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The opinion of the court was delivered by
Mason, J.:
Frank Brandon, charged with having violated the prohibitory law after a conviction upon a like charge, was convicted upon four counts and sentenced to imprisonment in the penitenitary for one year upon each. He served more than one year, and now asks to be discharged upon habeas corpus upon the ground that the judgment against him is void because of indefiniteness in the description of the offenses of which he was convicted, and that in any event his imprisonment for one year satisfied the entire judgment.
1. The journal entry of the judgment did not describe the offenses of which the defendant had been convicted otherwise than as “breaking the prohibitory law in four counts as charged in the information.” The petitioner relies largely upon the case of In re Howard, 72 Kan. 273, 83 Pac. 1032. It was there said that a judgment and commitment to the penitentiary were void for uncertainty because the crime was described merely as grand larceny and the sentence (under the indeterminate sentence act) was to confinement “until discharged therefrom by due course of law.” The basis of that decision, however, was that some of the several kinds of grand larceny are punished more severely than others, and as the papers delivered to the warden did not show of which kind the defendant had been convicted, the penitentiary authorities had no means of knowing how long he was to be held, the maximum period not being stated in the judgment. In the present case no such problem is presented. Commitment to the penitentiary for any violation of the prohibitory law is fixed by the statute at “not more than one year,” and the judgment followed the language of the statute. While the sentence' in that case was said to be void the prisoner was not discharged, and his discharge was ordered only in case a valid judgment should not be rendered within twenty days. It may be mentioned that no further steps were ever taken in the matter, because between May 23, 1905, when the case was begun here, and November 11, 1905, when it was decided, the petitioner had been discharged by the prison authorities — a fact which had not been brought to the attention of the court.
Moreover, since the decision in the Howard case we have held that the information may be looked to in a criminal case for the purpose of interpreting the judgment and commitment. (In re Mote, 98 Kan. 804, 807, 160 Pac. 223.) The information shows that the ’ defendant was charged in the first count with having possession of a still, in the second with having had liquor in his possession, in the third with having made mash, and in the fourth with having maintained a place where liquor was sold.
2. The entry of the judgment shows that the defendant was sentenced “to serve a term in the state penitentiary at Lansing, Kan., not to exceed one year on each of the said four counts, the sentences being cumulative.” The petitioner contends that because it was not stated that with respect to three of the counts the imprisonment was to begin at the termination of that upon one of the others, as provided by the statute (R. S. 62-1512), the terms were to run concurrently and have all been served in full. The omission of the trial court to insert such a provision in the judgment has been held to have that effect, but only in cases where no purpose was in any way shown to have the terms of imprisonment served consecutively rather than concurrently. (In re Weisman, 93 Kan. 161, 143 Pac. 487; In re Wernsen, 93 Kan. 625, 144 Pac. 1018.) Here the statement that the sentences are cumulative performs the function of the recital that the imprisonment upon each count except the first shall begin at the expiration of that on one of the others. That is what • the word cumulative means in this connection, according to general usage and the lexicographers as well. No force would have been gained by following the very language of the statute or by adding that the penalties were not to run concurrently.
In United States v. Patterson, 29 Fed. 775, upon which and like cases the petitioner largely relies, the defendant had been convicted of the violation of several different parts of the national banking act. He was sentenced to imprisonment for five years upon each conviction, “said terms not to run concurrently.” It was held that, notwithstanding the language quoted, the sentences did run concurrently, because there was nothing to indicate the order in which they were to be served, and therefore no means was afforded of telling what particular offense the prisoner was expiating at any particular time. There, however, the defendant was convicted upon three separate indictments, and there was nothing to guide the prison authorities as to the order of punishment. Here the petitioner was convicted upon four counts in the same information, and. there being nothing to indicate that any other order was intended the natural and reasonable course is to follow the numerical order as shown in the information.
The federal circuit court of appeals for this circuit applied the rule of the Patterson case where the defendant had been convicted upon three counts of the same indictment (Daugherty v. United States, 2 F., [2d] 691). That decision, however, was reversed upon this point, the supreme court saying:
“Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them. The elimination of every possible doubt cannot be demanded. Tested by this standard the judgment here questioned was sufficient to impose total imprisonment for fifteen years made up of three five-year terms, one under the first count, one under the second, and one under the third, to be served consecutively and .to follow each other in the same sequence as the counts appeared in the indictment. This is the reasonable and natural implication from the whole entry. The words, ‘said term of imprisonment to run consecutively and not concurrently,’ are not consistent with a five-year sentence.” (United States v. Daugherty, 269 U. S. 366, 363.)
The application for discharge is denied. | [
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The opinion of the court was delivered by
Smith, J.:
In a suit by a lessee to enjoin a lessor from interfering with the possession of the leased premises and to extend the term of the lease for three years, eleven months, and twenty days (that being the time which it was alleged a suit brought by one of the lessors to have the lease declared void was pending before final decision), the petition alleged that the lessees were licensed to operate for oil, gas or minerals for ten years, the lease to be extended so long as oil or gas should be produced in paying quantities, and showed that the term of the lease — ten years — had elapsed and no well or wells had been drilled, and no oil or gas had been produced, but alleged as an excuse therefor that the suit brought to have the lease adjudged void was instituted nearly six years after the execution of the lease; was pending in the district court about two years, when it was decided in favor of the lessee, was then appealed to the supreme court, where it was pending nearly two years, and was affirmed. Such petition, failing to allege the omission of any act required by the contract to be done by the lessors, or that during the term they did anything whatever to interfere with the operations of the lessee, other than bringing the suit, and failing to allege that any restraining order or stay of judgment was procured, does not state facts sufficient to show that the lessee was prevented from performance on its part and is insufficient to invoke the equity powers of the court to extend the lease.
A general demurrer to such petition was properly sustained, and the order and judgment of the district court are affirmed.
All the Justices concurring. | [
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Per Curiam:
Mary D. Kleinfield, with two other defendants, was tried before a justice of the peace upon the charge of unlawfully selling intoxicating liquor. She was found guilty and appealed to the district court, where she was again convicted. From the latter conviction she now appeals.
She first complains that the verdict in the justice court was invalid because not signed by the foreman of the jury. A verdict was returned consisting of three paragraphs, in each of which a finding of guilty was announced against one defendant. The foreman signed the joint verdict, and in so doing necessarily affixed his signature to the verdict against this defendant.
A second complaint is that this verdict was void because it failed to state correctly the defendant’s name. The record, however, shows that the verdict gave her full name with entire accuracy.
A third and final complaint is based upon the contention that the title of the act under which the prosecution was instituted (Laws 1901, ch. 232), “An act relating to the sale of intoxicating liquors,” etc., is not broad enough to cover the prohibition of unlawful sales. The contention is not sound.
The judgment is affirmed. | [
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Per Curiam:
The only error complained of in this case is the granting of a new trial. There were several grounds set out in the motion, one of which was that the verdict of the jury was not sustained by sufficient evidence. The court did not declare upon which ground the motion was granted. This court therefore cannot say that it was not because the evidence was not sufficient to uphold it. In such cases this court will not undertake to weigh the evidence, but, where the evidence is conflicting, will confirm the order of the court granting a new trial. (Land Co. v. Lewis, 53 Kan. 750, 37 Pac. 108; McCreary, Sheriff, v. Hart, 39 Kan. 216, 17 Pac. 839; Black v. Berry, 40 Kan. 489, 20 Pac. 194; McCrum v. Corby, 15 Kan. 112.) These decisions announce the rule that has always been followed in Kansas.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
B. B. Clark, a resident of Iowa, sold some cattle in Woodson county, Kansas, through an agent, who accepted in payment a check drawn on the Toronto Bank, in that county. The agent presented the check at the bank, and upon his request was given in payment a draft payable to the order of his principal, drawn by the Toronto Bank upon a Kansas City bank against a fund then on deposit there to its credit. Shortly afterward the Toronto Bank was closed by the bank commissioner, and in due course of time a receiver was appointed. The draft was presented for payment to the Kansas City bank, which, having notice of the failure of the issuing bank, refused for that reason to pay it. Clark, the holder of the draft, brought an action against the receiver, asserting the right to recover from him the full amount of the draft irrespective of the amount the failed bank might be able to pay its general creditors. He was denied relief and now prosecutes error.
In the petition an attempt -was made to give the transaction described the color of a special deposit, or a contract for the transferring of a fund in specie from Toronto to the plaintiff’s home in Iowa. As clearly appears from the statement made, however, the facts will not bear that construction. The transaction was the ordinary one of the purchase of a draft for convenience in the remitting of money, and the giving to it of a different name cannot alter its essential character. In a stipulation regarding the facts upon which, together with the plaintiff’s evidence, the case was submitted, it was stated that the plaintiff was at no time a creditor of the failed bank, but this statement cannot overcome the effect of the specific facts admitted and shown, if inconsistent with them. It must be interpreted as meaning either that the plaintiff was not a creditor of the hank, except so far as that relation was created by the facts already recited in detail, or as a mere conclusion of law, to be disregarded by the court if found to be incorrect.
An effort is also made to build up a right to have the money paid by plaintiff to the Toronto Bank treated as a trust fund, upon the theory that it was a deposit unlawfully received by the officers of the bank while it was insolvent and while they knew of its insolvency. If the facts in this case are otherwise sufficient to bring it within the principle invoked, they fall short in this: It is shown that the bank was insolvent when the draft was purchased, but not that the officers were cognizant of the fact; and there, is an entire failure of any showing that the money paid for the draft ever reached the hands of the receiver or that the assets in his hands were increased in any way by the transaction.
The plaintiff’s action must therefore fail unless it can be said that the- issuance of the draft operated to transfer to him the equitable title to so much of the money of the Toronto Bank then on deposit in the Kansas City bank as it called for, in which case the receiver, who succeeded only to the rights of the failed bank and was entitled only to its assets, could have no valid claim upon that portion of the deposit. This theory has received the support of a number of courts, and is the settled law in several of the states. It is adopted by Mr. Daniel in his work on Negotiable Instruments (vol. 2, 5th ed., §1643). Nevertheless, the great weight of authority is to the effect that an unaccepted check or draft in the usual form does not, in the absence of exceptional circumstances, amount to an assignment, in law or equity, of any part of the drawer’s deposit. (5 Cyc. 536; 2 A. & E. Encycl. of L. 1064; 4 Cent. Dig. cc. 1247-1250.) This rule has frequently been enforced in controversies between the holder of a draft and the assignee or receiver of its insolvent drawer. (Fourth Street Bank v. Yardley, 165 U. S. 634, 17 Sup. Ct. 439, 41 L. Ed. 855; Covert v. Rhodes, 48 Ohio St. 66, 27 N. E. 94, and cases cited; Attorney-gen’l v. Continental Life Ins. Co., 71 N. Y. 325, 27 Am. Rep. 55; Aikin v. Jones, 93 Tenn. 353, 27 S. W. 669, 25 L. R. A. 523, 42 Am. St. Rep. 921; Harrison, Receiver, v. Wright et al., 100 Ind. 515, 58 Am. Rep. 805; Guthrie National Bank v. Gill, 6 Okla. 560, 54 Pac. 434; Reviere v. Chambliss, 120 Ga. 714, 48 S. E. 122.) It has the sanction of so great a preponderance of the authorities that we have no hesitation in accepting it.
A uniformity of decision in different jurisdictions upon matters of commercial usage is especially to be desired, and the question here presented, being of that character, affords a strong argument in favor of a solution that shall be in harmony with the generally prevailing doctrine. It may be added that since this action arose the rule referred to has been incorporated in the Kansas statute, being found in section 196 of the negotiable-instruments act (Laws 1905, ch. 310). The general adoption of substantially the same act, in pursuance of an organized effort to secure uniformity upon the subject, may finally make the rule of universal application.
No exceptional circumstances being shown in this case, it falls within the operation of the principle stated and the plaintiff cannot recover. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Fromme, J.:
The appellant, Lawrence Hemminger, appeals from a conviction and sentence on a charge of first degree robbery. This is the second appearance of the case in this court. The first appeal was by the state from an order granting appellant’s motion for new trial. (See State v. Hemminger, 207 Kan. 172, 483 P. 2d 1096.) In that appeal the order granting a new trial was reversed and the case was remanded with directions to reinstate the judgment and sentence.
Thereafter the appellant filed this appeal.
The facts surrounding the commission of the crime are set forth in State v. Hemminger, supra. Suffice it to say that appellant and his nephew, Harold Hemminger, were charged with robbing the Farha Red Bud supermarket in Wichita on September 20,1964. The nephew was tried and convicted in February, 1968. (See State v. [Harold] Hemminger, 203 Kan. 868, 457 P. 2d 141, cert. den. 396 U. S. 1045, 24 L. Ed. 2d 689, 90 S. Ct. 696.) The appellant was tried and convicted in March, 1970.
Before examining the points raised by appellant we must dispose of the state’s motion to dismiss the appeal. The state contends the notice of appeal was not filed within the statutory period of six months (K. S. A. 1968 Supp. 62-1724). This contention is without merit. The original date of the sentence was March 17, 1970. The appellant filed a notice of appeal from that judgment on April 6, 1970. This was well within the required period but that appeal was aborted by the order of the trial court granting a new trial. On the appeal by the state we ordered the original judgment and sentence reinstated in the sentencing court. Therefore the appeal time began to rim from the date of receipt of our mandate by the clerk of the district court. Although the record does not disclose die date the mandate was received, our opinion was filed April 10, 1971. The date of receipt of the mandate, although not appearing in the present record, would necessarily post-date our opinion of April 10, 1971. When a judgment and sentence has been set aside in the district court and is thereafter reinstated on order of the supreme court the statutory time for appeal begins to run from the date of receipt of the supreme court mandate by the clerk of the district court. Appellant filed his second notice of appeal on August 13, 1971, well within the required period. The motion to dismiss is overruled.
We turn to the three points raised by the appellant in this appeal. The appellant contends prosecution was barred by the statute of limitations (K. S. A. 62-503). He reasons that the original complaint and warrant issued November 4, 1964, were fatally defective. The amended complaint was not filed and the alias warrant was not issued or served upon the appellant until April 29, 1969. He argues the prosecution was not commenced on the offense within two years after its commission.
No claim of waiver has been made by the state since appellant stood mute at the preliminary hearing, and when bound over for trial he was not released on bond. When he was arraigned in the district court on the information he again stood mute and the district judge entered a plea of not guilty. He was subsequently tried and convicted.
This point calls for a review of several pertinent statutes relating to the limitation of criminal actions. These statutes provide that prosecutions for murder and treason may be commenced at any time after the commission of the offense. Another statute imposes a sixty day limitation on the prosecution of offenses.which carry a penalty of not to exceed ten dollars. The third statute is the one with which we are now concerned. It reads:
“In all other cases, prosecutions for an offense must he commenced within two years after its commission.” (K. S. A. 62-503.)
K. S. A. 62-504 provides:
“If any person who has committed an offense is absent from the state, or so conceals himself that process cannot be served upon him, or conceals the fact of the crime, the time of absence or concealment is not to be included in computing the period of limitation.”
K. S. A. 62-505 next provides:
“Where any indictment or information shall be quashed, set aside, or judgment reversed, the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense.”
The following events and dates are pertinent.
The offense was committed on September 20, 1964. The original complaint was verified and filed in the Court of Common Pleas at Wichita on November 4, 1964. A warrant was issued on that date. It was never served. The complaint was verified before a deputy clerk. It was signed and sealed in the name of the clerk by the deputy clerk. The warrant was issued by a deputy clerk in the name of the clerk of that court. The judge’s signature did not appear on either the original complaint or the warrant.
It appears from a stipulation in the record on appeal that appellant was incarcerated in the state of Missouri from the date the original warrant was issued until he was extradited from Missouri in 1969. Apparently while the extradition proceedings were pending an amended complaint was verified before the judge of the Court of Common Pleas in Wichita and filed in that court. An alias amended warrant was then issued in the name of the clerk of that court by a deputy clerk. The offense charged in the amended complaint and warrant remained substantially the same as the offense charged in the original complaint and warrant. He was arrested on the alias amended warrant.
Appellant was returned from the state of Missouri for preliminary hearing on or about May 28, 1969. He was then bound over for trial in the district court. The information filed by the prosecution did not set forth facts to negate an application of the two year statute of limitations. At the close of the state’s case the appellant filed a motion to discharge for the reason that the offense was committed September 20, 1964, and the date of the amended complaint and warrant was April 29,1969. This was more than four years after the offense was committed.
Appellant argued then as now that the original complaint and warrant were defective and void because the original complaint was not sworn to before a magistrate as required by K. S. A. 62-602 and the original warrant was issued by an unauthorized person, the deputy clerk of the Court of Common Pleas. Appellant contends the filing of the original complaint and the issuance of the original warrant did not amount to commencement of prosecution within the meaning of K. S. A. 62-503. He argues that since the prosecution was not commenced within two years after commission of the offense the information and the evidence upon which his conviction rests is insufficient in that the state failed to allege in the information and introduce evidence at the trial to establish his absence from the state. (See State v. Schonenberger, 173 Kan. 665, 250 P. 2d 777.)
When an information is about to be filed and more than two years have elapsed since the offense was committed there are two possible methods open to the prosecution to establish that prosecution of the offense is not barred under K. S. A. 62-503. First, the state may set forth facts in the information and introduce evidence to bring the case within the provisions of K. S. A. 62-504 by alleging and proving that the accused was absent from the state during the required period of time. This was not done in the present case. Second, the state may wait until the question is raised and then show by the complaint and warrant that the prosecution was commenced within two years after the commission of the offense even though the information may not have been filed within that time.
This court has repeatedly said that a prosecution is commenced by the filing of a verified complaint and the issuance of a warrant in good faith. The commencement of the prosecution, as that phrase is used in K. S. A. 62-503, does not depend upon the warrant being served. (State v. Woolworth, 148 Kan. 180, 81 P. 2d 43, cert. den. 317 U. S. 671, 87 L. Ed. 539, 63 S. Ct. 80; State v. Cashman, 174 Kan. 272, 255 P. 2d 660; State v. Bilby, 194 Kan. 600, 400 P. 2d 1015.)
What then is meant by the phrase, “issuance of a warrant in good faith”?
The statute in effect in 1964, K. S. A. 62-602, with certain exceptions to be noted, required that complaints in criminal cases be made to a magistrate and that such magistrate determine whether a warrant should issue. K. S. A. 62-201 listed those officers designated as magistrates. A justice of the peace was included in the list along with judges of incorporated cities.
K. S. A. 20-2002 provided that the court of common pleas in Sedgwick county should have the same jurisdiction in criminal cases as was then given to justices of the peace. The statute provided that practice, pleadings and proceedings in justice courts which were not in conflict with the provisions of the act establishing the court of common pleas should apply to the court of common pleas.
It would thus appear that the court of common pleas was a magistrate court within the contemplation of K. S. A. 62-201.
Under the authority granted in K. S. A. 20-2001 (last sentence) clerks and deputy clerks of the court of common pleas are authorized to administer oaths. This would include an oath administered while verifying a complaint. K. S. A. 20-2003 provided that “all writs and processes of every kind . . . shall be issued by the clerk” or in the name of the clerk and “in the same manner as such writs and processes are issued by the clerk of the district court.” K. S. A. 62-805 relating to the district courts provided that where proceedings are commenced originally in the district court the clerk of the court shall issue the warrant.
In the present case the original complaint was verified and filed in a court having jurisdiction to entertain the complaint and issue the warrant. The original warrant was issued in the name of the clerk of the court of common pleas as authorized by the then existing statute. This leaves only the question of whether the judge of the court of common pleas was required under these former statutes to make the finding of probable cause before a warrant was issued. Nothing appears in the record of this case to show who made the necessary finding of probable cause.
In Shadwick v. City of Tampa, 407 U. S. 345, 32 L. Ed. 2d 783, 92 S. Ct. 2119, it was held that clerks of a municipal court qualify as neutral and detached magistrates, so as to be authorized under the Fourth Amendment to issue arrest warrants. The court in Shadwick rejected any per se invalidation of a state or local warrant system merely because the issuing magistrate is not a lawyer or judge. There seems to be no reason why the clerk of a court may not be authorized to issue warrants on probable cause when a statute so provides.
The provisions of the present code of criminal procedure, K. S. A. 1971 Supp. 22-2101 et seq., cannot be applied retroactively to the present case. Under the effective statutes relating to the commencement of prosecutions in 1964 it may not be clear whether a clerk of the court of common pleas had the statutory authority of a magistrate to determine probable cause. It was clear, however, that a clerk of the district court under K. S. A. 62-805 had that statutory authority. (See In re Siebert, 61 Kan. 112, 58 Pac. 971.) However, many of these former statutes have been superseded by our present code of criminal procedure and we do not believe a decision on the question would be helpful since it is not necessary to determine the issue posed by the appellant on the question of the statute of limitations.
K. S. A. 62-505 provides that where an indictment or information is defective and is quashed, set aside or judgment thereon reversed “the time during which the same was pending shall not be computed in the limitation” prescribed for the offense. Under State v. Cashman, supra, Syl. ¶ 5, an invalid prior information charging the same offense was held by this court to toll the statute of limitations, and under State v. Woolworth, supra, Syl. f 4, the pendency of a complaint, as well as the pendency of an indictment or information was held by this court to meet the requirements of K. S. A. 62-505, so as to toll the statute of limitations. We hold that the pendency of a complaint as well as the pendency of an indictment or information meets the provisions of K. S. A. 62-505 so as to toll the statute of limitations,- and if a prosecution is commenced on an offense a formal defect in the verification of the complaint or the issuance of the warrant will not prevent a tolling of the statute while the prosecution is pending in the court of issuance.
The original complaint was properly verified and filed in a court of competent jurisdiction. The original warrant was issued in good faith in the name of the clerk of said court as authorized by the statute then existing. We conclude the pendency of the complaint filed November 4, 1964, coupled with the issuance of the warrant thereon did toll the statute of limitations during the period of time appellant was incarcerated in the state of Missouri even though the original complaint and warrant may have been defective in some particular.
Appellant’s second point of error is a claim of denial of his constitutional right to a speedy trial based upon the cases of Smith v. Hooey, 393 U. S. 374, 21 L. Ed. 2d 607, 89 S. Ct. 575, and Dickey v. Florida, 398 U. S. 30, 26 L. Ed. 2d 26, 90 S. Ct. 1564.
No question is raised herein concerning the statutory provisions in Kansas requiring trial within a stated period after arraignment.
The recent case of Barker v. Wingo, 407 U. S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, more clearly defines the factors to be considered when a constitutional claim of denial of speedy trial is asserted. The high court in its opinion stated that such a claim is subject to a balancing test in which the conduct of both the prosecution and the defendant are to be weighed. Each case must be determined on its own merits. The four factors enumerated in Barker to be assessed by courts in determining whether a particular defendant has been denied his right to a speedy trial are (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. The high court stated that none of these factors were to be given controlling weight. They must be considered together with all relevant circumstances. The demand-waiver doctrine was discredited as the controlling factor in such cases.
Our cases of State v. Stanphill, 206 Kan. 612, 481 P. 2d 998; State v. Brooks, 206 Kan. 418, 479 P. 2d 893 and State v. Samuels, 209 Kan. 616, 498 P. 2d 23, are generally in accord with the federal case law in this area with the possible exception of our application of the demand-waiver doctrine. It is possible under the standards in Barker we have accorded too much weight in some cases to failure of the defendant to request a trial. However, it remains one of the four important factors to be considered.
In the present case the offense occurred on September 20, 1964. A warrant for appellant’s arrest was issued in November, 1964. At that time appellant was in custody of the federal authorities and was later incarcerated in Missouri for another crime. He wrote to the authorities in Kansas requesting information on the charges pending but made no request for trial. He knew of the pendency of the charges. Over four years elapsed before he was extradited at the request of the state and brought to Kansas to stand trial. He was tried and convicted within nine months after his return to Kansas. Over five years elapsed from the time of the offense to the date of his conviction. His absence from the state during the major portion of this period and his failure to demand a speedy trial appear to be the primary reasons for the delay. He did not assert his right to a speedy trial and he refused to waive extradition.
The remaining factor to be considered is the prejudice, if any, to the defendant by reason of the delay in prosecution. His claim of prejudice from the lapse of time relates to witnesses unavailable at the trial. It is possible the state was also prejudiced in this regard. Subpoenas were issued to the Sheriff of Sedgwick County for four witnesses. They were returned unserved. The witness Houser was in the armed services. Officer Thompson was no longer on the police force and had moved from the city. Witnesses Logue and Rutledge were not found in the county. At the hearing on the motion for a new trial appellant produced an affidavit by Houser, who was one of three eyewitnesses to the robbery. In the affidavit Houser stated, after examining a picture of the appellant, he was certain appellant did not perpetrate the robbery. Two other eyewitnesses to the robbery had previously testified orally at the trial and both had identified appellant as one of the two persons who robbed the store. There is nothing in the record to indicate what efforts were made to secure the testimony of Houser at the trial.
We are not advised as to the nature of the testimony of the other three witnesses. They apparently resided in Wichita at the time of the robbery. However, the defense of the appellant was in the nature of an alibi. None of the absent witnesses were listed by appellant in his notice of alibi. The witnesses listed to support his alibi were Allen Morgan and Harold M. Hemminger. Harold M. Hemminger had been previously convicted as an accomplice in the robbery. Both Harold and Lawrence Hemminger testified at the trial that they were in the state of Missouri with Allen Morgan when the robbery occurred. In addition to the personal identification of appellant by eyewitnesses Burlison and Gamble, a used car dealer, Jack Newby, testified to a sale of a used car to appellant on September 23, 1964, at Eureka, Kansas. Eureka is approximately fifty miles east of Wichita.
A failure of a defendant to assert his right to a speedy trial makes it difficult for him to prove that he was denied his constitutional right to a speedy trial. In the present case no request or demand was made by appellant. After considering the length and reasons for the delay, the lack of demand for trial and the prejudice claimed by appellant we conclude in this case appellant was not denied his constitutional right to a speedy trial.
The final contention of appellant is that the triál court erred in refusing to admit testimony by a psychiatrist as to his conclusions on examining appellant after administering sodium pentathol (truth serum). The psychiatrist would have testified that as a result of the sodium pentathol tests he was of the opinion that appellant was telling the truth when he said that he was in the state of Missouri when the robbery occurred and that he did not commit the crime.
Truth serum tests occupy much the same position as lie detector tests and in general courts have never admitted the results of such tests into evidence for the purpose of proving the truth of the matters asserted by the defendant. (State v. Lee, 197 Kan. 463, 419 P. 2d 927, cert. den. 386 U. S. 925, 17 L. Ed. 2d 797, 87 S. Ct. 900, reh. den. 386 U. S. 978, 18 L. Ed. 2d 142, 87 S. Ct. 1170; 29 Am. Jur. 2d Evidence, § 831; 22A C. J. S., Evidence, § 645 [2].)
The authorities are not in agreement, however, as to the admissibility of statements made to a psychiatrist by a defendant under the influence of truth serum when the statements are not offered for the purpose of proving the truth of the matter asserted therein. In the recent case of State v. Chase, 206 Kan. 352, 480 P. 2d 62, Mr. Justice Kaul examined the diverse authorities on that subject. In Chase this court held it was not proper to admit such taped statements of a defendant’s responses to questions posed by a psychiatrist after administering a truth serum. The taped responses in Chase were not offered to prove the truth of the assertion but to bolster and lend credence to the testimony of the expert on the issue of insanity. Our holding in Chase lends strong additional support for holding the testimony inadmissible in the present case.
In the case at bar the testimony of the psychiatrist was offered to prove the truth of matters asserted by the defendant and it is universally held that such testimony is not admissible. (See State v. Thomas, 206 Kan. 603, 611, 481 P. 2d 964.) It is the jury’s function to pass on the credibility of the witnesses. We see no reason to overturn this well-established concept of the jury’s function. Medical science is not an exact science. The elements of uncertainty and speculation in the testimony of experts may be illustrated by comparing the testimony of opposing psychiatrists or opposing medical doctors during the ordinary trial. Ours is a trial by jury not a trial by experts. Nothing appears in the record before us to change our position with regard to lie detector and truth serum tests. The results of such tests were not admissible in this case to prove the truth of the matters asserted by the appellant. They were properly excluded by the trial court.
We have examined all points raised and the judgment is affirmed. | [
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|
The opinion of the court was delivered by
Foth, C.:
Appellant was convicted by a juiy of aggravated robbery and she appeals.
Her prosecution arose out of the robbery of the Taco Tico drive-in restaurant at about 11:30 p. m. on November 17, 1970. Two employees and two customers identified appellant as the woman who demanded the establishment’s money at gunpoint and walked out with $150 to $175.
The robber was driven away from the scene in an automobile described by witnesses as a dirty, white, 1962 Chrysler with dis tínctíve rust spots on the right front door. According to the state the owner and driver of this vehicle was one Paul E. Skinner, who was also convicted of the same robbery in a separate trial. His conviction is affirmed in a companion case, State v. Skinner, 210 Kan. 354, 503 P. 2d 168. Officers located such a car later that night parked outside the Gasser Club. In due course appellant and Skinner got in the car, and as they were driving away were stopped and arrested. After her arrest appellant was searched at the police station, where $3 was found in her pocket and $77 in her bra. Skinner was relieved of $134 in a similar search.
Appellant basically claims two trial errors. First, she complains of the trial court’s failure to instruct on her defense of alibi, in support of which she introduced considerable testimony. She made no request for such an instruction and made no objection to those given. She is thus precluded from asserting this claim under K. S. A. 1971 Supp. 22-3414 (3), unless the failure was “clearly erroneous.” In State v. Skinner, supra, involving appellant’s comrade in crime, an alibi instruction was requested and refused. We are there holding after full discussion and review of the authorities, which need not be repeated here, that such a refusal was proper. Where the instructions define the elements of the crime charged and require the jury to find the presence of each element beyond a reasonable doubt in order to convict, it is not necessary to give a separate instruction on the defense of alibi, even if requested. It follows, a fortiori, that the failure to give such an instruction is not error where no request is made.
Appellant’s second point comes to the admission into evidence of two photographs of the getaway car. Her complaint is that no one said that the photographs were “true and accurate reproductions” of the car; i. e., the “magic words” were lacking. She cites Shepard v. Dick, 203 Kan. 164, 169, 453 P. 2d 134, where we said:
“. . . Pictures which are properly identified as true and accurate reproductions of a subject matter in evidence and which are relevant to the issues are generally admissible in evidence."
The thrust of that and similar statements is well characterized in the annotation at 9 A. L. R. 2d 904 (quoted with approval in Brockman v. State, 163 Neb. 171, 79 N. W. 2d 9):
“. . . In view of the practical impossibility of obtaining photographs which perfectly represent their subject, it would seem that when the courts state that one offering photographs in evidence should prove that they are accurate and correct, they really mean that it must be shown mererly that the photographs are sufficiently correct to be helpful to the court and jury." (Emphasis added.)
In keeping with this thought is our statement in Howard v. Stoughton, 199 Kan. 787, 433 P. 2d 567 Syl. ¶ 1, that relevant photographs may be admissible “if shown to be a likeness of what they purport to represent.” (Emphasis added.)
The governing principle is stated in Scott, Photographic Evidence (Second Edition), § 1027:
“The amount of proof required varies with the purpose of the photograph. When a picture is offered as a general representation of a scene or object, very slight proof of reliability may be sufficient; but when it is offered as representing slight differences of height, breadth or length, much more convincing proof of dependability should be required.”
Further, “The sufficiency of the verification of a photograph is a preliminary question of fact to be decided by the trial judge, and his ruling will not be disturbed on appeal unless an abuse of discretion is shown.” (Ibid.) See also, 32 C. J. S., Evidence, § 716; 29 Am. Jur. 2d, Evidence, § 788.
The real issue as to the photographs in this case was not whether they accurately portrayed the automobile, but whether the automobile portrayed was the one used in the robbery. Although none of the several witnesses who identified the pictures was specifically asked if they were “fair representations” of the car, it is apparent that they were. The robbed employee identified the photographs as “the car used in the robbery.” The customer who saw the robber come out of the restaurant, and who immediately after the robbery followed the car for some time, identified the photographs as being “the same car that he followed that night.” The arresting officer identified them as being “the same car that I saw that night at the Gasser Club” immediately before the arrest. Another officer who was personally acquainted with both Skinner and his 1962 Chrysler from prior encounters identified the photographs as being “the same car that was at the Gasser Club and that was stopped by Sgt. Potter at 4128 South Broadway.” The clear implication is that the likenesses were good enough for the witnesses to identify the car. We think that was all that was required, considering the limited purpose for which the pictures were offered.
Appellant also urges, rather feebly, that there was insufficient evidence to go to the jury; we find that the positive identification of appellant by four eyewitnesses was sufficient evidence. Finally, she asserts that a new trial should have been granted because of the two claimed trial errors .discussed above; we have concluded they were not errors.
There being no error, the judgment is affirmed.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal in a criminal case initiated by the state of Kansas from the judgment of the district court sustaining the motion of the appellees, Evelyn Lee and Ansel L. Turner, to dismiss the charge against them pursuant to K. S. A. 1971 Supp. 21-3108 — the statutory equivalent of the constitutional guaranty that one may not be twice put in jeopardy for the same offense.
The facts before the district court are not in dispute, and a summary of those necessary for a disposition of this case follows:
On November 26, 1971, the state filed a complaint in the court of common pleas in Sedgwick County, charging that on November 24, 1971, the appellees unlawfully sold cereal malt beverage to one Warren Holcomb, a minor, in violation of K. S. A. 1971 Supp. 41-2704.
Thereafter, and on January 14, 1972, the appellees were brought to trial before the judge of the court of common pleas on the charge alleged against them in the complaint. The state introduced its evidence including five witnesses, to sustain the charge against the appellees. After the state rested, the appellees moved for discharge —the particulars of the motion not being shown by the record. The judge of the court of common pleas sustained the motion and discharged the appellees.
