualty Co. of New York, 67 Wis. 174, 30 N. W. 237, 58 Am. Rep. 863, and Lyon v. The Railway Passenger Assurance Co., 46 Iowa, 631. The Wisconsin case notes the distinction between conditions in the agreement providing for the payment of indemnity where the person is immediately and wholly disabled and prevented from the prosecution of any and every kind of business pertaining to his occupation, as in the case at bar, and those contracts for indemnity requiring payment when the insured shall be totally dis1 abled from following his usual business or pursuits. The scope of the latter provision was before the court in Hooper v. Accidental Death Insurance Co., 5 H. & N. (Eng.) 545, 557, a case relied on by defendant in error, where it was said:
“It appears to us they intended that when the insured was wholly incapable of performing a very considerable part of his usual business he should receive a compensation in respect of that disablement.”
Such a construction of the contract in the case before this court would ignore the express words employed by the parties, and make a new contract for them, in which partial disability would suffice to provide indemnity to a person who was insured against injury which should wholly and continuously disable and prevent him from the prosecution of any and every kind of business pertaining to his occupation. (McKinley v. Insurance Co., 106 Iowa, 81, 75 N. W. 670; Knapp v. Preferred Mut. Accident Assn., 53 Hun, 84, 6 N. Y. Supp. 57; Fidelity and Casualty Co. v. Getzendanner, 93 Tex. 487, 53 S. W. 838, 55 S. W. 179, 56 S. W. 326; Bylow v. Union Casualty & Surety Co., 72 Vt. 325, 47 Atl. 1066.) The court does not mean to express, however, the opinion that a person holding a contract of indemnity for injury by accident like the one before us could not perform, after his hurt, some small part of his business affairs, such as giving thought to the state or progress of his business and advising others in respect thereto, or even dictating a letter on a matter within his knowledge which might be beneficial to his material interests. To hold otherwise would be to say that complete mental and physical paralysis must ensue from the accident before an indemnifying company would be liable.
We would also hesitate to decide that although the insured person was disabled wholly, in the opinion of medical experts, from transacting any part of his business by reason of the danger to life which might result, yet, if by a strenuous exercise of will power he should overcome his physical infirmities long enough to do something in a spasmodic way toward the prosecution of his ordinary trade, business, or profession, he would forfeit the indemnity contracted for under an agreement like that.in the present case. (Brendon v. Traders & Travelers’ Acc. Co., 84 Hun, App. Div. 530.) In the case of Lobdill v. Laboring Men’s Mutual Aid Assn., 69 Minn. 14, 17, 71 N. W. 696, 697, 38 L. R. A. 537, 65 Am. St. Rep. 542, it was said:
“But the mere fact that he might be able, with due regard to his health, to occasionally perform some single and trivial act connected with some kind of business pertaining to his occupation as a merchant would not render his disability partial instead of total, provided he was unable, substantially or to some material extent, to transact any kind of business pertaining to such occupation. To illustrate this proposition by reference to the evidence in this case, it appears, as we shall assume, that on one or two occasions where the plaintiff went into his store when down town for other purposes he handed out some small article to a customer, and took the change for it. This would not necessarily prove that he was able to attend to the business of waiting on customers, and that he was not ‘wholly disabled’ within the meaning of the policy. He might be able, on temporary visits to the store, occasionally to perform a trifling act of this nature, and yet be substantially and essentially unable to transact any kind of business pertaining to his occupation of merchant.”
There is a hopeless confusion in the decided cases respecting the question under discussion. They are collected in a note to the case of Turner v. Fidelity & Casualty Co., 112 Mich. 425, 70 N. W. 898, 67 Am. St. Rep. 428, found in volume 38 of the Lawyers’ Reports, Annotated, page 529, and again by a writer in volume 35 of the Central Law Journal, page 150. There being a failure of proof showing total disability before August 4, 1902, the answer of the jury to special question No. 6 (set out in the statement) was without support in the evidence.
The only other question which we deem necessary to decide relates to the correctness of the ninth instruction given to the jury. It reads:
“The term ‘immediately,’ as used in these instruc tions, means within a reasonable time, taking into consideration all the facts and circumstances as disclosed by the evidence, and does not mean at once, or forthwith, at all events, leaving out of consideration such .circumstances as disclosed by the evidence which tend to give a reasonable excuse for reasonable delay.”
In none of the cases referred to by counsel has the word “immediately” been held to be synonymous with “instantly” or “without delay.” Such a definition would deprive a beneficiary of all rights under an indemnity contract like the present, unless the hurt or prime cause of the injury were followed by instantaneous disablement. In the case of an accidental taking of poison into the stomach time must be allowed for the deadly substance to affect the human system, and such interim as the processes of nature consume in bringing the person poisoned to a state of disability must be excluded in determining the meaning of the word “immediately.” Two persons might receive similar cuts from a knife. One of them might not suffer an injury sufficiently serious to interfere in any degree with his usual business or professional pursuits. The other, while not affected at first, might by reason of an enfeebled physical condition be attacked within a week by blood-poisoning which would wholly prevent him from transacting any kind of business. The court is not prepared to say that in the latter case no recovery of indemnity could be had under a policy like that held by Mr. Barnes.
While the word “immediately,” in the connection used,'is an adverb of time, yet the period within which nature acts to work a total disability from an injury must vary in different persons. In the supposed case of blood-poisoning, if counsel for plaintiff in error is right, no recovery could be had under the accident policy in question because nature was too slow in her operations — because the consequence did not follow the known cause with sufficient celerity. To follow literally the words of the contract, if there Was any interim between the hurt and the total disability, be it ten minutes, half an hour, or two hours, there could be no recovery of indemnity.
It has been adjudged that the word “immediately” in such contracts of indemnity cannot mean “within a reasonable time,” for the latter phrase is referable only to an act done by human agency, in exercise of the will. (Williams v. Accident Association, 91 Ga. 698, 17 S. E. 982.) The use of the phrase “within a reasonable time” in the instruction under discussion is somewhat confusing as repeated in the closing paragraph, and its use at all in such cases widens the latitude of the jury’s investigation and brings forward a doubt whether the terms of the policy will admit of the employment of the words without changing the contract of the parties.
In Williams v. Accident Association, 91 Ga. 698, the court concluded that accident-insurance companies put into their policies the condition that the injury must be immediate and total to guard against the hazard of uncertain litigation to determine whether a disability occurring after the hurt was attributable to it. Of course, the disability must not flow from any other cause than the original injury. If it does, there is no liability. If the conditions of the contract can be extended so that the word “immediately” does not mean “instantaneously,” “at once,” and “without delay” (as all courts agree), then a greater stretch of the conditions cannot be said to be unreasonable in allowing for the period that nature halts before inflicting penalties for her violated laws. In such cases the disability is immediate, within the meaning of the policy.
The judgment of the court below is reversed and a new trial granted.
All the Justices concurring.
(82 Pac. 1099.)
SYLLABUS BY THE COURT.
1. Practice, Supreme Court — Accident Insurance — Verdict and Evidence. Some expressions in the former opinion in this case are modified, and the rule of construction of the terms “total disability” and “immediately” announced therein, being applied to the policy of insurance and the facts in evidence, held, that this court cannot say that the evidence did not satisfy the conditions of the policy, or that the finding by the jury that the insured was wholly and continuously disabled from attending to every kind of business pertaining to his occupation after July 23 was not sustained by the evidence.
2. Practice, District Court — Continuance. Where depositions are suppressed upon the ground that when received by the clerk through the mails the envelope enclosing them was found torn open, it is error for the court to refuse an application for a continuance, made immediately thereafter, which complies with the provisions of section 317 of the code of civil procedure (Gen. Stat. 1901, §4765), it appearing that the defective condition in which the depositions were received was not caused by any fault or neglect of the party taking the same.
3. - Accident Insurance — Proof of Loss — Instruction. Proofs of loss in an action upon an accident-insurance policy are admissible to prove compliance with the conditions of the policy, but for no other purpose, and it is error to refuse an instruction limiting the scope and effect of such testimony.
Resigned July 1, 1905, and succeeded on that date by the Honorable Silas W. Router, who was appointed by Governor Edward W. Hoch. | [
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Per Curiam:
The only question involved in this proceeding in error is whether the allegations of the plaintiff’s petition show that he has such a peculiar and special interest in a public highway that he may enjoin the obstruction of one side of it. The petition must be interpreted to mean that Bellman dedicated the west twenty feet of his land to the public for a highway, and that Ruthstrom purchased of Bellman, and dedicated to the public for the same use, a twenty-foot strip of land adjoining the Bellman dedication on the east, so that a public road forty feet wide was established on the west side of Bellman’s land, and along the east side of the plaintiff’s land.
No legal meaning can be attached to the statement that the plaintiff dedicated his own land to his own special use, and the law does not recognize any such anomaly as a public-private or private-public highway. There is no suggestion in the petition that the suit is brought to protect any reversionary interest which the plaintiff might have in the land, if the public right to its use were extinguished by the defendant’s fencing it up. Only the right to use the land as ,a highway is sought to be vindicated, and the only possible support for the claim on the part of the plaintiff of a special interest in such use must be found in the fact that his land adjoins it on the west.
The only special right which an abutting owner, has in a public highway is that of access to his premises. When he has passed from his land into the road his right to travel there is not different from the right enjoyed by other members of the community. (Trosper v. Comm’rs of Saline Co., 27 Kan. 391.)
That an injunction will not be granted at the suit of a private citizen to protect public interests is not a subject of debate in this state. (Amusement Co. v. Topeka, 68 Kan. 802, 74 Pac. 606., and cases there cited.)
While there are allegations in the petition to the effect that the plaintiff is denied access to his premises by the special means of the twenty-foot strip in controversy, there is nothing to indicate that the west twenty feet of the road upon which his land in fact abuts is in any manner obstructed, or that it is not ample to meet all his requirements as an abutting landowner.
The court cannot judicially declare that a twenty-foot strip of ground is too narrow for plaintiff’s use as a road to and alongside of his land. He does not allege that it is' inadequate in any respect, and if in fact it is sufficient his special demands are satisfied and his interest in the east half of the road is merely that of a member of the body politic..
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
This was an action to recover the value of three mules and one colt, alleged to have been killed by the negligence of the Missouri Pacific Railway Company while operating its train on the Central Branch railroad. The defendant answered by a general denial, and also alleged contributory negligence on the part of the plaintiff in permitting his animals to run at large in violation of the herd law of 1872 (Gen. Stat. 1901, § 7466 et seq.), which was in force in the county when the stock were killed. To this answer the plaintiff filed a general denial. The trial resulted in a verdict and judgment for plaintiff, to reverse which the defendant prosecutes error to this court.
When the plaintiff had submitted his evidence to the jury the defendant demurred, making the following points: (1) That the testimony did not fairly or reasonably tend to show that the Missouri' Pacific Railway Company was operating the Central Branch line when the stock were killed; (2) that the testimony of the plaintiff established the fact that the enclosure from which the stock escaped was not fenced with a legal fence — such a fence as is provided for in sections 3071-3075 of the General Statutes of 1901, and, therefore, the plaintiff was guilty of contributory negligence. Without setting out in full the testimony which leads us to the conclusion, we feel quite well satisfied that there was sufficient evidence to justify the court in overruling the demurrer on the first ground.
The stock were being pastured in a stalk-field, and escaped therefrom without plaintiff’s fault, unless he was negligent in not maintaining the legal fence contended for by defendant, wandered along the highway and passed over an insufficient cattle-guard and upon the track of the Central Branch railroad, where they were killed by a passing train. The field in which the stock were being pastured was enclosed with posts upon which were nailed three wires in some places, and only two in other places. This did not constitute such a fence as is denominated a legal one by sections 3071-3075 of the General Statutes of 1901.
Plaintiff in error contends that, in a herd-law county, if stock escape from an enclosure without the owner’s fault he cannot recover damages against a railway company for killing them, unless such enclosure was protected by a legal fence. ' With this we do not agree. In 1868 the general fence law was passed (Gen. Stat. 1901, § 3071 et seq.). The effect of this law was to modify the common law so that the owner was not liable for injury committed by his trespassing stock, except to those whose lands were enclosed with a legal fence. The act defined a legal fence, and also provided means whereby it could be determined whether a fence complied with the requirements of the statute. This law is in operation in every county in the state except in those that have availed themselves of the herd law of 1872. The adoption of the herd law is a readoption of the common law in this respect, and the owner of cattle is liable for injuries committed by them in a herd-law county, regardless of the fence law. It was not intended that the fence law should, and it does not, furnish a rule by which to determine whether the owner of stock in herd-law counties is guilty of negligence in enclosing them. The adoption of such a rule would be equally dangerous to the railway company and the owner of the stock. Under such a rule the owner of breachy and unruly stock might enclose them in the weakest fence provided for in the statute, and if they broke this enclosure and escaped and went upon a railroad-track and were killed he could recover because he had a legal fence, notwithstanding he might know the enclosure was not sufficient to restrain them. In a herd-law county one cannot recover against a railway company for damages to stock if he permits them to run at large or if he places them in a pasture enclosed with a legal fence which he knows or has reason to believe will not re strain them and they escape therefrom. The care and diligence that every man is required to exercise in the protection of himself or property is ordinary care in view of all the surrounding circumstances. If the stock killed be the ordinary farm stock, and the owner have the pasture enclosed with an ordinary fence, such as is generally required to restrain that kind of stock, and they escape without his fault, he is not guilty of negligence and is not guilty of permitting the stock to run at large, and he may recover regardless of the fence law. This is the rule adopted in this state. (Mo. Pac. Rly. Co. v. Johnston, 35 Kan. 58, 10 Pac. 103; Osborne v. Kimball, 41 Kan. 187, 21 Pac. 163; A. T. & S. F. Rld. Co. v. Riggs, 31 Kan. 622, 3 Pac. 305; K. P. Rly. Co. v. Wiggins, 24 Kan. 588.)
The mules were killed February 28, 1902, and the trial was had in September, 1903. At- the trial the plaintiff introduced a witness named Ray, who testified that in September, 1903, he had made shipments from Effingham, on the Central Branch line, and had received bills of lading therefor purporting to be issued by the Missouri Pacific Railway Company, one of which he produced, and it was offered and introduced in evidence over the objection of the defendant. It is insisted that this was error. The contention is made that presumptions do not operate retrospectively, and that the fact that the defendant was operating this line of road in September, 1903, was not a circumstance which could be considered by the jury as tending to show that it operated the line eighteen months previous, or in February, 1902. The admission of this bill of lading was not prejudicial to the defendant in view of the testimony of Mr. Waggoner, one of the defendant’s attorneys. He testified as follows:
“Ques. Do you know how freight bills or bills of lading were made out for freight shipped over what you call the Central Branch company? Ans. Yes, sir; I know how some are made out.
“Q. Is it not a fact they were made out on the blanks of the Missouri Pacific Railway Company? A. That is my judgment.
“Q. You understand then, in the matter of receiving and shipping freight, the business was done in the name — so far as the public knew anything about it— in the name of the Missouri Pacific Railway Company? A. In 1899 or 1900 the Missouri Pacific Railway Company had a lease of the Union Pacific Railroad Company. The Central Branch portion of it was foreclosed, and the Central Branch Railway Company organized and purchased this property; since that time these blanks, that have been in the offices of the Central Branch while the Missouri Pacific operated it, were used.
“Q. Those were the blanks of the Missouri Pacific Railway Company? A. Yes, had that name on it.
“Q. So that all contracts were made on Missouri Pacific blanks? A. As I understand, all contracts of shipment that have been made, those I have seen, since they got a lease on it; during all that time.
“Q. Since 1898? A. I think so.
“Q. And during the year 1902 contracts for the shipment of freight over this line of railroad which you have spoken of as the Central Branch were made in the name of the Missouri Pacific Railway Company? A. I could not say all were. I have seen contracts of shipment over the line of the Central Branch company that were made on the Missouri Pacific Railway Company’s blanks.
“Q. Have you ever seen any other contracts of shipments for freight shipped over that road since 1898 that were not Missouri Pacific, blanks ? A. No, sir, I have not.
“Q. Tickets that were sold over that line of road were in the name of the Missouri Pacific Railway Company? A. I could not tell you about that; I don’t know that I ever saw one, but my judgment is they are.
“Q. And they were in the year 1902 ? A. I presume they were; there may be Central Branch tickets. I don’t know anything about that. I never bought one over the road, and I could not tell you.”
That the freight bills used on the Central Branch railroad were Missouri Pacific blanks, was not controverted'. Therefore no prejudice resulted to the defendant in the admission of the blank produced by Ray.
The only remaining question that requires our attention is the alleged error committed by the court in refusing to give the thirty-second and thirty-fifth instructions requested by the defendant. These instructions enumerated a number of facts appearing in the testimony, and the court was asked to instruct the jury that those enumerated would not be sufficient to justify the jury in finding that the defendant was operating the line of railroad at the time the mules were killed. The facts thus enumerated were all circumstances which, considered with the other testimony, tended to prove that the defendant was operating the Central Branch line when the stock were killed. It would be a dangerous, if not unauthorized, practice for the trial judge to carve out of a general mass of testimony tending to prove an ultimate fact certain portions of such testimony and instruct the jury that the existence of the facts thus testified to would not authorize them in finding the ultimate fact. Where testimony has been introduced generally, without objection, tending to prove the existence of a certain fact, and no part of it is withdrawn by instructions, the jury should consider the whole of the testimony in arriving at a conclusion. Evidence offered in a case is offered in its entirety, and should be so considered by the jury. The court cannot bisect the evidence and instruct the jury that one part is not sufficient for the purpose of establishing the cause or defense. For this reason no error was committed by the court in refusing to give the instructions referred to.
Complaint is made of some of the other rulings of the court but they are not of sufficient importance to require discussion. The judgment of the court below is affirmed.
All the Justices concurring. | [
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Per Curiam:
In 1899 eleven persons associated themselves together for the purpose of acquiring lands in Trego and Ellis counties believed to contain gold- bearing shale, and obtaining a process by which the gold could be extracted, their plan including the subsequent forming of a corporation. Lands were purchased and attempts were made to discover such a process. •These efforts were not attended with success, and disagreements arose with regard to the management of the business, as a result of which several members of the association brought a suit to wind up its affairs and distribute its assets. A referee was appointed to take an accounting between the parties to the suit. He did so, and made a report which was approved by the court and upon which a judgment was rendered.' The plaintiffs were dissatisfied with the findings of the referee on several matters and have brought this proceeding to reverse the judgment.
The principal objections urged against the findings of the referee relate to allowances made to E. W. Poindexter and E. S. Quinton, who were members of the association, for expenses incurred while looking after its business. The first objection in this regard is based upon the fact that a part of these expenses arose after the death of one of the members of the association. It is argued that the association was a partnership; that the death of one of the partners effected its dissolution; and that its members could not be charged thereafter with the expenses of carrying on its business. In answer to this the defendants in error say that the company was a mining partnership, and that therefore its existence was not affected by the death of one partner; or, if it was an ordinary partnership, that the expenses involved were made in the preservation of its property by authority of all the members, and were therefore chargeable against them.
It is at least doubtful whether the organization was, strictly speaking, a mining partnership, although it may have so far partaken of the nature of one as to be subject to the same rule in this regard. This need not be determined, however, for the evidence taken before the referee is not all preserved in the record, and without it we cannot say that his findings might not be upheld upon one of the theories suggested.
The second objection made is that a part of the expenses in dispute were incurred in transactions conducted in violation of a restraining order granted by the court at the commencement of the suit forbidding the making of any contract whereby the association or its members might be made liable. It does not appear, however, that this order was violated, and a subsequent application for an injunction of broader scope, directed against the transaction of any business for the company, was not allowed.