On that date, January 14, 1972, the state filed an Information in the district court against both appellees alleging the same facts and containing the same charge of unlawful sale of cereal malt beverage to Warren Holcomb, a minor, on November 24, 1971, as alleged in the complaint in the court of common pleas. Thereafter, and on January 17, 1972, the appellees filed their motion to dismiss the Information and warrant and for discharge. They alleged the prosecution was barred because the appellees were formerly prosecuted for the same crime based upon the same facts in the court of common pleas of Sedgwick County on January 14, 1972, which trial resulted in a determination that the evidence was insufficient to warrant a conviction, and resulted in a final order and judgment which required a determination inconsistent with any fact or legal proposition necessary to their conviction in any subsequent prosecution. They further alleged they were in jeopardy, having been put on trial in a court of competent jurisdiction upon a complaint sufficient in form and substance to sustain a conviction; that the case was tried to the court; that the court heard evidence and the testimony of five named witnesses; that the court of common pleas had concurrent jurisdiction with the district court in the trial of misdemeanor cases, and that they were in jeopardy under the provisions of K. S. A. 1971 Supp. 21-3108.
On January 20, 1972, the district court considered the motion to dismiss and made the following findings and conclusions of law:
“. . . In the instant case the only record before this Court concerning the previous trial is the file in the case, which contains the Information and also what appears to be the ruling of the Court in a handwriting which may or may not be that of the Judge, but this ruling is ‘Motion of defendants for discharge sustained: costs to State.’ Then two sets of initials follow, the last of which appears to be Judge Dwyer’s initials. But in any event this sheet was signed by the Judge of that case: Judge Dwyer.
“It is found, as a matter of law, that the present case in District Court falls within subsection 1 (a) of IÍ. S. A. 1971 Supplement, 21-3108.
“It must be found that the prosecution in District Court is a case in which the defendant was formerly prosecuted for the same crime based upon the same facts. This appears from the record before the Court and from statements of counsel which do not seem to be in disagreement on that point. Said statute then requires that a prosecution is barred under those circumstances if the former prosecution resulted in either a conviction or an acquittal or a determination of evidence insufficient to warrant a conviction.
“There having been no record taken of the former trial and there having been no decision filed in the case by the Judge as to the reasons for his discharge of the defendant, it must be inferred by this Court that the Judge there acted within his ■jurisdiction and acted within the law. And it particularly must be inferred that since the state’s evidence was presented in that trial and that the discharge was made after the presentation of the state’s evidence and after the state rested, again this being another point upon which counsel do not disagree, it must be inferred that the Judge in the former trial did weigh the evidence which was presented by the state did find the evidence insufficient to sustain a conviction, even though he may also have made his decision upon legal grounds not appearing on the face of the record. This is tantamount to an acquittal. Of course we are not permitted to speculate upon the reasons why he made his decision, but all inferences must be given in favor of proper decision under the statutes.” (Emphasis supplied.)
Later that day the district court held a subsequent conference on the motion to dismiss, and stated:
“At the request of counsel, the Court wishes to record that, in making its decision in this case, the Court has taken judicial notice of the case file of the proceedings in the Court of Common Pleas including that Court’s notation of having sustained the Motion to Discharge.
“It is the opinion of this Court that a Motion to Discharge by the defendants does not necessarily remove the bar to a second prosecution on the same charge.
“It is also the opinion of this Court that, unless the record of the prior court contains that Court’s Findings of Fact and Conclusions of Law which formed the basis for tire discharge of the defendants, and unless said record shows that such findings and conclusions constitute sufficient grounds for discharge, the defendants cannot again be put on trial for the same offense. Also, when the record does not show the Order of Discharge to have been inconclusive, it must be deemed to have been conclusive and to constitute a judgment of acquittal.” (Emphasis supplied.)
The state contends the district court erred in sustaining the appellees’ motion to dismiss. It asserts the discharge was at the consent of the appellees since they initiated the action, and, second, that the effect of the former prosecution was inconclusive so as to bar a plea of double jeopardy. In support of its position, it cites and relies upon:
State v. McKinney, 76 Kan. 419, 91 Pac. 1068, where it was concluded double jeopardy was not a defense to a subsequent prosecution when the former prosecution was terminated upon a motion for mistrial of the defendant because the district court failed to admonish the jury before a recess;
State v. Reynolds, 140 Kan. 269, 36 P. 2d 323, where this court concluded double jeopardy was not a defense when the former prosecution was terminated upon a technical error in the Information;
State v. Arnold, 142 Kan. 589, 50 P. 2d 1008, where double jeopardy was barred by an inconclusive judgment of dismissal because of a variance between the proof and the Information;
Kamen v. Gray, 169 Kan. 664, 220 P. 2d 160, in which double jeopardy was not found when the defendant’s motion for mistrial was sustained because of the admission of prejudicial evidence, and
State v. Calhoon, 198 Kan. 520, 426 P. 2d 157, where a claim of double jeopardy was without merit since the defendant’s motion to quash the Information was sustained because of technical errors in the charge.
Once the defendant raises a challenge of double jeopardy, the state has the burden of proving that jeopardy did not attach. While this court has no quarrel with the general rules of law as presented by the appellant, we do not agree that the facts and circumstances and the holdings on those cases are analogous to the case at bar.
The Judicial Council notes of 1968 indicate the Model Penal Code attempted to cover entirely the complex problems of double jeopardy. Following the suggestion of the committee which drafted the proposed amendments to the criminal statutes of Kansas, the Legislature adopted K. S. A. 1971 Supp. 21-3108 which comprehensively codifies the prior Kansas law of double jeopardy in the Kansas Criminal Code, effective July, 1970. The notes state subsection (1) (a) represents the law of Kansas with respect to acquittal or conviction on the merits as a bar, and subsection (1) (b) expressly codifies the principle of res judicata in criminal cases. K. S. A. 1971 Supp. 21-3108 reads in pertinent part:
“(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:
“(a) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; or
“(b) Was terminated by a final order of judgment, even if entered before trial, which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution. . .
We are of the opinion the district court did not err in concluding the prosecution in the district court was barred by the provisions of 21-3108 (1) (a). As the record indicates, the state presented evidence at the trial in the court of common pleas, and then rested its case. The record further indicates the district court concluded the judge of the court of common pleas weighed the evidence and found it was insufficient to sustain a conviction. The district court held that was tantamount to an acquittal. At a subsequent consideration of the case on the following day, the district court stated it was of the opinion the record did not show the order of discharge to have been inconclusive; hence it concluded the record was conclusive and constituted a judgment of acquittal. In short, the state failed to sustain its burden of making it affirmatively appear the district court erred in concluding that double jeopardy attached. Moreover, under the authority of In re Lewis, 152 Kan. 193, 102 P. 2d 981, we are of the opinion the judgment of the court of common pleas constitutes res judicata on the matters resolved so as to place the appellees within the protection of 21-3108 (1) (b).
During the pendency of the appeal, -this court allowed the state to file an affidavit concerning the scope of the judgment of the court of common pleas. The affidavit of the assistant county attorney was to the effect the motion to discharge was sustained by the district court because the statute under which the defendants were charged (K. S. A. 1971 Supp. 41-2704) did not state a criminal violation prohibiting one from selling cereal malt beverage to a minor. It would be improper to consider original evidence bearing upon the judgment of the district court which was not made available to that court at the time judgment was entered. (State v. Rieman, 118 Kan. 784, 236 Pac. 641; Rishel v. McPherson County, 123 Kan. 414, 255 Pac. 979; Martin v. Edmondson, 176 Kan. 374, 270 P. 2d 791; State v. Hemminger, 203 Kan. 868, 457 P. 2d 141, cert. den. 396 U. S. 1045, 24 L. Ed. 2d 689, 90 S. Ct. 696.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
Initially this proceeding was one by landowners to eject two utility companies from their land and to quiet their title thereto. Subsequently the plaintiffs sought to convert the action into one for damages for inverse condemnation by reason of the maintenance of utility facilities on their property. In trial to the court it was held that the defendant utilities had acquired prescriptive easements. Plaintiffs have appealed from the judgment against them entered on that ruling.
The evidence submitted to the trial court was in the form of depositions, affidavits, exhibits, answers to interrogatories and stipulations, and with a single exception the facts developed thereby may be said to be undisputed.
The real estate in question consists of a half-section lying east of U. S. Highway 59 immediately south of the city limits of Lawrence, Kansas. In 1915 the then owner of the tract, W. H. Armstrong, executed his will. Insofar as here material a life estate was devised to Leland O. Armstrong, grandson of the testator, subject to the right of possession, control and income from the real estate to the testator’s wife, Anna M. Armstrong, for the term of her natural life. Upon termination of the life estate of Leland, the will devised the remainder to any children bom to said grandson in lawful wedlock who survive him. Leland’s life estate was subject to certain restrictions:
“If . . . Leland O. Armstrong, shall at any time, or in any way make, execute or deliver any deed, mortgage, lease, equipment or any instrument in writing purporting or attempting to grant, convey, sell, mortgage or otherwise alienate said real estate, except to lease or rent the same for a period of not more than three years at any one time, or if he should suffer or allow the taxes or assessment levied on said real estate to be in arrears more than two years, or if the said life estate in said real estate shall be sold to satisfy the judgments of any court rendered against him, then and in such an event . . . the life estate . . . shall cease, determine and he forfeited and said real estate shall thereupon pass to such person or persons as would he entitled to the same if my said grandson, Leland O. Armstrong, had died. But . . . that said forfeiture shall not operate to defeat the interest of any child bom to . . . said grandson, in lawful wedlock, after such forfeiture.” (Emphasis supplied.)
W. H. Armstrong died in 1916. Final settlement of his estate under the will was made.in March, 1919, in proceedings in the probate court of Douglas county, Kansas. His widow, Anna M. Armstrong, died in April, 1919.
Leland O. Armstrong was bom November 25, 1904. He is still living and was a party defendant in the trial of this action. The plaintiff-appellants are the two children bom to Leland and his wife, Eleanor. Richard A. Armstrong was bom December 5, 1926, and became of legal age December 5, 1947; Betty J. Grisham was bom December 7, 1931, and became of legal age December 7, 1952.
The defendant-appellees, Cities Service Gas Company and the Kansas Power and Light Company, are each corporations. Cities is in the business of purchasing, transporting in an integrated pipeline system and selling natural gas in Texas, Oklahoma, Kansas, Missouri and Nebraska. KP&L owns and operates transmission lines for transportation and sale of electricity in Kansas. Both companies have the power of eminent domain for the purpose of acquiring land for right-of-way for construction of such lines and facilities.
In 1905 the testator, W. H. Armstrong, and his wife, Anna, granted a right-of-way easement to the Kansas Natural Gas, Oil Pipe Line and Improvement Company through the south half of the subject property and a twelve-inch pipeline was installed in that year. The easement was assigned to Cities in 1927 and the pipeline was reclaimed by it and removed from the property in late 1936 or early 1937. Upon reclaim, damáges were paid by Cities to the grandson, Leland O. Armstrong. During the time the line was located through the property, a domestic tap and meter were provided for the use of gas at the principal dwelling house located upon the property. The easement and assignment were duly filed of record.
Commencing in 1929 and extending through August, 1946, Leland and his wife, Eleanor, granted to Cities two pipeline right-of-way easements and a meter and regulator lease through the north half of the subject property. In 1944 they granted an easement to Kansas Electric Power Company (later merged into KP&L) for the construction and operation of an electrical transmission line over the property. These grants were perpetual and in no way limited. The first time that either Cities or KP&L was made aware that the grants were from a fife tenant was by a letter dated December 5, 1968, from one of appellants’ attorneys, two weeks prior to the filing of this action.
The first grant of a pipeline right-of-way easement to Cities was in 1929. Leland was paid for the grant of this right-of-way. A sixteen-inch gas pipeline was installed through the property under such contract in that year. Leland was also paid for crop damages in connection with installation of the pipeline. The pipeline has been continuously used for transmission of natural gas to the present time. This easement contract was mailed by a tenant on the property to Leland and his wife who were then living in California. The Armstrongs executed the instrument without any contact with Cities or a Cities representative. This easement was filed of record in 1929.
In 1939 Leland and his wife, Eleanor, executed a second right-of-way easement to Cities for the installation of a pipeline through the property and in that year a six-inch pipeline was installed extending from a point on the existing sixteen-inch pipeline through said property in a northerly direction as part of a project for transmission and delivery of gas for use by Kansas University. This pipeline has been used continuously since its installation to the present time. Leland was paid for this right-of-way grant and for damages resulting from installation of the pipeline. Prior to acquir ing the easement, Cities obtained a list of names of owners, of 'the affected realty from John C. Emick, a licensed bonded abstractor at Lawrence, Kansas. That list showed Leland as owner of the subject property. The easement was filed of record in 1939.
In August, 1942, a letter was written to Cities requesting a domestic tap for gas service from one of the pipelines running through the property. The letter bore the signature name L. O. Armstrong, and was written by Eleanor, his wife, with his consent and at his request. Additional correspondence was had regarding the furnishing of gas service for domestic use on the property. Such letters from L. O. Armstrong did not indicate any limitation of ownership to a life estate, but to the contrary, used the words “my farm”. In 1942 a domestic meter and regulator were installed upon the sixteen-inch pipeline extending through the property and domestic gas service has been extended and utilized on it continuously since that time.
In 1943 the Kansas Electric Power Company agreed to supply electric energy to the Sunflower Ordnance Works. In connection with the construction of the transmission lines for this project it was necessary to cross the Armstrong land. Because of the size and urgency of the project and the shortage of personnel, KEPC contracted with S. A. Sulentic for the surveying of the line and the acquisition of the necessary easements for rights-of-way. Sulentic was a consulting engineer in Topeka, Kansas, and was not on the staff of KEPC. Sulentic and his employees laid out the Sunflower Ordnance line and purchased the easements for rights-of-way used in conection therewith, except such as were acquired through condemnation. Among the easements obtained by Sulentic for the line.was that evidenced by a written grant of right-of-way executed by Leland O. Armstrong and his wife to the KEPC in February, 1944, covering the property in question. Leland was paid the full price for the easement which was filed of record in February, 1944.
In connection with the acquisition of such easements Sulentic obtained from Frank E. Banks, a licensed bonded abstractor doing business in Douglas county, a list of owners of the ttacts of land in that county over which the transmission line was proposed to be and was subsequently constructed. A copy of this list of Owners of property, from whom easements were secured by Sulentic, was furnished to KEPC, which list included thé' names of L. O. and Eleánor Armstrong. . - ■' '
Upon completion of construction of the electric transmission line, the prime contractor for KEPC delivered a release signed by L. O. Armstrong covering crop and property damages in installation of the line.
In 1946 the contract for the sale of gas by Cities to Kansas University was turned over to the distributor of gas in Lawrence, Kansas, and a town border station was established on the six-inch pipeline at a point north of and not located upon the subject property. This station was established for the purpose of delivering gas for distribution in Lawrence, Kansas. In August, 1946, a meter and regulator lease was executed by Leland and his, wife, Eleanor, which lease was filed for record in September, 1946. This lease was for a term of ten years with the right in Cities to renew the lease year-to-year thereafter upon payment of ten dollars annual rent.
In 1946 Cities installed a regulator and regulator house located above ground upon the real property in question, which facilities have continuously been utilized and maintained by Cities since that time. Pursuant to the terms of the lease, Cities has paid to Leland the sum of $10.00 each year commencing in August, 1946, and extending to the date of commencement of this action.
During the months of August through December, 1946, KEPC dismantled and removed the Sunflower Ordnance line. All easements for rights-of-way used in connection with the line were reserved and held for future use. The contract for the dismantling and removal of the line was let by KEPC to a Lawrence construction company in July, 1946. Pursuant to the terms of this contract, the contractor was to secure and deliver to KEPC releases signed by the owners of the fee title of the pertinent properties, releasing KEPC from any and all liability for damages incurred in connection with such dismantling and removal. Upon completion of this contract, the construction company delivered to KEPC a release signed by Leland pertaining to the subject property.
In June, 1949, the Kansas Elecrtic Power Company merged into KP&L and its properties, including all easements became vested in KP&L.
During the months of December, 1950, through February, 1951, KP&L reconstructed its Sunflower Ordnance line over the Armstrong land, utilizing the prior easement granted by the Armstrongs. Again KP&L received from the contractor building the line a release executed by Leland as landowner for damages incurred during reconstruction.
Periodically — Cities commencing in 1927 and KP&L in 1951— each appellee executed and filed of record mortgages in connection with its financing in which each mortgaged its property including the easements in question and in which each warranted it owned the property covered by the indentures and that such property was free and clear of any encumbrance affecting the title.
In November, 1961, Leland and Eleanor leased a portion of the property to one Ward Shull for the purpose of operating a golf course thereon. In 1962 Shull took possession of the land under this lease, which was for five years with an option to renew for a like period, and has continued to operate a golf course upon it. In March, 1962, Leland requested Cities to furnish an additional gas tap on the property to serve the buildings on the golf course. In May, 1962, a domestic meter and regulator were placed on the sixteen-inch pipeline, extending above the ground level, for the purpose of providing domestic gas service to the property.
The facts presented to the trial court also included the depositions and affidavits of several senior officers of each utility who continuously were concerned and familiar with the purchase and holding of easements by each company. These instruments showed the custom and practice of each in obtaining easements, their knowledge of all company records and demonstrated the belief of each company that it owned the easements in question.
The parties stipulated that from and after July 20, 1929, September 13, 1939, and August 28, 1946, Cities has been in the open, exclusive and continuous possession of the easements of right-of-way and the meter and regulator lease executed by Leland and Eleanor on those dates respectively, and that from and after February 25, 1944, KP&L and its predecessor in title have been in the open, exclusive and continuous possession of the transmission line easement executed by Leland and Eleanor on that date.
It was further stipulated that the appellants Richard Armstrong and Retty Grisham have been aware of the existence of the pipelines and related facilities and the transmission lines extending through the subject property for a period in excess of fifteen years prior to the commencement of this action.
The record reveals that the concern over the restrictive terms of the 1915 will which eventually led to this lawsuit developed in 1967 when Douglas county constructed a new sanitary sewer system and established a sewer district embracing a part of the Armstrong land. Following construction, assessments were levied against the lands affected; that levied against the Armstrong land was so large it could not be met unless the land could be subdivided and sold — which course could not be pursued in view of the testamentary restrictions upon Leland, the then life tenant. Accordingly Leland and his two children joined in some kind of declaratory judgment action brought in January, 1968, to terminate the life tenancy and to place fee title in the remaindermen, appellants herein, which apparently was done. On December 3,1968, Leland executed and delivered a warranty deed to the premises to his children, who on December 19, 1968, commenced this action against appellees.
Further evidence presented at trial will be mentioned in connection with the issues raised by the parties.
The trial-court entered the following findings and conclusions:
“Over the years beginning in 1929 and periodically since, the life tenant hád gránted certain easements for gas pipelines and a meter and regulator lease to Cities and an easement for a power line to K. P. & L. And on the theory that they had not joined in such grants, plaintiffs, by the instant suit, are demanding that such grants be declared void as to plaintiffs and if such be adjudged that plaintiffs then be permitted to seek the same amount from K. P. & L. and Cities as would be granted if such utilities were now condemning such rights in said land.
“Under the pre-trial order the basic issue is whether or not K. P. & L. and Cities- have acquired the respective rights they now possess in the land in question by adverse possession against plaintiffs.
“In view of stipulations numbered 55 through 70, it is a fact plaintiffs have been aware of the gas pipelines and related facilities and of the power line, all of which extend through and are upon the land in question, for a period of more than 15 years prior to the commencement of this action. From the entire record, including but not limited to all affidavits, exhibits, depositions and stipulations, the following statements are by the Court found to be proven facts: that from and after July 20, 1929 Cities has been in the open, exclusive and continuous possession of the easement shown by Exhibit C under a belief of ownership; that from and after September 13, 1939 Cities has been in the open, exclusive and continuous possession of the easement shown by Exhibit D under a belief of ownership; that from and after August 28, 1946 Cities has been in the open, exclusive and continuous possession of the property described in the meter regulator lease shown by Exhibit X under a belief of ownership; and that from and after February 25, 1944 K. P. & L. or its predecessor in title and interest, has been in the open, exclusive and continuous possession of the easement shown by Exhibit S under a belief of ownership.
“An examination of the instruments by which the life tenant and his wife granted the above mentioned easements to K. P. & L. and to Cities reveals that such grants were perpetual and in no way limited. The first time since the original grant of an easement to Cities in 1929 that Cities was made aware of the claim that it had only a grant from a life tenant was by letter dated December 5, 1968 from one of plaintiffs’ attorneys in which such contention was asserted. Similarly the same claim was addressed to K. P. & L. by letter of December 5, 1968 from such attorney. This suit was filed December 19,1968.
“From the entire record it is concluded that:
“1. Cities and K. P. & L. respectively have acquired the easement and other rights in the subject real estate as described in the several exhibits hereinbefore mentioned by prescription as against plaintiffs and plaintiffs’ action as against defendants Cities and K. P. & L. is barred by the applicable statutes. (K. S. A. 60-503; and K. S. A. 58-2523)
“2. K. S. A. 60-503 is a valid enactment. (53 C. J. S. Lim. of Actions, Sec. 2.)
“In light of the foregoing conclusions it is unnecessary to consider or determine the other issues framed by the pre-trial order.”
At this point it may be noted that “the other issues framed by the pre-trial order”, mentioned in the trial court’s memorandum, specifically included the defense of the statutes of limitations (K. S. A. 60-507, 60-508), as well as those of laches and estoppel.
Appellants first attack the trial court’s finding respecting appellees’ belief of ownership. They assert appellees could not have entertained a valid belief of ownership of perpetual easements because of evidence offered by them consisting of statements allegedly made by Eleanor Armstrong. Eleanor testified in her deposition she had on several occasions stated to representatives of appellees that she had no right or need to sign the easements because her husband had only a life estate in the property. Appellants also point to the fact one of the releases contained the typed name “Anna M. Armstrong” —which fact remains unexplained in the record. Appellants’ contention may be quickly disposed of. Eleanor’s testimony illustrates the one area of disputed fact in the case, that is, whether appellees entertained a belief of ownership with respect to the easements. The trial court held they did. This finding was one of fact and the evidence in the record supports that finding. No useful purpose would be served by further detailing that evidence. A mass of .credible testimony and exhibits offered by each appellee concerning its acts manifested a bona fide and reasonable belief of ownership of the easements. Appellees paid the going rate for perpetual easements, they promptly recorded the instruments granting them and they entered the property and made substantial expenditures in the installation and maintenance of their facilities. On the other hand, the testimony of Eleanor, offered by appellants in opposition, was not considered credible by the trial court. It did contain considerable vagueness and ambiguity and some contradition and hedging when she was closely pressed. Admittedly, no representative of Cities had any contact either with Mr. or Mrs. Armstrong when in 1929 they signed the first easement in California. More importantly, her assertion that she had in the presence of her husband informed appellees’ representatives of the true nature of her husband’s interest in the property was contradicted by the latter’s own testimony. The trial court’s finding resolved any factual difference against appellants.
Appellants argue their parents were coerced into signing the easements because appellees had the power of eminent domain and those involuntary acts should be excused. No issue of this kind was ever raised at trial, nothing in the record supports it and the matter can only be termed an afterthought.
Appellants also assert no prescriptive easement could arise against them because they first became entitled to possession of the property in 1962 and the fifteen year period of prescription did not begin to run against them until that time. Appellants select the year 1962 as the date they became entitled to possession because it was then that Shull entered the property under the ten year golf course lease granted by Leland in violation of the terms of his grandfather’s will (although of relative insignificance it may be noted that as late as December 5, 1968, in their letters to appellees, appellants were contending Leland’s fife estate terminated when he first granted Cities’ easement in 1929).
Appellants do not take into account the impact of K. S. A. 58-2523, which provides:
“A person seized of an estate in remainder or reversion may maintain an action for waste or trespass for injury to the inheritance, notwithstanding an intervening estate for life or years.”
In Clark v. Butler Rural Electrification Ass’n, 177 Kan. 344, 279 P. 2d 240, this court construed that which is now 58-2523 in a situation analogous to that at bar. There, in 1945, the fee owner, plaintiff’s mother, conveyed a perpetual transmission line easement to the defendant utility. The easement was not recorded and no lines were erected at that time. In 1947 the mother conveyed the property to her son, the plaintiff, reserving in herself a life estate. Lines were constructed in 1948 and 1949. The mother died in 1953. Thereafter the plaintiff promptly filed suit against the utility for ejectment and for damages. A particular statute applicable to electric co-operatives provided a two year period of limitation within which to bring actions concerning transmission line easements maintained without consent of those legally entitled to object (G. S. 1949, 17-4627). This court treated maintenance of the lines as an injury to the estate, of which plaintiff had notice. Plaintiff contended his cause of action arose only when his estate became possessory. This court rejected the contention, holding that under the provisions of the statute quoted above plaintiff had the right as remainderman to prosecute the action for any damage to the remainder estate and further that his failure to do so after two years continuous maintenance of the lines barred the suit.
Under the rationale of Clark it is immaterial that in the instant case the trial court made no specific determination as to when .Leland’s life estate terminated.
Appellants argue there was no trespass as revealed in Clark because Leland Armstrong could give a lease; however, Leland could encumber the property only for a three year period — he had no authority to make an unlimited perpetual grant as he in fact made. Also to be borne in mind is the stipulated fact that appellants had knowledge of the maintenance of the utility facilities for more than fifteen years prior to the commencement of this action.
Appellants further argue the utilities’ initial entries were permissive and could never ripen into prescriptive rights. In support they cite cases under our adverse possession statute in effect prior to January 1, 1964, which are inapplicable. Our present statute, K. S. A. 60-503, provides:
“Adverse possession. No action shall be maintained against any person for the recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years. This section shall not apply to any action commenced within one (1) year after the effective date of this act.”
The statute contains nothing limiting its application to any particular type of situation. In Stark v. Stanhope, 206 Kan. 428, 480 P. 2d 72, we had this to say respecting it:
“The section became effective January 1, 1964, and amended G. S. 1949, 60-304, Fourth. Formerly, the elements of the possession were required to be notorious’ and “hostile,’ but the new section eliminated the element of hostility as essential of adverse possession and changed the common-law conception of the doctrine. It is still necessary, however, to succeed on a claim of title by adverse possession, that the possession shall have been ‘open, exclusive and continuous’ for the statutory period. In lieu of an adverse or hostile- holding, the claim may bé based on , . . a belief of ownership.’ ” (p.,,432.-)
In Gard, Kansas Code of Civil Procedure; Annotated, § 60-503; the author comments respecting a claim based on belief of ownership: Í '
“This concept may present some difficulties as it makes the belief or the Estate of mind of the possessory claimant a relevant matter. Belief is distinguishable from intent. They are not synonymous. Unless he has made statements to someone evidencing a contrary mental attitude it is a bit difficult to challenge effectively the testimony of a person as to his belief. Hostility, on the other hand, is ordinarily a matter of intent and is evidenced by conduct, verbal or otherwise, and much more susceptible to an effective factual inquiry than the issue of belief.
“It can hardly be denied, however, that the new provision may serve a beneficial purpose from the standpoint of the public generally. The uncertainty of boundary lines presents problems of considerable concern. It is probably more realistic to resolve such disputes on the basis of mistaken belief on the part of the party who has been in open, exclusive and continuous possession, than on an intent to hold adversely and in hostility to the adjoining owner. At least the “belief’ concept has more of the element of good faith than the ‘hostility’ concept which is essentially a matter of bad faith intent to acquire something one does not own, by the process of claiming it.
“It goes without saying that the rule of this section recognizing the element of belief in ownership cannot apply where there has been a recognition of the uncertainty of the boundary location. Where that is true nothing, short- of intentional adverse holding will suffice to support the claim.” (p. 522.) . ■
In 5 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, § 60-503, Professor Melvin C. Poland makes these comments:
“In the language of the statute “belief of ownership’ has been substituted for the common law element of “hostile’ holding. It may be assumed the change will make it more difficult to challenge the character of the holding, belief being a state of mind whereas hostile -.holding involves an - intent, normally evidenced by overt acts or. statements in respect to such holding.. WTiile it may be argued that legislation should not be designed .to make acquisition, by a possible criminal act, of ownership of property easier to obtajn-,f it must be admitted that the two-fold policy behind statutes of limitation '(the.curtailment of stale.claims, and the rewarding of the individual who has ipade beneficial and productive use of the land over a long period of time) will be accomplished more often-under the new concept of ‘belief of ownership” established By the statute." (p. 7.) ' '
Thus we see statutory authorization of a doctrine of-adverse possession (or prescription in the case of easements) which gives protection .to those who in good faith enter and hold possession of land for the prescribed period in the belief it is theirs. The doctrine, of course, is based on the running of the statute of limitations applicable to the recovery of the property. The rationale for the enactment of this type of statute is expressed in 3 Am. Jur. 2d, Adverse Possession, § 2, thus:
"Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of real property which has been in the adverse possession of another for a specified time, but also to vest the disseisor with title. These enactments rest on a wise public policy, which regards litigation with disfavor and aims at the repose of conditions which the parties have suffered to remain unquestioned long enough to indicate their acquiescence therein. The purpose of these enactments is to quiet title to land, and neither the power of the legislature to do so, nor the wisdom of so doing, is open to question. They have therefore been emphatically and justly denominated statutes of repose. The intention is not to punish one who neglects to assert his rights, but to protect those who have maintained the possession of land for the time specified by the statute under claim of right or color of title.
“The establishment of title by adverse possession is said to be based on the theory or presumption that the owner has abandoned the land to the adverse possessor. It has also been said that the doctrine of maturing title by adverse possession under color of title is that where one, in the exercise of ordinary care, is induced to enter upon and improve land because he has some written evidence of title that would naturally induce a layman to believe that it vested in him what it professed to pass, it would be unjust to enforce the right of another who brings no action until the end of the statutory period.” (pp. 80-81.)
Appellants rely on cases ruling that as against the devisees of an estate in remainer the possession of the estate by the life tenant, or by persons to whom the life estate has been conveyed, does not start the running of any statute of limitations or prescription during the lifetime of the devisee of the life estate. Such possessions by their very nature could only be permissive and lack of adverse holding was the basis of these cited cases.. .Typical of them.are Peck v. Ayres, 79 Kan 457, 100 Pac. 283, and Dewey v. McLain, 7 Kan. 126, which were concerned with hostile holdings of realty— the only type of possession under which prescriptive rights could then be acquired. They simply are not relevant where rights are asserted under the belief of ownership concept in our present' statute in which hostility is not an'element.
The element of hostility in the old method oftentimes smacked of the element of bad faith as, for example, the squatter who knew he had no semblance of right could become vested with good title (see1 Gard, supra, p. 522). We have no hesitation in concluding that under the new belief of ownership concept the legislature had in mind an element of good faith, that is,, the belief must be in good faith and reasonable under all the facts .and circumstances.
The will of W. H. Armstrong was admitted to probate in Douglas county. This instrument revealed the limited estate and authority of Leland O. Armstrong. Probate courts are courts of record and it has long been held that their records constitute constructive notice of the matters therein contained (Walline v. Olson, 84 Kan. 37, 113 Pac. 426). The question arises as to the effect, if any, of constructive notice to be derived from this recording, such notice being that which is imputed by operation of law.
The doctrine of constructive notice sufficient to commence operation of the statute of limitations was examined in Black v. Black, 64 Kan. 689, 68 Pac. 662. The action was one for fraud brought by children against their mother who had acted as administratrix of their father’s estate and as their guardian. As required by law prior to the closing of the estates the mother filed in the probate court true accounts of her transactions, which activities constituted the alleged fraud. The fraud action was not brought until eight years after the youngest child had attained majority and the guardians account had been closed. This court held:
“The phrase, ‘until discovery of the fraud,’ in . . . the code . . ., which provides the limitation of two years in case of ‘action for relief on the ground of fraud,’ and which also provides that ‘the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud,’ does not necessarily mean until the party complaining had actual notice of the fraud alleged to have been committed, for constructive notice of the fraud is sufficient to set the statute in motion even though there may be no actual notice. Where the means of discovery lie in public records required by law to be kept, which involve the very transaction in hand, and the interests of the parties to the litigation, the public records themselves are sufficient constructive notice of the fraud to set the statute in motion.” (Syl. ¶ 2.)
The foregoing rule was iterated in Hutto v. Knowlton, 82 Kan. 445, 108 Pac. 825, but the court added to it this explanation and caution:
“The rule [in Black) was admirably expressed, but the foundation of it was not so definitely stated, and may be said to consist in this: Where a public record is required by law to be kept as a source of information respecting property rights and interests a duty rests upon anyone to whom the information is material to improve with diligence the opportunity of learning that which the record discloses. It follows that if the opportunity be neglected the interested person will be bound to the same extent as if he had in fact examined the record. But the rule is no broader than its basis, and if for any reason no obligation exists to consult the record, or if the interested person be circumvented from taking advantage of his opportunity, the rule does not obtain.” (pp. 448-449.) (Emphasis supplied.)
The rule respecting constructive notice to be imparted a claimant relying in good faith on adverse possession by reason of a belief of ownership is stated ■ in 2 C. J. S., Adverse Possession, § 170b, in this fashion:
. . [I]t is a well established rule that constructive notice of a defect in the title is not sufficient to impeach the good faith of claimant since he is under no duty to examine the conveyance records imparting such notice. ‘If no one could invoke successfully the prescription statute who could have discovered by an examination of the public records before buying the property that the seller had no title, the plea would never be available because no one could invoke it except one having a valid title and having therefore no need for prescription.’ If a claimant actually knows that his title has no validity whatever, then it cannot be said that he acquired his color of title or made his claim of right, title, or possession in good faith.” (p. 745.)
Also, in 3 Am. Jur. 2d, ibid., § 98, we note this statement:
“. . . [I]t is generally true that one is not required to examine the public records regarding the title to real property he contemplates purchasing as a condition precedent to good faith. . . .” (pp. 181-182.)
We are satisfied with the soundness of the foregoing rules and approve and adopt them. The very doctrine of adverse possession presupposes a defective title in the one claiming under it, but for which there would be no reason to claim title by adverse possession. It is a ripening of certain types of possession into title by the lapse of time (3 Am. Jr. 2d, ibid., § 1). The Kansas legislature has authorized tihat possession to be under a belief of ownership, which concept may not be judicially nullified.
In the case at bar appellees or their predecessors in title relied directly or through agents upon abstracters’ certificates of ownership — a not uncommon practice by utilities and others in acquiring rights in the nature of easements. The facts established in the record disclose neither appellee had any knowledge of any defect in title until receipt of the December 5, 1968, letters from appellants’ attorneys. Prior to this time Leland and his wife had continuously represented Leland to be the owner of the premises. As late as 1961, in the Shull lease, they represented that Leland’s ownership was without limitation. Appellants did nothing while appellees constructed and maintained their facilities on the land although they were aware of this activity. There is nothing shown in the record giving rise to any obligation on the part of the appellees to consult the probate court record.
The question of what constitutes good faith in one claiming to hold property under a belief of ownership is a question for the trier of the fact (Wright v. Mattison, 59 U. S. [18 How.] 50, 15 L. ed. 280). As already indicated the evidence in support of appellees’ belief of ownership was overwhelming and no facts were established which impugn in any way their good faith in maintaining this belief.
Appellants assert the concept of claiming “under a belief of ownership”, as authorized by K. S. A. 60-503, should not be applied retrospectively and that to do so would unconstitutionally deprive them of their property without due process. The argument is the fifteen year period under this concept should not commence until the effective date of the new statute — January 1, 1964. The only case cited in support of this argument is Davis, Administrator v. Union Pacific Railway Co., 206 Kan. 40, 476 P. 2d 635. This case involved constitutionality of a statute enacted to cure, retroactively, deeds recorded prior to the date of a particular decision of this court construing a deed purporting to create a joint tenancy in real estate. This court held that rights had become vested by reason of the former decision and the legislature could not enact statutes the effect of which would be to impair those rights. The decision has no application to the case at bar.
The general rule respecting constitutionality of statutes of limitations is stated in 53 C. J. S., Limitations of Actions, § 2, as follows:
“The legislature has power to enact statutes of limitation; it may enact a statute which limits the time within which actions may be brought to enforce demands where previously there was no period of limitation or it may change the existing statute of limitations. It may prescribe different periods of time within which different species of obligations may be enforced. Such statutes have usually been sustained as against various particular objections.
“As to existing causes of action, a statute of limitations must afford a reasonable time for the commencement of an action before the bar takes effect. If the statute operates immediately to cut off the existing remedy, or within so short a time as to give the party no reasonable opportunity to exercise his remedy, then the retroactive application of it is unconstitutional as to such party. The time allowed cannot be pronounced unreasonable unless it is so short as under the circumstances to amount to a practical denial of the right itself." (pp. 906-907.)
Kansas has adhered to the foregoing in many decisions (see e. g., State, ex rel., v. Board of Education, 137 Kan. 451, 21 P. 2d 295; In re Estate of Reed, 157 Kan. 602, 142 P. 2d 824).
In Reed the following appears:
“A statute of limitation affects the remedy only, does not impair rights and obligations, and the legislature has power to enact a statute placing a limitation as to time for the filing of an application for admission of a will to probate, even though a prior statute fixed a different limitation, so long as a reasonable time is given for the commencement of a proceeding for that purpose before the bar of the new statute takes effect.” (Syl. f 4.)
K. S. A. 60-503 was enacted into law February 27, 1963, to take effect January 1, 1964. Its terms provided a one year period for the commencement of existing causes of action prior to the application of the bar of the new statute of limitations. The time period allowed in 60-503 must be deemed reasonable (see State, ex rel., v. Board of Education, supra.)
Finally, appellants contend appellee Cities could not acquire prescriptive rights to the meter and regulator lease because of the terms, of the lease. As indicated, the primary term was for ten years, subject thereafter to annual renewal upon payment of ten dollars per year. The lease contained the further proviso lessee could upon payment of one dollar cancel it at any time after the expiration of one year. Appellants say the terms of the lease are ambiguous and therefore the lease cannot be the basis for prescriptive rights. No cogent argument is presented to support the assertion and we find no merit in it. The lease was, at Cities’ option, perpetual by its terms and purported to convey valuable rights in the nature of an easement. In the oft-cited case of Insurance Co. v. Haskett, 64 Kan. 93, 67 Pac. 446, this court stated:
"A prescriptive right to a private way is substantially the same in quality and characteristics and would arise in substantially the same manner as would title to land by adverse occupancy.” (p. 96.)
We conclude the evidence adduced by appellees sufficiently brought into operation the limitations prescribed by K. S. A. 60-503 and the trial court did not err in entering judgment for them on the basis they had acquired prescriptive rights in the realty in question.
One further matter should be mentioned. The record on appeal consists of 242 pages, two-thirds of which was designated by appellees. Appellants sought advancement of costs, unsuccessfully, in the trial court as to this record on the ground of unnecessary designation by appellees and they renew the matter here. Our perusual of the the record indicates underdesignation by appellants and overdesignation by appellees. Our conclusion is the costs of the record should be apportioned equally between the parties and it is so ordered (see Johnston, Administratrix v. Ecord, 196 Kan. 521, 412 P. 2d 990; Rules No. 3 and 6 [e], 205 Kan. xxvii, xxix).
The judgment is affirmed.
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The opinion of the court was delivered by
Foth, C.:
This is a wrongful death action brought by the parents of Bobbie Dean Summers, who was nineteen years old when he was killed. The defendants were Harley Samuelson, the youthful driver of an unregistered and uninsured vehicle which struck Bobbie, and Alliance Mutual Casualty Company, which had written uninsured motorist coverage on three automobiles owned by plaintiffs under which Bobbie was an “insured.”
The case was tried to a jury which returned a verdict in the form of answers to special questions. On the basis of these answers judgment was rendered for plaintiffs in the sum of $21,976.54, and the defendants appeal. Several questions are raised, but the dis-positive one turns on the trial court’s handling of the doctrine of “last clear chance.” Its discussion requires a brief review of the evidence.
On the evening of January 20, 1968, Bobbie Dean Summers went from his home in Grainfield to a wedding dance in Park, some six or eight miles east of Grainfield. He was wearing black shoes, black pants and a dark overcoat. At the dance he met Leo Schoenberger, a young man from Oakley who, with two friends (the Sporing brothers), was attending the dance uninvited. When the dance broke up shortly after midnight Bobbie accepted a ride home with his new acquaintances, but the group stopped first at the Co-op in Park to use its rest room facilities. There a quarrel broke out between Schoenberger and one of the Sporing boys, and Schoenberger decided to walk home. He struck out afoot, and Bobbie tagged along. One of the Sporings said they had a bet as to which would reach Grainfield first.
The pair proceeded south to old Highway 40 and turned west toward Grainfield, walking along the north shoulder. They were thus going with traffic, not facing it as the statute required. (K. S. A. 1968 [now 1971] Supp. 8-557a.) Their relative positions shifted at first, but Schoenberger testified that after a quarter mile or so he commenced to trot, and Bobbie followed suit. According to Schoenberger he had built up about a 100 yard lead when he heard a car approaching from behind and then heard a thud like a thrown tire-recap hitting a fender. The car slowed and then speeded up and disappeared to the west. Schoenberger looked back, didn’t see Bobbie, and took off to the west running. He was picked up another three-fourths mile west by the Sporing boys, who happened to pass by.
The driver of the fatal car was the defendant Harley Samuelson. He had looked in on the dance in Park after attending a teenage dance in Collier. He left Park shortly after midnight and headed west in his 1958 Ford, which he had purchased the previous October with a “blown” engine. During the intervening months he had replaced the engine and generally overhauled the car, but had never transferred the title or registered it. He was using a borrowed tag on the night in question. According to him the car was in good shape mechanically except for the speedometer; he relied on a tachometer for a speed indicator. He had test-driven the car 50 to 100 miles prior to this night. The battery and electrical system were in good condition and the lights operated normally.
As he went west from Park he met a car coming east. He described the ensuing events in these words:
“Well, when I left, or met that car, I remember checking my tachometer and dimming my lights, and the tachometer registered approximately 2200 and from previous calculations, it was close to 60 miles an hour. Then I had the radio on, and 1 was driving down the road there, and it was dark, but I saw this figure moving in the ditch. I don’t know where it came from, and it really startled me because, you know, I couldn’t figure out what a person would be doing out there on the highway at that time of night. I took my eyes off of the highway momentarily, and when I looked back there was this thud, and I saw a human go up and over my right fender, and I felt it hit my windshield and go off the side of the car there. This really scared me because I recognized that it was a human figure, and I didn’t know what to do. I didn’t know whether it was somebody that was after me, or whether I really hit somebody. You just don’t know what to think. I panicked and I was scared, and I slowed down debating what to do, then fear got the best of me, and I just took off to go back to Oakley.”
Harley later surrendered to the authorities and eventually pleaded guilty to leaving the scene of an accident and the unlawful possession of another’s license plate.
Bobbie was found about 1:00 a. m. by a passerby who noticed his shoe on or near the roadway; Bobbie was in the north ditch fourteen feet from the pavement, and was taken to a hospital where he died of his injuries later that morning.
Just where Bobbie was when he was hit is disputed. Harley was positive he never left the roadway, and the asphalt at the edge was broken and chipped so as to shake a car driven over it. Sheriffs officers investigating the accident were unable to locate the exact point of impact. They located a shoe two feet onto the pavement and the heaviest concentration of broken glass was two to four feet from the pavement’s edge; no glass was found on the shoulder. In our view it is immaterial whether he was on the pavement where all the physical evidence indicates or on the shoulder where plaintiffs suggest.
In its instructions the court summarized the contentions of the parties as to negligence, contributory negligence and the burden of proof without objection. It then gave, over defendants’ objection, the following:
“No. 11
“The plaintiffs have alleged as a basis for recovery against the defendants, the doctrine of Last Clear Chance. Before the plaintiffs can recover under this particular doctrine, the following elements must be established:
“(a) That Bobby Dean Summers, by his own negligence placed himself in a position of peril from which he could not extricate himself.
“(b) The defendant Harley Samuelson saw Bobby Dean Summers in a position of danger, or, in the exercise of ordinary care should have seen Bobby Dean Summers in such position, and by the exercise of ordinary care could have avoided injuring Bobby Dean Summers.
“(c) The defendant Harley Samuelson failed to exercise such ordinary care.
“(d) As a result of such failure on the part of Harley Samuelson, Bobby Dean Summers was injured.
“If all of the conditions just mentioned are found by you to have existed with respect to this occurrence in question, then under such conditions the law holds the defendants liable for any injury sustained by Bobby Dean Summers as a direct result of the occurrence, despite any contributory negligence of Bobby Dean Summers.”
This was followed by instruction No. 12 on the special questions to be answered, No. 13 defining proximate cause and No. 15 defining contributory negligence. All of these instructions were substantially identical to their counterparts set out verbatim in Rohr v. Henderson, 207 Kan. 123, 124-25, 483 P. 2d 1089, where they were numbered respectively 9, 10, 11 and 13.
In addition, the first five “Special Questions and Special Verdicts” were likewise those used in Rohr, modified to fit the present parties:
“1. Do you find from a preponderance of evidence that at the time and place of the collision the defendant Harley Samuelson was negligent in a manner alleged in plaintiffs’ petition, which was a proximate cause of the collision?
“Answer: Yes
“(Yes or No)
“2. If you answer the foregoing question ‘yes’, then state the act or acts of Harley Samuelson that constituted such negligence.
“Answer: Failure to keep a proper lookout for other persons on or near said highway, and particularly the deceased, Bobby Dean Summers.
“3. Do you find from a preponderance of evidence that at the time and place of the collision that Bobby Dean Summers was negligent in a manner alleged in the defendant’s answers, which was a proximate cause of the collision?
“Answer: Yes.
“(Yes or No)
“4. If you answer the foregoing question ‘yes’, then state the act or acts of Bobby Dean Summers that constituted such negligence.
“Answer: Failure to keep and maintain a proper lookout for his own safety.
“5. Do you find from a preponderance of evidence that the defendant Harley Samuelson had the ‘Last Clear Chance’ to avoid the collision as that term is defined in Instruction No. 11?
“Answers Yes.
“(Yes or No)”
Only the sixth question varies from that used in Rohr. Here the jury was to fix damages only if its answers to the other questions indicated a plaintiffs verdict, while in Rohr the jury was required to do so regardless of its answers to the other questions.
We thus have the identical problem which led this court to re-’ verse a plaintiffs judgment in Rohr. The instruction on contributory negligence included the ingredient of proximate causation, and the jury’s answer to question No. 3 convicted the decedent of contributory negligence which was a proximate cause of his injuries. The instruction on last clear chance, albeit given before our decision in Rohr, made the same reference to contributory negligence that we specifically disapproved in Rohr. (See Syl. ¶[ 4.) We there concluded (p. 129):
“Despite any intention on the part of the jury as to who should prevail, the judgment must be reversed because of the clear finding that appellee’s negligence was a proximate cause of the collision, and we so hold.”
The same disposition might well be made of this case, but here the court is of the opinion that an instruction on last clear chance should not have been given at all.
In Rohr we reviewed the elements of the doctrine (which were fairly summarized by the trial court here in parts (a) through (d) of its instruction) and quoted the explanatory statement in Letcher v. Derricott, 191 Kan. 596, 600, 338 P. 2d 533:
“The use of the phrase ‘that plaintiff’s negligence had ceased’ has caused some confusion. The phrase means, and perhaps the better term is, ‘that the plaintiff had, by her own negligence, placed herself in a position of peril from which she could not extricate herself.’ If the plaintiff could extricate herself from the danger, and did not do so, her negligence had not ceased. If the plaintiff could not extricate herself from the danger, her negligence had ceased.”
We further noted the similar statement in Sander v. Union Pacific Rld. Co., 205 Kan. 592, 470 P. 2d 748:
“A fundamental principle of law is that the last clear chance doctrine is inapplicable where plaintiff’s contributory negligence continues and is not shown to have ceased. As sometimes stated, there can be no recovery under the doctrine where the negligence of the parties has remained concurrent. [Citations.]” (p. 598.)
We likewise approved the analysis of the relationship between negligence and causation under the doctrine found in Ross v. Chicago, R. I. & P. Rly. Co., 165 Kan. 279, 286, 194 P. 2d 491:
“The doctrine of last clear chance is not applicable so long as the plaintiff’s contributory negligence continues. Otherwise stated, there can be no recovery under the doctrine where the negligence of the parties has remained concurrent. [Citations.] The reason for this rule is readily apparent when the ques tion is considered from the standpoint of proximate cause. Approaching the doctrine from that point of view as many, but not all, courts do [Citations], where a plaintiff’s negligence has ceased, it is regarded as remote and the defendant’s negligence which thereafter follows is regarded as the proximate cause of the accident. It is thus clear that if the plaintiff’s negligence has continued until the time of the accident and, without such negligence, the accident would not have occurred, recovery cannot be had.”
In this case it is clear that Bobbie was going with traffic, at night, wearing dark clothes; these acts of negligence were beyond his power to correct when Harley’s car approached. But, as the jury found, he also failed to keep a proper lookout for traffic. It is true that Harley said he could have avoided Bobbie if he had seen him, but it is equally true that Bobbie could have avoided injury had he seen the approaching car at any time until the moment before it struck him — a time when Harley would likewise have been helpless even if he had seen Bobbie. The record fails to disclose any evidence from which die jury could reasonably find a time when Bobbie’s negligence had ceased and Harley’s thereafter continued.
Thus, as we view the evidence, there was never a time when the negligence of the parties was not concurrent; i. e., when Bobbie was in a position of peril from which he could not have extricated himself had he exercised due care. It was therefore improper to submit the theory of last clear chance to the jury. Sander v. Union Pacific Rld. Co., supra.
What we have said renders unnecessary a discussion of the other issues raised, and as to them we intimate no opinion. In view of the jury’s finding that the decedent was guilty of contributory negligence the judgment is reversed and the case remanded with directions to enter judgment for the defendants.
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Per Curiam:
Appellee as cross-appellant would have the appeal dismissed for failure of the appellant to file her designation of record on appeal within the time required by Rule 6(c) and 6 (b) of this court, and for failure to supply a complete transcript. The record does not show any material departures from the requirement of the rule. Furthermore, it appears that the additional transcript demanded by the appellee was not necessary for appellate review in view of the disposition which we are making of this appeal.
The motion to dismiss the appeal is denied.
On the merits the question before the court is that of the trial court’s authority to modify an alimony judgment by relieving the appellee of the obligation to pay past due installments as to which he was in default. The full amount of the award of $3,600, payable in monthly installments of $300, had all become due and $1,275 remained unpaid and delinquent before the court made its order of modification.
The judgment was modified on the strength of K. S. A. 60-260 (b) (6) giving the court, after enumerating a number of specific statutory grounds, authority to relieve a party of a final judgment for “any other reason justifying relief from the operation of the judgment.” The justifying reason given by the court was that the appellant had remarried.
It was conceded that the judgment could not have been modified under the authority of K. S. A. 1971 Supp. 60-1610 (c) as all of the installments were past due. That section expressly provides that “the court may modify the amounts or other conditions for the payment of any portion of the alimony originally awarded that have not already become due.” (Emphasis supplied.)
We hold that in view of the limited authority of the court under K. S. A. 1971 Supp. 60-1610 (c) as to alimony judgments the court was without authority to set aside past due installments under the authority of K. S. A. 60-260 (b) (6). This is because the remarriage of the beneficiary of an alimony judgment could hardly be a “reason justifying relief’ from matured alimony payments if such relief could not be granted for that or any other reason under the statute referring specifically to alimony judgments. In other words the specific provisions in K. S. A. 1971 Supp. 60-1610 (c) is a limitation on the general authority under K. S. A. 60-260 (b) (6).
It is clear that K. S. A. 1971 Supp. 60-1610 (c) contains no implied reference to subsequent marriage as an event which would prevent alimony installments from maturing and becoming due after the remarriage. That section has no relationship to remarriage of the alimony recipient except that remarriage may be one of any number of reasons for relief from alimony payments that have not already become due under the terms of the judgment. Beck v. Beck, 208 Kan. 148, 490 P. 2d 628, and Herzmark v. Herzmark, 199 Kan. 48, 427 P. 2d 465, are not pertinent to the question here involved.
Since we are reversing the trial court for its lack of authority to modify the judgment in the manner indicated, factual matters relating to the equities of the order are immaterial.
Appellant claims that the trial court did not allow her an attorney’s fee for representation in the court below. This was a matter of court discretion and we do not find that discretion was abused.
The trial court order modifying the judgment for past due alimony is reversed. | [
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The opinion of the court was delivered by:
Owsley, J.:
This is a direct criminal appeal from a jury verdict of “guilty to the charge of theft of an automobile” as defined by K. S. A. 1971 Supp. 21-3701. The car was a 1967 Pontiac two-door, black with gold decals on both doors. The defendant was sentenced under the Habitual Criminal Act pursuant to K. S. A. 1971 Supp. 21-4504, to a term of from six to twenty years. The court overruled appellant s motion for a new trial and the defendant appeals.
On or about the 12th day of March, 1971, a car was stolen from the lot of the Board of Public Utilities of Kansas City, Kansas. The car belonged to the Board of Public Utilities and for more than two years had been driven by Mr. Sylvester Byrd. Prior to the incident involved in this case, Mr. Byrd was issued another car and the Pontiac was used as a “loaner.”
On April 4, 1971, Sylvester Byrd and his wife and children were washing their car at a coinmatic car wash. As the Byrd family prepared to leave they noticed a man washing a car similar to the one Mr. Byrd had driven for two years. Although the decal on the door of the car had been painted over with black paint the Byrds were able to make identification of the stolen car. Both Mr. and Mrs. Byrd observed the man washing the automobile. According to Mr. Byrd, after leaving the car wash, he made a U-turn and stopped in front of the car wash on the opposite side of the street — a distance of at least thirty feet. He observed the man for another sixty seconds to “reassure” himself that the man was not an employee of the Board of Public Utilities. The Byrds then called the police. When the Byrds returned to the car wash the car and the man were gone. While waiting for the police the car and the man drove by in front of the car wash and both Mr. and Mrs. Byrd again observed him. Mrs. Byrd then proceeded to follow the car while Mr. Byrd waited for the police. After driving a few blocks Mrs. Byrd saw the car parked in a liquor store lot and observed a man standing beside the car. She then returned to the car wash. Two police officers arrived at the car wash about this time and met Mrs. Byrd somewhere between the car wash and where the liquor store was located. The officers then proceeded to the liquor store where they observed the automobile which the police dispatcher informed them had been stolen, and a man standing in a telephone booth nearby. The officers approached the telephone booth and asked the man if the car was his and the man said, no, it was a friend of his. At that time defendant was placed under arrest and advised of his rights. The Byrds were either brought to the scene by the back up unit at the request of the arresting officers or proceeded there of their own volition. They each observed the defendant who was sitting in the back seat of the police car.
At the trial, Mr. and Mrs. Byrd testified that the man they saw washing and driving the car was the same man they observed in the back seat of the police car. They also identified the defendant as the man they had observed on the day of the incident.
The defendant presents and argues three specifications of error. We will consider the specifications of error as they are designated in the defendant’s brief.
I.
Defendant asserts the courtroom identification of the defendant based upon a custodial displaying of the defendant alone to the identifying witnesses without the assistance of counsel is a violation of his rights under the United States Constitution, Amendment Six, Kansas State Constitution Bill of Rights, Section Ten, and Kansas Statutes Annotated 62-1304.
Mr. and Mrs. Byrd testified that the man sitting in the back seat of the police car was the same man they saw washing and driving the stolen car.
Defendant claims the admission of this testimony violated his constitutional rights as determined in United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; and Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951. These cases point out that an accused person is entitled to counsel and that counsel should have an opportunity to be present at all pretrial identifications.
Here, we have an on-the-scene identification of the only suspect within ten minutes of the first sighting of the suspect and within two or three minutes of the arrest. The witnesses were not solicited by the police. When presented with on-the-scene identifications and prompt confrontations the courts have drawn a distinction from the formal lineup identification made after indictment as in Wade and Gilbert.
In Russell v. United States, 408 F. 2d 1280 (D. C. Cir. 1969), cert. den. 395 U. S. 928, 23 L. Ed. 2d 245, 89 S. Ct. 1786, the court said:
“. . . The confrontations disapproved in these cases [Wade and Gilbert] were post-indictment lineups. Similarly, though it spoke in broad terms, the Court was evidently focusing primarily on the routine lineup and show-up procedures employed by the police to obtain evidence for use at trial. The Court was concerned both to enhance the fairness of such procedures and to expose to judge and jury any elements of unfairness or unreliability which might attend them. In these typical cases, where counsel had been retained and time was not a factor it could find ‘no substantial countervailing policy considerations . . . against the requirement of the presence of counsel.’
“The present case, however, involves an immediate on-the-scene confrontation at 5 o’clock in the morning when there would necessarily be a long delay in summoning appellant’s counsel, or a substitute counsel, to observe a formal lineup. Such delay may not only cause the detention of an innocent suspect; it may also diminish the reliability of any identification obtained, thus defeating a principal purpose of the counsel requirement.” (pp. 1283, 1284.)
In Bates v. United States, 405 F. 2d 1104 (D. C. Cir. 1968), the court justified on-the-scene identification in the following language:
. . the police action in returning the suspect to the vicinity of the crime for immediate identification in circumstances such as these fosters the desirable objectives of fresh, accurate identification which in some instances may lead to the immediate release of an innocent suspect and at the same time enable the police to resume the search for the fleeing culprit while the trail is fresh. . . .” (p. 1106.)
The Russell and Bates cases were the basis for our decision in State v. Meeks, 205 Kan. 261, 469 P. 2d 302.
In Meeks the defendant was arrested as a suspect and immediately upon his apprehension, approximately four hours after the offense, he was returned to the scene and identified by the victim. We held that the accused’s constitutional right to counsel was not infringed and said:
“Here the time between the crime and the arrest was short; the finger of suspicion pointed to the appellant, but he denied the crime. He may or may not have been the robber. The only eye witness who could identify the appellant for sure was the victim, and time was important. Any delay in identifying the appellant would mean that, had he not been the robber, the real culprit would be at large with the trail growing cold while the appellant remained in custody. Under the circumstances we find the on-the-scene identification of the appellant did not infringe the constitutional counsel requirement.” (p. 266.)
Here, the confrontation was more prompt than in Meeks and the identification was almost simultaneous with the arrest of the defendant. It follows that we are controlled by Meeks and we hold that the identification of the defendant did not infringe on his constitutional rights.
II.
Defendant asserts improper admission of "prior conviction” evidence for auto theft resulted in undue prejudice and in ultimate conviction of the defendant.
After argument outside the hearing of the jury the state offered in evidence the following:
"A certified copy of the record of the United States Department of Justice, Bureau of Prisons, U. S. Penitentiary, Leavenworth, Kansas, showing a conviction, a plea of guilty to auto theft or the Dyer Act in Federal Court against the present defendant on April 5, 1968.”
K. S. A. 60-455 states:
“Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, subject to sections 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
The question for review is whether under the circumstances in this case the admission of the record of his prior conviction was proper under the provisions of K. S. A. 60-455. It is extremely difficult to .distinguish the statutory elements which permit the introduction of prior convictions. It is likewise difficult to determine which of these several elements is applicable to the facts to which they are applied. Whenever it appears that conviction of a defendant charged with a crime has been substantially influenced by the introduction in evidence of prior convictions close scrutiny should be made as to the proper application of the statute.
In this case the undisputed evidence established that .defendant was in possession of the stolen vehicle without the owner’s consent or authority. When asked by the police officer if he owned the car, defendant stated it belonged to a friend. The charge of theft under K. S. A. 1971 Supp. 21-3701 requires proof that the defendant intended to deprive the owner permanently of the use and benefit of the property. Defendant’s denial of ownership at the time of his arrest raised an issue as to his state of mind or intention in exerting unauthorized control over the property. Hence, evidence of a previous conviction of auto theft was relevant to show defendant’s intent to deprive the owner permanently of the use of his property. We conclude that the court did not err in admitting such evidence. The court gave a limiting instruction, the propriety of which was not specified as error; therefore, it is not before us on appeal.
III.
Defendant asserts the admission of testimony of incriminating statements made by the defendant before he was advised of his rights is a violation of the United States Constitution Fifth Amendment right against self-incrimination.
When the police officer arrived at the place where the stolen car was located the defendant was in a phone booth next to the car. The officer asked the defendant if the car was his and he said no, it was his friend’s car. The defendant was then placed under arrest and was advised of his constitutional rights. Based on these facts the .defendant contends his statement was inadmissible because of the failure of the officer to give the warning required under Miranda v. Arizona, 384 U. S. 436, 16. L. Ed. 2d 694, 86 S. Ct. 1602. In Miranda it was said:
“The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment’s privilege against self-incrimination.
(d) In the absence of other effective measures the following procedures to safeguard the Fifth Amendment privilege must be observed: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.’’ (Syl. f 1.)
The state points out that the Miranda decision was not intended to hamper the traditional functions of police officers in investigating crime. General on-the-scene questioning as to facts surrounding the crime or other general questioning of citizens in the fact-finding process is not affected by that decision. In support of this position the state also quotes from Miranda as follows:
“. . . By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. . . .” (p.444.)
In Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, the court said:
“. • • We hold only that when the process shifts from investigatory to accusatory — when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate. . . .” (p. 492.)
This was clearly an on-the-scene investigation and at the time the questioned testimony was elicited from the defendant the proceeding had not reached the accusatory stage. We see no error in the admission of this evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for breach of an alleged oral contract of employment and, alternatively, to recover the value of services performed on the theory of quantum, meruit. The matter was tried to the court without a jury, and after making extensive findings and conclusions the court entered judgment for the defendants. Appeal has been duly perfected.
While the appellant asserts numerous points on appeal for reversal of the trial courts judgment, the issues presented indicate that primarily the court is confronted with a fact case on appellate review.
William L. Short (plaintiff-appellant) is a consulting engineer specializing in plastics. The individual defendants are six brothers and are the sole stockholders of F & W Wholesale Supply, Inc. (hereafter referred to as F & W). They are also the stockholders of Sunflower Plastic Pipe, Inc. (hereafter referred to as Sunflower). The officers and directors of both corporations are elected from among the stockholders and at least one stockholder holds an office in both corporations. Kenneth Frederick is president of F & W, and Ardith Frederick, who is also known as Melvin A. Frederick, is president of Sunflower.
It is the appellant’s contention generally that he was retained because of his unique qualifications as an engineer skilled in the production of plastics; that he rendered services as an engineer to establish a plastic pipe extrusion plant owned by Sunflower Plastic Pipe, Inc. (defendant-appellee); that in addition to the engineering services for which he claims he was to receive his share of the profits, he was to do millwright work for which he was to receive and did receive an hourly rate of pay.
In the year 1967 the- appellant and Kenneth Frederick became acquainted as a result of purchases made by the appellant from F & W. Thereafter the appellant and Kenneth discussed the possibility of forming a partnership, but the idea was abandoned when they could not obtain any financial backing.
Later Kenneth learned of a plastic pipe company in Texas in financial trouble, whose equipment might be for sale. The appellant accompanied Kenneth on a trip to view the equipment.
Axdith Frederick also went on the trip for company and companionship because he was Kenneth’s brother. The appellant had other business interests, and after the trip to Texas, he returned to his home and businesses in Independence, Missouri.
Shortly after April 18, 1968, the equipment was purchased and the appellant volunteered to bring the equipment from Texas to Wichita and install it for the appellees, the appellant agreeing to do such work for $12.50 per hour. The appellant stated, “I volunteered my services to help load the equipment in Texas, ship it to Wichita and install it. I rendered a bill for those services at $12.50 per hour and was paid.” When the appellant agreed to install the equipment, there was no condition concerning a prolonged employment thereafter. Kenneth Frederick, with ratification of the other stockholders of Sunflower, which was in the process of being incorporated, hired the appellant for the purpose of installing the equipment. Kenneth Frederick located the building in Wichita to house the Sunflower plant and the appellant described it as ideal.
The appellant made numerous proposals to the appellees that he be hired on a long term basis as a consultant. Numerous meetings were had between the parties and lawyers seeking to reach that end. So far as the appellees were concerned one thing became clear. Any agreement between the appellees and the appellant would have to be in writing — no oral agreements would be acceptable. After a meeting on May 17, 1968, between some of the parties, the appellant caused a draft of a contract to be drawn by his attorneys, which, in the appellant’s words, “I presented to defendant Kenneth for him, to present to his brothers for approval. They did not sign it. Kenneth submitted a draft of his own back to me for my approval.” (Emphasis added.)
Ward Lawrence, one of the appellant’s attorneys, testified that after the meeting in his office on May 17, 1968, and after the draft had been prepared, the appellant told him that both he (appellant) and the appellees wanted changes made in the draft. The appellant admitted the contractual arrangements “were to be reduced to writing.” One of the terms in the proposed written agreement, drafted in the office of appellants counsel, reads:
“The term of this agreement shall commence on the date this instrument is signed, and shall continue for a period of ten years unless terminated sooner as hereinafter provided. . . .”
The negotiations eventually broke down. The appellees rejected the appellant’s proposals, and the appellant rejected the appellees’ proposals. The appellees did not like the idea that the appellant could terminate the contractual relationship at will, but that the appellees were bound even after the appellant’s death. They also were in disagreement as to the term of the contract, whether it should be for a term of five or ten years. The parties were in disagreement as to whether the appellant was to work a certain number of days per month or a number of days per year.
Sunflower was incorporated by charter on the 19th day of June, 1968, and the affidavit of paid-in capital was filed June 26, 1968. Substantial advancements were made by F & W on behalf of Sunflower pending its incorporation, and it is clear the proposed agreement of May 17, 1968, was designed to bind the appellant and Sunflower once it was executed.
Ardith Frederick testified that on or about the 12th day of July, 1968, he flagged down the appellant on a street in the city of Wichita and asked him about the proposals. He said, “He [appellant] told me his address and said if we wanted him to work for Sunflower, we should sign the contract and mail it to him and he would mail it back to us.”
On the 19th day of July, 1968, Ardith Frederick on behalf of Sunflower sent a telegram to the appellant stating he should not return to Wichita as there was no contract. After the appellant received the telegram, he called Ardith Frederick and was told “we had no contract and that we never had a contract and he [Ardith] asked me [Short] to pick up my things and leave.”
The appellant admitted at the trial he had no written contract with the appellees, but contended he had an enforceable oral contract with them.
The trial court found the parties intended not to be bound by any enforceable obligations until the contract was reduced to writing and executed. It ruled there was no enforceable contract between the appellant and the appellees. The trial court also found the appellant had not proved entitlement to any remuneration on a quantum meruit theory.
The appellant in his first three points contends the trial court erred: (a) in concluding the contract was not effective until signed by the parties; (b) in finding that plaintiff’s evidence failed to prove he had not been paid for his services; and (c) in finding plaintiff had not proved the value of his services.
The trial court found that on May 17, 1968, the appellant and Kenneth Frederick, acting for the group who later became the stockholders of Sunflower, orally agreed upon all the terms of an employment agreement between the appellant and Sunflower; that the terms and conditions of the oral agreement of employment of the appellant by Sunflower were reduced to writing by the appellant’s attorney; and that one of the conditions and provisions of the oral agreement between the appellant and Sunflower for the appellant’s employment, which agreement was reduced to writing, was that:
“The terms of this agreement shall commence on the date this instrument is signed, and shall continue for a period of ten years unless terminated sooner as hereinafter provided.”