The third and final objection is based upon a claim that Poindexter and Quinton were financially interested in the business in which the expenses were incurred, otherwise than as members of the association, and therefore were not entitled to reimbursement from it. Experiments designed to discover a process for the extraction of gold from the shale were conducted by a corporation under a contract with the association. A part of the expenses referred to were made in looking after operations under this contract. It is contended that Poindexter and Quinton were stockholders in this company and were by this fact disqualified to represent the interests of the association in the matter. It is shown that a small amount of stock was offered them with the avowed purpose of enabling them to become directors, but it is not clear that this stock was accepted. Poindexter, however, stated that, finding the corporation to be without funds to prosecute the work, he furnished a sufficient amount to enable the experiments to be continued, in order that the efforts might not be abandoned, and accepted stock for it. There is nothing in the evidence that is preserved that is inconsistent with actual good faith and fair dealing, and in the absence of a part of the testimony it certainly cannot be said as a matter of law that the character of the transaction was such as necessarily to preclude a recovery of expenses from the association.
A second complaint relates to a controversy between S. S. Ott and E. S. Quinton. F. 0. Popenoe, one of the members of the association, withdrew under an agreement that in order to be relieved of further liability he should pay $500 in addition to $450 that he had already contributed, and that whoever took his. interest should have the benefit of the additional payment. Ott took half of it, which he afterward transferred to Quinton, and the disputed question is whether the transfer carried with it the share of the payment mentioned. In the absence of a part of the evidence this court cannot review the finding of the referee upon this matter.
An objection is also made to the time the referee’s report was filed. On the last day allowed for its filing the referee presented it to the clerk, had it marked filed, and then withdrew it and retained it for several days in order to have it bound. It is claimed that the document was not actually filed until its subsequent return to the clerk. It is clear that there may be circumstances, such as were present in Wilkinson v. Elliott, 43 Kan. 590, 23 Pac. 614, 19 Am. St. Rep. 158, under which a paper may be so indorsed by the clerk without in fact being filed. But it is equally clear that a document may be on file in legal contemplation although it is not physically in the clerk’s possession or in his office. In this case the notation by the clerk upon his records of the filing of the report was a notice to all concerned that it had been completed and received by him and was from that time in his official custody. An inspection of it could readily have been had at any time thereafter by any one interested. It is not conceivable that any rights were prejudiced by its temporary removal. The suggestion that changes were made in it before its return is not borne out by the evidence. We think the report was effectually filed within time.
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Per Curiam:
This cause is remanded to the district court with direction to modify its judgment in accordance with the views expressed in the opinion in the case of Stewart v. Smith, ante, p. 77. The fact that in the year 1896 the defendant made a dishonest proposition to the plaintiff concerning the management of the bank did not disprove the testimony of the plaintiff that he was defrauded by the defendant in the sale of his stock in the year 1901. There is evidence in the record of the effective intervention of Bowdish as the defendant’s agent in procuring the sale complained of, when all the parties were together. Other matters discussed in the briefs are insufficient to require a reversal. | [
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The opinion of the court was delivered by
Porter, J.:
Counsel, in addition to able oral arguments, have favored the court with well-prepared briefs which discuss every feature of the case, with ample citations of authorities. The case presents some difficult questions. The facts in many respects are remarkable.
A review of the evidence leaves no suspicion of bad faith upon the part of those who participated in the transactions, or of any attempt to gain an advantage over plaintiff by reason of the misfortunes which fell upon his household, culminating in September, 1892, when, with the mother of his children hopelessly insane, he was sentenced to the penitentiary for a term of years, and his children dispersed from the home the family had occupied so long. On the contrary, it appears that all the brother-in-law Mylius did was undertaken with the purpose of conserving the interests of plaintiff and his family. He cared for the minor children, sold the personal property, purchased necessaries for the insane wife, paid the debts, of plaintiff, and on the latter’s return rendered a satisfactory account of his stewardship. While the petition to sell the supposed interest of the wife in the land was filed in the probate court within a few days after plaintiff was taken to prison, there was no undue haste in the proceedings to sell, and the sale made to Alsop was not completed until 1894 and brought the fair value of the land.
Plaintiff’s preliminary contentions are: That the power of attorney from plaintiff to Mylius was void, and all proceedings under it, including the deed made to Alsop, were void; that the alleged guardian’s deed, by which Mylius attempted to convey to Alsop the undivided one-half of the land as the interest of the wife, was void; that the court below, after striking out of the evidence the power of attorney, the deed made as attorney in fact and the guardian’s deed to Alsop, committed error in refusing to strike out the deed from Alsop to Love, because with the former conveyances stricken out Alsop had nothing to convey.. Error also is urged because the court refused to strike out all of the testimony of Alsop and Mylius in reference to conversations about the sale by Mylius to Alsop. The claim is made that, if the sentence and incarceration of Withers in the penitentiary and the wife’s insanity rendered the deeds void, it left Mylius without authority as agent of Withers or of the wife to bind them in any respect.
The main contentions of plaintiff here, as below, are: (1) That the land was the homestead of plaintiff and his family, consisting of plaintiff, his wife, and children ; that it never ceased to be their homestead while the wife lived; that the leaving of the homestead by plaintiff and wife did not constitute an abandonment, because it was involuntary, occasioned by the sentence to and confinement in the penitentiary of plaintiff and the insanity of the wife; that the sentence of plaintiff suspended all his civil rights, so that his acts were void; and that during his confinement in the penitentiary he could not abandon the homestead; (2) that plaintiff was not estopped by his acts and conduct from claiming the land; (3) that if the court should hold that the homestead is not involved because it was abandoned, still plaintiff should have recovered an undivided one-half of the land, as the doctrine of equitable estoppel would not apply to the part attempted to be conveyed by the guardian’s deed because plaintiff never received the consideration paid for that portion, notwithstanding he might be held to have ratified the unauthorized act of Mylius in reference to the part conveyed as attorney in fact, for which he did accept the consideration.
Defendant vigorously maintains, on the contrary: (1) That the land was not a homestead; that the petition of plaintiff nowhere claims that it was a homestead; that as a matter of fact it was abandoned as a homestead when the children of plaintiff left it after his sentence to the penitentiary and the furniture was removed from it; that if not abandoned by his act and the removal of the children it was abandoned by his acts upon his return from the penitentiary, because at that time his youngest children were of age and his family consisted of himself and wife; that she did not live with him and he did not support her; that she was insane, and if she were asked whether she desired to occupy or abandon the property she could not answer; that the act of occupancy must be that of a sane mind; (2) that every act of Mylius as agent of plaintiff was ratified by plaintiff with full knowledge of all the facts, after his disabilities had been removed and he had returned from the penitentiary, and, however void the power of attorney may have been, all that was done under it became valid and binding by the subsequent ratification; (3) that plaintiff is prevented by equitable estoppel from recovering the land or any part of it; (4) that the power of attorney was valid in law, and authorized Mylius to convey; that, while a person under sentence for a term of years cannot enter into executory contracts and call in aid the courts to enforce them, he may make a valid transfer of his property by will or deed.
We have stated here somewhat in detail the contentions of the parties, as set forth in their briefs, but many of them it will not be necessary to discuss. The trial court held that the sentence to the penitentiary of Withers for a term of years and his incarceration and confinement therein suspended all his civil rights, and that the power of attorney from Withers to Mylius and the deed from Mylius as attorney in fact for Withers to Alsop of the undivided one-half of the land were void. The court also held that the guardian’s deed from Mylius as guardian of the insane wife to Alsop of the other undivided one-half of the land was void.
Plaintiff in error makes no complaint of the rulings of the court in those respects. He is satisfied they were correct. While counsel for defendant in error argue at some length the question of the effect to be given to the provision of section 2301 of the General Statutes of 1901, by which the civil rights of a person sentenced to confinement and hard labor for a term of years are suspended, it is not necessary for us to consider that question for the reason that no cross-petition in error is presented, and whether the court’s ruling was right or wrong upon the validity of the power of attorney and the deed made in pursuance of it is not before us. For the same reasons it must be assumed that the correctness of the ruling upon the guardian’s deed and the proceedings taken in the probate court are not open to discussion. These rulings of the court were made in excluding the testimony in reference to the power of attorney and the deeds. The court found generally for defendant, and, aside from some minor errors alleged in reference to certain oral testimony, and the admission of the deed from Alsop to Love, the main error relied upon is that the judgment should have been for plaintiff upon the law and the evidence.
Stripped of the unsubstantial matters, the questions involved, and the ones upon which the judgment must stand or fall, are narrowed down to these: (1) Was this a homestead ? (2) Conceding that it was, is plaintiff estopped by his acts and conduct from claiming it ?
That the land in controversy was originally the homestead of plaintiff and his family is not disputed. The insanity of the wife in 1879 and her confinement in the asylum did not change its character as a homestead, for plaintiff continued to occupy it with his children. It was, then, the homestead upon the day he was sentenced. When did it cease to be the homestead ? His civil rights were suspended during his sentence and confinement. It is not necessary here to decide the effect of such suspension upon his power to convey or encumber his property, but merely the question whether his involuntary absence under the sentence and confinement amounted to abandonment, assuming that plaintiff by his own act might abandon the homestead during the insanity of the wife and her enforced absence in the asylum, a point we shall consider hereafter. His voluntary absence would not constitute an abandonment while the homestead continued to be occupied by the family, and his involuntary absence under sentence and confinement in prison should not be given that effect and the beneficent object of the homestead law defeated upon grounds which so apparently were never contemplated by the framers of the constitution. It was said in Osborne v. Schoonmaker, 47 Kan. 667, 670, 28 Pac. 711, 712, that “a person may be absent from his homestead without abandoning it as such. ... It depends upon the character of his absence.” (See, also, Hixon v. George, 18 Kan. 253.) It was not abandoned, therefore, by his absence and confinement.
The claim of counsel that the leaving of the home by the minor children and the removal of the furniture constituted an abandonment has no force or weight. The mother was insane, the father in the penitentiary, and the fact that under the enforced circumstances the home was unsuitable for their continued occupancy could not constitute an abandonment, if, as we have said, his absence under such circumstances was not sufficient. (Shirack v. Shirack, 44 Kan. 653, 24 Pac. 1107.)
It is urged that after plaintiff’s release and the removal of his disabilities he returned to the neighborhood and not only made no attempt to occupy the homestead b.ut with full knowledge of all the facts ratified the sale of the land, and, by his acts and conduct, and the lapse of years which intervened before this action was begun, he is estopped from claiming it as a homestead. This brings us to the main question in the case. With the wife alive and insane, could the husband by these acts, which it is claimed amounted to an equitable estoppel, alienate the homestead or abandon it? The construction given by this court to the homestead law in the early case of Morris v. Ward, 5 Kan. 239, 243, has been uniformly followed. There it was said:
“There are at least two views which may be taken of these laws; one is, that the occupying .of a piece of land as a homestead merely suspends the operation of any liens, alienations or encumbrances concerning it, during the time that it is so occupied as a homestead. . . . We do not adopt this construction of our homestead laws; we do not believe that the framers of the constitution intended to found the homestead of the family upon such a precarious foundation, or to protect it by such slight and fragile safeguards. The homestead was not intended for the play and sport of capricious husbands merely, nor can it be made liable for his weaknesses or misfortunes. It was not established for the benefit of the husband alone, but for the benefit of the family and of society — to protect the family from destitution, and society from the danger of her citizens becoming paupers.
“The other view of the homestead laws, and the one which we adopt, is that no encumbrance or lien or. interest can ever attach to or affect the homestead, except the ones specifically mentioned in the constitution.”
In Locke v. Redmond, 6 Kan. App. 76, 49 Pac. 670, affirmed in 59 Kan. 773, 52 Pac. 97, the wife was insane, and the husband as guardian for her borrowed $800, giving a mortgage on the homestead. After her restoration the wife contested the mortgage. The court held the mortgage void. In Helm v. Helm, 11 Kan. 19, 21, where the wife was compelled to sign a deed for the conveyance of the homestead by threats of her husband, and brought the suit to have the deed declared void, this court said:
“Our homestead provision is peculiar. The homestead cannot be alienated without the joint consent of the husband and wife. The wife’s interest is an existing one. The occupation and enjoyment of the es-state is secured to her against any act of her husband or of creditors without her consent. If her husband abandons her, that use remains to her and the family. With or without her husband, the law has set this property apart as her home.”
The case of Chambers v. Cox, 28 Kan. 393, was one where the wife never had been a resident of the state and had been abandoned by the husband without cause. The husband conveyed the homestead by his deed and took back a mortgage for the purchase-price. The suit was- to foreclose the mortgage. The defense was failure of title because the wife had not joined in the deed. The court held that no title passed by the separate deed of the husband, notwithstanding the wife never had lived in the state. Mr. Justice Brewer, speaking for the court, said '
“The separate deed of a married man to the homestead is void; it does not devest him of title, nor estop him from recovering the land. The question is not, Who will inherit from him? but, Has his title been devested? And the constitution says that his title to the homestead shall not pass, unless his wife joins in the deed. While the legislature may regulate the matter of inheritance, it cannot avoid or limit the constitutional provision for the protection of homesteads. The constitution forbids the alienation without the joint consent of husband and wife. It does not add, ‘providing they are living together and occupying the homestead,’ nor ‘providing that both are residents of the state;’ but the prohibition against separate alienation is absolute, when the relation of husband and wife exists. Whether any exception to this absolute prohibition were wise, it is not for us to inquire. The legislature has not attempted to make any, even if it had the power, but has repeated in the statute the very terms of the constitutional prohibition. (Comp. Laws, 1879, p. 437, § 1 [Gen. Stat. 1901, § 3016.]) Neither is the presence of both husband and wife essential to the existence of a homestead. Though one may have abandoned the other, yet either may have the children to care for and be the head of a family, and occupy a homestead.” (Page 395.)
In Ott v. Sprague, 27 Kan. 620, a case where the wife had left her husband and the homestead and brought suit against him for alimony, he conveyed the home stead by a separate deed. The deed was held void, and a subsequent separate deed by the wife, made after the land ceased to be a homestead, was held not to convey title nor to make valid the original deed of the husband.
The following language, taken from Morris v. Ward, 5 Kan. 239, is repeated in Coughlin v. Coughlin, 26 Kan. 116, 117:
“No alienation of the homestead by the husband alone, in whatever way it may be effected, is of any validity; nothing that he alone can do or suffer to be done can cast the slightest cloud upon the title to the homestead; it remains absolutely free from all liens and encumbrances except those mentioned in the constitution.” (See, also, Howell, Jewett & Co. v. McCrie, 36 Kan. 636, 14 Pac. 257, 59 Am. Rep. 584; Wallace v. Insurance Co., 54 Kan. 442, 38 Pac. 489, 26 L. R. A. 806, 45 Am. St. Rep. 288; Pilcher v. A. T. & S. F. Rld. Co., 38 Kan. 516, 16 Pac. 945, 5 Am. St. Rep. 770.)
It thus appears that almost every phase of attempted alienation of the homestead has been passed upon, and the provision of the constitution and the term “joint consent” have been construed with strictness and in favor of the homestead. This court has, however, recognized in a number of cases the doctrine, announced in Sellers v. Crossan, 52 Kan. 570, 35 Pac. 205, that the acts of those claiming a homestead may be such as to operate as an abandonment, or to estop them from claiming it. In that case the husband and wife had joined in a conveyance of the homestead, absolute upon its face and duly recorded, and afterward, as against innocent mortgagees, set up the claim that the deed was an equitable mortgage. The court held that their acts and conduct estopped them.
In McAlpine v. Powell, 44 Kan. 411, 24 Pac. 353, equitable estoppel was held to constitute a defense to a claim of a homestead, but it is to be noted that in that case no homestead rights were actually involved and the court in the opinion expressly found that the wife had abandoned the Wyandotte homestead for twelve ■years and taken up a new home in Woodson county, and that the facts in the case took it out of the strict rules governing the alienation of a homestead.
The main reliance of defendant is the recent case of Adams v. Gilbert, 67 Kan. 273, 72 Pac. 769, 100 Am. St. Rep. 456. That case may be said to mark the extreme limit to which the court has gone in holding that the operation of the homestead law may be defeated by equitable estoppel. The facts in that case are these: Adams owned and occupied the land with his family as a homestead. His wife had been adjudged insane and was confined in an asylum. On October 20, 1893, he conveyed by warranty deed to one Foster, and the guardian of the insane wife joined in the deed. The deed was made to avoid creditors, the husband supposing that the homestead was not exempt. No consideration passed. On the same day Foster executed a mortgage for $2000 to Davis, a brother-in-law of Adams, Davis having no real interest. The note was turned over to Adams, who secured $700 upon it. The property was worth $800. Foster conveyed to one Kelley, without consideration, and Kelley conveyed to one Doran, who paid off the $700 mortgage. Doran took possession and expended $2000 in improvements, and, in 1898, sold to Gilbert, who made other valuable improvements. Adams abandoned the property in 1895. Mrs. Adams continued insane until her death, January 1, 1899. September 20, 1899, Adams brought ejectment. The court held that the deed to Foster was ineffectual at the time of its execution as a muniment of title, the property conveyed being a homestead and the deed lacking the joint consent of husband and wife, and said:
“While the marriage relationship continued and the property was occupied as a homestead, no act of the husband could be efficient to ratify or confirm such deed. The husband might by his actions, words, or silence, when he should have spoken, confirm a deed to the homestead executed by himself alone, or estop himself from denying its validity, so as to make it convey title, after its homestead character had ceased, or after the death of the wife,” (Page 275.)
The facts in that case differ materially from the facts here. Adams received the full consideration for the property, and stood silently by when he should have .spoken and permitted more than $2000 in valuable improvements to be expended upon the property; and these acts should, in equity, have estopped.him from claiming the property, unless the constitutional provision for the protection of the homestead prevented the estoppel because his wife was living. Then the death of his wife occurred, and the homestead character of the property ceased instantly. He had abandoned it already so far as he might do so. The wife’s death completed the abandonment, and nine months after her death he brought the action. In the opinion the court said:
“In any event, after the death of his wife, the homestead character, of the property ceased. At that time Adams was as fully informed as to the facts and the law as he was when this action was brought. He certainly might, even by his silence and inactivity, in time confirm and make efficient his former deed. We are not in a position to say the delay of about nine months was not sufficient for that purpose.” (Page 277.)
While the decision is based in part upon the acts amounting to equitable estoppel, it really turns upon the fact that the wife’s death occurred and completed the abandonment of the homestead; and nine months elapsed after her death before the action was brought, during which time the husband had full knowledge of the imperfections in the deed. Some expressions may be found in the opinion which apparently go so far as to suggest that the act of abandonment may have been completed by his acts prior to her death, and while she was insane, but these are not necessary to the decision and are not controlling.
Counsel for defendant also cite the case of Shields, Guardian, v. Aultman, Miller & Co., 20 Tex. Civ. App. 345, 50 S. W. 219, in which the supreme court of Texas held that where the wife became hopelessly insane the husband had power to convey the homestead separately, because by the wife’s insanity she lost the power to consent. We quote from the opinion:
“Her power of choice and discretion passed away with the departure of her reason. .She was no longer an intelligent partner of the community, equally loving and sharing the interests and responsibilities of the family. She was a pitiable, mindless, helpless charge, and, for all practical purposes, civiliter mortuus. It is not the consent of a crazy woman that the law contemplates as essential to the alienation of the homestead; it is the consent of the wife whose faculties of reason and discretion have not been dethroned.” (Page 349.)