The trial court then found that no written agreement or contract was ever signed by the appellant and the appellees. In finding No. 7 it referred to “The terms of the proposed employment agreement between’the parties. (Emphasis added.) Later in the same finding the trial court referred to the “proposed employment agreement” as the "oral agreement,” finding that “in addition to the compensation to be provided by the oral agreement, plaintiff was to receive $12.50 per hour for work in the installation of the machinery. All sums billed by plaintiff for the installation work has been paid and plaintiff asserts no claim for that amount in this litigation.”
In addition, the trial court found:
“13. Plaintiff’s evidence does not prove that plaintiff performed any work, labor or services for which he has not been paid in full by defendants.
“14. Plaintiff’s evidence does not prove the value of the work and services claimed to have been performed by him and for which he seeks to be paid under the theory of quantum meruit.”
The trial court concluded as follows:
“1. An oral agreement complete as to all its terms was entered into between plaintiff and Kenneth Frederick on May 17, 1968. In making such agreement, Kenneth Frederick was acting for the incorporators of Sunflower.
“2. An oral agreement complete as to all its terms is not an enforceable agreement or contract until all the terms of the oral agreement are met and satisfied. An oral agreement, one of the terms and conditions of which is that the agreement shall commence on the date the written agreement is signed by the parties, does not commence and is not effective or enforceable until it is signed by the parties.
"3. Plaintiff is not entitled to performance of the oral agreement for the reason that a part of the oral agreement was that the oral agreement was to commence when reduced to writing and signed by the parties. The oral agreement was reduced to writing but never signed by either party.
“4. Defendant Sunflower, and all other defendants, filed only a general denial to plaintiff’s claim. Having failed to raise the affirmative defenses enumerated in K. S. A. 60-208 (c) [statute of frauds], none of such defenses are available to them.
“5. The only issue raised by the answer and supported by evidence of the defendants with respect to plaintiff’s first cause of action therefore, is, whether an oral contract was made. This issue is resolved in favor of the defendants and against the plaintiff.
“6. Plaintiff is denied recovery on his second claim for relief. Judgment is awarded defendants and against the plaintiff on plaintiff’s claim on the theory of quantum meruit.” (Emphasis added.)
K. S. A. 60-252 (a) provides that where trial is to the court, the trial judge shall find the controlling facts, and it further provides:
“. . . Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses. . . .” (Emphasis added.)
The appellant has the burden on appeal of showing that the findings made by the trial court are clearly erroneous. (Mountain Iron & Supply Co. v. Jones, 201 Kan. 401, 441 P. 2d 795; and Aspelin v. Mounkes, 206 Kan. 132, 135, 476 P. 2d 620.)
Decisions of our court after the adoption of the new code of civil procedure do not suggest that any change was made by 60-252 (a), supra, regarding a review of the evidence to sustain the findings of the trial court. (For federal decisions under Federal Rule No. 52 [o], providing that findings of fact made by the trial judge shall not be set aside unless clearly erroneous, see Gard, Kansas Code of Civil Procedure Annotated, § 60-252.) When findings of fact are attacked for insufficiency of evidence, or as being contrary to the evidence, the duty of this court extends only to a search of the record for the purpose of determining whether there is any competent substantial evidence to support the findings. This court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances this court must review the evidence in the light most favorable to the party prevailing below. (Brohan v. Nafziger, 206 Kan. 58, 476 P. 2d 649; Wiley v. Board of Education, 205 Kan. 585, 470 P. 2d 792; and Schnug v. Schnug, 203 Kan. 380, 454 P. 2d 474.)
There was conflicting testimony in this case, and the facts have been reported most favorably to the prevailing parties in the court below. Implicit in the trial courts findings was a rejection of the theories asserted by the appellant. In effect, the trial court found the appellant failed to sustain his burden of establishing an enforceable contract, and failed to sustain his burden of establishing a right to quantum meruit damages. These are essentially negative findings.
A negative finding is descriptive of a trial court’s failure to find the existence of a fact, or of a trial court’s finding of the nonexistence of a fact or set of facts. In American Housing & Investment Co. v. Stanley Furniture Co., 202 Kan. 344, 449 P. 2d 561, the plaintiff’s theory was implicitly rejected by the trier of facts by a finding which this court characterized as a negative finding. The court said:
“. . . The effect of the [negative] finding is that such party did not sustain the requisite burden of proof. Absent arbitrary and capricious disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice on the part of the jury, the finding cannot be disturbed. Appellate courts cannot nullify a jury’s disbelief of evidence nor can they determine the persuasiveness of evidence which a jury may have believed (Schroeder v. Richardson, 196 Kan. 363, 411 P. 2d 670). . . .” (Emphasis added.)
The court in the above case was concerned with negative findings by a jury, but the rule is the same regarding negative findings made by a trial court.
While affirmative findings of a trial court are not to be set aside unless clearly erroneous under 60-252 (a), supra, the setting aside of a negative finding usually requires the nullification of a trial court’s disbelief of evidence, or rejection of evidence. (King v. Robbins, 201 Kan. 748, 754-55, 443 P. 2d 308; and Montgomery v. Manos, 201 Kan. 302, 440 P. 2d 629.)
Abundant evidence was presented by the appellees to the effect that negotiations conducted between the appellant and the appellees were in the form of proposals, which never culminated in a binding agreement, and that all services performed by the appellant on behalf of Sunflower had been paid for in full upon billings by the appellant at the rate of $12.50 per hour.
The trial court, in effect, ruled that while the terms of a proposed multi-year employment contract had been orally agreed upon, the parties intended that no binding contract would come into existence until the terms of the agreement were reduced to writing and signed by the parties to be bound.
Whether the parties intended to be bound absent a written executed contract is a question of fact. The conclusion reached by the trial court is supported by the evidence. The trial court held that where the parties condition a contract on its being reduced to writing and signed, there is no enforceable contract until such act is accomplished. A case directly in point is Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 479 P. 2d 875. There a damage action was brought for breach of contract, and the trial court sustained the defendant’s motion to dismiss. This court affirmed on appeal. There, as here, the parties exchanged various forms of a contract. There, as here, the trial court ruled no enforceable contract existed. There, as here, the plaintiff contended on appeal that all terms of the contract were agreed upon and only the clerical act of formalizing those terms remained. On appeal it was held to be elemental that there must be a meeting of the minds before a contract exists. The intent there expressed was that a written formal instrument embodying the final agreement was contemplated. In the opinion this court said:
“Undoubtedly execution of a binding contract was expected, but the intention of the parties seems clear: They negotiated with the definite understanding the terms of any contract were not fully agreed upon; a written formal agreement was contemplated and no valid, enforceable contract was to exist until the execution of such an instrument. The intention of the parties is controlling. In such case, where a written agreement was never executed, a binding contract never came into existence, and we so hold, as did the trial court (see anno. 122 ALR 1217, 1232, 165 ALR 756, 759, 764). Plaintiffs position that a contract existed is not strengthened by the fact it made expenditure of time and money — these were simply normal business expenses incurred on the expectancy of ultimate success.” (pp. 415, 416.) (Emphasis added.)
In the instant case the trial court found, and the record clearly discloses, an intent that no enforceable contract would exist until a written, forma] instrument was drawn and executed by the parties.
The appellant admitted the contractual arrangements “were to be reduced to writing.” The appellant’s unilateral signing of one form of the proposed contract — after appellees had broken off negotiations and further rejected negotiations, is unavailing.
Many cases hold that whether a contract takes effect before signing is a question of fact and depends on the intent of the parties. (Warrior Constructors v. International U. of Op. Eng., Local 926, 383 F. 2d 700 [5th Cir. 1967]; Emmons v. Ingebretson, 279 F. Supp. 558 [N. D. Iowa 1968]; Valentin v. D. G. Swanson & Co., 25 Ill. App. 2d 285, 167 N. E. 2d 14; Orient Mid-East Great Lakes Serv. v. International Export L., 315 F. 2d 519 [4th Cir. 1963]; Western Machinery Company v. Consolidated Uranium Mines, 247 F. 2d 685 [10th Cir. 1957]; West v. Carbone, 150 So. 2d 37 [La. App. 1963]; Widett v. Bond Estate, Inc., 79 Nev. 284, 382 P. 2d 212; Southwestern States O. & G. Co. v. Sovereign Resources, 365 S. W. 2d 417 [Tex. Civ. App. 1963]; Eastover Stores, Inc. v. Minnix, 219 Md. 658, 150 A. 2d 884; Franklin A. Snow Co. v. Commonwealth, 303 Mass. 511, 22 N. E. 2d 599; Binder v. Benson, 225 Md. 456, 171 A. 2d 248; and Premier Oil Refining Company of Texas v. Bates, 367 S. W. 2d 904 [Tex. Civ. App. 1963].)
The appellant’s entire argument to circumvent the executed written contract contemplated by the parties is that he performed valuable services which were accepted by the appellees. This is precisely what was litigated in the quantum meruit count of the lawsuit. The trial court determined the appellant did not perform any valuable services for which he was not paid. As a result, there was no performance by the appellant capable of circumventing the contemplated contract, which was to be written and executed.
The appellant contends the trial court’s conclusion of law No. 5 contradicts conclusion of law No. 1. Conclusion No. 1 declares that the parties below had orally agreed on the terms of a proposed multi-year employment contract. In conclusion No. 5 the trial court stated the issue on plaintiff’s first cause of action to be “whether an oral contract was made.” In the same conclusion the trial court resolved that issue in favor of the appellees and against the appellant. When the full context of the trial court’s conclusions is studied, it is apparent the trial court in conclusion No. 5 was speaking of an “enforceable” or “binding” contract, and not an “oral agreement.” This interpretation is fortified by finding No. 7, wherein the trial court referred to the oral agreement as the “proposed employment agreement.”
The term “oral agreement” was used by the trial court to describe the “proposed employment agreement” which contemplated a binding future contract to come into existence only after the proposals were formally reduced to writing and signed by the parties to be bound.
The issue on the appellant’s first cause of action as framed by the pleadings is merely whether or not there was an enforceable contract between the parties. The trial court determined there was not an enforceable contract. The conclusions clearly indicate the trial judge considered the testimony, some of it conflicting, and resolved the issue against the appellant.
In the instant case the trial court saw the witnesses and heard their testimony. It ruled that while the terms of the proposed agreement were orally agreed upon, the parties had specifically contemplated and intended a formal written instrument, and held that absent such executed written document there was no enforceable contract between the parties. Accordingly, the plaintiff failed to sustain his burden of proving the existence of an enforceable contract. This ruling of the trial court is amply supported by the evidence in the record.
In the trial court the appellant argued alternatively that should the court rule no enforceable contract existed, he was nonetheless entitled to a large sum of money on the basis of quantum meruit. The trial court found the appellant’s evidence did not establish that he had performed any work or services for which he was not paid in full, and further that the appellant’s evidence did not establish the value of any services claimed to have been performed by him for which quantum meruit recovery was sought. The trial court concluded the appellant was not entitled to recovery under his theory of quantum meruit.
The appellant introduced the testimony of two expert witnesses to prove the value of his services on a quantum meruit basis. Their testimony was based on an estimated value for the installation work for which plaintiff had submitted hills to the appellees. One of the witnesses gave value testimony on the basis of $125 per day and six months time required to do the job. He was not aware the appellant had not spent six months installing the plant, and admitted his company makes neither plastic tubular pipe nor plastic sheet. He further admitted he had never been in the Sunflower plant while appellant was installing machinery. He also conceded the appellant would probably have the right to state the price he would accept for installation work. No mention was made of the work performed in making the installation by a long-time employee of F & W.
The other expert witness had been in the Sunflower plant only briefly and had no actual knowledge of what work the appellant may or may not have done. He merely gave an estimate of the cost of installing the equipment.
The opinion testimony of these witnesses was based entirely on the value of installation services. The appellant admitted he had volunteered to install the equipment for a rate of $12.50 per hour; that he billed the appellees for that installation service, and was paid in full for it. Accordingly, the trial court found the appellant had not sustained the burden of proving that he had performed work or services for Sunflower for which he had not been paid in full. The trial court did not find the appellant had performed engineering services for which he was entitled to payment.
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The opinion of the court was delivered by
Harman, C.:
This is an appeal from an order denying post-conviction relief.
Appellant Richard Davis was convicted by a jury of the offenses of third degree forgery (K. S. A. 21-616) and alteration and possession of a fictitious, fraudulent or counterfeit motor vehicle certificate of title (K. S. A. 1971 Supp. 8-113). He was sentenced to consecutive terms of confinement. Upon direct appeal to this court those convictions were affirmed under the title of State v. Jarvis, 201 Kan. 678, 443 P. 2d 272.
Thereafter appellant filed his petition to vacate the sentences pursuant to K. S. A. 60-1507. Evidentiary hearing was had, the petition was denied and this appeal ensued.
A summarization of the evidence upon which appellant was convicted is found in State v. Jarvis, supra, as follows:
"The evidence in the case discloses that on the 4th day of January, 1965, the Hinkle Oil Company through its president, J. B. Hinkle, assigned the title to a 1960 Silver Cloud Rolls Royce automobile (Kansas title No. B 1287303) for the sum of $6,000 to Richard J. Davis, also known as Richard Henry Jarvis, the appellant herein. The money was paid by the personal check of the appellant. Sometime later the appellant requested J. B. Hinkle to execute an affidavit that the title had been assigned to the appellant by mistake — that it should have been assigned to someone- else. J. B. Hinkle after consulting with his attorney refused to give the appellant such an affidavit. In the latter part of July, 1965, the appellant talked to Mrs. Muriel Upton, accountant for the Hinkle Oil Company, and she testified the appellant said:
“ ‘The title needed to be changed, that it was incorrect; and of course, I wasn’t aware of that and would I make an affidavit to such and I said no.’
“In July, 1965, the appellant became manager-operator for Morris Kernick, doing business as Pertormance Motors, a licensed automobile dealer, operating under dealer’s license No. 2630.
“Shortly after the appellant began work for Performance Motors, he drew a line through his name as purchaser on the assignment of title to the Rolls Royce automobile in question and typed above it the name ‘Performance Mtrs. Wichita, Kansas,’ He also forged or caused to be forged an affidavit by J. B. Hinkle that the assignment had been made to the appellant by mistake, and should have been, made to Performance Motors. The appellant himself also signed a disclaimer affidavit to the same effect, and then forged or caused to be forged a re-assignment of the title in the name of Performance Motors to another automobile dealer, Foreign Cars Unlimited. The re-assignment purports to be signed by Morris Kernick on behalf of Performance Motors (Dealer) and was notarized before the appellant on the 15th day of September, 1965. Kernick testified that he did not own the Rolls Royce, did not execute the re-assignment, and did not authorize the appellant to sign his name to the re-assignment.
“When Foreign Cars Unlimited attempted to get title to the Rolls Royce in its name, the Kansas Motor Vehicle Department refused to honor the title on the basis of the documents presented. As a result the appellant was required and did apply for a title to the Rolls Royce in his own name, and paid the sales tax and registration fee to the Motor Vehicle Department, whereupon title was ultimately issued to Foreign Cars Unlimited.
“Prior to the transactions concerning the Rolls Royce in question, and on December 2 and 3, 1964, Mr. Byers and Mr. Billings of the Motor Vehicle Department had talked to the appellant concerning other motor vehicle transactions. In the course of the conversations with tírese gentlemen, it was disclosed the appellant was not a licensed used car dealer, but was engaged in the purchase and sale of automobiles as an individual. He disclosed his occasional practice was to purchase an automobile by taking the assignment of title in blank, and upon his resale of the automobile filling in the blank space with the name of the new purchaser. He would thereby escape paying the sales tax, the registration fee and title fee. Under Kansas law only licensed automobile dealers who purchase for resale are exempt from these taxes and fees.
“While the appellant was at the Motor Vehicle Department talking with Mr. Byers and Mr. BiUings, he feigned ignorance of the law and denied any intent of wrongdoing. He subsequently made settlement with the Motor Vehicle Department by paying it $250 for back registration and title fees.” (pp. 679-681.)
Evidence developed at the postconviction hearing will be stated where requisite to consideration of the errors asserted upon appeal.
Appellant’s principal complaint is that the two counts upon which he was convicted actually constituted but one crime punishable by a single sentence. He argues that the gravamen of his purported offenses was not the forgery of the affidavit and the alteration and possession of the certificate of title but simply cheating the state of its sales tax.
Appellee makes a two-pronged response. First, it asserts appellant is precluded from raising the defense of multiplicity of prosecution or double jeopardy under K. S. A. 60-1507 by virtue of our rule No. 121 (c) (3) (see 205 Kan. xlv) and by the doctrine of waiver of an affirmative defense, inasmuch as no such issue was raised at trial level or upon direct appeal from the convictions, and, treating the complaint as one of constitutional dimensions, no exceptional circumstances were shown to excuse the failure to raise the issue upon appeal, as required by the cited rule. Despite the merit of this contention we will treat the matter on its substantive rather than procedural aspect.
In support of his position appellant cites certain of our decisions, typical of which are State v. Colgate, 31 Kan. 511, 3 Pac. 346, and State v. McLaughlin, 121 Kan. 693, 249 Pac. 612.
In Colgate a mill and all its contents, including the books of account of the mill owner, were destroyed by a single fire and the defendant was prosecuted and acquitted for setting fire to and burning the mill. It was held such acquittal was a good defense to a subsequent prosecution for setting fire to and burning the books of account. Respecting the plea of former jeopardy this court discussed the applicable “identity of offenses” test in the following language:
“. . . [I]t is clear beyond all doubt, as appears from the real facts of the case as set forth in the defendant’s plea of a former acquittal, that the principal facts constituting the two alleged offenses are identically the same; and that one of such offenses could not be proved without proving the principal facts constituting the other of such offenses. Indeed, the offense charged in the first information could not be proved without proving all the facts constituting the offense charged in the second information. If the defendant was guilty under either information, he must have been guilty under both; and if he was innocent as to either of the offenses charged, he must have been innocent as to both. He could not possibly be guilty of one, and innocent of the other, [pp. 513-514]
“And upon general principles a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense. If the offender be prosecuted for one part, that ends the prosecution for that offense, provided, such part of itself constitutes an offense for which a conviction can be had. And generally we would think that the commission of a single wrongful act can furnish the subject-matter or the foundation of only one criminal prosecution.” (p. 515.)
At this point it may be noted the plea of double or former jeopardy is closely akin to that of multiplicity of prosecution and the two have been characterized in the same terms by this court, with the same tests applied (see, e. g., State v. Ford, 117 Kan. 735, 232 Pac. 1023; State v. McLaughlin, supra, State v. Carte, 157 Kan. 673, 143 P. 2d 774; State v. Gauger, 200 Kan. 515, 438 P. 2d 455.) In State v. Pierce, et al., 205 Kan. 433, 469 P. 2d 308, we held:
“Generally, a single wrongful act should not furnish the foundation of more than one criminal prosecution.
“The test to be applied in determining the question of identity of offenses laid in two or more counts of an information is whether each requires proof of a fact which is not required by the others.” (Syl. ff 2, 3.)
Let us turn now to the statutes defining the two offenses of which appellant was convicted. In count one he was convicted of forgery of the J. B. Hinkle affidavit in violation of K. S. A. 21-616 (since repealed and now superseded by K. S. A. 1971 Supp. 21-3710 and 21-3711), which provided:
“Every person who, with intent to injure or defraud, shall falsely make, alter, forge or counterfeit any instrument or writing being or purporting to be the act of another, by which any pecuniary demand or obligation shall be or purport to be transferred, created, increased, discharged, conveyed or diminished, or by which any rights or property whatsoever shall be or purport to be transferred, conveyed, discharged, increased, or in any manner affected, the falsely making, altering, forging or counterfeiting of which is not hereinbefore declared to be a forgery in some other degree, shall on conviction be adjudged guilty of forgery in the third degree.”
In count three appellant was convicted o£ alteration of a certificate of title and possession of a fictitious or fraudulent certificate of title as denounced by K. S. A. 1971 Supp. 8-113, which provides in pertinent part:
“Any person who shall . . . alter or deface or cause to be altered or defaced or knowingly have in his possession any fictitious, fraudulent, or counterfeit certificates of title . . . shall be deemed guilty of a felony. . . .”
Applying the foregoing tests it is clear the counts in question were not multiplicious. To convict on count one it was necessary for the state to prove that the Hinkle signature to the affidavit stating the assignment of title to the automobile had been made to appellant by mistake, was a forgery, that appellant forged the signature and the forgery was done with intent to defraud the state of Kansas. To convict on count three, charging the alteration and possession of fictitious certificate of title, it was necessary to prove appellant had altered the certificate by forging the reassignment, that he had intended to produce a fictitious title and as a result of the alteration the certificate was fictitious, fraudulent or counterfeit, and that appellant knowingly possessed it.
Two different documents were involved and different proof was required for each count. Proving one count obviously would not have proven the other, nor would acquittal on one require acquittal on the other, as was the case in Colgate and McLaughlin.
Cheating the state may have been the motive for both offenses but a single motive for a series of acts does not necessarily result in a single crime. In Wagner v. Edmondson, 178 Kan. 554, 290 P. 2d 98, the plaintiff had been convicted of breaking jail and of assaulting a jailer with intent to commit a prison break while lawfully confined, all of which constituted a single series of events. His complaint by way of postconviction attack was that he had committed but one single offense and he had unconstitutionally undergone double jeopardy in being convicted of two. In disposing of the contention on its merits this court stated:
“. . . the test for determining whether a continuous transaction results in the commission of but a single offense, is not dependent on the number of unlawful motives in the mind of the accused, but is determined by whether separate and distinct prohibited acts, made punishable by law, have been committed.” (p. 556.)
In Wagner this court further held:
“A test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge, and if not, the fact that both charges relate to and grow out of one transaction does not make a single offense where two distinct offenses are defined by statute.” (Syl.)
Appellant’s contention of multiplicity of prosecution or former jeopardy in violation of his constitutional rights is without merit.
Somewhat allied is appellant’s assertion he was unconstitutionally subjected to cruel and unusual punishment by consecutive sentences for acts which constituted only one crime. He was sentenced upon count one to confinement for not less than seven years and upon count three to confinement for not less than one nor more than five years, such sentences to be served consecutively. We have determined appellant has not been convicted twice for the same crime— it follows he is not being punished twice for the same crime.
As to the severity of a particular sentence, in response to a challenge that it was so disproportionate to the offense as to constitute cruel and unusual punishment, we had this to say in Cipolla v. State, 207 Kan. 822, 486 P. 2d 1391:
“The severity of punishment, if within the statutory limits set by the legislature, is within the discretionary power of the trial court.” (pp. 824-825.)
Here the sentences were within statutory limits, nothing indicates their imposition resulted from any corrupt or arbitrary action or motive and relief on the ground of improper sentence must be denied.
Appellant contends that by reason of rulings made by the court in the trial wherein he was convicted he was prevented from taking advantage of his constitutional right to remain silent. The thrust of his argument is directed toward instruction No. 10 which is set out in full in State v. Jarvis, supra, p. 683, and will not be repeated here. The propriety of this instruction was upheld in the direct appeal on authority of State v. Mader, 196 Kan. 469, 412 P. 2d 1001, in which we held the giving of a similar instruction respecting inferences which may be drawn from the unexplained possession of a forged instrument did not infringe accused’s constitutional right not to incriminate himself. More need not be said.
Appellant asserts the defense of entrapment, arguing he was induced by the Kansas Motor Vehicle Department to commit the crimes of which he was convicted. In his brief he states the de partment “insisted that a sales tax be paid and ordered [appellant] to retransfer the vehicle into his own name and pay the tax. This action by the Motor Vehicle Department induced the [appellant] into committing acts which became the subject of a criminal prosecution.” Assuming that an issue of entrapment could properly be raised for the first time in a 1507 proceeding, the contention is patently frivolous. The record contains nothing remotely resembling entrapment.
Appellant’s four remaining specifications of error relate to new testimony presented by him at the postconviction evidentiary hearing. Overall, he asserts this testimony negated the criminal intent requisite for his conviction in that it showed an honest mistake had been made in the initial titling of the Rolls Royce automobile in his name. This matter of intent, of course, was a disputed issue of fact at appellant’s first trial — where it was resolved against him— and went to the very heart of appellant’s guilt or innocence, which issue is not justiciable in a 1507 proceeding (Wolfe v. State, 201 Kan. 790, 443 P. 2d 260). We will mention only briefly the new testimony offered. One witness, Estel Gorsage, testified he was present at the Hinkle Off Company office and heard the conversation between appellant and G. W. Hinkle, father of J. B. Hinkle, as to the purchase of the Rolls Royce (it appears appellant’s negotiations respecting this purchase were carried on with G. W. Hinkle, who died July 3, 1965, and that J. B. Hinkle simply signed the certificate of title as president of the Hinkle Off Company outside appellant’s presence); that appellant told Mr. Hinkle he was a car dealer and the vehicle in question would be used as a road car in the automobile business and to put the title in the company name; that he presumed appellant meant to have the title placed in the name of Performance Motors although he never heard that name mentioned.
Appellant makes two contentions respecting the Gorsage testimony. First, he presents it as newly discovered evidence warranting the grant of new trial; and second, he asserts the prosecution unconstitutionally denied him due process by suppressing this exculpatory evidence.
As to appellant’s first contention, and assuming the court had jurisdiction to grant a new trial on the ground of newly discovered evidence, which may well be doubted in view of our decision in State v. Hemminger, 207 Kan. 172, 483 P. 2d 1096, the testimony in question obviously was not newly discovered evidence because by its very nature it was known to appellant at the time of trial if Gorsage was in truth with him when he made such statements to Hinkle. Facts fully within the knowledge of a party at the time of trial cannot later be denominated newly discovered evidence for the purpose of obtaining a new trial (State v. Oswald, 197 Kan. 251, 417 P. 2d 261). Further, before a trial court is authorized to grant new trial on the ground of newly discovered evidence, it must be shown to the court’s satisfaction that such evidence could not with reasonable diligence have been produced at the trial (State v. Collins, 204 Kan. 55, 460 P. 2d 573). No such showing appears here.
Turning to the second contention as to the Gorsage testimony, the record completely fails to support appellant’s assertion the prosecution improperly suppressed any evidence favorable to him. Appellant points to no facts which would lend any semblance of credence for the contention. Gorsage did testify as a prosecution witness at the initial trial but evidently he was not questioned by anyone respecting the alleged conversation later revealed. However, there is no indication in the record that the prosecution was aware of any exculpatory evidence of which appellant was not aware.
The other new evidence offered at 1507 hearing was recanting testimony by Morris Kernick. As already indicated, the reassignment of the certificate of title to the automobile in question purports to have been signed by Kernick on behalf of Performance Motors (Dealer). At the conviction hearing Kernick testified he did not own the automobile, did not execute the reassignment and did not authorize appellant to sign his name to the reassignment. In a preliminary affidavit filed in connection with the 1507 proceeding Kernick averred that in the latter part of 1964 and the early part of 1965 he was doing business in Wichita under the name of Performance Motors although he did not receive his license to do business as a used car dealer until sometime in February, 1965; appellant was associated with him and he had authorized appellant to use the name Performance Motors in his dealings in the signing of necessary papers and that appellant had negotiated the pinchase of the Hinkle Rolls Royce on behalf of Performance Motors; that after appellant was charged in this case he (Kernick) was threatened by officials of the motor vehicle department and by two deputy county attorneys of Sedgwick county that he must testify against appellant as they desired, specifically that he was to testify he had never authorized appellant to use the name Performance Motors in business dealings or to use his (Kernick’s) name in any way; that he had previously pled guilty in federal court to a charge of conspiracy to transport a stolen automobile and had been sentenced to four years’ imprisonment and was then placed on probation; he was threatened that if he did not testify favorably to the prosecution he might have his dealer’s license revoked, he would be prosecuted in state court on the same charge to which he had pled guilty in federal court and that his federal probation would be revoked, and this was why he had sworn to the falsehoods at appellant’s trial.
At the evidentiary 1507 hearing, which was held more than two years after the conviction hearing, Kemick testified, reiterating in accord with his affidavit that he had perjured himself at the first hearing but he receded from his assertion of threatening and coercion by state and county officials; he explicitly exonerated the chief deputy county attorney of any wrongdoing and he presented no tangible, credible evidence of misconduct on the part of any other county or state official. There simply was no showing the prosecution knowingly procured or used any perjured testimony in violation of appellant’s right to due process of law nor does the record contain any basis for a charge of bad faith on the part of the prosecution in connection with the Kernick testimony or in any other phase of the case, as intimated by appellant. Beyond this, and giving Kemick’s second version of events respecting appellant’s connection with the Rolls Royce credibility (which the trial court was not obliged to do), appellant still would not be absolved from wrongdoing. Without going into detail, Kernick and appellant did not finalize any agreement to establish a partnership or other arrangement in the name of Performance Motors up through 1964 and until after February, 1965, when Performance Motors was authorized to do business; appellant took the title to the Rolls in his own name on January 4, 1965, paying for it with his own funds, at which time he did not have a dealer’s license. That which has been said respecting new trial because of the Gorsage testimony is also applicable as to new trial sought because of the Kemick testimony, plus the fact that recanting testimony involving a confession of perjury is not looked upon with favor in considering grant of a new trial (see State v. Theus, 207 Kan. 571, 485 P. 2d 1327).
We find nothing to warrant disturbing the trial courts denial of relief and that judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action in replevin to recover an automobile which the defendant sheriff had seized on execution to satisfy a judgment indebtedness against plaintiff.
The controlling facts-were these:
Plaintiff was the head of a family, and the automobile was a seven-passenger Cadillac car valued at $150 and regularly used by plaintiff for the purpose of carrying on his trade or business, which was that of foreman carpenter for a building company having its headquarters in Clay Center. Plaintiff used the car on errands connected with the construction work in which he was employed in Clay Center, and he was allowed five cents per hour for such use of his car. In his business out of town plaintiff used the car to trans port the workmen over whom he was foreman, together with their tools, to and from Clay Center to whatever place they were at work. For this service plaintiff was paid ten cents a mile. It was his duty as foreman to perform the ordinary labor of a workman himself, for which he was paid the going wages, together with 10 per cent of the profits on the job, and likewise “a bonus of five cents an hour for keeping the men busy on the job.”
One of plaintiff’s employers testified that the plaintiff—
“Was employed as a foreman in the frame construction and in employing him they have employed him for his services, together with the services of his car, and that it is necessary that the foreman have a ear, and if the appellant had no car or could not furnish a car, he would not be eligible as foreman at the salary and pay they gave him. . . . That he acted the part as foreman in the frame construction with the understanding that as foreman he is to use his car for the purpose of delivering small items of material to the jobs in Clay Center. That he is to take with him the number of men that he may need and haul them to jobs that are outside of town; that he was to get five cents per hour for the use of the car in town and ten per cent of the profits of the job as foreman and we pay him ten cents a mile for the use of his car out of town. That in using the car out of town, in addition to hauling men, he hauled such material as the company run short of. That there are times when they run short of small items of material that can be hauled in the car without loss of time. That appellant takes his car with him, and it is always on the job for going to the lumber yard or delivering material and sometimes to the office for further instructions, and that he hauls carpenters’ tools. . . . That witness paid some of his other carpenters the same as he paid appellant for his services as carpenter, but the additional payment to appellant is for f-oremanship and use of his car. . . . That they give him 10 per cent of the profits . . . because he has equipped himself with a ear, which is a saving for Sannemah Bros. (Plaintiff’s employers.) . . . That no matter what he paid the other laborers, the appellant always received more, on account of having his car.” '
“Q. Is it necessary, in this work, that the foreman have a car? A. It is.
“Q. And if he had no car, or could not furnish a car, he would not be eligible for the foremanship job? A. He may be eligible, but not at the salary and pay.”
There was a good deal of testimony offered by defendant which tended to show that the cost of tires and maintenance of the car was an actual burden to plaintiff, that the allowance made him by his employers for the service of his car was inadequate and that “the use of the car lost him money.” But there was no evidence adduced by defendant which tended to controvert the facts developed in plaintiff’s behalf as set out above. .
The trial court held “that said automobile was not exempt property,” and gave judgment for defendant.
Was that judgment correct? Counsel for appellee invokes the rule that this court cannot disturb the trial court’s findings of fact. Quite correct. We cannot. But as we read this record the judgment of the trial court is not fairly susceptible of an interpretation that it gave no credence to the facts testified to on behalf of plaintiff. Even the testimony adduced in defendant’s behalf was corroborative of plaintiff’s evidence touching the use of the car. The trial- court ruled as a matter of law that the automobile used in the business of a construction company’s foreman, who was also the head of a family, was subject to seizure on execution, and that our exemption statute did not protect plaintiff therefrom. That was the theory on which the case was tried below. Defendant’s evidence was mainly directed to minimize the financial benefit to plaintiff through the admitted use of the car; and in his brief in this court defendant reminds us that plaintiff’s “sole claim in the petition and in the court below was that it was one of his necessary tools and instruments.”
And so we think we have only a question of law to deal with here, or, at most, a mixed question of law and fact where we are not bound by the determination of the trial court, and where no part of our appellate responsibility can be avoided on its account.
The pertinent statute, in part, reads:
“R. S.-60-3504. Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property: . . . Eighth. The necessary tools and implements of any mechanic, miner or other person, used and kept in stock for the purpose of carrying on his trade or business. . . .”
This statute has been in force since 1868 and has always been construed with consistent liberality and in accordance with the genius of our state history and the spirit of our institutions. (Millinery Co. v. Round, 106 Kan. 146, 149, 186 Pac. 979.)
“It is generally the rule that such exemption statutes are liberally construed, in order- that the heads of families may not be stripped of all means of making a livelihood.” (In re Conley, 162 Fed. 805.)