The opinion comments upon the admitted fact that the wife was hopelessly insane, and counsel here urge that the evidence in this case is to the effect that Mrs. Withers was hopelessly insane; that she was, as to the homestead, civiliter mortuus; and that the reasoning of the Texas court is sound. This reasoning, however plausible, does not appeal to us, or furnish what appear to be solid grounds for breaking away from the well-established principle adhered to since the earlier decisions by this court.
It is difficult to see how effect can be given to the constitutional provision requiring the joint consent of husband and wife and at the same time hold that, while the wife is insane, the husband can either separately .convey or by acts or conduct estop the wife from her right to claim the homestead, or estop himself from claiming it in his own right while she is living. The acts of estoppel must be such as will estop both. (Law v. Butler, 44 Minn. 482, 47 N. W. 53, 9 L. R. A. 856.) The same question was raised in Panton v. Manley, 4 Ill. App. 210, but left undecided. There the wife was insane and confined in an asylum. The husband exe cuted a mortgage upon the homestead, and upon foreclosure attempted to abandon it under an agreement with the mortgagee. A statute then provided that neither the husband nor wife could remove the other from the homestead without the consent of the other, unless the owner of the property should in good faith provide another homestead suitable to the condition in life of the family. The court said:
“It would seem that if the conveyance is to be helped out according to the provisions of the statute, by abandonment of possession in case the husband has not abandoned the wife, then, on principle, the wife’s consent to such abandonment should be obtained.” (Page 216.)
Upon the evidence the court held that no abandonment was proved; and, while it suggests the question whether the husband under such circumstances can abandon the homestead, leaves it undetermined. As was said in Morris v. Ward, 5 Kan. 239, and Coughlin v. Coughlin, 26 Kan. 116, “nothing that he alone can do, or suffer to be done, can cast the slightest cloud upon the title to the homestead.” In the case at bar the acts which it is claimed amount to equitable estoppel were those of the husband alone. We, therefore, hold that nothing he did or suffered to be done while his wife was alive cast any cloud upon the title to the homestead, or could estop either her or him from claiming this land as the homestead during her lifetime. After her death his acts might have been such as to estop him from setting up the claim of a homestead, but the fact that Mrs. Withers was still alive and insane when this action was brought is the controlling circumstance which prevents the principles of equitable estoppel from defeating his right to the land as a homestead.
The facts here relied upon to support the principle of equitable estoppel as against plaintiff are not so strong as in the cases cited. It is true that Withers upon his return settled with Mylius, and so far as he had power to do so ratified and confirmed the acts of his attorney and agent in reference to the sale of part of the land. He accepted without question the proceeds of the sale to that extent. The only other facts that are relied upon are his knowledge that the other half of the purchase-price was represented by a mortgage, which he permitted the maker to pay to Mylius without protest, and the fact that he was silent when he should have spoken and permitted defendant, Love, to purchase from the first grantee. But the evidence shows no intentional misleading of Love, and that he-was not misled in fact by plaintiff’s silence. All the-parties were equally cognizant of the facts with reference to the wife’s insanity. Love was her brother, and', knew all that Withers knew, and perhaps understood, even better than Withers the facts in reference to the-separate deeds.
There is a claim that valuable improvements were-made while Withers stood by, but the evidence shows that these were slight and that the possession of the land by Love was not different from the possession of his grantor, Alsop. They were partners and continued to keep partnership cattle upon the land. Plaintiff, besides, was not a business man, nor nearly so familiar with business matters as Alsop and Love. He tried vainly to discover why it was that he could not secure the other half of the proceeds of the sale, and clearly never knew his rights, as claimed now, until a short time prior to the beginning of this action. The strongest point against him, aside from the acceptance of half the purchase-money, is the lapse of time that intervened after his return and before the action was begun. During this lapse of time the situation of the parties remained practically the same.
It is insisted that because Love paid the balance of the purchase-price to the guardian he is in the same situation as though he had paid it to Withers, because the latter knew of and ratified the payment. It was never paid to any agent of Withers, even assuming that Mylius was his agent, for Mylius held it in. another capacity and refused to pay it to him. There is nothing in the contention that Withers should have instituted some proceeding to recover this money. It never belonged to him in law or equity. It was paid for the supposed interest of Mrs. Withers in the land when in law and fact she had no such interest, and Withers could not have established his right to it. The proceedings in the probate court for the sale of her supposed interest were void ab initio.
Plaintiff, therefore, was entitled to judgment for recovery of the land and for rents and profits, and the cause must be reversed for further proceedings. While it has been said that “it is not within the equitable power of courts in this state to declare any indebtedness a lien on a homestead” (Jenkins v. Simmons, 37 Kan. 496, 15 Pac. 522), plaintiff in open court here' and in his brief offers to do equity and to consent that defendant be given a lien upon the land for the $1250 plaintiff received from Mylius as purchase-money for the conveyance of half the land under the power of attorney, and to this offer plaintiff must be held.
The judgment, therefore, is reversed and the cause remanded for further proceedings in accordance with the views herein expressed.
Greene, Burch, Mason, Smith, Graves, JJ., concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Charles C. Green recovered a judgment of $400 against the city of Ottawa for injuries that he claimed to have received from a fall upon a defective walk. The city complains.
The petition described the location.of„the defective walk at the intersection of Second street, running east and west, and Mulberry street, running north and south, and the walk as a plank cross-walk. The defect averred was that “the planks . . . were curved upward, so that they and the dirt which was beneath them formed an abrupt elevation and obstacle directly in the way of the eastern approach to said cross-walk, the top of which was about ten inches above the level of said approach; and that said curvature of the planks also formed a steep incline on said cross-walk;” that plaintiff, exercising due care, etc'., while attempting to use the walk was made to stumble and fall, causing, among other injuries, a rupture in the region of the groin, on the right side. The evidence showed that the walk was, and had been for more than three years, in a dangerous condition; that several other persons had fallen in the same manner, and at the same place, as the plaintiff. In each instance the superintendent of streets of the city was notified of these accidents, and of the condition of the walk, and was requested to repair the defect, but no attention was paid to the requests ; so that the city had both actual and constructive notice of the defect.
Plaintiff lived a short distance from the defective walk, and had used it frequently and knew of its condition. His duties as janitor required him to leave home at an early hour, and on the morning of September 22, 1903, he left home about four o’clock. He testified that it was a dark morning and not light enough for him to see the obstruction; that he was aware of it and was going along carefully on that account; that he felt along the wire fence to discover when he passed the corner; and that, while endeavoring to avoid the obstacle, and doing all in his power to that end, he reached the place before he knew it and stumbled and fell, and was injured as set out in the petition. The physician who treated him the same day testified to the existence of the hernia or rupture; that he (the witness) was a member of the board of pension examiners; that some months prior to that he had made an examination of plaintiff, who was an ap plicant for a pension, and that plaintiff had no rupture at that time.
The answer, in addition to a general denial, set up the defense of contributory negligence. No reply was filed, but it may be assumed that the parties and the court treated the issues as joined by a reply, since no objection by defendant is raised in the record.
Several errors are alleged, many of them so unsubstantial that it seems unnecessary to do more than state them. The court properly denied defendant’s motion to require plaintiff to make the petition more definite and certain by stating the way in which he was hurt. The petition set forth in plain and concise language how it occurred, without needlessly reciting every detail.
Error is also insisted upon because the court sustained certain objections to testimony. Defendant called one Doctor Davis as an expert witness, and he was asked the following questions:
“Ques. Did you hear the testimony of the plaintiff, Green, in this case? Ans. I heard part of it; I came in after he commenced giving his testimony.
“Q. Did you hear him describe the manner in which he fell or stumbled on the crossing? A. Yes, sir.
“Q. Now, I will ask you to state to the jury, from your knowledge and experience as a physician, the probability of a man rupturing himself in the manner testified to by Green?”
“Q. I will ask you to state to the jury what is the usual and ordinary manner in which rupture occurs?”
Objections to the last two questions were sustained, and error is claimed, upon the authority of A. T. & S. F. Rld. Co. v. Brassfield, 51 Kan. 167, 32 Pac. 814. That case was like this in many respects. The injury there was a rupture claimed to have been caused by a sudden strain occasioned by the dropping or turning of a heavy railroad-tie, one end of which plaintiff was lifting. A physician who had examined plaintiff was permitted to testify, over defendant’s objections, that such injuries may be produced without great violence or shock, but that he had never seen a rupture of that character except as the result of more or less violence. After stating that he was present and heard plaintiff testify how the injury was inflicted, he was further asked to state whether in his opinion Brassfield’s condition could have been produced or brought about in the manner which he (Brassfield) had detailed to the jury. He answered that it must have been done by violence. The court said:
“It would have been more regular to have put the facts to him in a hypothetical form, and obtained his opinion upon them, instead of asking him for his opinion upon the facts testified to by Brassfield. The testimony of the latter on this question, however, was not obscure or involved, and, being very brief, the company can have suffered no prejudice from this irregularity.” (Page 173.)
In the present case Doctor Davis had not heard all the testimony of plaintiff, and never had examined his injuries. But, aside from these differences, the case cited is no authority upon which plaintiff in error may rely. It does not go to the extent of holding that it would have been error to refuse to permit such a question, but merely that in that case, considering the answer and the circumstances, the party against whom it was offered suffered no prejudice, though the question itself was irregular. The trial court properly sustained the objection.
Defendant' complains because the court would not permit it to show by Doctor Davis that a man sixty years of age, with the right knee stiff from a gunshot wound, would be more liable to rupture than a person not so affected. In justice to the doctor himself it should be stated that there is nothing in the record from which it could be inferred that he would have so testified had the objection not been sustained.
There is no variance between the notice of the claim filed with the city, where it stated a claim for injuries “caused by a fall on the walk near the northeast corner of Second and Mulberry streets,” and the petition, where it was referred to as a “cross-walk.” “Walk” and “cross-walk” mean the same thing. Both are sidewalks, and the city is bound to keep both in repair. The notice challenged the attention of the city to a particular place at the intersection of the two streets. From the photographs in evidence it appears that the city could have had no difficulty in locating the place of accident with such a notice.
The photographs were taken eight days after plaintiff’s fall, and error is complained of in admitting them without proof that they showed the condition of the walk on the date of the accident. The fact that several witnesses, including some offered by the city, afterward identified the photographs as showing the exact condition of the walk as it had existed for several years prior and up to the time of the accident, rendered this irregularity of no consequence.
The following instruction given by the court is complained of as not stating fully the duty of a person familiar with the alleged defective sidewalk:
“It was not negligence for him to pass over a crosswalk known to him to be dangerous, but in doing so he must use care and caution reasonably commensurate with the known danger. . . . Consider carefully his knowledge of the condition of the walk, the nature of the defect, whether easily visible or apparent, or, not, the nature and manner of the accident, and then determine, in the light of all the circumstances, whether the plaintiff on his part exercised the care and caution that a person of reasonable prudence would have exercised in the light of such knowledge.”
It is urged that there should have been included the elements of time, light, locality, mud, manner of traveling, and the crippled condition of plaintiff. To “determine, in the light of all the circumstances,” means to consider these elements and everything else in evidence. The instructions, considered together, cover the law of the case, and leave no room for any claim of prejudice on the part of defendant. (City of Emporia v. Schmidling, 33 Kan. 485, 6 Pac. 893; Langan v. City of Atchison, 35 Kan. 318, 11 Pac. 38, 57 Am. Rep. 165.)
It is contended, also, that the case should be reversed because the jury fees provided by section 3056 of the General Statutes of 1901 were not paid by the successful party before judgment was rendered on the verdict. A statement appears in the record to the effect that these fees were not paid as provided by law. The failure to pay these fees was an irregularity, but not one that affected the substantial rights of plaintiff in error, or of which it can complain. (City of Topeka v. Tuttle, 5 Kan. 311, 425.) The provision of the law is for the benefit of the county, and the party against whom the judgment is entered is not affected in any way by a failure to comply. Moreover, this court can consider only errors to which the attention of the trial court was challenged by the motion for a new trial, and this irregularity is not thus raised.
The court committed no error in denying the motion for a new trial. The grounds relied upon were insufficient, and no diligence was shown nor sufficient reasons given why the evidence was not produced at the trial.
Counsel insist that because Green was a cripple and took no lantern with him when he ventured upon the defective walk in the darkness, and because he could have gone on some other street, either he “was guilty of contributory negligence or else he has fabricated the whole thing.” It is sufficient to say that all these matters were passed upon by the jury, and that there appears no lack of evidence in the record to sustain the verdict. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Bukch, J. :
The plaintiffs brought an action to recover from the defendant, the Provident Loan Trust Company, money they had paid to it under a contract for the purchase of real estate. They founded their action upon fraud in the formation of the contract and subsequent acts of the defendant, whereby it voluntarily deprived itself of the power to convey to them the land. The defense was that the contract was free from fraud.in its inception, and that the defendant was ready, able and willing to perform, but that the plaintiffs were in default; and the answer alleged that if plaintiffs ever had any cause of action it was barred by the statute of limitations. The plaintiffs prayed for damages, while the defendant prayed for the balance due upon the contract, and fór a decree of forfeiture if it should not be performed within a time to be fixed by the court. Upon the trial, the court, upon request, made findings of fact and conclusions of law, and rendered judgment for the plaintiffs. The defendant prosecutes error in this court.
Such of the findings of the court as are necessary to a decision of the case, briefly summarized, disclose the following facts : Prior to 1893 Henrietta M. Shaw, of Cooperstown, N. Y., held a mortgage on the land in controversy, which was foreclosed and the property bid in by the defendant. In November, 1893, the de fendant conveyed the land to Henrietta M. Shaw by warranty deed, but took from her a contract whereby 4he company took charge of the land for a year, to rent if possible, and to sell as soon as might be, and ■apply the prqceeds to the payment of taxes and insurance and the principal and interest of Henrietta M. ■Shaw's mortgage debt, any surplus to be retained by •the defendant in payment of what was termed its •equity and services. This contract was not recorded, ■and plaintiffs had no knowledge of it until it was pleaded. On August 16, 1894, the plaintiffs pur•chased the land, paying part of the purchase-money in cash and agreeing to pay the balance in instal-ments, and executed the contract in suit as evidence ■of the terms and conditions of sale. The only reference to the ownership of the land or the source or ■character of title to be conveyed which the contract contained was in these words :
“Said party of the first part hereby agrees to sell, and by warranty deed to convey, to the said parties of the second part, the following described property, to wit."
By the language of the contract, time was made of the essence of its terms, and forfeiture was made the penalty for a default.
After the execution of the contract plaintiffs placed the land in the hands of the defendant to rent, and the land was rented for three years, beginning September, 1894, at an average rental of $150 per annum, which rents were credited on the plaintiffs’ account for the purchase of the land and used for the payment of taxes. During these three years plaintiffs made additional payments on the' contract from their own funds, amounting altogether to $341. In a letter of January 21, 1897, the defendant rendered a statement and made a report of the rents for the year 1896. On February 7, 1898, an agent of the plaintiffs wrote the president of the defendant company a letter, containing the following language :
“Your favor of the 26th ult. duly received. You speak of rent of McIntosh farm for 1897, $110. Mr. McIntosh understood the farm was rented at same price as for the year 1896, viz., $160. In the year, $100 was paid cash and $50 allowed for a well. . . . In your letter of January 27,1897 (to Daniel Evans), you say, ‘We certainly do not want Mr. McIntosh to lose on this investment,’ etc., and you say this in connection with the $400 proposition. Now, as but a year has elapsed, during which time you have had the $110 rent to apply on the interest and taxes, and you double the amount now exacted to $800, I think you have made a mistake or else you are ready to see Mr. McIntosh lose on the investment. Will you please advise me, and oblige.”
On February 2, 1897, an agent of the plaintiffs wrote the president of the defendant company acknowledging that there was then due defendant on the contract and growing out of it $329.29, and suggesting a compromise plan for carrying out the contract as to a part of the land. . Portions of the letter of February 7, 1898, confessed inability to carry out the contract and offered a plan whereby the plaintiffs might obtain title to eighty acres of the land.
In March, 1898, the defendant made a settlement with Henrietta M. Shaw, releasing any claim it had upon the land in controversy. On March 12, 1898, Henrietta M. Shaw conveyed the land by warranty deed to George 0. Eaton, which deed was recorded March 5, 1899. Before the commencement of suit one eighty acres of the land had been conveyed by Eaton to Henry Lichtenhan, and the other eighty acres of it to Alice M. Nickells, who had mortgaged her portion for ¡¡¡¡500. Suit was commenced June 25, 1900.
Plaintiffs purchased the land after a representation by an officer of the defendant company that the rental value of the land was $500' per year. This representation was false and was known to be so by the party making it. Plaintiffs were ignorant of its falsity, relied on its truthfulness, and were induced by it to make the purchase.
Concerning the allegations respecting the state of the title to the land the court found as follows :
“At the time he made the contract McIntosh believed that the land he was buying was the property of the Provident Loan Trust Company, and at all times prior to February 25, 1898, he still believed the property was the property of the Provident Loan Trust Company.
‘1 Prom the terms and averments and covenants of the contract, the plaintiff had reason to and did believe that at the time of the execution of the contract the Provident Loan Trust Company was the owner of the legal and equitable title to the land in controversy.”'
Following the last statement is another, which, however, is a conclusion of law and not a finding of fact. It reads:
“And the failure of the officers and agents of said company to reveal the name of the party who was to hold the legal title to the land in trust for plaintiffs, until plaintiffs should pay the balance of the purchase-price, was a fraud upon the plaintiffs which would avoid the contract, when discovered by the plaintiffs.”'
In conclusion, the court said :
“The plaintiffs learned of the fraudulent representations as to the rental value of the land more than two years before the commencing of the action, and their action to rescind the contract upon that ground is barred by the statute of limitations.
“I have therefore reached the conclusion in this case that the plaintiffs are entitled to recover the purchase-money which they paid upon this contract from the Provident Loan Trust Company, because of the fraudulent representations and concealments in relation to the title to the land, and because, at the time of the commencement of this action, the defendant, the Provident Loan Trust Company, had voluntarily placed it beyond its power to perform the conditions of the contract by making a conveyance of the same to the plaintiffs.”
Since the defendant was a non-resident corporation, it could not make the defense of the statute of limitations. (Williams v. Railway Co., ante, p. 17, 74 Pac. 600.) Therefore, the refusal of the court to grant relief to the plaintiffs on that ground was erroneous. But the error cannot redound to the advantage of the plaintiffs, since the findings of fact affirmatively show that the plaintiffs were altogether without the pale of equity when assailing the contract on account of misrepresentations concerning the rental value of the land. Since the average rental of the land for 1894, 1895 and 1896 was but $160 per annum, the total amount received for the three years could not equal the represented income for one year. Therefore, whenever plaintiffs received their first year’s rent, they knew that the representations had failed. If they were aggrieved by the fraud, they should have made a prompt disavowal- of any obligation incurred, on account of it. Instead of this, they chose to keep the land and to appropriate the rents from it, year after year, to the reduction of their debt. Meanwhile they were making payments out of their own resources upon the same debt in order to hold the possession of the very land which was rendering such insignificant returns.
On February 7, 1898, three and one-half years after making the contract, information that the rent for 1897 was only $110 did nothing more than bring out a mild protest that the plaintiffs understood the rent to be $150, as it had been for the year 1896. No intimation of a repudiation even then escaped, and suit was not commenced until almost two and a half more slothful years had worn away. The plaintiffs, therefore, by their own conduct erected a double barrier between themselves and any relief in a court of conscience— an attempt to make a profit from the transaction by clinging to its fruits after full knowledge of the fraud and an insufferable delay.