This court has just decided that a motor truck was exempt from seizure and sale on execution where it was shown to be a necessary implement in the coal trade of the judgment debtor (Federal Agency Investment Co. v. Baker, post, p. 460), although in the same case we held that the evidence was insufficient to show that a sedan car for which exemption was likewise claimed was either used or necessary for use in the debtor’s trade or business.
We think the automobile in the present case is like the truck'in the coal dealer’s business. It was both used and necessary to be used in his trade. It was a necessary implement both in obtaining and retaining his job as foreman. Appellee cites Jenkins v. McNall, 27 Kan. 532, to justify the ruling of the trial court. That case is quite instructive and contains some sound legal doctrine which could be well applied to support plaintiff’s side of this case. Of course a debtor cannot multiply his exemptions by multiplying his employments; but the plaintiff did not so multiply them. He has but the one principal employment, that of foreman for a construction company. And without the automobile to use on errands pertaining to the construction business, and to carry the workmen and their tools back and forth on out-of-town jobs, he would not have gotten and could not keep his job as foreman. If the trial court’s judgment .should stand, plaintiff would inevitably be demoted from his position as foreman, and without assurance of continued employment even as a common workman.
Under the issues as shown by the record, the plaintiff’s automobile was a. necessary implement -in plaintiff’s trade or business as foreman, and he was admittedly the head of a family. It is pertinent here to note that in 1917 the legislature amended the statute of 1868 defining what property of a decedent should be set apart for the use and benefit of his widow and minor children so as to include that distinctive utility of modern life, an automobile. (R. S. 22-511.) In construing exemption statutes, a- number of courts have held an automobile is a “carriage,” and exempt as such (Parker v. Sweet, 60 Tex. Civ. App. 10, 127 S. W. 881; Peevehouse v. Smith, [Tex. Civ. App.] 152 S. W. 1196); that it is exempt as a wagon “or other vehicle” under the Iowa statute (Lames v. Armstrong, 162 la. 327, 49 L. R. A., n. s. 691); and even in our own case of Wickham v. Bank, 95 Kan. 657, 149 Pac. 433, this court more than ten years ago took notice of the fact that the automobile was rapidly and certainly superseding the “wagon” which was specifically exempted from seizure on execution under the statute of 1868. But the words “necessary tools and implements” used by the head of a family for the purpose of carrying on his trade or business is a broader and more all-inclusive term than the “wagon” or like term used in our own and other exemption statutes; and this court has already said that there is no difficulty in concluding that an automobile may be exempt as a necessary implement used in carrying on the business of a grain dealer. (Wickham v. Bank, supra.) In Beach v. Fireovid, 84 Kan. 357, 360, 114 Pac. 206, this court noted but was not asked to review the correctness of a trial court’s ruling that an automobile was exempt from execution because it was used by the plaintiff in his business as a physician. Other instructive cases are: Wilhite v. Williams, 41 Kan. 288, 21 Pac. 256; William v. Vincent, 70 Kan. 595, 79 Pac. 121; Bank v. Venard, 109 Kan. 15, 18, 197 Pac. 877; and see, also, the cases cited in Federal Agency Investment Co. v. Baker, supra, just decided.
The fact that plaintiff did not make any.profit over and above maintenance on the use of his car in his business as foreman is immaterial. Neither is the fact that plaintiff’s wife used the car for her convenience or pleasure on Sundays and at other times. Probably no case can be found which would hold that the occasional loan or use of a tool or implement for some purpose unrelated to its owner’s trade or business would destroy its otherwise exempt character as a necessary instrumentality in the proper, conduct of its owner’s trade or business.
Reversed, with instructions to enter judgment for plaintiff. | [
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The opinion of- the court was delivered by
Dawson, J.:
This appeal questions defendant’s right to redeem real estate from a mortgage-foreclosure sale under the following circumstances:
C. E. Gould and defendant, E. U. Bright, were joint owners of a Wabaunsee county farm. They mortgaged it to plaintiff to secure the payment of a promissory note for a large sum of money. Gould and Bright and his wife, Gertrude May Bright, signed the mortgage. Gould then sold the farm to Bright, but later Bright sold and re-conveyed the farm by warranty deed to Gould, who died before he paid the consideration therefor.
Bright was appointed administrator of Gould’s estate. He listed the farm as Gould’s estate, and sold and accounted for the crops. He petitioned the probate court for leave to sell the farm to pay Gould’s debts; and permission to sell was granted, but the farm was not sold pursuant thereto.
The plaintiff commenced foreclosure proceedings, under his mortgage, against the .heirs of Gould and against E. U. Bright and Gertrude May Bright, setting up his note and the mortgage executed by Bright and wife, and was given judgment against them for $11,173 and costs. The judgment also decreed foreclosure of the mortgage and sale of the farm to satisfy the judgment indebtedness and further directed—
“That . . . each and all of the defendants, ... be barred and foreclosed of all right, title, or interest in and to the said real estate, except that the defendants have an equity of redemption in and to the said real property for a period of-months from the date of the sale of the said real property. . .
All parties acquiesced in that judgment, which was rendered on May 25, 1925, and accordingly the farm was sold by the sheriff on July 13, 1925.
On August 17, 1925, plaintiff moved to have the sale confirmed and the period of redemption fixed. He also alleged that the property was abandoned “by the defendants who were the owners of the legal title” and moved that the period of redemption be fixed at six months.
Bright filed an answer to the motion, and recited the facts of his ownership of the property prior to his sale of it to Gould under a complicated agreement between Gould, the defendant Bright, and the First National Bank of Wamego, concerning payment for the farm, which obligation Gould had not been able to discharge, and in consequence a heavy secondary liability of defendant to the bank had to be satisfied by defendant, and thereby the consideration for his conveyance of the farm to Gould wholly failed; and that defendant was the equitable owner of the farm and entitled to redeem.
The trial court allowed Bright eighteen months to redeem, and plaintiff appeals, contending that defendant was not an equitable owner having any right of redemption; and if defendant was ever entitled to redeem he was estopped to claim such right by his conduct as administrator.
Neither of plaintiff’s contentions is meritorious. The doctrine of estoppel might embarrass defendant if it were invoked by anybody who was misled to his prejudice by Bright’s conduct as administrator. Plaintiff was not prejudiced, nor did he claim to be. (Street Lighting Co. v. City of Wichita, 101 Kan. 452, 460, and syl. ¶ 2, 168 Pac. 1090; McKie v. Curtis, 112 Kan. 223, 225, 210 Pac. 483.) So far as concerned others than himself, however, Bright’s conduct in dealing with the farm as the property of Gould’s estate in his capacity as administrator was one of commendable unselfishness. And as to the question of defendant’s equitable ownership, that would necessitate an analytical review of the facts concerning the agreement of Gould, defendant, and the Wamego bank. The trial court’s determination of that matter was not challenged by motion for a new trial and consequently is not open to review. Moreover, the very terms of the judgment in foreclosure rendered in plaintiff’s favor defeat plaintiff in this appeal. Plaintiff’s rights are predicated on that judgment. ' There was no appeal therefrom. That judgment among other matters decreed “that the defendants have an equity of redemption in the said real estate.” The defendants — brought into this lawsuit by plaintiff itself — included specifically E. U. Bright and Gertrude May Bright. Without that judgment nothing succeeding its rendition would have any legal effect. On that judgment Bright and wife have as good right to rely as does the plaintiff.
There is no error in the record and the j udgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal by plaintiff, (l).from an order setting aside a default judgment, and (2) from a later order striking material allegations from plaintiff’s second amended petition.
The first question arises in this way: On July 1, 1925, defendant’s demurrer to plaintiff’s petition was overruled and defendant was given twenty days to answer. On July 24, no answer having been filed, plaintiff called the case up and took judgment by default.. Later in the day defendant learned the judgment had been taken and filed a motion to set aside the default judgment, for the reason, among others, “that the defendant’s attorneys had talked with plaintiff’s attorney regarding the kind of answer or pleading that would be filed and agreed to take it up together so as to simplify and get at the material issues at once.” On July 25, and at the same term of court, this motion was heard. Both parties were represented by counsel. After hearing arguments and considering the matter the court found that the default judgment should be set aside and defendant permitted to answer, and entered an order accordingly. This is the order complained of. Passing the question whether this is an appealable order, we think it one within the sound discretion of the court, and that the order shows no abuse of such discretion.
The second question is not so easily disposed of. The suit is one to reform a note, which as written is nonnegotiable for the lack of words of negotiation required by statute (R. S. 52-201), so as to contain such words, and for judgment on the note as reformed. The petition, too long to copy in full, avers in substance: That plaintiff is a bank at Hutchinson; that defendant W. A. Montgomery was engaged in the business of buying and selling used automobiles, under the name of the Montgomery Motor Company; that'he was heavily indebted to the bank, and had executed chattel mortgages and bills of sale to the- bank upon his entire stock of automobiles, and that he was in fact insolvent; that he and the bank had an agreement that when he sold a car the terms of the sale would be communicated to the bank, and if satisfactory the bank would release its claim to the car and accept the payment, and if payment in part was made by the note of the purchaser such note was to be negotiable in form, made to Montgomery and indorsed to the bank, and that the bank should satisfy itself as to the financial soundness of the maker of the note; that Montgomery negotiated a sale of a certain car to one D. E. Pearson, who was to give a note for $700 in part payment; that he informed Pearson that the note would have to be satisfactory to the . bank, and together they went to the bank where one of its officers explained fully to Pearson the method of doing the business, and upon investigating Pearson’s financial ability declined to take the note of Pearson; that soon thereafter Pearson and the defendant, Guy S. Marshall, went to the bank together, when the matter was again fully discussed; that Marshall represented that he was interested in seeing Pearson get the automobile, and that he would sign the note with Pearson as maker; that the bank investigated Marshall’s financial ability and agreed to purchase the note from Montgomery if it were signed by Pearson and Marshall as makers. It is further alleged that for the purpose of defrauding the bank Marshall, Pearson and Montgomery used a note not negotiable in form (omitting the words “to order,” or “to bearer,” or other words of negotiation), signed by Pearson and Marshall as makers, payable to the Montgomery Motor Company, and procured it to be accepted by the bank under such circumstances that the omission of words of negotiability therein would not be, and was not, discovered by the bank. Marshall alone is defending, and it is alleged that he is the only one of the defendants who is financially responsible. His def nse is a counterclaim against Montgomery. This defense will defeat recovery on the note unless it is reformed to contain words of negotiation. The order of the court sustaining defendant’s motion to strike removed from the petition all the allegations upon which plaintiff relied for a reformation of the note, and as to that branch of the case amounts to a ruling sustaining a demurrer to the allegations pertaining to reformation. Hence, the question presented to us is, Does the petition state facts constituting a cause for reformation? We must hold that it does.
While a unilateral mistake will not authorize reformation, 'the mistake of one party to the instrument, induced by the fraud of the other party, or parties, thereto, will justify reformation (Cox v. Beard, 75 Kan. 369, 89 Pac. 671).
Appellee concedes this principle of law, but contends that the allegations of fraud are insufficient for the reason that it is alleged that Marshall agreed to sign the “note” as maker — not that he agreed to sign a “negotiable note.” We think the petition, fairly interpreted, alleges in effect that Marshall promised to sign a negotiable note. Moreover, the word “note,” as ordinarily used in commercial transactions, means a note negotiable in form. Its use in our negotiable instruments law is so defined (R. S. 52-102). From the allegations of the petition this much, at least, seems clear, that the bank was permitting Montgomery to sell the automobile to Pearson only because of the fact that Marshall was to become personally liable to the bank for the amount of the note given.
Appellee contends that Marshall’s promise, whatever it was, pertained to the future; that it did not relate to a past or an existing status, and hence would not amount. to actionable fraud, citing Kiser v. Richardson, 91 Kan. 812, 139 Pac. 373. While that is the general rule, it is not the universal one (Shriver v. National Bank et al., 117 Kan. 638, 232 Pac. 1062), and its application here would be inequitable. It is argued that plaintiff is here attempting to vary the terms of a written instrument by prior parol testimony. In equitable actions to reform written instruments to accord with the agreement of the parties, such testimony is competent (23 R. C. L. 366) — otherwise frequently meritorious reformations could not be made. We think the petition good as against a motion to strike, which amounts to a demurrer.
The order of the court setting aside the default judgment is affirmed; the order sustaining the motion to strike is reversed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover a balance due for merchandise sold and delivered. Defendant counterclaimed on the ground that plaintiffs had agreed to stand a part of a loss sustained on a shipment of rope. A demurrer to defendant’s evidence in support of his counterclaim was sustained and he appeals.'
The facts are substantially as follows: The defendant together with H. Danna and Harry Moskowitz were jointly interested in the El Dorado Iron and Supply Company at El Dorado. Defendant and Danna each held a one-fourth interest; Moskowitz, one-half. Defendant was also engaged in a similar business at Wichita, under the name of Kamensky Iron and Metal Company. October 29,1922, the El Dorado Iron and Supply Company contracted to ship a car of rope to Akron, Ohio. The car, one-third loaded by defendant, was started at Wichita and stopped at El Dorado where the two-thirds balance of the load was furnished by the El Dorado Iron and Supply Company. The rope was rejected upon arrival at Akron because of-being of an inferior grade. It was reconsigned to Peoria, 111., and again rejected. Defendant then went to Peoria, way-billed the car to Chicago, and sold the rope at a net loss of $77.71. The freight and other items .of expense made up an aggregate loss of $552.88. Before returns were received on the car the defendant purchased the interest of Danna in the El Dorado Iron and Supply Company and then sold his one-half interest therein to the plaintiff Lindenbaum.
The defendant contends that in his negotiations for the sale of his interest to Lindenbaum, it was agreed by Lindenbaum, Mosfcowitz and the defendant, that the new concern of Moskowitz and Lindenbaum operating as the El Dorado Iron and Supply Company, would stand one-third of the loss on the car of rope, the amount of which remained to be ascertained. The plaintiffs contend that there was no such agreement, and that defendant is attempting to compel Lindenbaum to answer for the debt of Moskowitz.
There was evidence tending to support each contention. For plaintiff, a letter was introduced on the letterhead of the defendant under date of July 3,1925, which reads:
“El Dorado Iron and Supply Co., El Dorado, Kan.:
“Gentlemen — Inclosed you will find statement of the account, also check for the balance due you after deducting the 1182.39 due me from H. Moskowitz. I am inclosing an itemized statement of the transaction, as this deal is outside the partnership. Very truly,
Kamen Iron & Metal Co.”
Defendant, on cross-examination, also testified:
“Q. You say in your answer here that Lindenbaum — and I believe you so testified — that Lindenbaum orally agreed to pay his proportionate share of whatever Harry might owe you? A. Yes, sir.
“Q. There was no writing to that effect? A. No.”
In support of his claim the defendant, among other things, testified that during the month of November, 1922, he met the plaintiff Lindenbaum, who negotiated with him for the purchase of his interest in the El Dorado Iron and Supply Company; that Lindenbaum, Danna, Moskowitz and defendant were all present at the negotiations; that before the sale of his interest-and during the negotiations, he called Lindenbaum’s attention that there was no remittance received on the car of rope; that Lindenbaum agreed to stand with Harry Moskowitz their one-third of the loss and expenses incurred in the sale of the car of rope after it could be ascertained; that the final returns on the car were secured some time in March, 1923; that he afterwards sent a statement of the amount of $182.39 to the El Dorado Iron and Supply Company, which amount was never paid, and which amount was one-third of the expense and loss plaintiff Lindenbaum, with Harry Moskowitz, as the El Dorado Iron and Supply Company, agreed they would bear; that Moskowitz and Lindenbaum never denied their liability for one-third of the expense and loss, but contended that they wanted to ascertain whether or not the statement of loss was correct; that upon several occasions they agreed to pay it, but never took time to investigate to see whether or not defendant’s statement was correct; that some of the statements sent out of defendant’s office were sent to the El Dorado Iron and Metal Company and some addressed to Harry Moskowitz, for the reason that he was better informed with regard to the account; that during the year 1925, while Lindenbaum was engaged in business with Moskowitz, he (defendant), bought merchandise from them; that he later deducted the $182.39 due him from the El Dorado Iron and Supply Company (Lindenbaum and Moskowitz). He was referred to the letter dated July 3, and stated that some one wrote the letter upon his letterhead and addressed it to the El Dorado Iron and Supply Company. He then offered to show that he did not write the letter or had knowledge of language therein and did not authorize the wording thereof. The offer was rejected.
Danna testified that in 1922 he was interested in the El Dorado Iron and Supply Company; that he was present on November 22 when defendant sold his interest in the El Dorado Iron and Supply Company to Lindenbaum; that those present were defendant, Moskowitz, Lindenbaum and Danna; that Lindenbaum was informed that they had received no returns from the car of rope; that Lindenbaum said he would stand with Harry Moskowitz the proportionate one-third loss and expense on the car of rope and that Moskowitz was present at the time and said the same thing; that the rope was shipped a week or ten days before defendant sold his interest.
We are of opinion that under all the circumstances, the court was not justified in sustaining a demurrer to the defendant’s evidence. Whether or not Lindenbaum, with the concurrence of Moskowitz, made an original agreement as the El Dorado Iron and Supply Company to stand one-third the loss was a fact to be ascertained. (Rowan v. Rosenthal, 113 Kan. 604, 215 Pac. 1008; Prewitt v. Shell, 120 Kan. 158, 242 Pac. 147.)
The judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for an accounting, for relief on the ground of fraud, for an adjudication of certain rights and liabilities of the litigants, and to wind up the affairs of a joint adventure in which they were engaged.
Plaintiffs were eighteen citizens of New Jersey, two of Mississippi, arid one each of Indiana, New York, and Tennessee; and all of them Avere alleged to have been the dupes of the two principal defendants, Harry Winters and John Connors, both of Iola, in a speculative venture in Bourbon county oil leases. Roscoe C. Davis, of Bronson, and his brother, Morris Davis, of New Jersey, were involved with Winters and Connors in the matter which gave rise to this lawsuit.
Prior tp the autumn of 1920, some of the plaintiffs had been interested as investors in oil-development projects in southeastern Kansas, and the Davis brothers had been intrusted with certain of plaintiffs’ business affairs of that character. Some of the plaintiffs had formerly dealt with Winters and Connors in business transactions or speculations.
In the autumn of 1920 one E. J. Miller, an Iola banker, and five associates owned six oil leases covering certain Bourbon county acreage, with some oil wells thereon, and they owned some mis cellaneous tools, tanks, pipe and equipment pertaining thereto. These leases, and the related chattel property were being offered for sale for $160,000.
Winters, Connors, and the Davis brothers represented to some of the plaintiffs that these leases and related chattels could be advantageously bought for $300,000, and urged that a syndicate be formed to buy them at that price. They also represented to plaintiffs that they would invest their own money in such a project — Winters to the extent of $25,000, Connors $25,000, Morris Davis $10,000, and Roscoe Davis $5,000.
Acting on this proposal, plaintiffs raised $220,000 in cash, which was intrusted to Morris Davis. He paid $160,000 for the property, and the remaining cash, $60,000, was divided among Winters, Connors, Morris Davis and E. J. Miller.
By common consent Morris Davis took title to the leases and related property in his own name, and he executed certificates to the several plaintiffs showing their respective fractional interests, and also made certificates to Winters, Connors and Roscoe Davis for fractional interests based on their pretended investments therein.
Morris Davis returned to New Jersey and died. It was disclosed that he had brought back from Kansas an unexpectedly large sum of ready cash. E. J. Miller also died, and it was disclosed that he, too, was in possession of an unusually large sum of ready cash. Naturally these disclosures stimulated conjectures as to their possible connection with plaintiffs’ investment in the Bourbon county oil leases and eventually precipitated this lawsuit.
The principal matters outlined above were alleged in plaintiffs’ petition. ,
Winters and Connors answered with a general denial and alleged that in the autumn of 1920 they obtained from E. J. Miller a verbal option on the leases and related property for $175,000, and that they had sold the same to Morris Davis for $200,000 upon an understanding with him that each of them was to have and retain a one-twelfth interest in the property, and that each of them did receive $12,500 from Davis pursuant to this transaction, but that Davis was no agent of theirs in any capacity.
The evidence for the litigants Was developed at length. That given in plaintiffs’ behalf tended to support their cause of action. It showed the raising of $220,000 by plaintiffs and its delivery to Morris Davis; that Davis was their trusted agent; that he bought the property for $160,000; that out of the $60,000 raised by plaintiffs in excess of the total price paid for the property, Winters and Connors got $12,500 each, E. J. Miller $15,000, and Morris Davis appropriated $20,000 to his own use; that the latter sum was promptly handed over to plaintiffs by the widow of Davis after his death; and the widow* of Miller likewise handed over to plaintiffs the $15,000 he had similarly received. The various and sundry fiscal maneuvers of defendants to give ostensible color to their pretended investments of $25,000 each in the $300,000 syndicate were also revealed.
The jury answered certain special questions;
“Special Questions Submitted by the Court.
“1. Did Winters and Connors or either of them, during the entire transaction comprising the negotiations for and purchase of the oil and gas properties in controversy, know that Morris Davis was acting as agent for the plaintiffs as well as for himself? A. Yes.
“3. Did defendants Winters and Connors or either of them conspire together to deceive the plaintiffs as to the purchase price the owners of said oil and gas properties demanded for same? A. Yes.
“4. Did said Winters and Connors or either of them, and Morris Davis, conspire with said Morris Davis to deceive the plaintiffs into the belief that said defendants were joining with plaintiffs to purchase the said oil and gas properties and were paying for the shares of same which they were to receive? A. Yes.
“6. Were the plaintiffs, as a result of any conspiracy between the defendants Winters and Connors and Morris Davis, or by any false statements of said defendants Winters and Connors as to the actual purchase price of said properties, or as to whether said Winters and Connors were becoming buyers with plaintiffs and paying for whatever shares they were to receive, if such statements were made, deceived into the belief that the purchase price of said properties was greater than it actually was, and into the belief that said Winters and Connors were buyers with them of said property and not sellers of the same either personally or as agents for some other persons, and that said Winters and Connors were actually paying for the shares of said property they were to receive? A. Yes.
“Special Questions Submitted by the Plaintiffs,
“3. Did Winters and Connors or either of them in the presence of the other tell the people from Mississippi, Bridgeton and Kokomo [some of plaintiffs] that the leases could be bought for §300,000, and that that was a reasonable price for them? A. Yes.
“4. Did Winters and Connors or either of them in the presence of the other tell the Mississippi, Bridgeton and Kokomo people named in question 2, that they intended each to take a 1/12 interest in the leases if purchased, and to pay $25,000 cash therefor? A. Yes.
“5. Did Winters and Connors or either in the presence of the other tell the parties named in question 2, that no one was getting any commission, rake-off, or bonus, on the purchase of the leases if made, but that all those acquiring an interest were to come in on the same basis? A. Yes.
“8. Were the plaintiffs named in question 7, induced, in any degree, by the statements made by Winters and Connors, if you find they were made them, to the effect that each would pay $25,000 for a 1/12 interest in the leases, and that neither themselves nor anyone else was getting a commission, bonus, or rake-off, on the sale, and that all purchasers were coming in on the same basis to make the investment each afterwards made in said leases? A. Yes.
“Special Questions Requested by Defendants.
“1. Did the defendant, Harry Winters, have a verbal option from E. J. Miller on the oil and gas leases, property and equipment in Bourbon county, Kansas, described in plaintiffs’ petition for himself and John Connors for $175,000, prior to the consummation of the sale of the same to Morris Davis? A. Yes.
“6. Did either of the defendants have anything to do with the making of said assignments by Miller and associates to Morris Davis? A. No.
“8. Was Morris Davis'at any time acting as agent of either of the defendants? A. We think they were copartners in this transaction.
“14. Is it not a fact that plaintiff, R. M. More, had notice and knowledge that defendants’ price for said leases was $200,000 cash and they to retain a 1/12 interest each therein? A. No, we believe he knew the 1/12 interest was to be in the $300,000 price.
“15. Is it not a fact that plaintiff, R. M. More, had notice and knowledge that E. J. Miller gave Morris Davis a fictitious and fraudulent option for $300,-000, to take back to show the proposed purchasers, the plaintiffs in this suit? A. Yes.”
Defendants moved to set aside certain of these special findings; the trial court took the whole cause under advisement, and made certain findings of fact and conclusions of law, and gave judgment fo.r plaintiffs. That judgment determined the respective interests of all the litigants, required Winters and Connors to return the $25,000 which they had received out of the money raised by plaintiffs to buy the leases, and required them to pay into the syndicate the $25,000 each in accordance with their avowed promises and pretenses by which the plaintiffs were induced to contribute their respective shares in this ill-starred adventure. Other details of the judgment need not be stated; a receiver was appointed and the affairs of the -joint adventure were wound up except so far as they await the result of this appeal. There was no motion for a new trial.
Defendants Winters and Connors assign and urge certain errors:
1. They first urge that the court erred in overruling defendants’ objection to the introduction of evidence. In support of this contention defendants say:
“A careful reading of the petition will disclose that it was one for damages, a suit at law, not one in equity and not a suit for an accounting, and we contend and did contend all of the way through the trial of the cause that it was one sounding in tort, one for fraud, and that a general verdict should have been submitted to the jury and it should have been tried as a suit at law and a general verdict to the jury for its determination.”
We cannot agree to this contention, and, if we did, that would not be a good reason why the trial court should sustain an objection to the introduction of evidence. We do not discover in the petition itself such infirmities as would prevent a court from trying the cause on the issues framed by the pleadings. Another objection to the introduction of evidence set down in defendants’ brief reads:
“Defendants objected further to the introduction of evidence over the petition for the petition plainly shows a misjoinder of causes of action and a misjoinder of parties plaintiff. The petition showed upon its face that the plaintiffs were not affected alike; that their interests were not alike; that judgment in their favor could not be rendered against defendants for the total sum sued for by either of the plaintiffs, for that some of the plaintiffs had a %o interest in the result of the suit; others had a %o interest; others a %o interest, another a interest and one a Vm interest.”
This analysis of the nature of the action makes a very good argument that the cause was one of equitable cognizance and not an action at law. And although the trial court was at first inclined to treat the case as a law action, it properly changed its attitude thereto as the trial disclosed its complicated aspects. Indeed in this case there was such a tangle of interests' that an action of an equitable nature alone could adequately relieve and adequately redress the grievance of which the plaintiffs complained. (Fisher v. Rakestraw et al., 117 Kan. 441, 232 Pac. 605, and citations; Spena v. Goffe, 119 Kan. 831, 241 Pac. 257.) Defendants cite Dunn v. Mortgage Co., 113 Kan. 169, 213 Pac. 655, but that case, in our opinion, presents no particular analogy to the case at bar. Here there was no series of independent transactions between the individual plaintiffs and defendants. The relationship of the parties grew out of one transaction, and it would necessarily result in a multiplicity of actions if the right to maintain a suit of an equitable nature were denied. Indeed, if held down to such technicality of procedure, each plaintiff would have been compelled to bring two actions: first, one for discovery, since the full extent of defendants’ alleged duplicity could not have been ascertained without the aid of the powers of a court of equity; and, second, an action'for damages for the wrong suffered or for equitable redress as the facts and circumstances might suggest and require. It should not be forgotten that in the simplification of our civil code and the statutory abolition of distinctions between actions at law and suits in equity (R. S. 60-201), the legislature was not engaged in curtailing the essential powers of our courts of general jurisdiction. The legislative purpose was rather to emancipate the courts from those ancient artificialities of procedure which handicapped them in dealing out whatever measure of redress, legal or equitable, justice in any case required. (Houston v. Goemann, 99 Kan. 438, 162 Pac. 271, and citations; Kolbourn v. Sunderland, 130 U. S. 505; and Rose’s notes thereto in 32 L. Ed. appendix.)
2. Defendants’ next point is that their demurrer to plaintiffs’ evidence should have been sustained. Under this heading, it is argued that plaintiffs’ cause of action was not established by the evidence. We have read and considered this record, but discover no shortage of evidence to establish it. On the contrary, plaintiffs’ evidence to which the trial court gave credence justified that court’s characterization of it, thus:
“The evidence presents about as sordid a spectacle of deceit, treachery, betrayal of confidence and corruption as can well be imagined. The evidence is so overwhelming that no self-respecting jury could have made answers other than those they did. As a matter of conscience and good morals, it is unquestioned that the plaintiffs have been wronged and are entitled to redress from the defendants. If there is anything standing in the way of the recovery of plaintiffs, it would be a mere technicality without the support of right, conscience, good morals, or sound reason. The court knows of no technicality that ought to prevent the recovery of plaintiffs.”
In this connection, it is also argued that the cause of action was barred by the two-years provision of the statute of limitations. How so? The transaction whereby plaintiffs were induced to embark on this adventure occurred in the autumn of 1920; the duplicity of defendants was not revealed until long afterwards; and indeed it took this action itself fully to discover the facts upon which the action, was founded, and this action was begun in October, 1922. Moreover, even if this point had merit, defendants’ pleadings do not disclose that it was fairly raised.
Another point raised by defendants under their demurrer to the evidence was that “two or more plaintiffs are improperly joined.” Misjoinder of parties would not support a demurrer to the evidence, and is not now demurrable at any stage of a lawsuit. (R. S. 60-601; 60-705; Winfield Town Co. v. Maris, 11 Kan. 128, 147; Blodgett v. Yocum, 80 Kan. 644, 649, 103 Pac. 128; Yount v. Hoover, 95 Kan. 752, 755, 140 Pac. 408.)
Yet another point is urged in support of defendants’ demurrer to the evidence — misjoinder of causes of action. In this connection it is asserted that such misjoinder was disclosed on the face of the petition. This court does not discern any such defect, and if it were apparent, it ought to have been raised by demurrer to the petition or by answer. (R. S. 60-705, 60-707; Hurd v. Simpson, 47 Kan. 372, 27 Pac. 961.) This was not done. Furthermore, if any one of plaintiffs by act, fault, aider or acquiescence had given countenance to the actionable delinquency of defendants, that would not disclose misjoinder of parties nor of causes of action. Once a court acquires jurisdiction of a cause and of the parties, and especially a court exercising its inherent or vested jurisdiction in equity, it is not very important whether all the parties are formally ranged on one side or the other as plaintiffs or defendants. If they should join as plaintiffs but decline to do so, they may be made defendants, if their appearance in the action is necessary. (R. S. 60-410 to 60-413.) However the litigants or any of them choose to appear, or are caused to appear, individually or collectively, the court has ample authority to give to each litigant his due measure of justice; and no misjoinder of causes of action necessarily exists because perchance the measure of justice dealt out to each litigant may differ in kind and degree from that awarded to or imposed on every other litigant concerned.
Error is assigned in permitting plaintiffs to reopen their case to introduce evidence on the question of an accounting. Obviously that was a matter within the sound discretion of the trial court. (Heck v. Quindaro Township, 113 Kan. 647, 216 Pac. 293.) This record does not disclose any abuse of that discretion.
Two errors are based on the trial court’s ruling that the action was one of equitable cognizance and not one on which defendants had a right to invoke the general verdict of a jury. These features of this appeal have been sufficiently considered in this opinion.
Error is urged in the trial court’s denial of defendants’ request for a continuance after the court had decided that the action was for an accounting and equitable relief, and not one merely for damages. The record shows the colloquy of court and counsel on this point. The court repeatedly ruled that defendants would be given plenty of time to meet the issues, and to secure attendance of witnesses. The court said:
“Weil, we will take all summer, if it is necessary to do so, to. try this case right. It is a rather complicated case, but I am going to try it right as I view the matter.”
Defendants did not follow the proper practice to obtain a continuance as prescribed by the code (R. S. 60-2934); the motion or request was not backed by a pertinent affidavit; and the error complained of cannot be sustained. (State v. Giles, 119 Kan. 417, 239 Pac. 756. See State v. Ball, 110 Kan. 428, 432, 204 Pac. 701; Leach v. Urschel, 112 Kan. 629, 635, 212 Pac. 111.)
The seventh error urged against this judgment relates to the admission of incompetent or hearsay evidence. Over defendants’ objection a witness, Charles, was permitted to testify that he had heard Morris Davis say that the price of the leases was $300,000. Since a matter of prime importance in this action was the alleged conspiracy of Winters, Connors and the Davis brothers, that was competent evidence and tended to prove such conspiracy. A statement made by one of them; concerning the transaction was competent evidence against all engaged in that conspiracy. That rule prevails even in criminal cases (State v. Mullins, 95 Kan. 280, 291-295, 147 Pac. 828; State v. Shaw, 108 Kan. 781, 783, 196 Pac. 1100) and its pertinency is quite as obvious in civil proceedings. (22 C. J. 396.)
The eighth error assigned pertains to the exclusion of evidence, but what its nature, quality and probative worth may have been the record does not disclose. (Leach v. Urschel, supra.)
The ninth error is based upon the trial court’s refusal to give certain instructions requested by defendants. Those have been examined. They embodied defendants’ theory of this case — an altogether erroneous one, as we have already pointed out, and the instructions were properly refused. Moreover, this jury served only in an advisory capacity; and the court made its own findings under the same evidence, so the refusal of the requested instructions manifestly could not amount to prejudicial error. (Munn v. Gordon, 87 Kan. 519, 125 Pac. 7.)
Error is also assigned on the instructions given. Defendants’ criticisms thereon have been considered. They lack merit, and the error assigned is not sustained.
Fault is found with the jury’s answers to some of the questions, but being advisory, and corrected and improved in text and precision by the court’s own summary of the findings, the jury’s answers to the special questions were not of controlling significance.
In Martin v. Ott, 114 Kan. 419, 422, 219 Pac. 275, it was said:
“Since the jury only served in an advisory capacity, the court’s refusal to submit them could not possibly be error, as no controlling significance would necessarily attach to the jury’s findings even if the questions had been submitted and answered favorably to plaintiff. (Sharp v. Losee, 109 Kan. 211, 220, 199 Pac. 94; Kuhn v. Kuhn, 112 Kan. 155, 160, 210 Pac. 343.)”