“The law does not permit a party to rescind a contract on the ground of fraud under all circumstances, but imposes certain well-defined limitations on the right of rescission.
“In the first place, a contract cannot be rescinded for fraud after it has once been affirmed, expressly or impliedly, with a full knowledge of the fraud. The party has a right to rescind, but he is not bound to do so, and when he has once made his election he is bound by it.
“A contract may be affirmed either expressly or impliedly. It is impliedly affirmed, so as to bar a subsequent rescission, if it is acted upon by the payty defrauded, after discovery of the fraud, by accepting money, property or other benefits under it, or otherwise unequivocally recognizing it as binding. . . .
“It is also a well-settled principle that, to entitle one to rescind a contract for fraud, he must exercise his option within a reasonable time after the discovery of the fraud. If he delays rescission for an unreasonable time, he will be held to have affirmed the contract, and cannot afterwards rescind.” (14 A. & E. Encycl. of L., 2d ed., 159, 161, and authorities cited.)
“The evidence of the plaintiff himself shows that he discovered shortly after the contract was made that the defendant had misled him in the description of the tract fronting upon the boulevard. After such knowledge be paid several instalments upon the contract, and also effected the sale of the other tract embraced therein to Marks. When he found out that the defendant had deceived him in the description of .a part of the land he should have át once rescinded •or offered to rescind the contract, and reconveyed or •offered to reconvey his interest in all the property he had acquired thereunder. He cannot be permitted to select his own time and consult his own convenience before exercising the right of rescission. That would give him the power to retain the property, and after waiting, if markets should prove favorable, he could thus secure possible benefits, and on the other hand have time to reconvey if it should decrease in value, ■and thus escape all disadvantages. The law does not Allow any one to play fast and loose in such a manner. (Estes v. Reynolds, 75 Mo. 563; Melton v. Smith, 65 id. 315.)” (Bell v. Keepers, 39 Kan. 105, 108, 17 Pac. 785.)
Included within one of the assignments of error is the charge that the decision rendered is contrary to law ; and that part of the decision granting relief because of fraudulent representations and concealments in relation to the title to the land is assailed on the ground that it does not appear that the representations charged in any way operated to the injury of plaintiffs or violated any confidence reposed on the faith of them.
“A rescission of the contract for the purchase of land and the cancelation of the conveyances, on the ground that the representations of the vendor were false and fraudulent, is an extraordinary power of equity, and should not be exercised unless it is clearly established that the representations were false or fraudulent, and that they were relied on by the purchaser ; and the right to disaffirm the contract must be exercised promptly after the discovery of the fraud.” (Wood v. Staudenmayer, 56 Kan. 399, 43 Pac. 760.)
Likewise, in White, Adm’x, v. Smith, 39 Kan. 752, IS Pac. 931, it was said :
“To sustain a judgment for damages for fraud and deceit in the sale of a newspaper, upon the ground that its subscription list was not as large as represented, it must be alleged, and also shown, that the purchaser relied on the representation of the number of paying subscribers as an inducement to the purchase.”
In the American and English Encyclopedia of Law, second edition, volume 14, page 106, many cases are collated in support of the following text:
‘ ‘ General rule that representations must be relied upon. — To entitle a person to relief or redress because of a false representation, it is well settled that it is not enough to show merely that it was material, that it was known to be false, and that it was made with intent to deceive, but it must also be shown that it actually did mislead and deceive ; or, in other words, that it was relied upon by the party complaining. This is true whether the false representation be made the ground for an action of deceit or ground for rescission of a contract; and it is true in equity as well as at law.”
“Where plaintiff seeks to recover because of the fraud of the defendants based upon misrepresentations, it is incumbent upon him to allege and prove what misrepresentations were made; that they were false ; that he believed them to be true ; and that he relied and. acted upon them.” (Grentner v. Fehrenschield, 64 Kan. 764, 68 Pac. 619.)
Applying this law to the findings of fact, it is evident that the judgment'rendered cannot be sustained upon the ground under consideration. The findings of fact are barren of any suggestion that the plaintiffs relied upon the representations of the defendant that title was in it and not in some one else as .an inducement to buy. True, it is found that they believed the title to be in the defendant, but that is not sufficient. If it was in fact immaterial to plaintiffs who held the title at the time, and if they would have bought the land as readily if they had been apprised of the facts, they were not defrauded, and without a finding excluding such an attitude on the part of plaintiffs toward the trade, the presumption of good faith attending every transaction until it-is proted to be vicious is not overcome.
The fact that the court made an express finding relating to this element of fraud with respect to the rental value of the land renders its omission here especially striking.
Conceding, however, that within the statement that failure to reveal the name of the party holding title to the land was a fraud the court intended' to include all the essential elements of fraud when committed by false representations, the judgment cannot be sustained. A man having an interest in land and having control of the title so that he may require a conveyance of it at will may make a contract in his own name to convey it by a warranty deed without disclosing the actual state of the title and not be guilty of any fraud upon the purchaser. The defendant occupied such a position with reference to the land in controversy when it made the contract in question. The contract no more contained an implied covenant that the defendant then held the title to the land than it contained an implied covenant that the plaintiffs then held title to all the money they were to pay for it. There is no finding of any effort or intention to deceive or to conceal, or any bad faith' of any kind beyond the fact that defendant propounded the contract in silence. This does not amount to fraud.
“It is not necessary, however, that the vendor should be the absolute owner of the property at the time he enters into the agreement of sale. An equitable estate in land, or a right to become the owner of the land, is as much the subject of sale as is the land •itself, and whenever one is so situated with reference to a tract of land that he can acquire the title thereto, either by the voluntary act of the parties holding the title, or by proceedings at law or in equity, he is in a position to make a valid agreement for the sale thereof. As was said by Mr. Justice Paterson, in Burks v. Davies, 85 Cal. 114, 24 Pac. 613, 20 Am. St. Rep. 213 : ‘If, though he be not the absolute owner, it is in his power, by the ordinary course of law or equity, to make himself such owner, he will be permitted within a reasonable time to do so.’ If the agreement is made by him in good faith, and he has at the time such an interest in the land, or is so situated with reference thereto, that he can carry into effect the agreement on his part at the time when he has agreed so to do, it will be upheld. (1 Chitty on Con., 11th Am. ed., 431; Dresel v. Jordan, 104 Mass. 407; Townshend v. Goodfellow, 40 Minn. 312, 41 N. W. 1056, 3 L. R. A. 739, 12 Am. St. Rep. 736; Smith v. Cansler, 83 Ky. 371; Gaither v. O’ Dougherty, 12 S. W. Rep. 306; Tapp v. Nock, 12 S. W. Rep. 713; Ley v. Huber, 3 Watts, 367; Tiernan v. Roland, 15 Pa. St. 429.) We cannot lose sight of the proposition that in this-country, where values of land fluctuate rapidly, and where transfers are so frequent, it is very common for the purchaser of land to make a transfer before he has-acquired the title. It would work great injustice to-hold that no one could make a valid contract for the sale of land until he has himself become clothed with the absolute title.”
“It has been held that when the vendor has no interest whatever in the lands which he agrees to convey, and his contract of sale is the mere speculation of a volunteer, courts will refuse to enforce the contract at his instance, and will rescind the agreement at the instance of the vendee, upon the ground that the contract was not made in good faith. The cor rectness of this rule in its application to a case wherein there is no charge of bad faith has, however, been seriously questioned, and was distinctly repudiated in Dresel v. Jordan, 104 Mass. 407." (Easton v. Montgomery, 90 Cal. 307, 315, 27 Pac. 280, 25 Am. St. Rep. 123.)
The only remaining support of the judgment of the district court is that the defendant voluntarily deprived itself of the power to convey the land to plaintiffs.
The defendant contends that the theory sustaining a right to relief upon this ground is necessarily inconsistent with those already considered. This is true. Under one hypothesis the contract was fraudulent, and therefore without engaging quality from the beginning. Under the other hypothesis the contract was a valid one and'should be carried out, except that the defendant has rendered further performance on the part of the plaintiffs futile. But the defendant is in no position to complain. The two issues were tendered in the petition. Instead of challenging the confusion of theories at the outset, the defendant chose to meet its adversary at all points and combat both positions. Having exposed itself to assaults both in its front and in its rear, it must now endure with fortitude.
The conclusion of law last referred to is evidently drawn from the finding that in March, 1898, the defendant settled with Henrietta M. Shaw and released all claims to the land in controversy. At that time, however, the plaintiffs were more than a year in default, and since then they have never been in a position to demand a conveyance. Without this they have no standing to impeach the defendant's conduct.
“If it was intended to bring an action for the recovery of the money paid under the contract, he cannot recover unless it appears from the whole case that he is entitled to a rescission of the contract. . . . Rescission is a remedy which is not to be invoked as a matter of course or of absolute right, but, like specific performance, its exercise rests in the sound discretion of the court. . . . Before a party can justly claim a rescission he must not only show that the opposite party is derelict, but that he himself is without fault, for the law permits no one to take advantage of his own wrong to terminate a contract which he has knowingly and voluntarily made.” (Thomas v. McCue, 19 Wash. 287, 292, 53 Pac. 161.)
“One who pays money on a contract cannot recover the same unless he is entitled to a rescission of the contract.
“The rescission of a contract is a remedy to be applied in the sound discretion of the court, and only he is entitled to it who can show that he is without fault, and that the other party is derelict.” (Thomas v. McCue, 19 Wash. 287, 53 Pac. 161.)
“It is obvious that the right to rescind a contract belongs only to the party who is ■ himself without default. Even if he has sufficient grounds for rescission, if he has done some act which hinders performance by the other party, or has failed in any way to perform his own part of the contract, his right to rescind is forfeited.” (24 A. & E. Encycl. of L., 2d ed., 647.)
The president of the Provident Loan Trust Company was made a defendant to the action in his individual capacity and jointly charged with the fraud alleged. The court found that he made no representations except that he wrote the contract and executed it as president of the company and rendered judgment in his favor. The plaintiffs, by cross-petition, assign error upon this ruling. In view of the foregoing considerations, this part of the judgment was correct.
The judgment of the district court in favor of the •defendant Pierce is affirmed. The judgment in favor of the plaintiffs is reversed, and the district court is directed to enter judgment in favor of the Provident Loan Trust Company upon the findings of fact.
All the Justices concurring. | [
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|
The opinion of the court was delivered by
Mason, J. :
T. W. Thompson sued S. F. Neely for a balance claimed to be due him for services performed as deputy United States marshal during the latter’s term of office as marshal. At the trial it developed that plaintiff had been paid fifty per cent, of the fees earned by him as such deputy, and' the defendant claimed that under their agreement this was all he was to receive, but the plaintiff claimed that- the agreement was that he was to have sixty-five per cent. The difference between these percentages made the amount in controversy, $240.65. Plaintiff testified that he did not know of defendant’s contention until after the action was brought, but that he had at various times asked defendant for a settlement; that on December 29, 1898, defendant sent him a letter enclosing a statement of the account and defendant’s check on a Leavenworth bank for $7.90, the balance due as shown by such statement; that plaintiff cashed the check and kept the proceeds and wrote to defendant saying that he needed the money and would use the check, but that he wanted defendant to meet him in Leavenworth and make settlement, as the check was not a settlement and defendant still owed him between $250' and $300. Defendant testified that the check sent to and collected by plaintiff contained the words “balance in full for fees and expenses of deputy marshal.” The letter referred to reads as follows :
“Leavenworth, Kan., Dec. 29, 1898.
“ T. W. Thompson, Esq., Topelca, Kan.:
“Dear Sir- — I have received from the auditor of state and other departments final reports on suspen sions and disallowances in accounts of deputies U. S. marshal. I have credited you with all reallow-ances and send herewith a full Statement of your account. Look it over, and if there is any item you do^ not understand, if you will come to Leavenworth we will go through the original statements and I will explain it to you. Please find enclosed my check for $7.90, payable to your order, by the Manufacturers’' National Bank of Leavenworth, which is in full satisfaction of balance due you on account of fees and expenses as deputy U. S. marshal.
Very respectfully, S. F. Neely.” '
The trial court instructed the jury :
“If you believe from the evidence in this case that there was a dispute between these parties as to the amount that was due from the defendant to plaintiff, and the defendant made his calculation as to the amount he understood was due, and wrote the plaintiff a letter, enclosing a check for the amount that he claimed was due, and stated either in the check or in the letter that that was in full for his account, and the plaintiff received that check and letter, and appropriated the check without objection on his part, then I instruct you that that would be a settlement of their difference.”
The jury found for the plaintiff and a judgment was rendered accordingly, which the defendant now aska to have reversed.
The contention of plaintiff in error in effect'is that the words “without objection on his part” should have been omitted from the instruction quoted ; that the cashing of the check under the circumstances stated in the instruction (or, at all events, under the circumstances shown by defendant’s evidence) es-topped plaintiff to deny that a full settlement had been had, notwithstanding any protest he may have made at the time. In volume 1 ;of the Cyclopedia of Law and Procedure, at page 332, it is said of an un-liquidated or disputed claim :
“To constitute an accord and satisfaction it is necessary that the money should be offered in full satisfaction of the demand, and be accompanied by such acts and declarations as amount to a condition that the money, if accepted, is accepted in satisfaction ; and it must be such that the party to whom it is offered is bound to understand therefrom that, if he takes it, he takes it subject to such conditions. The mere fact that the creditor receives less than the amount of his claim, with knowledge that the debtor claims to be indebted to him only to the extent of the payment made, does not necessarily establish an accord and satisfaction. Where, however, a sum of money is tendered in satisfaction of the claim, and the tender is accompanied with such acts and declarations as amount to a condition that if the money is accepted it is accepted in satisfaction, and such that the party to whom it is offered is bound to understand therefrom that if he takes it he takes it -subject to such condition, an acceptance of the money offei’ed constitutes an accord and satisfaction. This is true although the creditor protests at the time that the amount paid is not all that is due, or that he does not accept it in full satisfaction of his claim. Where the tender or offer is thu? made, the party to whom it is made has no alternative but to refuse it or accept it upon such condition. If he accepts it, he accepts the condition also, notwithstanding any protest he may make to the contrary.”
■ These statements are supported by abundant au•thority, as shown by the accompanying citations. They have been referred to with approval by this ■court in Harrison v. Henderson., 67 Kan. 194, 72 Pac. 875. They are now accepted as a correct exposition of the law. In Bridge Company v. Murphy, 13 Kan. 35, it was said :
“Where a debtor pays a portion of his debt, which portion he admits to be due at the time he pays it, but claims that it is all that is due, and that it is the whole of the debt, and the creditor receives the same and signs a receipt in full therefor, but at the same time claims that it is only a portion of the debt, and that the other portion still remains due, held, that the creditor is not estopped by his receipt from afterwards suing the debtor and recovering the balance of the debt not yet paid.”
This declaration of legal principles is not in conflict with that just made, since it does not purport to. cover a case where the tender is made with the condition that it must be accepted in full if at all. Even if such element was in fact present in that case, it is not important, since the decision was not based- upon that consideration. The decision turned upon the question whether the written receipt purporting to to be in full could be disputed. This is shown not only by the language of the opinion but by the authorities cited in its support.
It remains only to decide whether plaintiff in this action was bound to understand from the letter written-him by defendant that if he took the payment he took it-subject to the condition that it should be in full settlement of his whole claim. In a foot-note to the passage quoted above (1 Cyc. 333, note 72) it is said:
“According to the weight of authority, where a claim is in dispute and the debtor sends or gives the creditor a check for a less sum, which he declares to be in full payment of all demands, the retention thereof by the creditor constitutes an accord and satisfaction.”
Even disregarding the evidence of defendant as to a receipt in full having been embodied in the check, we hold that the language of the letter alone was suffU cient to advise the recipient that the writer intended that the check should be accepted, if, at all, in full satisfaction of the account. The expression of a willingness to explain any of the items that may not be understood is not equivalent to an admission that there may be a doubt as to the correctness of the statement rendered, or that the amount shown as a balance is open to further inquiry. It is rather a distinct affirmance to the contrary.
■ It results that the judgment must be reversed and the cause rémanded for a new trial.
• JohnstoN, C. J., Smith, Cunningham, Greene, Burch, Atkinson, JJ., concurring. | [
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|
The opinion of the court was delivered by
GreeNE, J.:
On December 19, 1897, L. A. Williams died intestate, in Brown county, leaving a widow and three minor children. Shortly after his death another ■child was born to his widow, and since the commencement of the present action one child has died. At the time of his death L. A. Williams and his family were residing upon eighty acres of land in Brown county, as a homestead. It was purchased by Williams under' a contract, subject to a mortgage of $1000. There was also a balance due on the purchase-price of about $218.30. George B. Calnan was appointed administrator of his estate. After setting apart that portion of the personal' property which was exempt to the widow, the administrator sold the remainder and collected notes and insurance aggregating $1590.50, with which he charged himself in his first annual settlement. The administrator was the deceased’s family physician, and as such served the widow and children until his bill amounted to $116, which amount he charged to the estate in his settlement. During the time- the estate was in course of settlement, the administrator furnished money from time to time to the widow and minor children to purchase the necessities of life. At the time of final settlement he had exhausted all the funds received from the sale of the intestate’s property. Prior to his final settlement he had made two annual settlements, in which he charged the estate with the money he had advanced for the support and maintenance of the family. The administrator took a receipt from the widow for every item of money paid. These receipts were filed with his accounts, which were allowed at each annual settlement.
The widow and family moved from the farm, and it was rented by the administrator. The rents were collected and applied to the payment of the interest on the mortgage, taxes, and some slight repairs which were necessary on the farm. The administrator also paid from the receipts of the estate $218.30, the balance due on the purchase-price of the farm.
After the family had removed from the farm, the widow concluded to trade it for five acres of improved land near the little town in which she lived. Finding that she could not make a title to the land, she requested the administrator and probate judge to have the farm sold, apply the proceeds to the payment of the mortgage, and invest the remainder in the tract of land she desired. With this in view, after consulting the probate judge, the administrator made application in the regular way for the sale of the farm. Notice was given, as required by an order of the probate court, and, upon a hearing, an order was made authorizing the administrator to sell the farm. The trade which had been negotiated by the widow was consummated. In this trade the land was valued at $2400, less the $1000 mortgage, and the five-acre tract at $2000 ; $600 was paid by the widow out of her own fund; $1400 was the actual consideration received from the sale of the land. The administrator reported the sale to have been made for $2400, less the $1000 mortgage, and charged himself with $1400-cash, for which he filed the receipt of the widow, and was given credit therefor. The sale was confirmed and the deed executed and approved. It was known by the probate judge and the widow that no cash had been received. Immediately upon the consummation of this transaction, the widow, with her family, moved to the five-acre tract. On November 8,1900, the administrator made final settlement of the estate and the record shows that he was discharged.
Prior to this time the plaintiff had been appointed guardian of the minor children. On the day of the-final settlement the judge entered upon the record the fact that it had come to his knowledge that'some-of the heirs desired to contest some of the charges allowed against the estate. He ordered that the heirs- be given fifteen days in which to file a list of such items. On November 20, 1900, the guardian filed in the office of the probate court exceptions to the greater portion of the items charged against the estate by the administrator in his settlements. Upon this application the cause was heard in the probate court on December 29, 1900, and the objections disallowed, from which order the guardian appealed to the district court. When the cause was reached for trial in the district court the question upon whom rested the burden of proof arose. The court held that it was ■upon the administrator. To this the administrator objected and excepted. After the trial the court made numerous findings of fact, among which are No. 6 and a part of No. 18, as follows :
"No. 6. After the widow moved from the farm or homestead said G. B. Calnan continued to give the family • medical attention from time to time, when called upon so to do, and when the same was necessary, until his bill for such services amounted to $116.50. These services were reasonable and necessary, and the bill therefor was examined and approved by said widow. The widow purchased food and clothing, fuel and medicine, for the use of and which was necessary for herself and said children, and which was used by them from time to time, and the bills therefor, after she had examined them, were, at her request, paid by said administrator and credited to himself in his account as administrator. He also paid the widow, for the purpose of purchasing necessaries for her use and that of the children, money from time to time, which she used for that purpose, and which the administrator took credit for in his accounts.”
‘‘ No. 18. The. amount paid by said administrator to Mrs. Williams and for her, except that paid to Doctor Pontius, was, with the exception of a small amount of about ten dollars, used by the said widow for the benefit of herself and said minor children, and the amount so used was necessary for their support and maintenance, and was paid in good faith by said administrator. Receipts were taken by the administrator from the parties to whom he paid amounts as aforesaid, and receipts were taken from Mrs. "Williams for herself and children, covering the amounts paid her by the administrator, including the amounts paid Doctor Pontius, and the $1400 reported as the proceeds of the homestead.”
Notwithstanding these findings, the court ordered the sum of $586 charged back to the administrator, and also $700, or one-half the amount of cash the administrator reported as having been received from the sale of the land, and remanded the cause to the probate court with instructions to enter such orders. To reverse this order and judgment the administrator prosecutes this proceeding.
The first error of which complaint is made is that the burden of proof was cast upon the administrator. To determine this question, reference must be had to the force given in such proceedings to the order of allowance made by the probate court in the annual settlements made by the administrator. It has been generally held that such annual settlements are judicial in their nature and that the probate court hears, weighs and determines the correctness of such acts as a judicial officer, and the order of allowance is in its nature a judicial determination, not final, but prima facie evidence of the correctness ; and if objections are afterwards made thereto, the burden of showing the incorrectness of such determination is upon the party making the objections. (Musick v. Beebe, Adm’r, 17 Kan. 47 ; Young v. Scott, 59 id. 621, 54 Pac. 670.)
It is contended that, notwithstanding the $586 was paid in good faith and for the support and maintenance of the helpless minor children of the deceased, and actually necessary for their support, the adminis trator is answerable over again to them therefor. Conceding that which all will concede, that it is the duty of an administrator to preserve all funds belonging to the estate, and that no excuse will be accepted from him for money wasted, should he be made to respond a second time to the heirs for money advanced for their support ?
At the time of the death of the father of these children, the oldest was eight years of age and without means of support except that which came into the hands of the administrator. They had no guardian. It would be very unnatural if, under such circumstances, the administrator would refuse to advance money to these helpless minor children sufficient to clothe, shelter, feed and educate them. If a guardian had been appointed and the money had passed into his hands, what less could he have done ? His duty would have been to advance such money as was necessary. The administrator having performed these duties in good faith, it would be hard to suggest any reason in equity why he should be required to respond again. It would be a very great injustice to charge the administrator with this property as on hand, when he had actually and in good faith expended it for the benefit of these heirs in purchasing for them the necessities of life. In Gilfillen’s Estate, Gilfillen’s Appeal, 170 Pa. St. 185, 32 Atl. 585, 50 Am. St. Rep. 760, it was said :
“Where a grandfather as administrator of his son’s estate receives money belonging to his granddaughter, a minor and deaf-mute, and spends the whole fund in having the child taught to speak and to hear, he cannot be compelled to account for the fund, although he was never appointed guardian of his granddaughter’s estate ; and it is immaterial in such case that the grandfather, as administrator of his son’s estate, could not have been appointed guardian of his son’s daughter.”
On page 191 it was said :
“Treating an administrator who has acted as a guardian of such a minor as if he were actually appointed as such, means only holding him to such liability as he would have incurred if he had been really appointed. This judicial treatment of such a person is the most favorable to the interests of the ward, but it certainly does not follow that if such a person makes payments out of the funds which belong to the ward, for the best interests of the ward, such as any court having jurisdiction would allow or direct him to-make, he is to be denied all credit for such payments. ”
In Rogers v. Traphagen, 42 N. J. E. 421, 11 Atl. 336,. the court stated the law applicable to this case as follows :
“An administrator, after settling his final account, held in his hands the distributive shares of two infants for whom (no guardian having been appointed) he had made disbursements from time to time, both before and after the passing of his final account.
“On a bill filed by the children after arriving at their majority against the administrator for an account, it is held that while the payments should regularly have been made only to a guardian, yet, in the absence of bad faith, such disbursements as would have been approved, had they been made by a guardian of the infants, will be allowed to the administrator.”
From what has been said, this cause must be reversed for further proceedings. There are some questions concerning the sale of the farm for which the court below charged the administrator with $700. If, upon a retrial of this cause, it should appear that such money has been, wasted to the heirs by the unauthorized acts of the administrator, the heirs should recover for all such proceeds so lost to them.
The judgment of -the court below is reversed and the cause remanded for retrial.
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The opinion of the court was delivered by
Mason, J.:
William G. Mayer sued Reuben M. Manley, as executor of the will of George Manley, deceased, under the provisions of sections 1200 and 1204 of the General Statutes of 1889 (now repealed), authorizing creditors of dissolved corporations to bring actions against stockholders upon their individual liability, and recovered a judgment, which the defendant seeks to reverse. George Manley, a resident of New Jersey, died owning real estate in-Kansas and jurisdiction was obtained by attaching this property as that of the executor, also a non-resident. This was done under the authority of section 8009, General ^Statutes of 1901, which reads :
"An executor or administrator duly appointed in any other state or country may sue or be sued in any court in this state, in his capacity of executor or administrator, in like manner and under like restrictions as a non-resident may sue or be sued.”
It is claimed that this statute was only intended to authorize a non-resident executor to be sued as a resident executor might be ; that a creditor of the estate of a decedent, however his . _ - .. claim may be established, can only collect it by sharing in due proportion with other creditors in the proceeds of an orderly administration under the direction of the probate court, and not by seizing and selling specific property; that the title to the real estate was in the devisees under the will, not in the executor, and that it could not be levied on under process against the latter. These arguments would appeal to the court with much force if the questions presented were new. But they are not. They have been determined adversely to the contentions of plaintiff in error in a series of decisions by this court commencing with Cady v. Bard, 21 Kan. 667, decided in 1878. (See Manley v. Park, 62 Kan. 553, 64 Pac. 28, and cases there cited.)
So far as it relates to the interpretation of the statute this consideration should be conclusive. A judicial construction placed upon its language by a united court, over a quarter of a century ago, and repeatedly affirmed without dissent, must be deemed to have received the sanction of legislative approval. Granting that the court in the first instance mistook the purpose, and intent of the act, there has been so abundant opportunity for the lawmaking power to give further expression to its will that its failure to act amounts to a ratification. With respect to the validity of the law, as so construed and accepted, the weight to be given the earlier decisions is less controlling and depends upon the force of the reasoning by which they are supported.
It is urged that under the construction given it the statute conflicts with section 17 of the Kansas bill of rights, with section 2 of article 4 of the federal constitution ,' and with the fourteenth amendment to it, in that it makes a distinction between citizens of Kansas and those of other states, denying to the latter privileges and immunities of the former, and depriving them of property without due process of law. The statute is an unusual one. It originated in this state at the time of the revision of 1868, when the chapter regarding executors and administrators was adopted from Ohio. The corresponding section there (Rev. Stat. Ohio, 1860, vol. 1, ch. 43, §236) provided only for suits by, not against, foreign executors and administrators. It was transplanted with only so much change of language as authorized them to be sued, as well as to sue, “in like manner and .under like restrictions as a non-resident. ’ ’
If any similar provision-exists elsewhere, its validity seems not to have been drawn in question. The territory of Washington formerly had a statute expressly authorizing the attachment of the property of nonresident executors, hut it was repealed before being passed upon, although it was referred to in Barlow & Shepherd v. George Coggan. 1 Wash. Ter. 257. In Craig v. Railroad Co., 2 Ohio N. P. 64, the constitutionality of a statute authorizing non-resident executors-to be sued was affirmed, the opinion citing Cady v. Bard, supra. The same case is cited with approval in Woerner’s American Law of Administration, volume 1, section 168, and in Reno on Non-residents, section 59, where it is said :
“There seems to be no doubt that a state is not re-' strained by the national constitution from authorizing suits to be brought in its courts against foreign execj. utors and administrators; and that service of process, by attachment of property within its jurisdiction, and notice by publication to the non-resident foreign executor or administrator, in accordance with the local statute, will confer jurisdiction over such property and will justify its sale upon execution.- . . ■ . Such statutes seem to be eminently just and proper. They afford an éasy means of preventing the withdrawal of local assets before the claims of local ci’edit-ors have been satisfied. Local creditors can protect themselves by the simple process of attachment and publication. Their constitutionality seems clear. Such state- process is not contrary to due process of law, as against the defendant’s title to the property attached, even if he does not appear in the proceedings ; for the preliminary attachment and publication subject the property to the control and jurisdiction of the court, which is therefore authorized, upon due proof of the plaintiff’s claim, to order its sale, and thereby to divest the title of the non-resident defendant.”
In Manley v. Park, 62 Kan. 553, 64 Pac. 28, the question of the constitutionality of the statute was discussed to some extent, but not definitely passed upon for the reason that it was treated as not having be.en raised before judgment. It was sought to have this case reviewed by the United States supreme court, but the judgment was there affirmed on the same ground. (Manley v. Park, 187 U. S. 547, 23 Sup. Ct. 208, 47 L. Ed. 296.)
The claim is made that the statute discriminates against the non-resident executor in three ways : (1) In permitting suit to be brought against him in the district court, whereas resident executors can only be sued in the probate court; (2) in permitting specific assets under his control to be segregated for the ben-fit of a particular creditor, whereas resident executors are allowed to apportion the proceeds of the property equitably among all the creditors; (3) in permitting him to be sued in attachment, upon no other ground than that he is a non-resident. The first contention is unsound in fact. The resident executor, like the nonresident, may be sued in the district court. (Gen. Stat. 1901, §2891.) The second contention seems based upon solicitude for the rights of other creditors rather than for those of the executor. Non-resident creditors are afforded the same privilege of attachment as resident. Whether in a controversy between two attaching creditors the ordinary rules of priority would be affected by the consideration that the property was a part of the estate of a decedent is not a matter tQ be inquired into at the instigation of the executor. The only issue as to him relates to cutting off his title and subjecting the property to the payment of the debts sued on, if found to be valid. In Tennessee an attachment may be had “where any person liable for any debt or demand, residing out of the state, dies, leaving property in the state.” (Code' 1896, § 5211.) It was held in Bacchus v. Peters, 85 Tenn. 678, 681, 4 S. W. 833, that
“The statute was intended to afford the creditor a simple and speedy remedy for the collection of his debt where administration was not granted — too expensive or unnecessary — but was not intended to provide ' a method by which one creditor might by diligence obtain priority. In cases where there are no other creditors, or where none intervened, and no insolvency exists or is suggested, and proper defense interposed, before the final appropriation of property attached, the statute would operate for effectual relief of the attaching creditor alone.”
The reason for the rule that an executor cannot (without statutory authority) sue in a foreign jurisdiction is said to be “ the protection of local creditors who might be injured by permitting the withdrawal of the assets and compelling them to resort to a foreign jurisdiction to obtain satisfaction of their claims.” (13 A. & E. Encycl. of L., 2d ed., 948.)
“That this is the ground on which the rule is enforced is shown by the cases on ancillary administration, which uniformly hold that the duty of the- ancillary administrator here is -to account to domestic creditors, and, after they are satisfied, to pay over the balance to the primary or domiciliary administrator.” (Laughlin & McManus, Appellant, v. Solomon, 180 Pa. St. 177, 36 Atl. 704, 57 Am. St. Rep. 633.)
“Every sovereign has his own code of administration, varying to infinity as to the order of paying debts ; and almost without an exception, asserting the right to be himself first paid out of the assets.” (Smith, Administrator, v. Union Bank of Georgetown, 5 Pet. 518, 526, 8 L. Ed. 212.)
“By the administration law, foreign executors and administrators may sue and be sued in .this state, like those of our own appointment; thereby, in most cases, making it unnecessary that any ancillary administra tion should be instituted.” (Swearingen v. Morris, 14 Ohio St. 424, 431.)
The Ohio statute referred tó, relating to ancillary-administration, provided:
“The proceeds of such assets shall be applied to the payment of the debts which shall be proved against such estate before such administrator, . . . and the surplus, if any, shall be paid into the court granting such administration for the benefit of the estate of ■such decedent; in the state where the decedent resided at the time of his death.” (1 S. & C. Stat. 1860, ch. 43, § 260.)
“A judgment against an administrator is, in legal effect, an adjudication subjecting the assets within the jurisdiction of the court to the satisfaction of the clai.m in suit.” (Burton v. Williams, 68 Neb. 431, 88 N. W. 765.)
“ It is a settled rule of law of this state that a domestic creditor of a non-resident decedent will not be compelled to go to a foreign jurisdiction if there be property here -which can be applied to the satisfaction of his claim. We, therefore, assume the right to administer the property here for the benefit of domestic creditors, and to impress upon it a lien or trust for their benefit.” (Montgomery v. Boyd, 78 Hun, App. Div. 64, 72, 79 N. Y. Supp. 879, 885.)
These citations and quotations sufficiently show the general acceptance of the doctrine that it is competent for the legislature by appropriate action to subject such property of a decedent as is located within the state to the payment of creditors who see fit to resort to the courts of that state. This, so far as relates to the complaints here made, is all that the statute under discussion attempts. The particular legal machinery by which this result is accomplished is not a matter of concern to the foreign administrator. “It was obviously not a right, privilege or immunity of a citizen of the United States to have a controversy-in the state court prosecuted or determined by one form of action instead of by another." (Iowa Central Railway Company v. Iowa, 160 U. S. 389, 16. Sup. Ct. 344, 40 L. Ed. 467.)
With regard to the third contention, that it is an unlawful discrimination to allow an attachment to issue against a iron-resident and not against a resident executor, no reason is perceived (other than those already considered) for distinguishing this question from that arising upon the usual statute authorizing the attachment of the property of a non-resident for the very reason that he is a non-resident. In.either case the proceeding is in fact a mere device for obtaining jurisdiction of the property for the purpose of applying it to the payment of debts, there being no way by which personal- jurisdiction of the non-resident may be obtained. (Dillon v. Heller, 39 Kan. 599, 18 Pac. 693.)
“No one ever dreamed that the attachment laws of the several states, authorizing attachments against non-resident defendants, were violative of the constitution of the United States." (The Pyrolusite Manganese Company v. Ward, 73 Ga. 491.)
“The constitutional provisions are not violated by a statute which allows process by attachment against a debtor not a resident of the state, notwithstanding such process is not admissible against a resident." (Cool. Const. Lim., 7th ed., 574.)
In Central Loan and Trust Co. v. Campbell, 173 U. S. 84, 97, 19 Sup. Ct. 346, 43 L. Ed. 623, it was said:
“The only remaining contention to-be considered is the claim that the territorial statute authorizing the issue of an attachment against the property of a nonresident defendant in the case of an alleged fraudulent disposition of property is repugnant to the fourteenth amendment to the constitution of the United States and in conflict with the civil rights act, The law of the territory, it is said, in case of an attachment, for the cause stated, against a resident of the territory requires the giving of a bond by the plaintiff in attachment as a condition for the issue of the writ, whilst it has been construed to make no such requirement in the case of an attachment against a non-resident. This, it is argued, is a discrimination against a non-resident, does not afford due process of law, and denies the equal protection of the laws. The elementary doctrine is not denied that for the purposes of the remedy by attachment, the legislative authority of a state or territory may classify residents in one class and non-residents in another, but it is insisted that where non-residents are not capable of separate identification from residents by any facts or circumstances other than that they are non-residents — that is, when the fact of non-residence is their only distinguishing feature — the laws of a state or territory cannot treat them to their prejudice upon that fact as a tóasis of classification. When the exception, thus, stated, is put in juxtaposition with the concession that there is such a difference between the residents of a state or territory and non-residents, as to justify their being placed into distinct classes for the purpose of the process of attachment, it becomes at once clear that the exception to the rule, which the argument attempts to make, is but a denial, by indirection, of the legislative power to classify which it is avowed the exception does not question. The argument in substance is that where a bond is required as a prerequisite to the issue of an attachment against a resident, an unlawful discrimination is produced by permitting process of attachment against a non-resident without giving a like bond. But the difference between exacting a bond in the one case and not in the other is nothing like as great as that which arises from allowing processes of attachment against a nonresident • and not permitting such process against a resident in any case. That the distinction between a resident and a non-resident is so broad as to authorize a classification in accordance with the suggestion just made is conceded, and, if it were not, is obvious. The reasoning then, is, that, although the difference between the two classes is adequate to support the allowance of the remedy in one case and its absolute denial in the other, yet that the distinction between the two is not wide enough to justify allowing the remedy in both cases, but accompanying it in one instance by a more onerous prerequisite than is exacted in the other. The power, however, to grant in the one and deny in the other of necessity embraces the right, if it be allowed in both, to impose upon the one a condition not required in the other, for the lesser is necessarily contained in the greater power. The misconception consists in conceding, on the one hand, the power to classify residents and non-residents, for the purpose of the writ of attachment, and then from this concession, to argue that the power does not exist, unless there be something in the cause of action, for which the attachment is allowed to.be issued, which justifies the classification. As, however, the classification depends upon residence and non-residence, and not upon the cause of action, thé attempted distinction is without merit.”
Prior to 1883 it was provided by section 44 of the corporation act (Gen. Stat. 1868, ch. 23) that creditors might sue the stockholders of a dissolved corporation upon their individual liability, and by section 40 it was provided how a corporation might be dissolved. In 1883 (Laws 1883, ch. 46) this section 40 was amended by adding a provision that a corporation should be “deemed to be dissolved” for the purpose of enabling creditors to sue stockholders whenever it had ceased to do business for more than one year. (Laws 1883, ch. 46, §1.) It is claimed by plaintiff in error that this amendment is void because enacted in violation of section 16 of article 2 of the Kansas constitution, relating to the title of acts and requiring amendments to sections to contain the entire section amended. It is argued that under color of amending section 40 the legislature really attempted to amend section 44 ; that the new matter added to the statute had no reference to the subject of when or how a corporation is dissolved, but merely gave a new remedy to creditors against stockholders. The substance of the argument is that the situation is the same as though the legislature had attempted to accomplish the purpose intended by directly enacting that section 44 should be amended by adding certain words thereto without incorporating into the new act the provisions of the section already existing. This course would obviously have been within the letter and reason of the constitutional prohibition. But the answer to the argument is that while the legislature might properly have i’eached the desired end by amending section 44 in set terms, incorporating the old section with the amendment into a new one, or might have improperly attempted this by the course suggested, it in fact chose another method and in due form amended section 40.
It is not true that the new matter had no relation to the subject of the dissolution of the corporation. If the new conditions prescribed as authorizing a suit against the stockholders had in fact no relation to the matter of the dissolution of the corporation, and the legislature had sought arbitrarily to classify corporations' as dissolved under circumstances manifestly not justifying such a term, a very different question would be presented. But there is no impropriety in calling a corporation dissolved when it has ceased for á year to do the business for which it was created. Nor is there anything inconsistent in providing that a corporation may be at the same time dissolved for certain purposes and not dissolved for others.