In Bell v. Skinner, 119 Kan. 286, 290, 239 Pac. 965, it was said:
“Appellants . . . seem to overlook the fact that this was a case of an equitable character, where, if a jury is called at all, it serves only in an advisory capacity, and the court is not bound to defer to its judgment, and, indeed, in such cases the trial court cannot shift its own peculiar responsibility for the discovery of the truth of disputed facts by merely calling an advisory jury to its assistance.”
These excerpts from decided cases dispose of this particular complaint, and likewise furnish a complete answer to the error based on the trial court’s refusal to set aside certain of the jury’s special findings.
The 15th, 16th and 17th errors pertain to the trial court’s findings and judgment entered against defendants. It is useless to amplify this already too lengthy opinion with a disquisition on this point. We think the findings were well supported by the evidence and the judgment was eminently equitable and just. Winters has $12,500 in his pocket which plaintiffs put into the fund to buy these leases. Connors ditto. Connors assured one of the plaintiffs: “Before God, Jim, there was not one penny of graft or commission in this transaction to my knowledge.” Now they must pay that money back. (Withroder v. Elmore, 106 Kan. 300,187 Pac. 863.) Winters promised to put up $25,000 of his own money to make up a $300,000 fund to buy these leases. Connors ditto. Now, having induced plaintiffs to put their money into this project on their faith that Winters and Connors were doing likewise, and on the faith that a $300,000 fund was being raised for this common adventure, Winters and Connors must do as they promised. Defendants here and there throughout this appeal inveigh against one of the plaintiffs, Richard M. More. We do not quite understand why. The trial court found that he was one of the plaintiffs who was defrauded by defendants. There was evidence to support that finding and that should settle it; but even if More were knowingly a participant in defendants' duplicity, that fact would not relieve them by one jot or tittle of their liability to disgorge the moneys they hold which wtere contributed for the success of this adventure, nor relieve them of their duty to pay over their promised subscriptions of $25,000 each, on reliance of which so many of these innocent plaintiffs contributed their cash to this project. Moreover, it is useless to reargue the probative force of the evidence. Of course defendants had a right to take an option on this property for $175,000 and sell it to plaintiffs for $300,000 and pocket the net profit. But the evidence which the tribunal charged with the ascertainment of the facts chose to believe was that no such deal transpired, but one vastly different therefrom, and which was in substantial accord with the facts alleged in plaintiffs’ cause of action. (Agricultural Ins. Co. v. Ætna Ins. Co., 119 Kan. 452, 457-459, 239 Pac. 974.)
In a reply brief of appellants it is contended that the trial court made no special findings of fact independent of those of the jury. We consider the memorandum accompanying the court’s decree to be the trial court’s conclusions of fact separate from’ its conclusions of law, as permitted and sometimes required by the code. (R. S. 60-2921; Alexa v. Alexa, 108 Kan. 38, 193 Pac. 1083.) But be that as it may, appellants’ reply brief assures us that the trial court adopted as its own the special findings of the jury. Such adoption rendered them the court’s own conclusions of facts, which gave them the requisite potency on which to base the judgment.
Other matters urged against the judgment have not been overlooked, but we discern nothing further which would justify discussion. Nothing approaching the gravity of prejudicial error is apparent in the record. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
In these two appeals the validity of subcontractors’ liens was drawn in question.
In case No. 26,772, it appears that plaintiff sought to enforce a lien for lumber and materials supplied- for the erection of a house in Abilene for Homer Wilson and wife, the appellees. The last admitted item of materials so furnished was delivered on December 24, 1923, and plaintiff’s verified lien statement as a subcontractor was not filed with the clerk of the district court until February 27, 1924. This statement did not set forth the name of the contractor unless it might be implied from the allegation that — •
“C. H. Schmidt and Clarence Schmidt did purchase . . . certain building material, according to schedule hereby annexed, . . . and said material was actually used in the . . . erection of said buildings [on Wilson’s property described]. . . . That there is due and owing the said The Badger Lumber and Coal Co., from the said 'C. H. Schmidt and Clarence Schmidt for said materials the sum of $4,321.44, with interest.”
Issues were joined between plaintiff and Wilson and wife, and at the trial it was announced that Schmidt & Schmidt had been adjudged bankrupts since the action was begun. The cause was tried before a referee, who made findings of fact and conclusions of law, all favorable to Wilson and wife, and judgment was entered accordingly.
Plaintiff appeals, urging the sufficiency of the recitals in the lien statement to show that Schmidt & Schmidt were the contractors, that plaintiff should have been permitted to make a belated amendment to its lien statement, and that certain lumber supplied by plaintiff to build a cupboard on January 3, 1924, should be considered as a lienable item so as to cany the account down to a time within 60 days of the filing of the lien statement.
Touching these points in order, we are virtually urged to disregard and overrule the case of Lumber Co. v. Washington, 80 Kan. 613, 103 Pac. 80, where it was said:
“The requirement of the mechanic’s lien statute that the statement filed by one claiming a subcontractor’s lien must, among other matters, state the name of the contractor is not met by a recital that the material was sold to a designated person and by him used in constructing a building upon land belonging to another, although the person so designated was in fact the contractor. Such lien statement is fatally defective unless it shows by express averment or by reasonable implication that the purchaser of the material made the improvement under contract with the owner.” (Syl.)
Our earlier case of Sash Co. v. Heiman, 71 Kan. 43, 80 Pac. 16, was to the same effect. The rule declared in these cases has substantial support in 40 C. J. 234, 235, and 18 R. C. L. 926, 927, 937, although a more liberal attitude toward defective recitals in lien statements is shown in certain textbooks covering this particular subject. See Bloom’s Law of Mechanics’ Liens and Building Contracts, §§ 371, 372, and Supplement of 1911 thereto; Rockel on Mechanics’ Liens, §§ 111, 112. Our code provides that lien statements “may be amended by leave of court in furtherance of justice as pleadings may be in any matter, except as to the amount claimed” (Civ. Code, § 653; R. S. 60-1405); and this court has recognized and applied this rule where it seemed practical and proper to do so. (Lumber Co. v. Collinson, 97 Kan. 791, 156 Pac. 724; Lumber Co. v. Blanch, 107 Kan. 459,192 Pac. 742.) In the Collinson case we said:
“Excessive strictness of construction is not required or permitted either by statute or by decision in this state. (Gen. Stat. 1909, §9850; Presbyterian Church v. Santy, 52 Kan. 462, 34 Pac. 974; Wall Paper Co. v. Perkins, 90 Kan. 725, 136 Pac. 324.) . . . This was fully recognized in Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640. (See, also, De Klyn v. Gould, 165 N. Y. 282, 59 N. E. 95, 80 Am. St. Rep. 719; Phillips on Mechanics’ Liens, §342; Bloom, Law on Mechanics’ Liens, § 848.)” (p. 792.)
However, the rule announced in Lumber Co. v. Washington, supra, is so thoroughly embedded in our local jurisprudence, and is one so easy to conform to by those who seek to compel one man to pay another man’s debt, that this court would not be justified in overruling it. In general accord with its tenor and spirit are our recent cases, (Baker v. Griffin, 120 Kan. 448, 243 Pac. 1057; Spaulding Lumber Co. v. Slusher, 121 Kan. 155, 246 Pac. 999; Cobb v. Burford, 121 Kan. 199, 246 Pac. 1009.)
The conclusion just reached reduces to little present importance the question whether the trial court should have permitted the lien statement to be amended to show “that C. H. Schmidt and Clarence Schmidt, named therein, were contractors and had a contract with the owner named therein, to build the dwelling house mentioned in said lien.” The motion to permit such amendment was filed on April 22,1925, some fourteen months after the filing of the defective lien statement, and long after Schmidt & Schmidt had been adjudged bankrupts. Granting that if timely application had been made the amendment should have been allowed, there certainly was no abuse of discretion in denying a motion to amend a lien statement fourteen months after it was filed and more than six months .after the issues had been joined in an action to foreclose the lien. (Bank v. Badders, 96 Kan. 533, syl. ¶ 3, 152 Pac. 651, and citations; Supply Co. v. Oil Co., 110 Kan. 468, 204 Pac. 692.) In Rockel on Mechanics’ Liens it is said:
“§ 123. As a general rule a claim or statement cannot be amended after the time limit for filing the same had expired, and the amendment should not be allowed where it will materially interfere with intervening rights. If no one is prejudiced by the proposed amendment, it will generally be allowed under equitable principles. Indeed, some statutes particularly authorize the amendment of statements in cases where justice may be subserved thereby, and such statutes have been held to be constitutional. But without a statutory provision to .that effect courts have no right to permit defects in claims or statements to be cured by matters set-up in the pleadings. . . . Since there is no general power to amend, the question as to what defects are amendable must be determined solely by the statute that permits them to be made. As a general rule any error may be corrected by amendment or by filing a new claim before the time limit has expired, but not afterwards. ... Of course immaterial defects, inadvertently made, where no one is prejudiced, are always amendable. . . . And even if the errors are honestly made the claimant may be estopped from amending to his advantage.” (p. 331 et seq.)
It is finally argued that defendants Wilson and wife “should be estopped from denying that the cupboard was real estate.” On that subject the referee found:
“X. Items charged on January 3, 1924, consisted of 82 square feet % x 4 ceiling and 10 feet wood stop, in the sum of $4.75. These items were delivered on that date by plaintiff to the said property. These items were used in the construction of a movable cupboard in the basement of said building. Said cupboard was not included in the contract between Homer W. Wilson and Schmidt & Son, and was no part of the said building, was built in the center of the basement, then moved to the side, but was not attached to the walls or floor, or ceiling in any way. These items were delivered by plaintiff to property the same as other items and no special purpose was given for their use.”
From this finding of fact plaintiff affects to discern some element of misconduct on the part of the Wilsons which tended to mislead plaintiff into supplying the materials for this cupboard. But the referee and the trial court were unable to discover anything reprehensible in the conduct of the Wilsons. Neither can we. The rule announced in Sash & Sales Co. v. Early et al., 117 Kan. 425, 232 Pac. 232, controls here:
“To uphold a lien for material purchased for a building on the land of the owner it must appear that it entered into the construction of the building and became a part of the realty.” (Syl. If 2.)
No prejudicial error appears in case No. 26,772, and the judgment therein is affirmed.
In case No. 26,773 the same plaintiff sought to assert and foreclose a mechanic’s lien for materials supplied to Schmidt & Schmidt for the alteration and repair of a house in Abilene belonging to the appellees, Johntz and wife. Plaintiff’s lien statement filed on April 16, 1924, was defective in the same particular as that just discussed in case No. 26,772. It did not state the name of the contractor. (R. S. 60-1402, 60-1403; Sash Co. v. Heiman, supra; Lumber Co. v. Washington, supra.) About a year later, on April 22, 1925, plaintiff filed a motion for leave to amend its lien' statement so as to show “that Schmidt & Son-were contractors and had a contract with the owner, named therein, to build the dwelling house mentioned in said lien.”. This motion was denied. Ere that motion was filed the cause had been tried before the same referee who served in case No. 26,772. In this case the referee found:
“12. C. H. Schmidt and Clarence Schmidt are not mentioned as contractors in said lien and no contractual relations are mentioned in said lien between the defendants Johntz and the defendants Schmidt.
“Conclusions op Law.
“2. Said lien is fatally defective and void for the reason that it does not show by express averment or by reasonable implication that the purchaser of the material made the improvement under contract with the owner.
“3. Said plaintiff is not entitled to a lien on said premises for any sum whatever.”
The trial court confirmed and approved the referee’s report and entered judgment for defendants, Johntz and wife.
The main point contended for in this appeal — that the lien statement was sufficient or was subject to an amendment which should have been permitted — is foreclosed by what has been said in the companion case just decided.
It is argued that the want of the statutory requirement that the. lien statement shall set forth, among other details, the name of the contractors, was sufficiently supplied by an allegation in plaintiff’s petition in the action to foreclose the purported lien, wherein it was pleaded that C. H. Schmidt and Clarence Schmidt were contractors and had a contract with J. E. Johntz, the owner, for the alteration and repair of his residence. But the petition and cause of action have to draw their virtue from a valid and binding lien; the lien statement acquires no virtue from mere elaboration of plaintiff’s pleadings in a cause of action seeking to enforce the lien. In Bloom’s Law of Mechanics’ Liens and Building Contracts, p. 369, it is said:
“A failure to state an essential fact in the claim, such as the name of the person to whom the materials were furnished, is not aided by the averment of the fact in the complaint, as the claim which is filed for record must be complete in itself at that time, in order to authorize its enforcement.”
We note the observation with which appellant opens its argument:
“The appellant is in the unique position of having a motion overruled to amend the mechanic’s lien statement because the trial court thought it sufficient and an amendment unnecessary, and then later to have the lien declared void because it was not amended.”
But a painstaking examination of. the record does not disclose that the trial court announced any reason for its ruling on plaintiff’s motion to amend the lien statement. No reason is given; but at least one good reason manifestly appears. Issues had been joined, the cause referred, tried, decided, and reported to the district court, before any motion to amend was presented. Quite properly it might have been denied because of its belated presentation. It follows that this judgment must also be affirmed.
The judgments in both appeals are affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to subject funds of the corporation which, on dissolution, passed to its directors, as trustees, to the pay ment of a judgment against the corporation. It was tried to the court, who made findings of fact and rendered judgment for plaintiff for fifteen dollars. The plaintiff has appealed.
The findings of fact and conclusions of law are as follows:
Findings of Fact.
“1. That the plaintiff, at the time of filing her action, was a creditor of the Southwestern Refrigerating Company by reason of a judgment obtained against the Southwestern Refrigerating Company in the amount of one thousand ($1,000) dollars and four dollars and twenty cents ($4.20) costs, which said judgment bears interest from the 5th day of November, 1924, at six per cent per annum, and that said judgment was transí erred to the district court of Sedgwick county, Kansas, and, on the 26th day of November, 1924, execution was issued thereon in the said district court, which execution was, on the 26th day of January, 1925, returned unsatisfied, and now remains wholly unpaid.
“2. That the Southwestern Refrigerating Company was incorporated on the 21st day of June, 1922, under the laws of the state of Kansas. That said: corporation was duly organized under said charter and was engaged in the-transaction of mercantile business and in the sale and distribution and installation of machinery and refrigerating equipment in the city of Wichita, Sedgwick county, Kansas, from, on or about June 21, 1922, to the 31st day of December, 1924.
“3. That on or about the 24th day of May, 1924, in an. equitable action in the district court of Sedgwick county, Kan., the officers, directors and stockholders unanimously joined in an equitable petition to the said court and attempted to dissolve, and by journal entry of judgment did dissolve the. said corporation, the Southwestern Refrigerating Company, but that the said judgment of this court in said action was wholly void and without effect and that thereby and thereunder no dissolution of the said Southwestern Refrigerating Company, a Kansas -corporation, took effect.
“4. That, after the attempted dissolution of the Southwestern Refrigerating Companjr, on or about the 24th day of May, 1924, the defendant, R. M.. Sutton, who at that time was the president of said corporation, and O. B. Arntzen, who at that time was the secretary and treasurer of said corporation, received into their hands from said corporation in the form of merchandise-as parts and fittings of refrigerating machines, which merchandise was of the value of approximately two thousand dollars ($2,000), and that, between, the time of said attempted but ineffectual dissolution, and the time of actual dissolution on the said 31st day of December, 1924, the said defendants, Sutton and Arntzen, acting for and on behalf of and in the interests of the said Southwestern Refrigerating Company, sold, and used the said merchandise and the proceeds therefrom in the employment of labor and materials in the servicing and taking care of refrigerating plants and machines sold upon general warranty by the said Southwestern Refrigerating Company and in use during the summer and fall of 1924, so that the said merchandise of the said Southwestern Refrigerating Company was depleted to the extent that, on. the 31st. day of December, 1924, there remained but little of said merchandise, to wit: of about the value of fifteen dollars ($15).
“5. That, of the merchandise amounting to approximately the value of two thousand dollars ($2,000), the said defendants Sutton and Arntzen did not use said property or assets of the said Southwestern Refrigerating Company for their own personal use or benefit, but for the use and benefit of the said Southwestern Refrigerating Company between the said 24th day of May, 1924, and the said 31st of December, 1924.
“6. That, upon the legal dissolution of the said Southwestern Refrigerating Company, on the 31st day of December, 1924, the defendants became trustees of the Southwestern Refrigerating Company, a dissolved Kansas corporation, and that the said defendants, R. M. Sutton and O. B. Arntzen, as such trustees, received from the said dissolved corporation assets of the said corporation in the sum of fifteen, dollars ($15) as stipulated in full by the plaintiff and defendants herein.
“7. That the defendants, Sutton and Arntzen, as trustees of the said dissolved Southwestern Refrigerating Company, are liable to the plaintiff for the full value of the assets of the said dissolved corporation that came into their hands on the said thirty-first day of December, 1924, to wit: the sum of fifteen dollars ($15).
Conclusions op Law.
“1. That the Southwestern Refrigerating Company was a Kansas corporation and was transacting business and in operation under its charter until the 31st day of December, 1924, at which time it became and was legally dissolved.
“2. That the defendants herein and more particularly defendants Sutton and Arntzen, became trustees of the assets of the said dissolved Southwestern Refrigerating Company, a corporation, on the 31st day of December, 1924, and as such trustees became liable to the plaintiff as a creditor of said Southwestern Refrigerating Company, and liable for the full value of the assets of the said Southwestern Refrigerating Company coming into their hands on the 31st day of December, 1924, and that the defendants Sutton and Arntzen were the only defendants who received any property of the dissolved corporation, and that the value of the assets of said corporation that were received by Sutton and Arntzen is the sum of fifteen dollars ($15), and that judgment should be rendered against defendants Sutton and Arntzen in the sum of fifteen dollars ($15) and costs.
There is no controversy concerning the law of this case. Upon the dissolution of a corporation the president and directors become trustees of the creditors and stockholders of the corporation (R. S. 17-808), and become responsible to such creditors and stockholders to the extent of the property of the corporation that shall have come into their hands. The controversy concerns the facts, and the findings of fact made by the court, and resolves itself into this: What property of the corporation passed into the hands of its officers and directors as trustees?
Plaintiff requested additional findings, and the modification of some of the findings made. This request was refused. When a case is tried to the court, it is the duty of the court, on request, to find the material facts established. (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 complaint here is not that the court did not make findings of fact — such findings were made upon all facts material to a decision of the case. The real complaint is that the findings made are not in all respects in accord with the evidence, and that the evidence justified — even required — findings in addition to, and in some respects contrary to, the findings made. Specific objection is made to part of the fourth finding, all of the fifth, and parts of the sixth and seventh, as being contrary to the evidence and to the weight of the evidence. This court, of course, does not pass upon the weight of the evidence; that is the function of the trial court. We examine the record for the sole purpose of seeing whether there is competent substantial evidence to sustain the findings made. (Farney v. Hauser, 109 Kan. 75, 198 Pac. 178; Rezac v. Rezac, 115 Kan. 482, 223 Pac. 295.)
No complaint is made of the finding of the court that the attempted dissolution of the corporation by the court order, in May, 1924, was ineffectual, for the reason that is not one of the ways provided by statute for the dissolution of a corporation. Neither is there any objection to the finding that the corporation was finally dissolved December 31, 1924. When the court order was made in May, 1924, the corporation had on hand $2,000, not in money, but in goods, refrigerators, parts, etc., of the value of $2,000. When it was finally dissolved, December 31, 1924, it had such supplies on hand to the value only of $15. The real question is, what became of this property in the meantime? The trial court found that the goods on hand in May were sold and the proceeds used in servicing machines previously sold. Plaintiff complains bitterly of this finding. It was, at best, a controverted question of fact. Details of these expenditures are not in evidence; records were not kept; but there is positive evidence that all such proceeds “and more” were used by defendants in servicing machines previously sold by the corporation. So that finding must stand. But appellant contends that the corporation was under no legal obligation to service machines previously sold; that at most it had only a moral obligation to do so. Here, again, the evidence is in conflict. Some.of the an swers to questions tend to support plaintiff’s view, but there is also evidence that there were both written and oral warranties and guaranties that the machines would function and perform the work for-which they were sold; hence, that the corporation was under obligations, by reason of the contracts of sale, to see that the machines sold gave proper service. Now, if the proceeds arising from the sale of the corporate property were used before the corporation was dissolved, December 31, 1924 (except property to the value of $15 then on hand), for the benefit of the corporation and in carrying out its obligations to previous purchasers, its officers and directors, as trustees of a dissolved corporation, cannot be- held personally liable therefor. That is about all there is in this case.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the holder of promissory notes to recover from the maker. The defense was the notes were procured by fraud and the holder was not a holder in due course. Defendant prevailed, and plaintiff appeals.
The Zip Manufacturing Company made patches to repair inner tubes of automobile tires. It purchased rubber, put on a solution, packed the patches in cans, and sold them on the market under the name “Zip Patch.” Ballentine was secretary of the company. Williams was one of the organizers of the company, and was a director. On November 20,1920, defendant went to the office of the company, there met Ballentine and Williams, and as the result of a conversation with them, purchased shares of stock of the company. To pay for the shares he gave the company the ten notes sued on, nine for $80 each, and one for $70. On the same day, plaintiff purchased one of the notes outright, and took the others as collateral to an obligation of the company. Defendant made the purchase of stock on the representation of Ballentine that the company was in sound financial condition. Williams’ part in the conversation was to confirm what Ballentine said, and Williams told plaintiff he was one of the directors, had known all about the concerns of the company, and knew all about the details of it. Certificates of stock were never delivered to defendant.
The court told the jury that in order for an industrial company to be considered on an unsound financial basis, it should appear it was in a failing condition.
The company did all its banking business with plaintiff. Williams was plaintiff’s cashier, and had supervision of its books and records and the making of loans. On November 6,1920, the company had a balance of $291.65. On November 8 its balance was $855.15. On November 9 the balance was $767.15. On November 17 the account was overdrawn $15.23, and on November 18 the overdraft was $197.09. On November 20, when the stock sale was made, Ballentine said the company had a shipment of rubber from the East, and needed money to get patches out. Plaintiff’s notes were taken to the bank, the company gave its 60-day note to the bank for $900, and plaintiff’s notes, except one, were deposited as collateral. The $900 note was not paid at maturity, and has not yet been paid. On the day the $900 note was given, the bank held two notes of the company, one for $1,000, and one for $1,225.95. The note for $1,000 was unsecured, and was overdue. The larger note had some security, which appears to have been applied on March 26, 1921, leaving a balance of $526.05. The trouble with the company was, it was lacking in finances, and on January 29, -1921, its directors joined in giving the bank their personal note for $1,200, for the benefit of the company. Between November 20, 1920, and the latter part of March, 1921, there was little new stock in the plant, the material on hand never increased, and an employee told plaintiff the stuff he was putting in cans was old stuff. Neither sales nor profits were reported, and reports kept coming in worse and worse. On March 31, 1921, the company had a balance at the bank of 45 cents. On April 21 the balance was $30.05. It thus appeared that between the 6th and the 20th of November the company’s bank account slumped deeply into the red. The company was without available assets to pay its debts as they fell due, or the overdue $1,000 note would have been taken up. While the company was owing the bank $2,225.95, $1,000 of-which was in default, it was obliged to borrow $900 on plaintiff’s notes to do business on. It did not have a business which was even self-sustaining. There were no sales or profits, and in January the pulmotor method of raising money on the personal note of the directors was resorted to. In March its November obligations to the bank were still undischarged, and on March 31 its check for 50 cents would have been turned down.
The foregoing presents the evidence most favorable to defendant, and inferences from the evidence most favorable to him. The court is not concerned with testimony which might put a better face on the company’s affairs, with more favorable inferences which might be drawn from the testimony, or with rules relating to cogency of proof in the district court; and it declines to enter into any debate with counsel for plaintiff respecting the sufficiency of the evidence to sustain the verdict. There was some substantial evidence that on November 20 the company either had no assets, or was unable to realize on assets, to take care of its obligations as they fell due in the usual and ordinary course of business, and such a financial condition is not a sound one, within the court’s definition.
The testimony relating to the state of the company’s bank account in March, 1921, was not introduced by defendant. It was given by Williams, as a witness for defendant, on cross-examination by counsel for plaintiff. Defendant offered in evidence the ledger sheet showing the company’s account with the bank from November 16, 1920, to April 21, 1921. Plaintiff says the court ruled that evidence of the condition of the account subsequent to November 20 was not relevant, and the offer was withdrawn. The record does not show the testimony of Williams was withdrawn, and the jury was privileged to consider it, in connection with other evidence, as bearing on the company’s financial condition on November 20. This brings up the general method pursued by plaintiff in dealing with the evidence, which is to confine evidence of failing condition strictly to November 20, 1920.
The issue was the state of the company’s finances on November 20, 1920. Defendant was not required to present an inventory of the company’s assets and liabilities on that day, prove the value of the assets, and strike a balance. Facts which are the usual concomitants or consequences of financial ability or inability were relevant, and the proof of such facts may cover a reasonable period after as well as before the date in issue. In the case of The State v. Cadwell, 79 Ia. 432, it was held an assignment made on October 7 might be considered as bearing on solvency in the preceding May. In the opinion it was said:
“The deed of assignment tended to prove insolvency at the time it was made, which, it is true, was nearly five months after the deposit; but, if it alone, or with other evidence, established the fact of insolvency at that time, that fact might be an aid in determining the true condition of the bank in May, by showing what changes had taken place in the property affairs of the firm in the meantime. To plainly illustrate, let it appear from other evidence that no change had taken place. Then, of course, there was insolvency in May. If changes, then what were they? And the fact is a question for the jury. It is true, as said in argument, that one may be free from debt in May, and hopelessly involved in October; but the October condition of the bank is not allowed to define or control that of May. It is only a link in the chain that establishes the ultimate fact.” (p. 438.)
Speaking on the same subject, but with reference to a different state of facts, the supreme court of Wisconsin said:
“It must be conceded that, while evidence of the character of that in question might not establish a condition which would raise a legal presumption running backward, if the condition were not too remote it would not be entirely without evidentiary consequence. Such- consequence might be considerable under some circumstances. For instance, in case of proof of entire want of assets to meet liabilities a few days after the particular time vital to a controversy.” (Ellis v. State, 138 Wis. 513, 525.)
In this instance the evidence disclosed financial embarrassment on November 20 which technically amounted to insolvency, and for' the purpose of proving the. company was in fact failing, defendant was entitled to show, within reasonable limits, that conditions did not subsequently improve, and the company was not able to extricate itself from its financial predicament.
Plaintiff says the court instructed the jury that the fact the company was borrowing money and was a customer of the bank did not raise a presumption of unsound financial condition. Very true. But the court did not instruct the jury that the fact the company was borrowing money had no bearing on the subject of sound financial condition. The court stated the law. It did not invade the province of the jury. The distinction is drawn in the case of Ellis v. State, cited above.
Defendant charged fraud in that the company promised to use his money to purchase material for the manufacture of Zip patches, and did not do so. The court withdrew this charge of fraud from consideration of the jury. Plaintiff would have the instruction embrace Ballentine’s statement regarding the company’s financial need. Nothing was withdrawn except promise to do something in the future, as a ground of fraud.
The notes having been procured by fraud, the burden rested on plaintiff to show it was a holder in due course. Williams denied he was present and participated in the false representation which induced defendant to give the notes. The jury chose to disbelieve him. He testified that, aside from the amount of money the company had in the bank, he had general personal knowledge of the company’s finances. The jury chose to believe him. As soon as the notes were delivered they were rushed to the bank, and as cashier of the bank he purchased them. Under these circumstances it is idle to discuss the subject of holder in due course.
The foregoing disposes of the merits of the case. Some criticisms of the instructions to the jury are not well founded.
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The opinion of the court was delivered by
Dawson, J.:
Plaintiffs brought this action to cancel an oil and gas lease on a quarter section of land and to quiet their title thereto against the Arkansas River Gas Company, defendant, to whom plaintiffs on February 7, 1922, had leased the premises and other lands—
“For a term of one year from its date, and as long thereafter as oil or gas, or either of them, is produced.from said land by the lessee.”
Defendant relinquished its rights to the other lands covered by ' this lease, and in October, 1922, on the land in question it drilled and brought in a gas well of large production, with the result that plaintiffs received very substantial royalties therefrom for a number of months. The gas flow from the well gradually declined, however, and eventually it ceased altogether, and in May, 1925, it was disconnected from the pipe-line through which its product had found a market.
Some six months after production ceased, in October, 1925, this action was begun. Plaintiffs’ petition recited the foregoing facts and alleged that defendant had refused their demand that the lease be canceled of record. Plaintiffs prayed for a decree of cancellation, quiet title, and general relief.
Defendant answered at length, admitting plaintiff’s ownership of the land, the execution of the lease, its drilling of a gas producing well in 1922, and defendant’s cancellation of so much of the lease as affected plaintiffs’ other lands on which no drilling had been done. The answer traversed certain other allegations of the petition, and pleaded that gas production from defendant’s well totally ceased in May, 1925, because the only pipe-line in the locality where it could market its gas had become a high-pressure line to take care of newlvdiscovered gas wells of such high rock pressure that—
“The Kahm well on the lease in controversy, being weakened by depletion, the gas did not have sufficient pressure, and could not be forced to feed ihto the pipe-line against the higher pressure from the other fields, and in May, 1925, it stopped producing entirely owing to this fact, and has not had sufficient pressure to feed anything into the pipe-line during the months of June, July, August, September and October, 1925.”
' Defendant further alleged that as soon as it discovered that the depleted gas pressure of the Kahm well prevented it from feeding into the pipe-line, it set about the work of finding a new customer to whom it might market its gas, and considered the problem of installing an auxiliary compressing device to make delivery of gas from defendant’s well into the pipe-line, but at the time of filing defendant’s answer it had not been able to obtain or install such a device; that defendant had also sought another outlet for its gas. and had considered the feasibility of building a pipe-line into Arkansas City some miles from the well, but to render that project practical, owing to the capital investment required, it would be necessary to cooperate with other parties and drill additional wells and defendant had prosecuted many such negotiations and endeavors in good faith, but its efforts to find or make another outlet and market for the potential production of defendant’s gas had been hindered and practically stopped by the bringing of this action. Defendant alleged that it had expended about $30,000 in drilling this gas well, and defendant had no way to recoup such expenditure except—
“By finding and establishing a new market for gas different from that now existing, and by discovering, developing and producing an additional supply of gas from the Kahm lease and other leases in that neighborhood owned by this defendant, and by cancellation of this lease this defendant’s investment therein would be wholly lost and destroyed, and plaintiffs would have and recover full benefits of said well without any expenditure therefor whatever.”
Defendant further alleged:
“At this time the defendant is working on the Kahm well to see if there is any way to rehabilitate it, and get it in a producing condition once more, and of sufficient force to deliver the gas into the present pipeline connection.
. . . That at all times this defendant has attempted, in good faith and with-all reasonable diligence, to develop said lease and keep and maintain the same as producing property.”
On the issues thus joined the cause was tried. Defendant’s demand for a jury trial was denied. The evidence developed no sharply controverted matters of fact. Plaintiff testified that in the first twelve months of production his royalties aggregated $2,000 to $2,500. After that time—
“The well began to go down the latter part of ’23. It continued to go down on through ’24. I got $7 one month. I think I got $12 in January, kept going down until May, $2.50. . . . The gas just quit about May, 1925; I didn’t get any more royalty. They haven’t done anything about the well so far as I know. It was open part of the time. ... I sent the Arkansas River Gas. Company a release [September 11, 1925] with a return envelope, they never answered. . . . The Arkansas River Gas Company’s man came down and disconnected the well about three months ago, after this suit was brought. There is no meter or register at the well. ... I have an opportunity to lease this property if it wasn’t for this suit.”
In its appeal to the discretionary powers of the trial court in matters of equity, defendant’s evidence covered the history of the well’s development, that defendant had spent $23,356.70 in drilling it and $4,000 in incidental expenses; that the well would probably produce 1,500,000 cubic feet of gas per day, open flow, which would put into a pipe-line for marketable purposes from 500,000 feet to 700,000 feet per day; that such amounts had been fed into the pipe line before it became a line of such high pressure that gas from this well would not flow into it. Defendant’s vice president also testified as to his company’s efforts to develop another market for the gas in the Kahm well, and that the only chance for a market would be by getting a franchise to supply gas to some town like Geuda Springs, Wellington, Winfield or Arkansas City at varying distances of 8 to 25 miles away. He further testified.
“The cost of constructing a pipe-line to Arkansas City was $75,000 to $80,000, which of course could not be done on the gas from this well. An additional supply must be obtained. The defendant entered into a contract with Mr. Ricketts, who had a franchise from Geuda Springs, but a pipe-line had to be built from the well to Geuda Springs, before the gas could be used. The defendant tried to arrange at Arkansas City to sell a sufficient volume, of gas to make it pay to build a pipe-line. A larger supply of gas was necessary to justify such an expenditure. A .contract was entered into with Mr. Perry [of the Arkansas City refinery] to drill a deep test on this group of leases, including the Kahm lease, the location to be determined by the geologist, but the carrying out of this contract was held up on account of this suit.”
The trial court gave judgment for plaintiffs, holding that prior to the commencement of this suit the lease had expired by its express terms, and decreed that it should be canceled and that plaintiffs’ title should be quieted against defendant, and directed that the register of deeds enter on the margin of the record of the lease the words: “Canceled by judgment of the district court in civil action No. 14170,” and subscribe his signature thereto. By other terms of the judgment defendant was given right of entry on the plaintiff's land for 90 days for the purpose of pulling the casing from the well and for removing its property from the premises.