It is further objected that the action will not support an attachment because not founded on contract. It has repeatedly been held, however, that the liability sued upon is contractual. It is also claimed that the bonds of the corporation that formed the basis of the suit were void because not authorized by its charter. They purported to be issued for existing obligations of the company and were certainly not void upon their face. Complaint is also made that the trial court permitted plaintiff to introduce in evidence a pleading filed by defendant in another action in which certain facts were admitted for the purpose of such action only. If this was error it was not material, since the trial was had without a jury, and there was competent evidence upon the only issue affected sufficient to support the finding of the court.
The objections so far considered relate to the right of plaintiff to maintain the action at all, and upon all such objections our holding is against the plaintiff in error. But other questions are presented relating to the amount of recovery and to matters which defendant claimed should limit the total amount of his liability to corporate creditors. The most important of these concerns a judgment held by him against the corporation, which was first allowed, bub afterward disallowed by the trial court, as a limitation upon his liability. The judgment was rendered upon confession and the objections made to it are three : (1) That the statute relating to. judgments by confession was not complied with and the judgment was therefore a nullity ; (2) that it was rendered in favor of an executor upon a confession made by an officer assuming to act for the corporation, who as an individual was a beneficiary of the act, in that he was one of the dis tributees of the estate represented by the executor; (3) that the judgment had become dormant and so was'unavailable for any purpose.
The first objection turns upon the fact that the judgment was founded upon the personal appearance of the corporation in court by R. M. Manley, its ‘ ‘ vice-president and presiding member, ’ ’ and upon an affidavit .-made by him. The statutory provisions relating to judgment by confession (Code, §§ 402-405 ; Gen. Stat. 1901, §§4851 — 4854) are as follows:
■ “Sac. 402. Any person indebted, or against whom a cause of action exists, may personally appear in a court of competent jurisdiction, and with the assent of the creditor or person having such cause of action, confess judgment therefor ; whereupon judgment shall be entered accordingly.
“Sec. 403. Judgments may be entered upon confession by an attorney authorized for that purpose by a warrant of attorney, acknowledged or proved as conveyances of land, without any previous process or proceeding; and judgments so entered shall be a lien from the date of entry.
“Sec. 404. The debt or cause of action shall be briefly stated in the judgment, or in writing, to be filed as pleadings in other actions.
. “Sec. 405. Before any judgment shall be entered by confession, an affidavit of the defendant must be filed, stating concisely the facts on which the indebted ness arose, and that the amount of such indebtedness is justly due and owing by the defendant to the plaintiff.”
The proceeding in question was had under the first section quoted, without the use of a warrant of attorney. ' It is objected that a corporation cannot personally appear, within the meaning of this section, ánd that if it can the vice-president or presiding member has no authority by virtue of his office to make such appearance in its behalf. In Chamberlin v. Mammoth Mining Co., 20 Mo. 96, it was said that the president, “being the person appointed by law to defend the corporation, was competent to' confess the action. He might have suffered a judgment by default, and the matter is not made worse by an appearance and confession.” This reasoning seems sound and applicable to any officer upon whom service might be had. (Bank v. Prescott, 60 Kan. 490. 57 Pac. 121.) The statute allows service of summons against a corporation to be made upon its “president, mayor, chairman of the board of directors, or trustees, or other chief officer.” ' (Gen. Stat. 1901, § 4498.) Oases are cited in Debenture Co. v. Lombard, 66 Kan. 251, 71 Pac. 584, holding that service may be made upon a vice-president. The offices of vice-president and presiding member' are recognized by the statute (Gen. Stat. 1901, § 1308) authorizing either to execute a deed. Manley might in either capacity (with the addition of the common seal) have made a sufficient power of attorney to enable some one else to confess judgment for the corporation.
It is to be borne in mind throughout this discussion that the attack upon the judgment is not only collateral — it is made by one occupying no more advantageous ground than the defendant itself. As between the parties a judgment by confession may be good, notwithstanding a* failure to comply fully with the statute. (Smith v. The State, 64 Kan. 780, 68 Pac. 641, and cases cited; also, U. P. Railway Co. v. McCarty, 8 Kan. 125.) If this judgment was a valid claim against the corporation no reason is apparent, in the absence of any charge of fraud, why its owner might not interpose it in reduction of his liability as a stockholder when sued for a corporate debt. The affidavit in verification of the pleading of a corporation is merely required to be made by some officer. (Code, §110; Gen. Stat. 1901, §4544.) If a manifestly bad service were made upon a defendant corporation and an answer were filed in its behalf, verified and signed only by some officer other than the president, could the corporation be heard after judgment to say that the court had no jurisdiction? Here the corporation’s officer made and filed an affidavit required by the statute, setting out his official capacity. This was tantamount to a pleading in an ordinary action. It was verified according to the provisions of the code. It was legal evidence of its contents, which included a statement of the facts occasioning the indebtedness and authorizing a judgment. No question of fact is raised either as' to the validity of the debt or as to the actual authority of the officer to represent the company. We cannot say that under these circumstances, and as against the attack here made upon it, the judgment was upon its face utterly void.
It is claimed that the second objection to the judgment, based upon the fact that Manley was a beneficiary of the plaintiff’s trust, is substantially the same as that held to be good in Manley v. Larkin, 59 Kan. 528, 53 Pac. 859. There an insolvent debtor confessed judgment against himself in favor of an estate in which he was interested as a devisee. This was attacked by another creditor, and it was held, void as to him because it resulted in a secret trust in favor of the debtor by giving him a lien on the real estate to the prejudice of other creditors. Here the situation is very different. The attack is not made by another creditor, nor by any one similarly situated or having equivalent equities. The feature of that case upon which the decision turned was that the confession of judgment by creating a lien became substantially a mortgage. Here the matter of the creation of a lien was not involved, and indeed the judgment was no more effective for the purpose for which it is here invoked than the debt upon which it was based would have been, if valid, while there the validity of the claim was immaterial. Again, in that case the debtor confessed a judgment against himself in favor of himself and thereby in.effect conveyed property to himself as security. Here he acted merely as an agent for a corporation. His acts under such circumstances are subject to the keenest scrutiny, but it cannot be said that they are under all circumstances absolutely void. “ W-henever an agent, in acting for his principal, also deals with himself, . . . such dealings will be held to be valid unless the principal chooses, to hold them invalid. Such dealings are not void, but only voidable at the option of the principal.” (Barr v. Randall, 35 Kan. 126, 130, 10 Pac. 515. See, also, Bank v. Milling Co., 59 id. 654, 54 Pac. 681.) We hold that the judgment is good against this objection.
The third objection made to the judgment is that it had become dormant by plaintiff’s permitting five years to elapse without suing out an execution, and that this condition had existed for more than a year, so that the judgment was absolutely barred for all purposes. In reply to this it is said that x x x. o before the expiration of five years from qate of the judgment the representative powers of William H. Risk, the judgment plaintiff, having ceased, the judgment had been duly revived in the name of his successor, Reuben M. Manley, and that at the time the pleadings were settled five years had not elapsed since then. This presents - the ques- ' tion whether, when a'judgment is revived by reason of the death of a party or the cessation of his powers, such revivor affords a new starting-point and makes the judgment good for five years more without further revivor or execution. On the one hand, it is argued that the judgment had once become dormant and had been revived, and that it could not -become dormant again except for causes accruing wholly after such revivor; on the other, that a judgment does not become dormant by the death of a party or the cessation of his powers, and that the substitution of a new party in lieu of one who has died or whose powers have ceased is not a revivor. The latter view has heretofore been urged upon the.court in several cases, an especially elaborate discussion of it having been presented in the brief of plaintiff in error in Johnson v. Wynne, 64 Kan. 138, 67 Pac. 549, which was reversed upon considerations foreign to this matter.
The subject of the dormancy and revivor of judgments has given rise to much discussion and disagreement. The decisions in this state have departed radically from the law as construed elsewhere' even under similar statutes. Section 425 of our code (Gen. Stat. 1901, § 4875) provides that on the death of a party to an action it may be revived in the name of his representative, but only if the order therefor is made within a year (Code, §433; Gen. Stat. 1901, § 4883) ; that if a judgment becomes dormant it may be revived in the ■ same manner (Code, §440; Gen. Stat. 1901, §4890) ; that if either party to a judgment dies his representative may be made a party to it in the same manner as is prescribed for reviving actions (Code, § 439 ; Gen. Stat. 1901, § 4889). This last proceeding is not in so many words described as a revivor, but it is uniformly so designated in the decisions both in this state and elsewhere. A more significant, fact is that the statute does not undertake to define dormancy and does not apply the term to the condition arising upon the death of a party to a judgment. But in Kansas (as perhaps in no other jurisdiction) such condition is constantly spoken of as dormancy, and a long line of decisions have assimilated this condition to that of a judgment dormant for want of the timely issuance of execution, until they must be regarded as practically identical. It has been held that a judgment dormant for want of execution must be revived, if at all, within the year (Angell v. Martin, 24 Kan. 334), and that this is true of a judgment a party to which hás died (Scroggs v. Tutt, 23 Kan. 181); that after the year has passed without revivor neither judgment will support an action (Mawhinney v. Doane, 40 Kan. 676, 17 Pac. 44; Smalley v. Bowling, 64 id. 818, 68 Pac. 630). In the last-cited case it was recognized that all of these decisions, and many others of like nature, are at variance with the current of authority elsewhere, but the majority of the court held that it was too late to attempt to conform to the practice in other jurisdictions.
The analogy between the situation arising upon the death of a party to a judgment and the condition ordinarily known as dormancy must be determined in the light of the construction already given these statutes by this court. It is not clear whether the word “dormant,” as applied to judgments, had originally or has ordinarily a well-defined technical meaning, but here it has by repeated use been given a definition broad enough to cover j udgments that have not wholly lost their vitality, but which cannot support an exe1- cation for want of necessary parties. In Kothman v. Skaggs, 29 Kan. 5, 17, it was said of a judgment, after the death of the defendant:
“The judgment then ceased to be a judgment against any living person, but it did not become a nullity; it was still a judgment in a limited sense. It was a judgment in abeyance, a dormant judgment.”
In Ashmore v. McDonnell, 16 Pac. (Kan.) 687, 690, the term was applied to a judgment against one afterward sentenced to the penitentiary for life, and therefore civilly dead. It was said :
“This conviction deprived the plaintiff of all civil rights, and, before anexecution could be issued thereon, this judgment would have tobe revived. Commissioners, etc., v. Lawrence, 29 Kan. 158. This not having been done, the execution was issued upon a dormant judgment, and was of no validity.”
This language was omitted from the final opinion as officially published (39 Kan. 669), but only in view of new facts developed, not because the statement of law was doubted. It was quoted with approval in Seeley v. Johnson, 61 Kan. 337, 59 Pac. 631, where it was also said (page 339) : “Upon the death of the plaintiff in the judgment at bar it became dormant.” In Mawhinney v.Doane, 40 Kan. 676, 680, 17 Pac. 44, 48, it was said :
“The judgment sued on is dormant, and the time has expired within which it can be revived. This dormancy was created by the death of Sarah F. Mawhin-ney.”
These cases sufficiently illustrate the proposition stated that, whatever may be the rule elsewhere, in Kansas the death of a party renders a judgment dormant within the meaning of the statute. When a judgment, dormant because of the lapse of five years without an execution, is revived, it cannot be doubted that such revivor restores life to it and makes it good for five years without the issuance of an execution.. It is not a new judgment, but it has been reanimated, restored to activity, and made as effective as ever. So if a party to such a dormant judgment should die and a revivor be had in the name of his representative within a year from the occurrence of the first dormancy, this would obviously cure the dormancy occasioned by the want of execution as well as that resulting from the death. The proceedings in the two cases are alike and the orders substantially the same, and when the judgment is dormant only because of the death of a party the order of revivor should be equally effective.
"We think this view harmonizes with all the actual decisions that have heretofore been made by this court, and with the language used in support of them, except in part in the case of Halsey v. Van Vliet, 27 Kan. 474. There the only question before the court was whether, under the facts of that case, the judgment involved was a lien on certain real estate, and it was decided that it was not. The judgment was rendered February 18, 1873. On April 18, 1873, the defendant conveyed the land in question to a third party. On April 28, 1873, the defendant died, and on May 19, 1873, an administrator was appointed. On October 11, 1875, by the consent of the administrator, the judgment was revived. Since the judgment could at that time be revived only by consent, it is obvious, under the authority of Schmucker v. Sibert, 18 Kan. 104, 26 Am. Rep. 760, that it could -not be made a lien on the land without the consent of the owner; the consent of the representative .of the defendant, who had parted with,the title, was not suffi- eient. Mr. Justice Brewer, in discussing the effect of executions issued after the death of a party and before revivor, expressed his own views as follows ':
“The writer believes that so far as affects .the question of keeping alive the judgment, those executions cannotbe considered nullities. While doubtful whether a sale under them could be upheld, even when collaterally attacked, and conceding that such a sale would be voidable and would be set aside upon a motion or other direct proceeding, he holds that this result follows alone from the fact that thex’e is no party defendant in being whose property can be seized. He believes that the principle upon which the issue of an execution keeps alive a judgment is, that thereby the plaintiff affirms its vitality, and that this principle is enforced whenever the plaintiff comes into court and causes an execution to be issued and placed in the -hands of an officer, and that it is immaterial whether the defendant then has any property upon which the process may be levied, or whether by the death of the defendant there be any party in being against whom the process may lawfully run. It is in either case equally an assertion by the plaintiff that the judgment is unpaid, and that he is intending at some time and in some way to enforce its collection.” (Page 481.)
The court held this reasoning to be inapplicable for the reason that the executions were absolute nul-lities and that “when an execution is void the causing it to issue cannot be regarded as a proceeding in good faith to collect the judgment.” A valid order of re-vivor, on the contrary, is the highest form of affirmance that the judgment is unpaid, since it amounts to a judicial determination to that effect at the instance of plaintiff and upon notice to defendant. We hold that the judgment was not dormant at the time the answer was filed.
It is-further argued that the revivor was void because made upon only five days’ notice. The statute requires only a reasonable notice (Coal Co. v. Carey, 65 Kan. 639, 70 Pac. 589), and it cannot be said, as a matter of law, in a collateral attack, that this notice was not sufficient.
Two other demands of the defendant against the corporation were disallowed by the trial court. . It is said by plaintiff in error that this was becahse they had outlawed between the time of the filing of the petition and the filing of the answer, and the question is argued at length whether, for the purposes here involved, the commencement of this action should be .deemed to stop the running of the statute of limitations against these claims. It is at least doubtful whether plaintiff was in a situation to avail himself of this consideration. However, neither of these questions needs to be determined. It appears that the claims were based upon guaranties made by the corporation, its obligation being secondary, and there is no such showing of diligence exercised against the principal obligor as to charge it absolutely. On the contrary, the negligence shown seems such as to discharge the corporation altogether. The ruling of the trial court in disregarding these claims is approved, not because action upon them against the corporation was barred, but because it was not shown that a cause of action upon them ever accrued against it.
The conclusions here reached will not affect the' final judgment in this particular case, which is one of a series of the same character, but the additional deduction to be allowed defendant will diminish his total liability, and require the reversal of one of the judgments and the modification of another.
This judgment is accordingly affirmed.
All the Justices concurring. | [
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|
The opinion of the court was delivered by
Mason, J. :
On April 20, 1900, S. W. Kimmel, of Garber, Okla., shipped to a Wichita commission firm, known as the Wichita Live-stock Commission Company, a car-load of hogs, with directions to sell, and to send him a draft for the net proceeds. The hogs were sold to Jacob Bold & Son on April 25, and the commission company at once mailed to Kimmel its personal check on the Kansas National Bank, of Wichita, where they had had an account for several years, for $1016.16, that being the amount for which the sale was made, less the commission and expenses. Dold & Son paid for the hogs on April 26 with a check made payable to the order of the commission company, drawn upon another Wichita bank. The company at once indorsed the check and deposited it in their bank, receiving credit upon their deposit account, and it was paid on the same day. Kimmel deposited the check sent him by the commission company with his local banker, and it was forwarded for collection through the ordinary banking channels, reaching Wichita on May 1, when it was presented to the bank on which it was drawn, which refused payment. Kimmel then sued the bank for the amount of the check, alleging that the deposit of the proceeds of the sale of the hogs was made without .his authority and in violation of his instructions, and that the bank knew all the circumstances connected with the transaction. The bank answered, denying knowledge of the relations of plaintiff and the commission company, and alleging that when the Dold check was deposited the company’s account was overdrawn more than that amount; that the overdraft had been permitted upon an agreement that it should forthwith be made good by deposits, and that the check, when deposited, was applied to such overdraft without notice of plaintiff’s claim. Plaintiff replied with a general denial. Upon the trial, the court sustained a demurrer to plaintiff’s evidence, and rendered judgment accordingly, which plaintiff now seeks to reverse.
The evidence was mainly directed to the question of the bank’s knowledge of the commission company’s business. Substantially the same facts were shown in this regard as in Martin v. Bank, 66 Kan. 655, 72 Pac. 218, which grew out of a similar claim against the same bank made by another shipper. Here, as in that case, an effort was made to show such intimate relations between the bank and the commission company as to justify charging the former with actual or •constructive notice of plaintiff’s interest in the check deposited by the latter. In fact, however, little more was shown than that the bank knew that the company was engaged in the commission Business and that their account was sometimes overdrawn. The evidence on this point, being stated in some detail in the Martin case, will not be further reviewed. Following the conclusion reached in that case, we hold that the bank must be deemed not to have had notice' of the relation of the commission company to the shipper.
Plaintiff claims.that the record does not show that the account of the commission company was overdrawn to the amount of the Dold check at the time it was deposited. The evidence in this regard is not as full as might be desired, but we think that, upon the consideration of the entire testimony, it sufficiently appears that such was the fact. Indeed, it is perhaps tO' be inferred that the overdraft was allowed to be created in virtue of a statement by the commission company that they had funds ready to .deposit against it,, having reference to this very.check. The question incidentally suggested in Martin v. Bank, supra, is therefore fairly presented : Can a bank be held to account to the owner of a fund which has been deposited by an agent in his own name and applied upon the agent's overdraft, the bank having no knowledge of' the agency ? The strongest case cited in support of the contention of plaintiff in error for an affirmative answer to this question is that of Cady v. South Omaha Nat. Bank, 46 Neb. 756, 65 N. W. 906 ; id., 49 Neb. 125, 68 N. W. 358. The third paragraph of the syllabus reads: •
“F., a commission merchant, deposited in bank money realized from the sale of live stock consigned” to him by C., his account with the bank being at the time largely overdrawn. Held, regardless of the question of notice, that the bank is accountable to C., and that it cannot apply the money so deposited in satisfaction of F.’s indebtedness.”
' Under the evidence in that case, as stated in the opinion, it might well have been said that the bank was chargeable with notice, but no account was taken of this fact as a basis for the conclusion reached. In the opinion a number of cases are cited, one of which, Davis v. Panhandle Nat. Bank, 29 S. W. (Tex.) 926, seems to be entirely in point, holding that, where an agent deposits the money of his principal in his own name, the bank cannot hold it for the debt of the agent, although it has no knowledge of the agency, unless it would otherwise lose its claim. No authorities are cited of arguments presented in support of this conclusion, the opinion merely stating that the court did not see upon what principle the bank should be allowed to retain the money, and that it was perfectly manifest that it had no right to do so. A brief review of the other cases cited will show that they do not go as far as the Nebraska decision.