Defendant appeals.
The first error assigned relates to the denial of defendant’s demand for a jury trial. This suggestion is based on the assumption that this action was to recover possession of the leased premises. Not so, however; no issue over possession of the premises was raised by the pleadings. Plaintiffs alleged their occupancy' — their possession — and asked that their title be quieted. The testimony without material dispute established plaintiffs’ possession. In that and other material respects, this case was unlike that of Parris v. Oil Co., 108 Kan. 330, 195 Pac. 879. Plaintiffs set up a copy of the lease which specified when the lessee’s rights thereunder should cease and determine. So long as oil or gas was produced on the leased premises the lease was to run; when production ceased the lease was to expire. Production wholly, ceased in May, 1925. The contract of lease did not anticipate the cessation of production because of low gas pressure, nor specially provide for leniency or forbearance towards the lessee under such circumstances. What the parties to the lease failed to bargain about and include in the written terms of their contract cannot be supplied by the interference of a court on the specious excuse of exercising its jurisdiction in equity. It was neither pleaded, proved, nor argued that some intended provision of the leasing contract was inadvertently omitted, and that the lease should be reformed in equity. This case differs in no material respect from others which we have had to consider. In Harter v. Edwards, 108 Kan. 346, 195 Pac. 607, where a judgment-canceling an oil and gas lease was under review, this court said:
“The contract prescribed the terms which kept it alive and fixed the conditions which terminated it. These conditions of the contract were not observed by the defendants and they have no right to complain of the action of the plaintiffs in demanding that the contract be enforced as it was written. (Doornbos v. Warwick, 104 Kan. 102, 177 Pac. 527; Gasaway v. Teichgraeber, 107 Kan. 340, 191 Pac. 282.)” (p. 349.)
In Warner v. Oil & Gas Co., 114 Kan. 118, 217 Pac. 288, where an oil and gas lease was t-o endure for three years (until May 15,1921), "and as long thereafter as oil or gas or either of them is produced from said land by the lessee,” and the trial court conditionally canceled the lease, this court said:
“Inasmuch as after the expiration of the three years the lease by its express terms was to last only as long as oil or gas was produced from the land by the lessees a judgment declaring it at an end was justified by the cessation of production.” (p. 119.)
In Elliott v. Oil Co., 106 Kan. 248, 187 Pac. 692, which was an appeal from a judgment canceling an oil and gas lease on which defendant at great expense had drilled a gas well which would produce a large volume of gas if a market were available for its sale, this court said:
“The contract did not provide for the contingency that gas wells might be developed which would be unproductive for want of a market. As the matter stands, the lessor’s property is no more productive to him than if the lessee had found no gas. And while the lessees have expended much money to drill these gas wells, the wells are of no present or prospective value to them. In such a situation the lessor seems to be entitled to a termination of the lease under the plain text of the contract. Cleared of this lease, it may be possible for the lessor to make other arrangements to secure production.” (p. 252.)
In Caylor v. Oil Co., 110 Kan. 224, 226, 203 Pac. 735, it was said:
“The lease according to its terms was to endure ‘for one year and as much longer as oil or gas is found in paying quantities.’ That term expired when the production of gas ceased in January, 1919. . . . The only difference between this lease and the one considered in Elliott v. Oil Co., 106 Kan. 248, 187 Pac. 692, is that the Elliott lease was to expire in ‘sixty days after producing and drilling should cease,’ while here the lease was to endure no longer than oil or gas ‘is found in paying quantities.’ . . . When the facts did transpire which brought about a forfeiture or termination of the lease, the defendant’s duty to clear the record became mature and absolute.”
We have not failed to note the more or less analogous cases from other jurisdictions which the diligence of counsel has brought together for our perusal; but with due respect thereto we are bound to follow our own precedents, and we find it impossible to distinguish in principle the case at bar from the analogous cases cited above.
Defendant presses upon us the evidence touching its efforts to find another market for the gas in the Kahm well. That evidence might be quite persuasive if this were a case for the exercise of the trial court’s equitable discretion on the point whether some implied covenant of a gas lease had been so grossly violated as to warrant a forfeiture where the time it was to run had not yet expired. Such cases were Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 47; id., 82 Kan. 367, 108 Pac. 813; Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005; Brown v. Oil Co., 114 Kan. 166, 217 Pac. 286.
A court of equity has no power to extend a lease beyond the term which the parties themselves have fixed by their written contract. We have considered this question in Elliott v. Oil Co., supra, and here as there we find it impossible to deny to plaintiffs the relief to which their ownership and right of possession entitle them, especially when the rights which they seek to enforce are in literal accord with the contract of lease which defined and limited the rights of defendant.
It is urged that plaintiffs could be adequately compensated in damages? Damages for what? For an arbitrary judicial extension of the lease term? There is no sound rule of law or equity to justify any such proposition. There was no such issue raised by the pleadings. When gas production wholly ceased in the Kahm well in May, 1925, because of low pressure and want of a market, defendant did not tender to plaintiffs any consideration as damages or rent for an extension of the lease. It made no such tender in its pleadings. This point lacks merit.
Another objection to the judgment is that plaintiffs failed to give notice to defendant of their intention to institute this action. The objection is not good; it was not pleaded; and plaintiffs’ claim for damages under the statute which requires the giving of such notice (R. S. 55-202, 55-206) was withdrawn. Notice was not a prerequisite to the commencement of this action. (Elliott v. Oil Co., supra, syl. ¶¶ 1, 2.)
It is argued that a mere temporary suspension of gas production from a well for any one of a variety of possible causes would not warrant the summary cancellation of a lease thereon. Probably not. But here it was no mere temporary suspension of production. Production had progressively dwindled for many months and eventually ceased altogether, with no hope of its renewal except in the possibility of creating another market, and by the construction of another pipe-line, and by the development of other gas wells to . be grouped with the well on plaintiffs’ land, and by the successful coordination of all these possibilities and projects.
It is also contended that the lease could not be forfeited while the lessees were still receiving benefits from it. As an abstract proposition of law, that contention is sound. But this was not an action to forfeit"an existing lease. And it is not in accord with the accredited evidence that plaintiffs were getting any benefit from it at the time the action was begun. By the terms of the lease plaintiffs were to receive gas for domestic consumption from any productive gas well drilled on their premises. This was never supplied because prior to the execution of the lease, plaintiffs had been getting such a domestic supply for another nearby gas well on other premises, and after this- gas well was drilled defendant chose to have plaintiffs continue to get their domestic supply from the same - source and to pay for it rather than have that supply drawn from the Kahm gas well. At some time prior to the -institution of this action, the arrangement whereby defendant had been paying for plaintiffs’ domestic supply of gas had been terminated.
This court discerns no just ground to disturb the trial court’s judgment, and it is therefore affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The action is one in replevin by which the plaintiff seeks to recover an automobile from the sheriff of Shawnee county upon which he had levied an execution issued out of the district court of Shawnee county in a divorce action wherein Cora Seely was plaintiff and Clement Seely was defendant, and in which Cora Seely had recovered judgment against Clement Seely for the payment of alimony. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
1. One question, if not the principal one in the case, is the ownership of the property. Did the plaintiff own it or did Clement Seely own it? The evidence which tended to show that the plaintiff was the owner of the car was that Clement Seely purchased the car, a new one, of an automobile owner in Topeka, for the purpose of giving it to the plaintiff; that he gave it to her; and that she accepted the gift, drove it, and thereafter controlled it. Clement Seely denied that he owned the car and testified that he purchased it for the plaintiff. Her ownership of the car was a question of fact to be found from the evidence. That question was determined in her favor, and that determination is conclusive in this court, unless the gift of the car by Clement Seely to the plaintiff was void because the statutes concerning the transfer of used cars was not complied with.
2. The defendant urges that the gift of the car from Clement Seely to the plaintiff was void because the car was registered when purchased in the name of Clement Seely, because the transfer of the car was not reported to the secretary of state as required by section 8-108 of the Revised Statutes, because a bill of sale of the car was not signed by Clement Seely and delivered to the plaintiff as required by section 8-117 of the Revised Statutes, and because the sheriff of Shawnee county and the chief of police of Topeka were not notified of the transfer of the car as required by section 8-118 of the Revised Statutes. These statutes regulating the transfer of cars from one person to another concern the sale of registered or used cars. The car in controversy at the time it was given to the plaintiff was a new car. It had not been registered and it had not been used. It was purchased from the dealer by Clement Seely for the plaintiff and was immediately given to her. He had the right to buy the car for her and give it to her, notwithstanding the claims of any other person who was not then a creditor of Clement Seely. The statutes referred to did not prevent Clement Seely from buying the car for the plaintiff nor from making a valid gift of it to her, neither do they prevent her from asserting the ownership of the car against the defendant.
The judgment is affirmed.
Burch and Harvey, JJ., dissenting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an original proceeding in mandamus to require defendant to issue his check upon the state treasurer for the balance due upon a certificate on the bank depositors’ guaranty fund issued by defendant to a depositor in the State Bank of Hope, which operated under the bank guaranty law, and which failed and was taken charge of by defendant April 20,1922, and for which a receiver was appointed who has completed his administration of the affairs of the bank and certified the balance due on the certificate, which certification has been approved by'defendant, and for a declaratory judgment for the determination of certain questions arising in the administration of the bank guaranty law. The defendant has filed a return. Plaintiff has moved that the peremptory writ issue, notwithstanding the return, thus presenting for decision the legal questions raised by the pleadings.
The first question presented for our determination is: ‘ Should defendant issue his checks on the state treasurer, to be paid from the bank depositors’ guaranty fund as the banks are finally liquidated, or should some other method be followed in the disbursement of that fund?
The pertinent statute reads:
. . After the officer in charge of the bank shall have realized upon the assets of such bank, and exhausted the double liability of its stockholders, and shall have paid all funds so collected in dividends to the creditors, he shall certify all balances due on guaranteed deposits (if any exist) to the bank commissioner, who shall then, upon his approval of such certification, draw checks upon the state treasurer, to be countersigned by the auditor of state, payable out of the bank depositors’ guaranty fund in favor of each depositor for the balance due on such proof of claim as hereinafter provided. . . .” (R. S. 9-204.)
• The statute seems plain. We see no reason why it should not be followed. It is argued on behalf of defendant that the bank guaranty law contemplates unity of treatment of depositors; that the fund is hopelessly insolvent, and that some method of equitable distribution of the fund should be devised and carried out, and State, ex rel., v. Davis, 114 Kan. 270, 217 Pac. 905, sixth syllabus, is cited. That is a legislative problem rather than a judicial one. The statute provides that when a failed bank is finally liquidated the balance due upon certificates issued to depositors of such bank should be paid, and in that respect all depositors are treated equally; in fact all depositors who are in the same situation are treated equally. The bank- depositors’ guaranty fund is insolvent in the sense that certificates thereon have been issued to depositors of failed banks greatly in excess of the fund now on hand to pay them, but this is a situation made possible by the bank guaranty law, although that situation perhaps was not anticipated when the law was enacted. Even if this court should- ignore the statute above quoted, a thing it would not be justified in doing, and attempt to disburse the bank depositors’ guaranty fund among all holders of certificates thereon, we could not do it without ordering a termination of the operation of the bank guaranty law, an order we would have no authority to make. The statute provides for the voluntary membership of banks therein. The return here shows there are about 300 member banks. We have no authority to deprive those banks of such membership; whether they retain such membership is their business, not the business of this court. The bank depositors’ guaranty fund is constantly being increased by the payment of assessments by member banks and the transfer thereto of bonds pledged by former member banks which have withdrawn, or are withdrawing. Perhaps it will never be increased enough to pay all certificates which have been issued against it, but the amount it may be increased is uncertain, and in the present state of the law is impossible of determination, and no one can know unless and until the plan of guaranty of deposits provided by the bank guaranty law is brought to an end — if such time ever comes. Also, there would be no way of determining the number or amount of certificates thereon which may be issued. Those now issued may be determined, but those to be issued cannot now be determined. The return herein shows five member banks failed whose depositors are entitled to certificates which have not as yet been issued and the number and amount of which are unknown. Since this case was submitted in this court member banks have failed whose depositors, under the statute, will be entitled to certificates, the number and amounts of which will not be known for several months. The law still exists and other member banks may fail whose depositors will be entitled to certificates. Hence the suggestion that the bank depositors’ guaranty fund be disbursed pro rata among all holders of certificates thereon is impossible so long as the scheme of the bank guaranty law is functioning as a going concern. In this it differs from the soldiers’ compensation statute considered by the court in State, ex rel., v. Davis, supra. There the questions which fixed liability were in the past. The question whether one served in the army, navy or marine corps of the United States during the World War, the time he so served, and whether the claimant was a resident of this state at the time he entered such service, related to matters in the past, did not depend upon future contingencies, and were possible of definite ascertainment from existing data. Moreover, the statute there under consideration did not provide the order of priority of payment. This statute does provide that the payment of the balance due upon certificates issued to depositors of any failed bank shall be made when the affairs of that bank have been fully administered, and thus, as between depositors of different failed banks, does provide an order of priority of payment. The legislature has provided a method of disbursing the bank depositors’ guaranty fund. When some other method is to be used the legislature should provide it. Until some different method is provided the statute in force should be followed.
The next question presented is whether the certificate in question bears interest to the date qf payment, or whether interest thereon ceased March 17,1925. The body of the certificate reads as follows:
Topeka, Kan., August 22, 1923.
“This certifies that A. F. Sandow had on deposit in the State Bank of Hope, Hope, Kan., when it was placed under the control of the bank commissioner of Kansas and by him closed on April 20, 1922, the sum of three hundred twelve and 41/100 dollars, subject to the provisions of the bank depositors’ guaranty law of the state of Kansas.
“This certificate bears interest at the rate of 6 per cent per annum from April 20, 1922, until dividends due the holder hereof have been declared and published as provided by section 4 of the bank depositors’ guaranty law of the state of Kansas.”
It was signed by the bank commissioner and registered in his office. The dividends paid from the assets of the bank are indorsed thereon and it is assigned to plaintiff. The statute (R. S. 9-204) in force at the time this certificate was issued authorized the provision therein as to interest. The statute was amended in 1925 (Laws 1925, ch. 88, effective March 17, 1925) by omitting the provision for such certificate to bear interest, and by providing “That all certificates heretofore issued . . . shall cease to bear interest from and after the taking effect of this act.” The question is: Should the balance due on this certificate bear interest since March 17, 1925, to the time of payment? Plaintiff contends that it should; that the amended statute is void as to him for the reason that it impairs the right, vested in 'him by reason of the statutes in, force at the time the bank failed, and of the circumstances which authorized the certificate to be issued to him, which rights were evidenced by the certificate, to have paid to him from the bank depositors’ guaranty fund (if sufficient for that purpose) the amount of his deposit (less dividends from the assets of the bank) with interest, as provided by statute and recited in the certificate, and that the right to be paid interest on his deposit was just as firmly vested in the depositor as the right to be paid his deposit. This contention must be sustained. It is true, as argued by defendant, that the rights, duties and responsibilities of parties under the bank guaranty law are statutory rather than contractual; that the enactment of the bank guaranty law and modifications of it from time to time is an exercise of the police power of a state, which power the state is authorized to use in this respect for the reason that the business of banking is one clothed with a public interest. (State, ex rel., v. Bone, 120 Kan. 620, 634, 244 Pac. 852, and authorities there cited.) It is also true that the certificate itself is not a negotiable instrument, as that term is used in the negotiable instruments act. (State, ex rel., v. Bone, supra.) This last is true for the reason, in part, that the certificate itself is not a definite promise to pay (R. S. 52-201, 52-203) and contains no words of negotiation (R. S. 52-201). But regarding the rights and obligations of parties under the bank guaranty law as being statutory, there occur events by which rights and obligations with respect thereto become fixed, and are no longer subject to change. To illustrate, 'the statute required member banks to make a deposit of bonds (or money) as evidence of good faith on their part, and provided that a bank which liquidated, or which withdrew a.s a member bank, should have its bonds pledged returned to it. But in State, ex rel., v. Bone, supra, it was held that such bonds pledged could not be returned if at the time the member bank liquidated or withdrew other member banks had failed, to the depositors of which certificates had been issued which had not been paid, unless the bank liquidating or withdrawing paid all assessments necessary to be levied to pay such certificates. In other words, events which had taken place had fixed the rights or obligations of the parties. As long as events had not otherwise fixed the rights of the parties, banks could withdraw as member banks, or liquidate, as suited their directors. Their acts were wholly voluntary, but when events caused their rights or obligations to become fixed they were bound, notwithstanding their directors might choose otherwise. Now, take the situation of a depositor in a bank operating under the bank guaranty law. So long as the bank was open and functioning normally he could withdraw his deposit, for any purpose he chose; his deposit was subject to his voluntary action. When the bank was closed his right to control his deposit ceased. He then acquired the right to have a certificate issued to him on the bank depositors’ guaranty fund for the full amount of his deposit, and that the same should bear interest from the date the bank closed until it was paid. Not for some part of his deposit only, not for the deposit without interest, but for the full amount of his. deposit, with interest. This right became fixed and vested in him. The fact that the certificate was not issued until more than a year after the bank failed did not affect it. This right became vested in him the day the bank was closed. It is fundamental, of course, that the legislature cannot by statute deprive a person of vested rights in property.
The next question is whether the officer in charge of the bank has “realized upon the assets of such bank, and exhausted the double liability of its stockholders,” within the meaning of the statute. (R. S. 9-204.) In his certificate William Docking, general receiver, who was the officer in charge of the State Bank of Hope, certified that he had realized upon the assets of such bank and had exhausted the double liability of stockholders, and that he had paid all funds so collected in dividends to the creditors, and he certified the balance due. on the guaranteed deposits. This certificate was approved by the defendant as bank commissioner. With this certificate was a letter of the general receiver to the bank commissioner in which it was stated:
“I have done everything that in my judgment can be done toward exhausting the double liability. All other assets have been realized upon. Whatever is left is in my opinion and the opinion of my counsel worthless and does not justify any further effort to collect. As a practical matter the double liability is exhausted.”
It was stated in the return that while the officer in charge of the bank realized upon all assets, as far as it was practicable for him to do so, it is also true that he has not recovered in full on the double liability of stockholders. Some stockholders paid their double liability in full. Judgments have been rendered against others which the receiver has been unable to collect, in whole or in part, by execution, and he believes such judgments to be uncollectible. Other stockholders have moved from the jurisdiction of the state, and their stockholdings were so small that in the judgment of the receiver and of the defendant the cost of undertaking to collect the double liability would be more than the amount of it when collected. The real question presented for our decision is: Can there be a final closing up of the affairs of the bank before the full double liability has been collected; or, if there are some notes or other assets of the bank which have not been collected? The receivership should not be held open and the general closing of the bank’s affairs and payment to depositors from the bank depositors’ guaranty fund delayed because of the inability to collect noncollectible items. To do so would be to postpone indefinitely, and perhaps forever, the payment of the balance due depositors on their certificates in the bank depositors’ guaranty fund. When all of the assets of the bank and double liability of the stockholders have been collected which, in the judgment of the receiver and his counsel and of the bank commissioner, can be collected, the bank’s affairs are fully administered by the receiver for the purpose of making the payment of the balance due on guaranteed deposits. Under the last provision of R. S. 9-204 any sums which might be collected later upon supposed uncollectible assets, or double liability of stockholders, revert to the bank commissioner for the benefit of the bank depositors’ guaranty fund, until such fund is fully reimbursed for payments made therefrom on account of such failed bank.
Another question is presented with reference to the authority to fix a time within which claims should be filed. While the receiver of a failed bank is appointed by the bank commissioner, the administration of the receivership, for certain purposes at least, is in the district court of the jurisdiction in which the bank was situated. (R. S. 9-130.) In this case the bank failed and was taken charge of by the bank commissioner April 20, 1922. On May 19, 1925, on application of the receiver, with the approval and under the direction of the defendant bank commissioner to the district court of Dickinson county, the court made an order that the receiver be authorized and directed to give notice to all creditors of the bank to file any claims they might have against it with the receiver within thirty days from the first publication of the notice. The order specified that any creditor who should fail to file his claim within the time limit should be barred from participating in the assets of the bank, and the receiver should be discharged from liability on account of any such claim not thus presented. The notice was published as directed by the order of the court. July 1, 1925, was the final date fixed for filing claims. No claims have been filed with the receiver since that date. Hence the time fixed for filing claims is less than the period of the statute of limitations upon some classes of claims. (R. S. 60-305, 60-306.) The receivership is an insolvency proceedings, whether the receiver be appointed by the bank commissioner or by‘the court. In such proceedings it is within the jurisdiction of the court administering the matter to fix a reasonable time for the presentation of claims, even though that time be shorter than the maximum period of the statute of limitations. (34 Cyc. 342.) The question in each case is whether the time given is reasonable in view of all the facts and circumstances of the case. The order here made was more than three years after the bank commissioner took charge of the bank; hence, the three-year statute of limitations had run. The bank books should show the deposits; hence, the receiver and the court should know whether they were general depositors or holders of time certificates of deposit who had not presented claims. The fact that it is now more than four years since the bank was taken charge of by the bank commissioner, and no claims have been filed since the date fixed in the order of the court, indicates that the order made was reasonable. There seems to be no reason to delay final payment to the holders of certificates issued to them because of their guaranteed deposits because of a possibility that other claims may be presented.
The balance due holders of certificates on the bank depositors’ guaranty fund issued to depositors of the State Bank of Hope is $186,461.95, with interest at six per cent per annum since April 20, 1922. The available cash in the bank depositors’ guaranty fund on July 10, 1926, was $150,730.19. Since then some assessments to replenish that fund have been made upon member banks, but at the time this action was brought the fund was still insufficient to pay all of the guaranteed deposits of the State Bank of Hope, and defendant was in doubt as to whether the next assessment upon member banks would increase the fund sufficiently for that purpose. The question is raised, whether he should pay pro rata as far as the money is available for that purpose, or whether he should delay payment until all the certificates issued to depositors of the State Bank of Hope can be paid in full, or at least until he is certain that the next assessment on member banks will raise enough money to complete such payment. The statute provides:
“If at any time the available funds in the bank depositors’ guaranty fund shall not be sufficient to pay all guaranteed deposits of any failed bank, the five assessments herein provided for having been made, the bank commissioner shall pay depositors pro■ rata, and the remainder shall be paid when the next assessment is available.” (It. S. 9-204.)
There should be no delay in payment by reason of the fact that the fund is insufficient to pay these certificates in full, but the fund on hand should be paid pro rata to the holders of certificates issued to depositors of the State Bank of Hope. The words “next assessment” used in the statute just quoted should be read in the plural if necessary. That is to say, the defendant should pay pro rata as far as the bank guaranty fund will permit. From the next assessment he should pay the claims in full, if the funds are sufficient. If not, he should pay pro rata as far as the fund will permit, and from the next assessment pay in full, or pro rata, as the fund permits, and thus continue until the certificates issued to guaranteed depositors of the State Bank of Hope have been fully paid.
From what has been said, it necessarily follows that plaintiff's motion for the peremptory writ should be sustained; but since this proceeding is primarily to determine legal questions the writ will not issue unless that becomes necessary. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for damages for breach of contract to purchase a car of honey. The plaintiff, who was the assignee of the California Honey Producers Cooperative Exchange, was defeated and appeals.
The facts were substantially these:
On August 31, 1920, the Ridnour Brokerage Company, of Wich- ■ ita, as agent for the honey exchange, received from the defendants .an order for a car of honey. On September 1, 1920, the honey exchange mailed to Ridnour for execution a form of contract based upon the order. It was received in due time, signed and mailed back September 8. It bore date of.August 31, provided for payment at a named price per case and provided for “prompt” shipment, which meant shipment in “ten full business days.” The ship ment was loaded October 9. However, in the meantime, there were various communications between the honey exchange and Ridnour. Among others, on September 10, the honey exchange wrote that as soon as information was available it would telegraph when the car would go forward. September 24, the honey exchange asked if the customer would want as large a car as 1,800 cases. On September 27, Ridnour answered, “Customers are pounding us on the back for delivery,” and at the same time wired that the big car was entirely satisfactory. The honey exchange answered that it was-doing its best. On October 6 the honey exchange wired that the car would load Friday (October 8). On October 11, it wired that the car was loaded, and requested that a bank guaranty of the draft be sent. Ridnour answered the same day that he had taken the matter up with the buyers and they advised that they were instructing their bank to wire the guaranty. Between this date (October 11) and October 15 the car went forward from California, being at Alpine, Texas, October 16. On October 15 the defendants by wire suggested a requirement that the cases of honey must be double-deck, not single-deck cases, and must have glass fronts. Upon arrival of the car at Wichita, the defendants opened it, ascertained that the cases were single-deck cases without glass fronts, and refused acceptance. The car was sent on to Kansas City, where it was-sold out in small lots at a loss of $2,910.
There was evidence that at the time in question all California, comb honey was being shipped in single-deck cases without glass fronts, while most but not all of Colorado, Utah and Idaho honey was being shipped in double-deck cases. The defendants were familiar with the fact that there were two kinds of cases. In their pleadings and at the trial they claimed that there was an oral agreement with Ridnour on August 31 (when the order was taken) that the cases should be double-deck cases. The plaintiff contended that, there was no such agreement.
The contract contained, among others, these stipulations:
“Terms: Net cash, f. o. b. Pacific coast common shipping point; sight draft,, with bill of lading attached, payable upon presentation. . . . Notwithstanding shipped or warehoused to seller’s order, goods are at risk of buyer from and after delivery to carrier or warehouse, and buyer hereby assumes responsibility as to shortage, loss, delay, or damage in transit upon issuance by carrier of clean bill of lading or by warehouseman of warehouse receipt. . . . Prompt shipment shall be understood to be within ten full business days,. . . . but seller shall not' be responsible for failure of transportation companies, to furnish transportation facilities;
645
“Quality: Equal to or better than the average of the grade sold, as established by grading rules of the seller. If sold on sample, to be equal to or better than sample. . . .”
The contract contained no stipulation with reference to double-deck cases. The telegram of October 11, 1920, honey exchange to Ridnour stated:
“Merchants Produce car comb loaded have bank wire First National guaranteeing payment draft upon presentation total twelve thousand eighty-six dollars twenty five cents covering sixteen hundred forty-five cases number ones and fancy, two hundred twenty-three cases number twos; work quick.”
The letter of October 11, 1920, from Ridnour to the honey exchange stated:
“We have your wire of to-day and have immediately taken up with the Merchants Prod. Co. and they advise that' they are instructing their bank to wire the First National Bank, Los Angeles, to the effect that they will guarantee payment on their draft covering car of comb honey.”
Mr. Ridnour testified that “We sent a telegram stating a large car would be satisfactory. Would not have sent it without communicating with defendants.” Referring to his letter of October 11, to the effect that he had ascertained from the Merchants Produce Company that they were having their bank wire a guaranty, he stated that he dictated and signed it on the date it bore and that either himself or Mr. Boyan communicated with the defendants and received the information contained therein. In the same connection, the defendants admitted that the matter was brought to their attention.
The jury returned a general verdict for defendants but specifically found that the Ridnour Brokerage Company, on or about October 11, 1920, obtained word from the defendants that they were instructing their bank to wire the Los Angeles bank a guaranty of the draft. There were other special findings in harmony with the general verdict which, for the purpose of this decision, need not be analyzed.
We are of opinion that under all the circumstances, the finding above quoted was controlling. The affirmative action of the defendants was inconsistent with the theory that the contract had been abandoned or rescinded. Their action beyond question showed a waiver of the delay in shipment. It was in effect what Professor Williston calls election to affirm, consisting of continuance to recognize the contract and to accept performance after knowledge of an excuse for nonperformance. (2 Williston on Contracts, 1327 et seq., §§ 687 and 688.) In the same volume at page 1325, section 686, he discusses the question, what manifestation of election is final, and states the rule, “Any conduct calculated to deceive the other party to his injury in regard to the choice of the party entitled to elect, will also conclude the latter.” In Powers v. Scharling, 76 Kan. 855, 92 Pac., 1099, it was said in the opinion:
“Whether the principle is described as equitable estoppel, gwasi-estoppel, waiver, ratification, election, or as a requirement of consistency in conduct, is not very important. It is really but an application of the homely proverb that one may not eat his cake and have it too.” (p. 859.)
Mills v. City of Osawatomie, 59 Kan. 463, 53 Pac. 470, was a case involving a contract for lighting the streets of Osawatomie for a period of eight years. The city permitted plaintiff partially to rebuild his plant after a fire, before notifying him of forfeiture on account of certain defaults on his part. The city’s mere silence was deemed a sufficient election under the circumstances.
Bank v. Commission Co., 113 Kan. 545, 215 Pac. 828, was a case where the owner of cattle when he learned of certain unauthorized sales by his agister, had a right to elect whether to ratify or repudiate the sales. His silence when he had a good opportunity to speak, was an election to ratify. (See, also, Sylvester v. Lynde, 113 Kan. 450, 215 Pac. 305; Morton v. Brinks, 114 Kan. 319, 219 Pac. 527.)
In the instant case, the defendants knew on October 11 of the delay in shipment. They were advised that the honey was just starting forward from California. If it be assumed that they had the right at that time to repudiate the contract, yet, without objection they in effect informed Ridnour that they were going ahead with performance. They did not attempt to impose new conditions until October 15, when the car was almost at Alpine, Tex., and obviously could neither successfully nor practically be recalled.
The judgment is reversed and the cause remanded with instructions to enter judgment for plaintiff for the amount of damages claimed if uncontroverted; if the damages have not been ascertained, to grant a new trial only to ascertain the amount. | [
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The opinion of the court was delivered by
Dawson, J.:
This is the second appearance of this case in this court. (118 Kan. 323, 235 Pac. 96.) It was an action by a widow and her dependent minor children for compensation for the death of her husband through an injury alleged to have been sustained in defendant’s ice factory.
Plaintiffs alleged that their husband and father, Bert Doty, on January 20, 1923, while employed in the ice plant of defendant sustained a fall from a scaffold and received an injury to his head from which he died some four months afterwards. The petition also alleged the giving of notice and demand for compensation, defendant’s refusal to arbitrate, plaintiffs’ right to $3,800 as compensation and prayed judgment for that amount.
Defendant’s answer, among other matters, denied that Bert Doty died of any injury sustained in its service, and that no demand for compensation within ninety days subsequent to the accident had been made on defendant.
The issue most sharply contested before the trial court and jury was whether Doty’s death was caused by his fall in the ice plant or whether he succumbed to a disease, cerebrospinal meningitis, not traceable to his fall and injury in the course of his employment.
On behalf of plaintiffs it was shown that until his fall and injury at defendant’s ice plant in January, 1923, Doty was an able-bodied man, 52 years of age, of exceptionally good health, strength, vigor, and eyesight, weighing 160 pounds, spry, and a quick walker, and a good workman. In the accident Doty received a noticeable wound on the left side of his head above and back of the ear, and about the size of a half dollar. (Whether the skin was quite broken or only bruised was a matter of disagreement among plaintiffs’ own witnesses.) Doty fell about six feet and the wound in his head was apparently caused by striking against an iron pipe as he fell backwards from a scaffold or platform on which he was working. Doty was rendered unconscious for a brief interval. Almost immediately after his fall and injury in January, he began to lose weight; he suffered severe headaches; his eyes became “starey” and vague-looking, with the pupils dilated; he was inattentive and seemed to be dazed, he complained much of pain in his head over his left ear; his body was cold, and he required frequent doses of aspirin; he walked slowly like an aged person, with a halt in his steps and his feet dragged. However, notwithstanding these apparently developing consequences, he returned to defendant’s service in three days after his fall and so continued until May 5, at which time he changed his employment and worked four or five days in a door factory, and also worked out in the country. He took to his bed about May 20, by which time he had lost about 25 pounds since his fall and injury in January. On May 31 he died, and up to the last he complained of pains in his head. His attending physician certified the cause of Doty’s death as cerebrospinal meningitis, but all the eyewitnesses about his sick bed testified that there were no symptoms of convulsions.
On the other hand there was testimony in defendant’s behalf which tended to show that no serious consequence followed Doty’s fall. A fellow workman testified:
“A. Well, they were working up on a scaffold trying to start a pipe into a collar when the scaffold broke. One of the boys caught onto the pipe and held up there and Mr. Doty fell on the floor. We started to help him up and he got up without our help. He swore quite a bit and said he was all right. . . .
“He was on the floor a very short time. Probably not over 15 seconds. We did not carry him. There was no one carried him any place. He walked down stairs with his arms across my shoulders and Dawson’s. We helped him along and he walked. ... He wasn’t gone over two or three days. When he came back to work he did the same as he had before the accident. There was no change whatever that I could see. I worked along with him, until he left. I never noticed any difference in his eyes, nor in his speech, nor his walk.”
There was a good deal of medical expert testimony offered by defendants to the effect that Doty's illness and death were not traceable to his fall and the blow on his head at the ice plant. A professional chemist and bacteriologist made laboratory tests of spinal fluid- taken from Doty shortly before his death. His reports, in part, read:
“Examination of Spinal Fluid, May 28, 1923:
First portion.......................................... Turbid.
Second portion....................................... Clear.
Formation of pellicle................................. Positive.
Globulin test......................................... Positive.
Cell count........................................... 200 per cmm.
Wassermann........................................ Negative.
Bacteriological examination, intracellular diplococci.... Present.
Examination of Blood:
White cell count..................................... 13,600.
Wassermann......................................... Negative.
Examination of Second Specimen Spinal Fluid, May 30, 1923:
Color............................................... Greenish.
(Decided green on standing.)
Pellicle ............................................. Positive.
Cell count........................................... 500 per cmm.
Intracellular gram negative diplococci................. Present.
Culture (nutrient agar) gram negative biscuit-shaped
diplococci.......................................... Present.”