In Pennell v. Deffell, 4 De G. M. & G. 372, it was held th-at trust funds deposited by a trustee in his own name together with money of his own could be followed by the beneficiary; but the controversy was between the beneficiary and the executors of the trustee, the bank making no claim. In Van Alen v. American National Bank, 52 N. Y. 1, the bank likewise made no claim to the money in controversy, and it was held that it could be required to pay it to the real owner, although it was deposited in the name of another, who gave the real owner a check for it. The questions discussed were purely technical. In Burtnett v. F. N. Bank of Corunna, 38 Mich. 630, an agent deposited funds of his principal in his own name; Some six months later he died, and the bank, then attempted to apply the deposit to a debt of the decedent, the character of which is not shown in the reported' decision. It was held that this could not be done, the case turning upon the fact that the agent never authorized thelboney'to be applied to his debt. In Third National Bank of St. Paul v. Stillwater Gas Co., 36 Minn. 75, 30 N.W. 440, it was merely held that money obtained by a bank by fraud could be recovered by the real owner, although it had passed through several hands. In Peak v. Ellicott, Assignee, 30 Kan. 156, 1 Pac. 499, 46 Am Rep. 90, the money involved was not paid to the bank as a deposit, but for a specific purpose, and, as this was not performed, it was held that on the insolvency of the bank it should go to the owner and not to the general creditors. In Baker et al. v. New York Nat’l Ex. Bk., 100 N. Y. 31, 2 N. E. 452, 53 Am. Rep. 150, it was held that a bank having notice of the trust character of a fund deposited by a firm in its own name with the addition of the word “agent” could not apply it to the debt of the firm.
In Whitley v. Foy, 6 Jones Eq. (N. C.) 34, 78 Am. Dec. 236, the bank had actual notice that .money deposited in the name of one person was owned' by another; moreover, the controversy was between the real owners and the administrators of the depositor. In National Bank v. Insurance Co., 104 U. S. 54, 26 L. Ed. 693, and Union Stock Yards Bank v. Gillespie, 137 id. 411, 11 Sup. Ct. 118, 34 L. Ed. 724, the facts were held to give the banks notice of the trust character of the deposits involved. First Nat. Bank v. Hummel, 14 Colo. 259, 23 Pac. 986, 8 L. R. A. 788, 20 Am. St. Rep. 257, cited on rehearing, 49 Neb. 125, 68 N. W. 358, was another contro very between the beneficial owner of a trust fund and the administrators of the trustee. In Hutchinson v. President etc. of Man hattan Co., 29 N. Y. Supp. 1103, a check was deposited by an agent for collection only, and it was held that the bank could not hold it for the debt of the agent, because this was contrary to the intention of all the other parties in interest, including the agent. The decision, moreover, was. reversed by the court of appeals. (150 N. Y. 250, 44 N. E. 775.) In Clemmer v. Drovers’ Nat. Bank, 157 Ill. 206, 41 N. E. 728, the bank knew of the trust character of the deposit. These are all the cases cited on this branch of the case by, the Nebraska court.
■ The same doctrine is announced in 2 Morse on Banks and Banking (4th ed.), section 590, citing this case, that of Burtnett v. F. N. Bank of Corunna, 38 Mich. 630, which has already been commented upon, and Cook v. Tullis, 18 Wall. 332, 21 L. Ed. 933, which only declares the right of the real owner of property to hold it against the trustees in bankrupty of one to whose care it had been confided.
Plaintiff in error also cites Farmers’ and Merchants’ Bank v. Farwell, 58 Fed. 633, 7 C. C. A. 391. Expressions are found in the opinion in that case favorable to his contention, but the decision turned largely upon the fact that the money sought to be held by the bank did not reach it by any act of its debtor, or even with his knowledge, but was deposited in his name by his attorney through mistake.
A conclusion different from that of the Nebraska court is reached in Smith v. Des Moines National Bank, 107 Iowa, 620, 78 N. W. 238, where the authorities bearing upon the matter are collected and reviewed. The scope of the opinion is indicated by a paragraph of the syllabus, reading as follows :
“A.cestid que trust cannot recover trust moneys which were deposited in a bank by the trustee in his own name and which, without notice of their trust character the bank applied to a matured individual note of the trustee, surrendering the note to the latter.”
We think this decision is in accordance with the weight of authority and with the better reason. The facts there presented differ in no material respect from those now under consideration, except that the depositor expressly agreed that the bank might apply the deposit to his debt, and the bank surrendered the note which evidenced it. Where a depositor carries an account with a bank as a part of his usual business, continually drawing checks and making deposits, sometimes having a balance to his credit and sometimes being overdrawn, it seems clear that the mere act of making a deposit is equivalent to'an agreement that it shall apply against any overdraft that may exist at the time. Presumptively, that would seem to be the very purpose of the deposit.
“It has long been settled that a banker who has advanced money to another has a general lien on all securities of the latter which are in his hands, for the amount of-his general balance, unless such securities were delivered to him under a particular agreement limiting their application.”. (Wood v. Boylston National Bank, 129 Mass. 358, 37 Am. Rep. 366.)
“When a depositor opens an account in a bank that very act, in the absence of an agreement to the contrary, authorizes the appropriation of his deposit balance to any matured claims the bank may hold against him, the same as if he then executed an agreement in writing to that effect.” (Meyers v. New York County Nat. Bank, 36 Hun, App. Div. 482, 484, 55 N. Y. Supp. 504.)
But if the general rule were otherwise, the circumstances of this case, already stated, would amount to an authority to the bank from its customer to apply the deposit to the overdraft. And there seems no just ground for making a distinction for any purpose here involved between the payment of a past-due debt that is evidenced by a note and the payment of one that is a mere matter of book account. No such distinction , I is made where the question relates to the consideration for the transfer of negotiable paper. (Draper v. Cowles, 27 Kan. 484 ; Mann v. National Bank, 30 id. 412, 1 Pac. 579.) Indeed, the very principle of protection to the innocent purchaser of commercial paper is invoked by defendants in error. The check deposited in this case was a negotiable instrument. The substantial controversy is as to its ownership. The bank acquired it from one who had the apparent title, without notice of any other claim. The argument that these considerations are sufficient to sustain the defendant’s position seems sound. But the business was conducted as a cash transaction. The commission firm might have collected the Dold check themselves and deposited the cash in the bank, and the question presented would not have been materially different. The principle upon which 'transfers of negotiable instruments in payment of and even as security for existing debts are upheld is the desirability of promoting their currency. (Birket v. Elward, ante, p. 295, 74 Pac. 1100.) Surely no greater currency should be given to notes and bills than to actual money.
“The rule has been settled by a long line of cases, that money obtained by fraud or felony cannot be followed by the true owner into the hands of one who has received it bona fide and for. a valuable consideration in due course of business.
“It is said that the case is to be governed by the doctrine established in this state that an antecedent debt is not such a consideration as will cut off the equities of third parties in respect of negotiable securities obtained by fraud. But no case has been referred- to where .this doctrine has been applied to money received in good faith in payment of a debt. It is absolutely necessary for practical business transactions that the payee of money in due course of business shall not be put upon inquiry at his peril as to the title of the payor. Money has no earmark. The purchaser of a chattel or a chose in action may, by inquiry, in most cases, ascertain the right of the person from whom he takes the title. But it is generally impracticable to trace the source from which the possessor of money has derived it. It would introduce great confusion into commercial dealings if the creditor who receives money in payment of a debt is subject to the risk of accounting therefor to a third person who may be able to show that the debtor obtained it from him by felony or fraud. The law wisely, from considerations of public policy and convenience, and to give security and certainty to business transactions, adjudges that the possession of money, vests the title-in the holder as to third persons dealing with him and receiving it in due course of business and in good faith upon a valid consideration. If the consideration is good as between the parties, it is good as to all the world.” (Stephens v. Board of Education, 79 N. Y. 183, 186, 187, 35 Am. Rep. 511.)
“If a trustee or other fiduciary person, in violation of his own duty, uses trust money to pay an antecedent debt of his own to a creditor who has no notice of' the breach of trust, or that the money is subject to-the trust, in such a manner that the money is received as a general payment, and not as a distinct and separate fund, then the money becomes free from the trust, and cannot be followed by the beneficiary into the-hands of the creditor, although, in general, an antecedent debt does not constitute a valuable consideration.” (Pom. Eq. Jur., 2d ed., §1048.)
In addition to the authorities cited in Smith v. Des Moines National Bank, supra, see Bank v. Bank, 60 Kan. 621, 57 Pac. 510 ; G. N. Bank v. State, 141 N. Y. 379, 36 N. E. 316 ; Holly v. Missionary Society, 180 U. S. 284, 21 Sup. Ct. 395, 45 L. Ed. 531, and Meyers v. Hew York County Nat. Bank, supra. The syllabus in the last-named case reads:
“A bank, haying previous authority to apply a customer’s deposit to his debt, can appropriate it to the debt, though the deposit was.in part money of the depositor’s ward, the bank having no knowledge of the fact.”
We think that a bank which receives from an agent for deposit in his own name the money of his principal, without notice of the agency, is protected in applying it to a past-due debt of the depositor to the same extent as in paying it out upon his check, whenever such application is authorized by the agent, either expressly or by legal implication, and that such aur thority ordinarily arises from the making of a deposit upon an overdrawn account when no other directions are given.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
This is an action in replevin brought 'in the district court of Lyon county by Lewis Powell against John W.’ Blank to recover the possession of certain cattle, of the aggregate value of $300. In the spring of 1901 Powell entered into a contract with Blank, whereby the latter agreed to pasture cattle belonging to the former for the pasture season of that year at' an agreed price per head. In the fall following, at the close of the pasture season, a controversy arose between the parties, Blank claiming of Powell the sum of $51.50, of which sum $5 was for the pasturing of cattle owned by one Charles Moss, the payment of which' Blank claimed Powell guaranteed, and which liability the latter denied; but he ad mitted owing Blank the sum of $46.50 for the pasture of cattle, less $30, the value of a cow belonging to him which a Mr. Jones had been permitted to take from the pasture under the mistaken belief that the cow taken belonged to Jones. Blank denied his liability to Powell for the value of the cow taken by Jones. Powell then tendered to Blank the sum of seventeen dollars, and demanded possession of his cattle. Blank refused to surrender them, claiming the right to the possession of the cattle under an agistor’s lien. Powell brought his action in replevin, and upon the trial was given a verdict awarding him the immediate possession of the cattle. Blank brings the case to this court for review, assigning error in the court below.
PowelL filed his motion to dismiss the case, challenging the jurisdiction of this court, claiming .that the amount in controversy in this court is less than $100. There is no dispute that the cattle were owned by Powell and that the claim of Blank was one not of ownership in the cattle, but for possession only, to satisfy a lien for $46.50, or at most $51.50. We believe the motion should be sustained. So far as the plaintiff in error, Blank, is concerned, the amount in controversy is the amount for which he claimed a lien upon the cattle. (2 Cyc. 580; Frost v. Rowan, 56 S. W. [Ky.] 427; Mohme v. Livingston, 54 Iowa, 458, 6 N. W. 717; Stinson v. Cook, 53 Kan. 179, 35 Pac. 1118.)
The appellate jurisdiction of the supreme, court cannot be exercised in any civil ■ action unless 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.)
The claim of Blank could have been discharged at any time by payment of the amount for which he claimed a lien against the cattle. As there is no jurisdiction to review the case, it will be dismissed from this court.
All the Justices concurring. | [
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The opinion of the court was delivered by
JOHNSTON, C. J. :
Frank Holitza and his wife were injured by reason of an unprotected excavation in one of the much-traveled streets in Kansas City, and he brought this action to. recover the damages so sustained. After the plaintiff's testimony was received, the court, on a demurrer, held the evidence to be insufficient to establish a cause of action, the insuffi-ciencybeing the lack of notice to the city of the defect in the street. The case comes to us on a record wherein the following facts are recited :
“There was no evidence to show that the defendant city permitted, or had anything to do with, the making or maintaining of the excavation mentioned in the street, but there was evidence as to all other matters sufficient to entitle the case to go to the jury, unless it was upon the question of notice to the city of the defect, and as to that question there was evidence showing that one Dean, who was building a house on the north side of, and fronting, Osage avenue, in the said city of Kansas Oity, Kan., the same being one of the most frequently traveled streets in the city, em ployed a plumber to do the necessary plumbing ; also, that such plumber, in order to connect the water-pipes extending along Osage avenue, made an excavation jn front of the Dean property ; that on.the day of the accident, the necessary connections having been made, this excavation had been filled up, with the exception of from eight inches to twelve inches ; also that said excavation was about eighteen inches wide and thirty inches long, and the workmen,-at the time of quitting work (a little before dark), .left an iron rod stuck in the bottom of the said excavation, to the top of which was suspended a lantern ; and there was evidence tending to show that such lantern was not lighted on the evening of the accident until after the accident. Also, there was evidence tending to show that said excavation had existed for two or three days prior to the day of the accident, and that on prior nights the lantern had been left in the same situation as on the night of the accident, but the evidence also showed that on such prior nights the said lantern was properly lighted.
“And the evidence also tended to show that on the evening of Saturday, August 10, 1901, the plaintiff, while driving with his wife along and upon Osage avenue, at fifteen minutes before nine p. m., and at the time when there was no light at the said excavation, drove into said excavation, and thereby injuries were sustained by himself and wife ; and there was no other evidence of notice to the city of the presence of said excavation, or of its unguarded condition, save and except as herein stated.”
It is conceded that it is the duty of the city to keep its streets in a reasonably safe condition for public travel, both day and night. Whether this duty has been performed or not is ordinarily a question of fact for the jury. The care required of the city necessarily depends upon a number of circumstances and considerations, including the population of the place, whether great or sparse, and also whether the streets are much or little traveled, and cases are rare in which the court can say as- a matter of law that due care lias or has not been exercised. *
■ The excavation in the street was a defect involving liability, unless it was reasonably ■ well guarded, or unless the city did not have sufficient notice of the defect to enable it to furnish protection. Under the facts stated, every element essential to a recovery against the city was shown, provided it had sufficient notice of the defect to make it responsible. It is argued that the defect existed for so short a time that the court was warranted in holding the notice to be insufficient and in arbitrarily taking the case from the jury. The injury was suffered at fifteen minutes before nine o’clock on the night of August 10, and it is said that at that time darkness did not come until about eight o’clock. The claim is therefore made that, as the period in which no danger lights were up was only from forty-five minutes to an hour, notice to the city can in no event be implied.
The defect in the street, however, was not the mere absence of a light, but it was the excavation which had existed for several days, a time sufficient from which to warrant a jury in imputing notice to the city. Besides, such excavations are usually made with the permission of the city, although it does not appear that permission was given in this instance ; but whether made by its own officers or by third persons, the duty still rested upon the city to see that the excavation was properly guarded. It cannot escape responsibility simply because the excavation was made by a third■ person, nor because such person may have assumed the task of guarding it.
Notice is not readily imputed where the defect is of short duration, as the city and its officers are only held to the exercise of reasonable care and diligence. But here the defect had existed, as we have seen, for several days. It was upon one of the most frequently traveled streets in the city, and although the danger light was only absent an hour or less on the night of the injury it cannot be said that there was no question of fact to leave to the jury. This is not a case where signals or guards had been erected and had been removed by a wrong-doer without the knowledge of the city. Ordinarily, the question of whether the city has exercised reasonable diligence to discover dangerous defects is for the jury, and especially is it so where the defect existed in a busy part of the city, where reasonable supervision by the city would necessarily result in an early discovery. We do not decide that there was constructive notice which fixes a liability against the city, but only that there was testimony from which a jury might have inferred notice, and under all the circumstances of this case we think the questions of notice and negligence were peculiarly for the jury.
The judgment will be reversed and the cause remanded for further proceedings.
All the Justices concurring.- | [
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The opinion of the court was delivered by
Greene, J.:
This proceeding is prosecuted to- reverse an order of the district court setting aside a personal judgment previously obtained by the plaintiffs in error against the defendant in error.
It appears that D. M. Osborne & Co. obtained a judgment against Jacob Schlichenmeier in the district court of° Geary county upon a promissory note. The defendant lived in Jackson county, Missouri. When the action was commenced the plaintiffs filed an affidavit for attachment, upon which an order was issued, and levied upon’ real estate owned by the defendant in Geary county. No affidavit was filed for service by publication nor personal service had upon the defendant, other than that had by issuing a summons to the sheriff of Jackson county, Missouri, which was served upon the defendant by such sheriff, and returned with an .affidavit thereto showing that the summons had been personally served. The defendant did not appear at the trial nor at any subsequent proceedings, except as herein stated'. The cause was tried, a personal judgment rendered against the defendant, and an order made to sell the attached real estate.
The land was sold, and purchased by the plaintiffs. A certificate of purchase having been issued to them, they assigned it to the other plaintiff in error, Mary R. Seymour, who caused the sale to be confirmed and a deed made to her. Within a year thereafter the defendant filed a motion, and served notice upon the plaintiffs and Mary R. Seymour, to set aside the judgment and all proceedings had thereunder, alleging that the court had no jurisdiction of him in the action. After this motion was filed the plaintiffs and Mary R. Seymour made á motion, and filed with it an affidavit for publication, asking that they be permitted to amend or supplement their affidavit in attachment with this affidavit for service by publication. Upon the hearing of this application the defendant refused to appear. The court overruled the motion and refused to permit the amended affidavit to be filed. Defendant’s motion to set aside the judgment and sale of the real estate was sustained, and the deed made by the sheriff to Mary R. Seymour canceled.
It is claimed by the plaintiffs in error that the court erred in overruling their application to amend or supplement their affidavit for service by publication, and also erred in .sustaining the defendant’s motion. We are of the opinion that the court below was correct in both such rulings. Section 4507, General Statutes of 1901, provides :
“Before service can be made by publication, an affidavit must be filed stating that the defendant or defendants are non-residents of the state of Kansas, and that personal service of summons cannot be had upon said defendant or defendants within the state of Kansas, . . . and showing that the case is one of those mentioned in the preceding section. . . .’’
Section 4510 provides:
“In all cases where service may be made by publication, personal service of summons may be made out of the state by the sheriff of the county in which such service may be made : . . •. Provided, That such service when made and proved as aforesaid shall have the same force and effect as service obtained by publication, and no other or greater force or effect.’’
The affidavit for the attachment did not contain sufficient facts to conform to the requirements of the statute as an affidavit for service by publication. Service by publication, without the statutory affidavit, is void, and all proceedings thereunder are also void and may be set aside.- (Shields v. Miller, 9 Kan. 390; Harris v. Claflin, 36 id. 543, 13 Pac. 830; Lieberman v. Douglass, 62 id. 784, 64 Pac. 590; Grouch v. Martin, 47 id. 313, 27 Pac. 985.)
The contention that the court erred in overruling plaintiffs’ application to amend or supplement their affidavit by filing an affidavit for service by publication cannot be sustained. This is not a case where there was a defective affidavit for publication or a-defective service, but an entire absence of any affidavit for such purpose. There was, therefore, nothing to supplement or amend.
Some contention is made in the brief and oral argument of plaintiffs in error that defendant’s appearance to raise the jurisdictional question was a general appearance. We think this is not well taken. His-motion was a special appearance and he asked no affirmative relief. He refused to appear on the hearing of plaintiffs’ motion to file an amended or supplemental affidavit. His appearance was for the one-purpose of raising the jurisdictional question.
The orders and judgment of the court below were correct. The judgment is therefore affirmed.
All the Justices .concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
This action has been considered by this court once before (63 Kan. 768, 66 Pac. 1024), and, in addition to the facts in the former decision, only such will herein be noted as- are necessary to a full understanding of the questions now raised.
The order of this court in the former case was that-the judgment which the lower court had rendered,, discharging the bank as garnishee, be reversed and further proceedings had in and about that matter. It must be borne in mind that the judgment of the lower court had been against the city’s right to recover upon its interplea. To reverse this judgment no action was taken, and it remained unaffected by the former judgment of this court. The case having been returned to be considered upon the issue between the lumber company and the bank, there was tendered an amended answer on behalf of the bank and also one on behalf of the city, with motions that the-same be allowed to be filed. These motions were-denied by the court, and that action is now relied on as ground of error.
George K. Spencer and J. M. Furnish, who, with S. E. Jocelyn, constituted the board of police commissioners at the time the money garnished came to-the hands of Jocelyn, interpleaded and were permitted to file an answer in their own behalf. Upon the trial the court held the bank liable as garnishee and directed the application of the funds,m its hands to the payment of the claim which the lumber company had against Jocelyn. Spencer and Furnish are here-alleging this as a ground of error in their own behalf. So far as they are concerned their answer discloses no right in themselves, either as a board or as individuals, to the fund in question. The answer discloses the fact that the board had been dissolved, and was no longer in existence ; so if it ever had any right to ■ the fund in question it certainly did not at the time-of the filing of their answer. So far as they are concerned, we need spend no time upon the question of the correctness of the court’s ruling against them.. We will pass, then, to a discussion of the claimed error on behalf of the bank and of the city.
These questions are necessarily much intermingled, and we find it best to discuss them together. Upon the first trial the issues were formed as between the lumber company, the bank and the city in the following manner : The bank had filed a general denial — that is, it denied having any funds whatever belonging to S. E. Jocelyn. Upon this question the lumber company took issue. When the investigation of this issue had progressed far enough to show that the bank had funds on deposit belonging to S. E. Jocelyn the city interpleaded, claiming that these funds had been collected by the board of police commissioners, of which board Jocelyn was president, and that the same were deposited by him as president, and “were and are funds belonging to the city of Wichita,” being in the hands of Jocelyn only in course of transmission to the city treasurer. To this interplea the lumber company replied, admitting that Jocelyn had deposited the funds, but denying that they belonged to the city, denying that they were collected as fines for the violation of any ordinance of the city or as license fees collected under any ordinance of the city, and averring that they were moneys belonging to Jocelyn and subject to garnishment. After the filing of this interplea and answer the bank replied, neither admitting nor denying that the funds on deposit belonged to the city of Wichita, but requesting that the city be required to make strict proof of the fact in order that the bank might be amply protected in the matter. It was upon these issues that the former judgment of the court was entered by which it was found that the city was not entitled to the funds, and upon which judgment was entered in favor of the bank for its costs.
The amended answer which the bank tendered denied its liability as garnishee for the reason that the funds in hand were deposited by Jocelyn as president of the police board, and had been subject to his check ; that they belonged to the board of police commissioners while it was in existence ; that after the former judgment in this case it had paid oyer those funds to the city of Wichita, as the successor in office and interest of the board of police commissioners, said board haying been abolished, and that the city of Wichita now claimed the rightful ownership of the same. The answer tendered by the interplea of the city of Wichita repeated these allegations and was substantially what had been contained in its former intei'plea, with the addition that the board of police commissioners had been abolished, and that it, as successor to that board, was entitled to the funds, and had received them from the bank.
It further appears that the board had been abolished for a considerable time prior to the former trial, and that whatever rights that fact might have conferred upon the city existed, and might have been pleaded and relied upon, at the time of the. former hearing. The substantial question then is, whether the issues presented under the answers tendered by the bank ■ and the city were substantially different from those already passed upon and adjudicated against the city.
Under our present procedure in garnishment a judgment rendered is of the same nature, governed by the same rules and as binding upon the parties thereto as a judgment rendered in a more formal proceeding. (Harwi v. Klippert, 67 Kan. 743, 74 Pac. 254.)
We are of the opinion that the answers tendered raised no different question, as between the city and tbe lumber company, than had already been presented and decided by the court. Under the former answers the city was insisting that the funds in question rightfully came into the hands of the police board through its president, Jocelyn, and that the board was but the agent of the city in such collection, and was holding the funds for it while they were in transmission to its treasurer; in short, that the funds belonged to the city. On the other hand, the lumber company was insisting that the police board had no authority whatever to collect any funds, much less any authority to collect the funds in question ; that they were not collected in behalf of the city, but came to the hands of Jocelyn, whether acting as a member of the police board or otherwise, in such a manner and from such a source as in law to make them his individual funds, and not those of the city, and that as such they were liable to garnishment. This issue, thus presented, was decided against the city, which judgment remains unreversed and unappealed from. Had the police board then been in being it would have cut no figure in the issue. That the funds had subsequently been paid over by the bank to the city, in despite of the judgment of the court against the rights of the city, would be equally ineffectual to confer any rights upon the city. The tendered interplea of the bank was nothing more than an iteration of the claim of the city, and necessarily the bank could not be permitted to litigate for the city a claim which had already been decided against the city upon its own plea.
No issue of merit was tendered by the amended answers sought to be filed beyond what had already been tried, and we are of the opinion that the court below did not err in its refusal to permit them to be filed.
In view of the fact that we find no authority for the police board during its existence to make the collection of the money in question, we are not disposed to take issue with the intimation found in the former opinion of this court that neither the city nor the bank had any right to the funds in question as against Jocelyn or his garnishing creditor, and find nothing in the case of The State v. Patterson, 66 Kan. 447, 71 Pac. 860, in opposition to this view. So, from any standpoint, we conclude that the court below committed no error.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Atkinson, J. :
Frank Day, a minor, nineteen years of age, by his father and next friend, on February 19, 1902, filed his petition in the district court of Osborne county against the Union Pacific Railroad Company to recover damages for personal' injury sustained by him and resulting in the loss of his left foot. On the night of July 20, 1901, at North Platte, Neb., plaintiff was attempting to steal a ride on the top of a baggage-car forming apart of one of defendant’s east-bound passenger-trains. As the train was slowly passing from the station upon a siding to clear the main track for an approaching west-bound train, the front brakeman ordered the plaintiff off the car, and in getting off before the train came to a stop he fell to the track between the baggage-car and the tender. Plaintiff’s left foot was crushed beneath the moving wheels, and it was amputated above the ankle-joint.
The petition of plaintiff charged tliat defendant, by its brakeman, was guilty of.wilful, wanton, malicious and reckless conduct; that said brakeman, with a club in his hand, in an angry, threatening manner, cursed plaintiff and threatened to club him off the car while the same was moving rapidly; that plaintiff, being much alarmed, and believing that he was in danger of bodily harm from the brakeman, endeavored to get down from the top of the car, and in doing so fell, sustaining the injury complained of. Defendant answered by general denial, an ■ allegation of negligence on the part of plaintiff, and that plaintiff was at the time a trespasser upon the train of defendant, stealing a ride. The jury returned a verdict for plaintiff in the sum of $2000, upon which judgment was entered. Defendant brings error.
The main controversy upon the trial was whether or not the conduct of the brakeman toward plaintiff was wilful, wanton, malicious, and reckless, as charged in the petition. Upon this question the only direct testimony was that of plaintiff and the brakeman. The testimony of plaintiff tended to support the aver-ments of his petition: The testimony of the brakeman was to the effect that he had no club with him; that he did not curse or threaten plaintiff; that he merely told plaintiff that he could not ride there and must get off ; that the train was at the time stopping on the siding, and had about stopped. The testimony disclosed the fact that, when plaintiff was injured, he was taken at once to the county poorhouse, where his foot was amputated, and that he remained there for about six weeks. There was evidence offered tending to show that at the time he was injured, and also while at the poorhouse, he related to several persons how the injury occurred. Among others was one James M. Ray, who was a justice of the peace in the city of North Platte, and also poormaster.' As such poormaster, he had charge of the poorhouse, admitting and discharging persons to and from the institution. Defendant took his deposition. The testimony of Mr. Ray in this deposition disclosed the fact that he was a lawyer and had practiced law in North Platte since 1889. He testified to the following conversation between himself and plaintiff at the poorhouse :
“ Ques. Did he ever tell you how the accident occurred? Ans. Yes.
“ Q,. Please state what he told you about it. A. The first thing he said about it was these words : ‘ I ought to have a claim against the railroad.’ I told him if he would tell me how he got hurt probably I could help him as to whether or not he had a claim. I asked him how it was he got hurt; he answered : ‘ I was coming down off the top of a car where the vestibule is; you know there is a vestibule on one car and none ahead to meet it, and that left an opening, and I fell down where the vestibule is.’ I next asked him why he was getting off the car while it was in motion. He answered : * The brakeman made me get off.’ I asked him: ‘How did the brakeman make you get off ? ’ He gave me no answer. I asked him : ‘Where was you when the brakeman saw you ?’ He answered: ‘On top of the car.’ I asked him what the brakeman said, and he answered in these words : ‘Come down off there.’ I said : ‘Did he say anything else to you ?’ He answered,‘No.’ I asked, ‘Did he threaten you?’ He answered, ‘No.’ I asked, ‘Did he have a stick or anything in his hand ?’ He answered, ‘No.’ I asked, ‘Did he touch, you at at any time?’ He answered, ‘No.’ I asked him: ‘How was it you got under the wheels?’ He answered that he was coming off the top of the car by the vestibule and he fell down through the opening. I asked him if there was anybody with him that he knew. He answered: ‘There was a hobo that I was with up the road was there with me, and he got down all right, but when I came down I fell under the car.’ I asked him for a desctiption of that hobo. He described the iñan, and that is'all the conversation we had.”
The court, upon the trial, over the exception of defendant, excluded this testimony from the jury as being a privileged communication between attorney and client.
‘‘The following persons shall be incompetent to testify: . . . Fourth. An attorney, concerning any communications made to him by his client in that relation, or his advice thereon, without the client’s consent.” (Gen. Stat. 1901, §4773.)
Under this statute, the relation of attorney and. client must exist to make the communication privileged. In the case of The State v. Herbert, 63 Kan. 516, 519, 66 Pac. 236, 'Mr. Justice Johnston, in delivering the opinion of the court, said :
“While the payment of a retainer or fee is the best evidence that the relation of attorney and client exists, such payment is not absolutely essential. If an attorney is consulted in his professional capacity, and he allows the consultation to proceed, and acts as adviser, the fact that no compensation was paid, or that the consultation was ended and the relation broken, would not remove the seal of secrecy from the communications made.”
The case of Sheehan v. Allen, 67 Kan. 712, 74 Pac. 245, treats this subject quite exhaustively.
The witness Ray also testified that he had never been employed or retained by plaintiff; that he advised with him gratuitously, and was himself interested only to see if there was some person who could be held liable to the county for the expense of caring for plaintiff. There is nothing in the record to show that plaintiff had any knowledge whatever that Mr. Ray was an attorney, or that he was by plaintiff being consulted as an attorney. It cannot, then, well be said that there existed between the witness and plaintiff the relation of attorney and client, or that the communication was made under the seal of professional confidence. The portion of the deposition excluded was material to defendant. The court committed error in excluding it.
Complaint is made by defendant of the eighth instruction given by the court, which reads :
“If a person gets on a railroad-car, in order to ride without payment of fare, and without consent of the person in charge of the train, he may be ejected from the car prudently and in such a manner as not unnecessarily to endanger his personal safety ; but if reasonable prudence and care are not exercised, and the person is thereby injured, the company will in such case be liable for such injury.”
This instruction does not correctly state the law as to the liability of railroads in ejecting trespassers from trains. The rule of liability in such cases is, that a railroad company is liable in ejecting trespassers from its trains when in doing so it is guilty of wilful or malicious acts amounting to wanton negligence. (O’Banion v. Railway Co., 65 Kan. 352, 69 Pac. 353; Handley v. Railway Co., 61 id. 237, 59 Pac. 271; U. P. Rly. Co. v. Mitchell, 56 id. 324, 43 Pac. 244 ; Campbell v. K. C. Ft. S. & M. Rld. Co., 55 id. 536, 40 Pac. 997 ; A. T. & S. F. Rld. Co. v. Gants, 38 id. 608, 17 Pac. 54, 5 Am. St. Rep. 780; K. C. Ft. S. & G. Rld. Co. v. Kelly, 36 id. 655, 14 Pac. 172, 59 Am. St. Rep. 596.)
The law was correctly stated by the court in other instructions given ; but even then the instruction complained of is objectionable in that it might mislead the jury, and is justly the subject of criticism. While we would not feel disposed to reverse the case upon the giving of this instruction, given, as it was, in connection with other instructions correctly stating the law, it should not again be given upon a second trial of this case. Error is also assigned in the refusal of the court to give instructions asked, and of the refusal of the court to enter judgment for defendant on the special findings of the jury. The instructions given by the court, aside from instruction No. 8, appear fairly to state the law of the case.
The defendant is not entitled to judgment on the special findings. There were in all fifty-two assignments of error. We do not deem the assignments not already referred to of sufficient importance to warrant a special reference to them at this time.
For error in excluding the testimony of the witness Ray, the judgment of the court below is reversed, and the case remanded for a new trial. ■ ■
All the Justices concurring. | [
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The opinion of the court was delivered by
G-reene, J. :
Warne, Willis & Oo. brought this action to foreclose a chattel mortgage for $700 on certain personal property, a portion of which was exempt.. The court rendered judgment against the'plaintiffs as-to the exempt property, to reverse which they prosecute this proceeding.
It appears from the record that the wife of the' mortgagor did not sign the mortgage sought to be foreclosed. At the time this mortgage was given there' was another on the same property, amounting to* $281.20, given by the defendant and his wife to the Eureka Bank. It was agreed that the plaintiffs should! have a mortgage on the property mortgaged to the bank, and for the purpose of having the bank release its mortgage, and to secure a first mortgage on that property, the plaintiffs, in payment of $700 to the defendant, gave him a check for the amount of the mortgage held by the bank, payable to the Eureka Bank, which was accepted and the mortgage released. The balance of the money was paid in cash to the,, defendant.
The plaintiffs, by way of amendment .to their petition, set out the above facts and asked that they be subrogated to the rights of the bank to the amount paid by them in satisfaction of its mortgage. The evidence showed that it was agreed that a part of the money loaned was to be used in paying the bank’s mortgage on that property, and the money was so applied. The only question involved is whether the plaintiffs are entitled to be subrogated to the rights-of the bank whose valid mortgage they paid. This-question has been more than once answered in the affirmative by this court. (Yaple v. Stephens, 36 Kan. 680, 14 Pac. 222; Crippen v. Chappel, 35 id. 495, 11 Pac. 453, 57 Am. Rep. 187; Farm Land Co. v. Elsbree, 55 id. 562, 40 Pac. 906; Everston v. Central Bank, 33 id. 352, 6 Pac. 605; Zinkeison v. Lewis, 63 id. 590, 66 Pac. 644.)
For these reasons the judgment of the court is reversed, and the cause remanded for further proceedings.
All the Justices concurring. ■ | [
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The opinion of the court was delivered by
Atkinson, J.
This was an action brought by Abner Robinson and Amanda Hines against Paulina Moore-head and Jane Moore in the court of common pleas of Wyandotte county for the partition of lots 26, 27, 28, and 29, of block 169, in the city of Wyandotte, now a part of Kansas City,.Kan. Plaintiffs in their petition alleged that they were seized, in fee simple, of an undivided one-fourth interest in the lots, and prayed for partition of said premises. Defendant Jane Moore was in default of pleading. • Defendant Paulina Moore-head answered by a general denial, by a claim of possession and ownership, and by interposing the statute of limitations against the claim of plaintiffs and against defendant Moore. Plaintiffs denied the allegations of defendant’s answer inconsistent with the averments of their petition. Upon the issues thus framed the case was tried before the court. Certain facts were agreed upon by counsel in open court. Upon the trial testimony was offered by both plaintiffs and the defendant Moorehead. The court, upon the agreed facts and the testimony offered, found that plaintiffs and defendants inherited the property in controversy from a common ancestor and were the owners in fee simple of an undivided one-fourth each as tenants in common, and entered judgment of partition. Defendant Paulina Moorehead excepted to the findings .and judgment of the court, and now brings the'Case to this court for review.
The petition not having alleged in express terms that plaintiffs were in possession of the premises in controversy, and plaintiffs not having in said petition joined with their demand for partition an action for the possession of the premises, defendant assigns error in that the plaintiffs were permitted by the court to maintain this action. In support of her claim of error, defendant cites the cases of Denton v. Fyfe, 65 Kan. 1, 68 Pac. 1074, 93 Am. St. Rep. 272, and Chandler v. Richardson, 65 id. 152, 69 Pac. 168. In the case of Denton v. Fyfe, supra, it was said :
“A joint tenant or tenant in common out of possession cannot maintain a suit for partition against his cotenants who hold adversely to him without joining with the 'demand for partition a cause of action for possession of the land.”
In the case of Chandler v. Richardson, supra, this doctrine was reaffirmed.
The doctrine promulgated by these cases has become the settled rule of practice in this state. The reason therefor is manifestly clear. The parties to an action of this kind, to obviate a multiplicity of suits, ought to have their possessory rights determined in' the same proceeding. Two actions are wholly unnecessary ; complete relief can be obtained in one.'
" The record in this court discloses that the sufficiency of plaintiffs’ petition was not assailed by motion, by demurrer, or by an objection to the intro duction of testimony under it; nor was it sufficiently challenged by defendant in any manner in the court below. Defendant thereby waived all objections to the sufficiency of said petition, and cannot now raise the question of its sufficiency in this court.
The next assignment of error is that the court in its findings and judgment disregarded certain facts admitted by counsel in open court. It is claimed by defendant that it was agreed by -counsel for plaintiffs in open court that there had been executed and delivered to defendant by her father a deed to the premises in controversy and that the same had not been recorded and was lost. An examination of the record does not disclose this fact to have been agreed to by counsel for plaintiffs, as claimed- by defendant. The statement of counsel, as shown by the record, is that defendant Moorehead claimed such to be the fact. It would appear that all parties upon the trial so understood the matter. The question of whether such a deed had in fact been made and delivered was the principal issue contested upon the trial. In fact, this claim of defendant, together with her claim that she had been in open and notorious possession of the premises in controversy, occupying the same as a homestead for more than twenty years, were the only issues seriously contested. As to these the evidence was conflicting, both parties offering the testimony of numerous witnesses. The findings and decision of the trial court upon conflicting testimony are conclusive against the defendant in this court.
The only other assignment of error insisted upon by defendant is that the trial court committed error in overruling the motion of defendant for a new trial. The claim of defendant that she was entitled to a new trial as a matter of right cannot be maintained. The action on the issues - as framed was not one entitling defendant to a new trial as a matter of right, under section 5086, General Statutes of 1901, for the recovery of real property. On the hearing of the motion for a new trial affidavits were filed and read by plaintiffs and defendant. Defendant endeavored by affi. davits to show newly-discovered evidence as to the execution and delivery to her of the deed' by her father; also statements made by her father tending to show that he had executed and delivered, or contemplated executing and delivering, to her such a deed. Plaintiffs filed and read counter-affidavits. These affidavits are before us in the record. The evidence offered by them is mostly cumulative. There is little, if anything, in the affidavits of defendant that can properly be termed newly-discovered evidence. Very little diligence is shown on the part of defendant to procure and have for use at the trial the testimony claimed to be newly-discovered material evidence. We believe the trial court committed no error in over- * ruling defendant’s motion for a new trial.
The judgment of-the court below is affirmed.
All the Justices concurring. | [
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