Another of defendant’s professional witnesses, Dr. J. B. Blades, testified that he, too, had participated in the performance of two spinal punctures upon Doty to obtain spinal fluid for diagnosis:
“Q. From your examination and observation of Mr. Doty and the result of the laboratory findings of the spinal fluid taken from Mr. Doty, have you an opinion as to what he died with? A. I have.
“Q. State what that opinion is? A. The diagnosis was cerebrospinal meningitis.
“Q. What form? A. Epidemic type. . . .
“Q. This disease of cerebrospinal meningitis of the epidemic form is the result of a bacteria? A. Yes, sir.
“Q. Does trauma have anything to do with it — or injury? A. No, sir. . . .
“Q. Doctor, you say you pronounced this epidemic spinal meningitis? A. Cerebrospinal meningitis; yes, sir.
“Q. By epidemic you mean it is catching?
“A. The length of time required for it to affect a person is not definitely known; from a few days to three or four weeks. Due to the susceptibility of the individual.”
This same witness, on cross-examination and without objection, gave certain testimony tending to support plaintiffs’ side of this case:
“When a man gets a blow on. the head he sometimes has a concussion. If there is unconsciousness there is intracranial pressure. Concussion is an injury due to a blow which renders unconsciousness or partial consciousness. There may be no injury to the brain at all. My understanding of contusion is damaging the tissues. I don’t think there is a real distinction between concussion and contusion. ... A man striking his head on some hard object could have a hemorrhage on the inside of the brain that would not show on the outside. The effect would be pressure on the brain, loss of consciousness, and if it was very extensive, paralysis. The classical symptoms are headache, pressure on the brain, paralysis, loss of vision. Headache is one of the symptoms of brain injury. A fixed dilated pupil is a symptom of intracranial pressure. There is some exceptions to it.”
One matter of some evidential significance against the contention that, cerebrospinal meningitis caused Doty’s death was the complete absence of convulsions which usually attend that dread disease.
The jury returned a general verdict for plaintiff, and answered certain special questions:
“Q. 1. For how long a time, if at all, was Albert Doty incapacitated-from work as a result of any injury he may have sustained on January 20th, 1923? A. Not over three days as shown by evidence.
“Q. 2. Was Dr. J. B. Blades one of the attending physicians who attended Albert Doty during his last sickness up to and including the time of his death on May 31, 1923? A. Yes, in advisory capacity.
“Q. 3.. Did, Dr. J. B. Blades during said time assist in making two spinal punctures and obtain specimens of spinal fluid from Albert Doty for the purpose of making a laboratory test? A. Yes. . . .
“Q. 6. Is the disease of cerebrospinal meningitis of the epidemic form caused by bacteria? A. Yes; according to testimony.
“Q. 7. Do you find that on or about January 20, 1923, Albert Doty, while in the employ of the defendant, in the course of his employment, fall from a scaffold backward, striking his head against some object? A. Yes.
“Q. 8. Do you find that there was a mark or bruise on the head of Albert Doty, as the result of said fall? A. Yes.
“Q. 9. Do you find that the said Albert Doty came to his death on account of an injury he received on or about the 20th day of January, 1923? A. Yes.”
Defendant appeals, specifying various errors, including one based upon the trial court’s refusal to submit two special questions, viz.:
“Q. 6. Does the laboratory test of spinal fluid taken from a person suffering from cerebrospinal meningitis of the epidemic form, show intracellular gram negative diplococci to be present in such fluid? . . .
“Q. 7. Does the laboratory test of such spinal fluid show the formation of a pellicle in cases where the person from whom such spinal fluid was taken was suffering from cerebrospinal meningitis of the epidemic form?”
Special questions are propounded to a jury to bring out some or all of the determinative facts which should be considered in the formation of a jury’s géneral verdict. Such questions may aid in sifting the jury's reasons for their verdict; they may show how closely or otherwise the jury has followed the trial court’s instructions (Morrow v. County of Saline, 21 Kan. 484, 503, 504); and they may and often do show the measure of sincerity with which the jury has considered the evidence on which the general verdict must rest if it is permitted to stand (Underwood v. Fosha, 96 Kan. 240, 246, 150 Pac. 571). Not infrequently the jury’s answers to special questions enable the court — and compel it — -to enter judgment thereon in favor of one litigant although the general verdict might be in favor of his adversary. (R. S. 60-2918; Tacha v. Railway Co., 97 Kan. 571, 155 Pac. 922; Priest v. Life Insurance Co., 117 Kan. 1, 230 Pac. 529.)
In Jones v. Interurban Railway Co., 92 Kan. 809, 815, 141 Pac. 999, it was said:
“The legislature recognized the fact, known to all judges and practitioners, that juries may render general verdicts that do not square with the facts in the case and with the instructions of the court. The only way to test the work of the juiy is by requiring them to find the facts, and when the special findings and the general verdict disagree the special findings must control. 'Besides this, special findings give the trial court when reviewing the case on a motion for a new trial, and this court on appeal, a grasp of the controversy which can be obtained in no other way.” (p. 815.)
’ But the trial court' may and should exercise its discretion not only as to the number but also -to the form and nature of the questions. The statute says special questions must deal with the facts as established by the evidence and not the evidence adduced to prove those facts, and “they must be so presented that nothing remains to the court but to draw from them conclusions of law.” (R. S. 60-2918.) In Jones v. Interurban Railway Co., supra, it was said:
“The right to special findings, however, is subject to regulation by rule, and is subject to certain conditions which the practical administration of justice makes essential. Thus the application must be timely, the questions must be proper in form, and they must elucidate the facts. They can not be used to cross-examine or to confuse or entrap the jury, and other limitations exist.” (p. 815.)
In Abell v. Railway Co., 115 Kan. 132, 222 Pac. 91, this court' said:
“2. It is not reversible error to refuse to submit to a jury a special question •where the answer to the question, by itself or in connection with the answers to other questions submitted, could not have been contradictory to the general verdict or could not have compelled a different judgment.” (Syl.)
In the instructive case of Freedman v. New York, N. H. & H. R. Co., 81 Conn. 601, 614, it was said:
“We shall not attempt to formulate definite rules for determining accurately in every case just what interrogatories may be so submitted to the jury. It may, however, be well to state the following, as some of the general requisites of such permissible interrogatories: They should generally be few in number, and never so numerous as to confuse or perplex the jury in rendering their verdict. They should be so clear and concise as to be readily understood and answered by the jury. Each question should call for a finding of but a single fact. When practicable each question should be so framed as to call for a categorical answer. Each question should ask for the finding of a fact and never for a conclusion of law. No question should ask for the finding of a purely evidential fact nor of an uncontroverted fact. Although not wholly covering, nor necessarily controlling, the determination of any issue framed, the fact sought to be elicited must be pertinent to some issue, and one which may be of material weight in deciding it. No interrogatory should be permitted the response to which cannot serve either to limit or explain a general verdict, or aid in proceedings for a subsequent review of thq verdict or judgment which may be rendered.” (p. 614.)
In 27 R. C. L. 865, it is said:
“The purpose of . . . special findings in answer to interrogatories, by eliciting a determination of material facts, [is] to furnish the means of testing the correctness of the verdict rendered, and of ascertaining its extent.”
Elsewhere in the same volume, p. 871, it is said:
“Questions to the jury should relate to the ultimate facts and not merely the evidential facts on which such ultimate facts rest, and the court is justified in refusing to submit questions which call for evidence, whether in the submission of a special verdict or a special interrogatory addressed to the particular finding. The purpose of having the jury find specially on a particular question is to ascertain the fact itself and not merely the evidence which may tend to prove it, or an abstract of the evidence; hence parties to an action have no right, under the guise of submitting questions of fact to be found specially by the jury, to require them to give their views on each item of evidence, thus practically subjecting them to a cross-examination as to the entire case.” (See, also, Snyder v. Eriksen, 109 Kan. 314, syl. ¶ 3, 198 Pac. 1080; Winfrey v. Automobile Co., 113 Kan. 343, syl. ¶ 5, 214 Pac. 781; 38 Cyc. 1909 et seq.; Phillips on Code Pleading, 551.)
Scrutinizing the special questions in the light of the statute and the discussions and precedents set out above, it cannot be said that the trial court erred in refusing to submit them to the jury. Although we have read defendant’s abstract with laborious care, if the duty were imposed on us to answer these questions we would certainly have to requisition a first-class medical encyclopedia. Not only were defendant’s special questions highly technical, but they were not concretely focused on the ultimate facts of this particular case; and rather obviously they violated the code rule that they be framed to elicit the facts established by the evidence and not to recapitulate the evidence adduced to prove them. Defendant conr tends that if the jury had been permitted to answer these two questions, “their answers thereto would have been conclusive in this case.” We think not. The expert' medical testimony was to the effect that cerebrospinal meningitis of the epidemic type would develop from its inception to fatality within three or four weeks, while there was abundant testimony — which the jury chose to believe— that Doty’s ailing began immediately after the accident in January and continued with progressively increasing gravity and consequences until he died at the end of May. However, it is not at all unlikely in view of the defendant’s evidence that Doty did become afflicted with cerebrospinal meningitis toward the latter end of his days, but whatever answers favorable to defendant a jury might have made to these two special questions it would grossly usurp the functions of the jury and flagrantly disregard the plaintiffs’ evidence for the trial court or this court to conclude therefrom as a matter of law that Doty’s death was not caused by accident sustained in his employer’s service in January, 1923. The error assigned on this point is not sustained.
2. Error is also assigned on the trial court’s refusal to set aside the jury’s special finding No. 9, which was that Doty came to his death through the injury he sustained in January, 1923. Counsel for defendant seeks to persuade us that the evidence which attributed Doty’s death to an altogether different cause was vastly more entitled to credence than the evidence which supported the jury’s finding. But the jury, acting with the approval of the trial court, is the arbiter of the issues of fact, and it is needless to expatiate on the familiar subject of the limitations of appellate review touching ascertained facts which have some competent and no incompetent. evidence as a basis for their determination. (Bayer v. Cockrill, 3 Kan. 282; Blakeslee v. Morgan, 118 Kan. 486, 490, 235 Pac. 1042.)
3. We note another error suggested in the overruling of defendant’s motion for judgment on the jury’s answers to the special questions. The suggestion lacks merit.
4. It is next urged that the jury should have been instructed to return a verdict for defendant because no claim for compensation was made within three months after the accident. Doty was injured on January 20; he died May 31; and his widow and children presented their claim on August 14. No earlier claim was presented on behalf of his dependent family. The statute reads:
“R. S. 44-520. Proceedings for the recovery of compensation under this act shall not be maintainable unless written notice of the accident, stating the time, place and particulars thereof, and the name and address of the persons injured, has been given within ten days after the accident, and unless a claim for compensation has been made within three months after the accident or in case of death, within six months from the date thereof.”
This is a claim for compensation on account of .the death of the workman. The fair interpretation of the statute is that in case of the workman’s death, his dependents have six months from the date thereof, i. e., from the date of the death, in which to make claim for compensation. (See Hopper v. Wilson & Co., 111 Kan. 539, 207 Pac. 757; Johnson, Guardian, v. Milling Co., 114 Kan. 470, 219 Pac. 256.) Counsel for appellee make the point that defendant is trying this case by piecemeal, and that the question of law concerning the time allowed in which to make demand was not raised in the first trial or the first appeal and should not now be considered (Estes v. Zinc Co., 97 Kan. 774, 156 Pac. 758); but we prefer not to leave unsettled such an important feature of this remedial statute. Indeed the real service which an appellant in a case of this sort contributes to the common weal is in getting an authoritative adjudication of questions of this sort.
5. Error is also assigned in the giving and refusing of certain instructions. We have examined them. The court did not err in refusing to instruct that “liability cannot rest upon imagination, speculation or conjecture.” The jury were sufficiently instructed that plaintiffs must maintain their cause by the fair weight and preponderance of the evidence, and that the jury “must be satisfied and believe from the evidence” that the death of Doty resulted from the accident in his employer’s service, “and if you do not so find and believe your verdict will'find for the defendant.”
6. Another error urged is that “the court wholly failed to instruct the jury with reference to the disease Mr. Doty died of.” The court sufficiently covered this point as follows:
“No. 4. You are instructed that if you find from the evidence, that the said Bert Doty sustained an injury, while in the employ of the defendant, by falling and striking on his head and back, as alleged by plaintiffs, and that as a result of said fall and the injuries sustained thereby, his condition became gradually worse, so that his powers of resistance were so lowered that' he beca'me infected by cerebralspinal meningitis, or spinal meningitis, whereby he died on or about the 31st day of May, 1923, and that he would not have died except for said injury, then you are instructed that it may be said that his death was the result of an accident growing out of his employment for the defendant.”
The other objections to the judgment have been duly considered. They suggest nothing which would permit or justify a disturbance of the judgment, nor warrant further discussion.
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment in favor of the plaintiffs for 'damages caused by their daughter, Hazel Briley, being killed in Wichita by a bus driven by the defendant Martin P. Nussbaum, the bus being then operated by the defendants Martin P. Nussbaum and George F. Nussbaum.
1. Defendants claim that the verdict in favor of the plaintiff was excessive. The verdict was for $6,305, and judgment was rendered for that amount. At the time of her death, Hazel Briley was between seven and eight years of age. She was healthy, intelligent, affectionate, industrious, and obedient. Elmer C. Briley, the father of Hazel Briley, was then forty-two years old, and Vilena Briley, the mother, was thirty-eight years old. There is no way by which the damages sustained by parents whose child is killed in an automobile accident can be measured; $305 of the verdict was for expenses incident to the death of the child. This court cannot say that the verdict for $6,000 in favor of the parents for the loss of a child, such as the evidence shows Hazel Briley to have been, was ¿xcessive.
2. The defendants urge that “it was error to tell the jury that the parents had a right to anticipate that they would receive help and pecuniary benefits from deceased as long as she lived up to the death of the last surviving parent.” The instruction, part of which is complained of, read as follows:
“In this connection, you are instructed that up to the time Hazel Briley would become twenty-one years of age her parents would be entitled to all of her services and to all of her earnings as a minor, but that their measure of recovery is not limited to such pecuniary benefits as they might receive from Hazel Briley during her minority, but that the plaintiffs who are the parents of the deceased child had a right to anticipate that they would receive help and pecuniary benefit from her as long as she lived up to the death of the last surviving parent, and in estimating what amount might have been anticipated by the parents, either before Hazel Briley was twenty-one years of age or after she was twenty-one years of age, you are to exercise your own knowledge and experience in common with that possessed by the generality of mankind with respect to these matters, taking into consideration the age of the parents, their condition in life, the property or lack of property that they have, the condition of their health, the probable length of their lives or of that of'the last survivor of them, the occupation of the father and his earning power, the disposition of the child toward her parents, whether it was affectionate or otherwise and whether it was such as prompted her to divide her possessions however small, or whether it was the opposite of this, and all other facts and circumstances adduced in evidence in the case; keeping in mind that it is not possible to itemize these matters or to make definite computations of pecuniary benefits, but only to allow such sum as in your judgment, as instructed by the court, would afford fair and adequate compensation to the • parents for the damages which they might suffer by reason of the death of Hazel Briley.”
When the entire instruction is considered in connection with that part of it which is objected to by defendants, it does not appear to have stated the law incorrectly. The plaintiffs had the right to expect that their daughter would contribute to their support. (Railway Co. v. Fajardo, 74 Kan. 314, 86 Pac. 301; Griffin v. Brick Co., 90 Kan. 375, 133 Pac. 574.)
3. The defendants urge that “it was error to tell the jury that the plaintiffs would be entitled to all of the deceased's services and to all of her earnings as a minor without regard to whether the parents or either of them lived throughout the entire minority of the child.” This is another complaint of the instruction which has just been quoted. The instruction concerning the right of the plaintiffs to the services of Hazel Briley did not incorrectly state the law. If the defendants had desired a modification of that instruction, it was their duty to request the court to give such a modification. That does not appear to have been done. They cannot complain of failure of the court so to do. (State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Ross, 77 Kan. 341, 348, 94 Pac. 270; State v. Page, 80 Kan. 389, 391, 102 Pac. 780; Hamilton v. Railway Co., 95 Kan. 353, 357, 148 Pac. 648; State v. Taylor, 119 Kan. 260, 237 Pac. 1053.)
4. The defendants argue that “it was error for the plaintiff to bring before the jury the suggestion that the defendants had indem nity insurance.” F. H. Bishop, an eyewitness of the accident, was called by the plaintiffs. The defendants introduced a statement concerning the accident signed by him on the evening of the accident. After that statement had been introduced in evidence, the witness testified:
“Q. Mr. Bishop, about what time of the day was it when these men called at your house for the statement? A. The best I remember was between seven and eight o’clock; somewhere around near seven o’clock.
“Q. Did they tell you what they wanted the statement for? A. Yes, sir.
“Q. What did they say they wanted it for? A. He said it was the insurance company and he wanted a report. He said he was representing the insurance company and wanted a report.
“Mr. Gleason: We move the answer be stricken out.”
There was further evidence concerning the statement. On the request of the defendants, the evidence was stricken out, and the jury was instructed to disregard it.
This court has held that it is error to refer to the fact that an insurance company is resisting a claim' for damages for personal injury or wrongful death.
In Smith v. Cement Co., 86 Kan. 287, 120 Pac. 349, the court said:
“Before a judgment will be reversed for misconduct of counsel of the prevailing party occurring at the trial it must be made 'to appear that such misconduct prejudiced the rights of the defeated party.” (See, also, Stafford v. Noble, 105 Kan. 219, 182 Pac. 650.)
In Townsdin v. Nutt, 19 Kan. 282, the court declared that:
“Where evidence is erroneously received, and the court thereafter charges the jury to disregard such objectionable testimony, the admission of the testimony in the first instance is not necessarily a sufficient cause for the reversal of the judgment.” (See, also, Wallace v. Wallace, 101 Kan. 32, 35, 165 Pac. 838, and eases there cited.)
5. The defendants argue that “it was error to admit the testimony of R. E. Campbell.” The testimony complained of was as follows:
“Q. You may state, Mr. Campbell, what in your opinion was the rate of speed of the bus No. 164 of the Nussbaum Bros, at the time it struck Hazel Briley upon the assumption that the pavement at the intersection of First street and Millwood avenue was concrete with a rough surface and that the concrete pavement was a little wet with perhaps a few patches of ice where the skid marks on the pavement caused by putting on the brakes of the bus were about eighteen feet long. A. Well, I shouldn’t think it would be going over eighteen or twenty miles an hour.”
The witness testified that this depended on the condition of the ground and how the brakes were applied. The evidence was competent for the purpose of assisting the jury in determining the rate of speed at which the bus had been driven. Neither the brief nor the abstract shows any objection on the part of the defendants to that testimony. If the defendants had any objections to the evidence, they should have made it known to the court.
6. Complaint is made of the following1 instruction:
“You are further instructed that in determining the rate of speed at which Martin P. Nussbaum was driving said bus at the time of the accident, you may take into consideration, together with all of the other evidence in the case, the length of the skid marks made by the wheels of said bus when the said Martin P. Nussbaum threw on the brakes after he first saw Hazel Briley, and that you may also take into consideration the weight of said bus and the manner in which said brakes were applied.”
The objection of the defendants to the instruction is that it gave particular prominence to that evidence, so much so that the judgment should be reversed for that reason. The evidence was competent. It was proper for the jury to consider it, and this court does not see wherein the defendants were in any way prejudiced by the attention of the jury being directed to that evidence by the trial court.
7. Another matter urged is that “special findings Nos. 4, 5, 6, 7, 8, and 9 are contrary to the evidence and unsupported by the evidence.” Special questions were answered by the jury as follows:
“1. Was the defendant, Martin Nussbaum, guilty of any act of negligence? A. Yes.
“2. If you answer the first question in the affirmative, then state of what such act or acts of negligence consisted. A. Not taking due precaution at a street intersection.
“3. What act or acts, if any, on the part of the defendant, Martin Nussbaum, was or were the proximate cause of the accident? A. Failure to sound horn, check speed and observe the rights of pedestrians.
“4. Was the action of Hazel Briley in running without looking to the point where she was struck the proximate cause of her injury? A. No.
“5. At the time when Hazel Briley was struck by the bus, was she outside the intersection of Millwood avenue and First street? A. No.
“6. Was Hazel Briley ever in front of the bus after she left the sidewalk on the north side of First street? A. Yes.
“7. If you find that the bus of the defendants struck and injured Hazel Brilej'-, then what part of the bus struck her? A. Inside of left front fender.
“8. At the time Hazel Briley was struck by the bus, where was she with reference to said bus? A. In front of bus.
“9. Did the bus pass over the body of Hazel Briley? A. Yes.
“10. Did Hazel Briley at the time she left the sidewalk on the north side of First street and proceeded to the point where she was struck have judgment and intelligence enough to appreciate the danger of coming in contact with a moving bus of the kind and character of defendants’ bus? A. Yes, if properly warned by approaching bus.”
These were material questions of fact. If there was no evidence to support them, they should have been set aside. After a careful reading of the abstracts, this court is unable to agree with the defendants that there was no evidence to support those findings. There was evidence to support each one of them. On account of the numerous assignments of error which it is necessary for the court to discuss, it is not thought advisable to discuss each of these in detail and point out specifically the evidence which supported the answers to each of these questions.
8. The eighth matter complained of is as follows:
“Special finding No. 3 and the general verdict is contrary to the evidence and not supported by the evidence.”
The defendants, to support this contention, argue that the negligence found in the answer to question No. 3 was not pleaded. The petition alleged that the defendant was negligent in running the bus at a high rate of speed; in not checking the speed of the bus; in not sounding a horn to warn pedestrians; and in not looking ahead. All of these things should have been done by Martin Nussbaum to protect pedestrians who might be crossing the street, and all were embraced in the answer to question No. 3 and all were embraced in the finding of the jury that Martin Nussbaum failed to observe the rights of pedestrians.
9. The defendants say:
“It was further error of the court to overrule the defendants’ motion for a new trial because the court gave instruction No. 7 to the effect that if the defendants drove the bus across the intersection at a rate of speed in excess of six miles per hour they were guilty of negligence and if such act was the proximate cause of the injury to the plaintiffs’ deceased, then the plaintiffs should recover.”
To support this contention, the defendants further say:
“This was error. The statute was not intended for the protection or benefit of persons outside of the intersection and under the doctrine of the cases hereinafter cited one who is outside the intersection cannot predicate a charge of negligence upon the violation of this statute.”
To support this argument, the defendants contend that Hazel Briley was outside the intersection when she was struck by the bus. The argument of the defendants was answered by the jury in the answer to question No. 5 in which the jury found that Hazel Briley was not outside the intersection of Millwood avenue and First street when she was struck by the bus.
10. Complaint is made of instruction No. 6 given by the court. That instruction submitted to the jury an ordinance of the city of Wichita, which provided:
“That no person shall operate any vehicle upon any street of the city of Wichita at a greater rate of speed . . . than is reasonably safe and proper, having due regard for the use and condition of the street and occupancy thereof at the time, nor at such a rate of speed as to endanger the life, limb or property of any person.”
It was the duty of the defendants to operate their bus in the manner commanded by the ordinance. If there had been no ordinance, the court would have been warranted in giving an instruction imposing on the defendants the same obligation that was imposed by the ordinance. It was not error to instruct concerning the ordinance.
11. The defendants urge that the “deceased was guilty of contributory negligence.” Hazel Briley was a little more than seven years old. She was going home from school. It was necessary for her to cross the street. In doing so, she followed the customary line of travel and was killed. She was not obliged to exercise the same degree of care that an adult should exercise. It was for the jury to say whether or not she was guilty of contributory negligence. This court cannot say that she was. In Bellamy v. Railways Co., 108 Kan. 708, 196 Pac. 1104, the rule was declared to be that — '
“Infants of tender years are not presumed to have discretion, and are not, as a matter of law, held amenable to the disabling effects of contributory negligence. The question whether a seven-year-old child has sufficient capacity and discretion to render it guilty of contributory negligence is for the consideration of a jury.”
The defendants urge that it was error to overrule their motion for a new trial. This matter is disposed of by the discussion of the-other points argued.
The judgment is affirmed.
Dawson, J., dissenting. | [
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The opinion of the court was delivered by
Harvey, J.:
In this action Ben Robertson, a workman employed by the county in the construction of a hard-surface road, sued the county and the insurance company for injuries sustained by him in such work, measured by the workmen’s compensation act. Defendants separately demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action. The demurrers were sustained. Plaintiff has appealed.
The petition alleged, in substance, among other things, that the board of county commissioners of Labette county proposed the construction of about eight miles of hard-surface road and applied for federal aid, which was granted. Bids for the work were received, considered and rejected, and the comity proceeded to construct the road, employing labor and purchasing equipment for that purpose, and under the federal statute one-half of the cost thereof, including the premium on the insurance policy in question, was paid by federal aid. The county made application and received a policy of insurance from the defendant, Federal Surety Company, providing for payments to the employees of the county on such work for injuries sustained by such employees under the schedule of payments as fixed by the workmen’s compensation act of the state of Kansas. While employed by the county on such work, and operating a stone crusher, plaintiff received an injury arising out of and in the course of his employment. The injury was reported to the county and to' the surety company and claim for compensation made. The defendant surety company investigated the claim, admitted its liability thereon, and that plaintiff was entitled to $15 per week, and paid the same for four weeks, the total payment being $60, when further payments were refused.
It is contended in this appeal that the county is not liable to employees such as plaintiff in this case under the workmen’s compensation act. This contention must be sustained. The workmen’s compensation act applies “on'ly to employment in the course of the employer’s trade or business.” (R. S. 44-505.) A county doing road work is not engaged in “trade or business” within the meaning of the statute. (Gray v. Sedgwick County, 101 Kan. 195, 165 Pac. 867.). This action is not founded in tort, but if it were the county would be liable only to the extent it is made so by statute (Silver v. Clay County, 76 Kan. 228, 91 Pac. 55; Woolis v. Montgomery County, 116 Kan. 96, 226 Pac. 244; Bohm v. Racette, 118 Kan. 670, 236 Pac. 811, and cases there cited), and there is no statute making the county liable for injuries such as are claimed in this case. There was no error in sustaining the demurrer on behalf of the county.
The demurrer on behalf of the insurance company is not so easily determined. It requires first an examination of the policy. Such examination discloses that the obligations of the policy are twofold. A number of its provisions relate to indemnifying the employer, which is the county in this case, against loss by reason of liability imposed upon it by law for damages for injuries sustained by its employees. Since there is no such liability imposed by law upon the employer in this case, we need give no further consideration to these provisions of the policy. A number of the provisions of the policy relate to the liability .of the insurance company direct to the employee. It will be necessary to quote some of these provisions, which are as follows (italics and explanatory remarks in parentheses are ours) :
“Federal Surety Company . . . does hereby agree with this employer,” (the board of county commissioners of Labette county) . . . “as respects personal injuries sustained by employees, ... as follows:
“One (a) to pay promptly to any person entitled thereto,” (persons entitled thereto are employees of the county whose remuneration was included in computing the premium on the policy) “under the workmen’s compensation law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due,
“(1) To such person because of the obligation for any such injury imposed upon or accepted by this employer under such of certain statutes, as may be applicable thereto, cited and described in an indorsement attached to this policy, each of which statutes is herein referred to as the workmen’s compensation law, and
“(2) For the benefit of such person the proper cost of whatever medical, surgical, nurse, or hospital services, medical or surgical apparatus or appliances and medicines, . . . are required by the provisions of such workmen’s compensation law.
“It is agreed that all of the provisions of each workmen’s compensation law covered hereby shall be and remain a part of this contract as fully and completely as if written herein, so jar as they apply to compensation or other benefits for any personal injury or death covered by this policy, while this policy shall remain in force.....
“This agreement is subject to the following conditions: . . .
“D. The obligations of paragraph one (a) foregoing are hereby declared to be the direct obligations and promises of the company to- any injured employee covered hereby, or in the event of his death, to his dependents; and to each such employee or such dependent the company is hereby made directly and primarily liable under said obligations and promises. This contract is made for the benefit of such employees or such dependents and is enforceable against the company, by any such employee or such dependents in his name or on his behalf, at any time and in any manner permitted by law, whether claims or proceedings are brought against the company alone or jointly with this employer. . . . The obligations and promises of the company as set forth in this paragraph shall not be affected by the failure of this employer to do or refrain from doing any act required by the policy; nor by any' default of this employer after the accident in the payment of premiums or in the giving of any notice required by the policy or otherwise; nor by the death, insolvency, bankruptcy, legal incapacity or inability of this employer, nor by any proceeding against him as a result of which the conduct of this employer’s business may be and continue to be in charge of any executor, administrator, receiver, trustee, assignee, or other person.”
The policy contains provisions (five and six) which appear to extend its provision to a class of employees who would not come within the statutory provisions of the workmen’s compensation act, and to injuries sustained at places which would not be covered by the statute, but these provisions are not in controversy here. There is an indorsement on the policy that the workmen’s compensation act referred to in the policy is chapter 61 of article 6 of the General Statutes of 1915, entitled “Workmen’s Compensation Act” as amended by chapter 226 of the Laws of 1917, and laws amendatory thereof. The policy also contains the following indorsement:
“This employer, upon the acceptance of this policy, agrees that at the effective date hereof he is bound by the above-cited workmen’s compensation law . . . and will not give any notice or make any declaration to the contrary, . . . during the policy period.”
The provisions of the policy above quoted, and referred to, constitute an agreement between the insurance company and the board of county commissioners, for the benefit of its employees designated therein, which creates a direct obligation of the insurance company to such employees for injuries compensable under the workmen’s compensation act, the amount of which liability is measured by the terms of that act. As between the insurance company and the employee the provisions of the workmen’s compensation law are a part of the contract only “so far as they apply to compensation or other benefits for any personal injury or death covered by this policy.” It is argued on behalf of the insurance company that if the county was not obligated to pay plaintiff compensation on account of his injuries, then the insurance company was not; that the obligation of the insurance company was to indemnify the county against loss by reason of its liability to its employees, and since the county had no such liability, the insurance company had none. This construction of the policy is inaccurate. The policy does contain provisions to indemnify the county, defend its suits, pay its losses, etc., and since the county has no liability to plaintiff because of his injury, the insurance company is not liable under those provisions of the policy. But these are not the only provisions of the policy. The policy contains provisions creating a direct liability on the part of the insurance company to the injured employee, and by various provisions that is made specific and definite in the policy. But it is argued that the provision of the policy above quoted [One (a) (1)] limits the liability of the insurance company to the employee only as the county is liable to him. Standing alone this clause might be so construed, but that is not its necessary construction, and when considered in connection with other provisions of the policy specifically applicable to the employee, as it must be, it is not so limited.
It is argued that the board of county commissioners had no authority to enter into the contract of insurance, or spend the money of the county for the premium. And, although it is no part of the record in this case, counsel have advised us, both in their briefs and oral argument, that the board of county commissioners has sued the insurance company in the district court of Labette county to recover the premium paid, which action is being contested by such defendant. We shall not decide the merits of that case on this appeal; we will determine that case when it reaches this court, if it does so. The question whether the county could lawfully pay the premium on the policy is in this case only collaterally, if at all. We simply note this; the petition alleges in substance that the policy was applied for, received, and the premium paid as a part of the construction of the road, and that the federal government paid one-half the cost of constructing, including one-half of the insurance premiums, thus recognizing the cost of the insurance as a proper item of cost in the construction of the road. At any rate the insurance company has accepted the premium, retained it, issued its policy, and is contesting an action for the return of the premium. We shall not assume that the board of county commissioners had no authority to take out this policy and pay the premium thereon, if the effect of such assumption is to relieve the insurance company of an accrued liability. The policy itself provides that the direct obligation of the insurance company to the employee “shall not be affected by. . . . the . . . legal incapacity or inability of” the board of county commissioners. So under the wording of the policy itself the legal incapacity of the board of county commissioners to enter into the contract of insurance is of no consequence in this case, involving as it does the direct liábility of the insurance company to an employee of the county, whose remuneration was included in the computation to determine the amount of premium paid.
It is argued that the stipulation indorsed on the policy by which it was agreed that the county was operating under the workmen’s compensation act and that it would not withdraw therefrom within the term of the policy, was a mistaken assumption of the board of county commissioners and the representatives of the insurance company, and, since they were in error in that respect, the county not being within the workmen’s compensation act, the policy is void for all purposes. We do not so construe this stipulation. There is no reason to assume that the members of the board of county commissioners, or the representatives of the insurance company, did not know that the county, in improving roads, was not under the provisions of the workmen’s compensation act. The case of Gray v. Sedgwick County, supra, was decided in 1917, about eight years before this policy was issued. To assume the parties did not know their status with respect to the county’s liability under the workmen’s compensation act is a reflection on their intelligence; and to assume that, knowing the lack 'of liability of the county, a policy 'void as to all parties was applied for, issued and paid for, and the pay retained and its return contested, is a reflection upon their honesty and good faith. If any assumption is to be indulged in it is that the parties, with intelligence and in good faith, were entering into a contract of insurance for the employees of the county in such road work- — the only parties named or referred to in the policy who could receive the benefits of the insurance provided for therein — and this stipulation was indorsed on the policy to aid that purpose. And to avoid any possibility of the acts of the county commissioners being held illegal and thus defeating the rights of the employee (or his dependents) to receive benefits for injuries compensable under and measured by the workmen’s compensation act, it was provided in the body of the policy that “The obligations and promises of the company” (to the employees) “shall not be affected by . . . the . . . legal incapacity or inability of this employer” (the board of county commissioners). Hence, an analysis of the policy demonstrates that it is a contract in which the insurance company has obligated itself directly to the employee to pay such employee (or his dependents), as though he were under the workmen’s compensation act, for injuries compensable under and measured by that act, and this the insurance company has agreed to do, irrespective of whether the employer (the board of county commissioners) had legal capacity to apply for the policy and to pay the premium thereon. There is no necessity for us to pass upon the legal capacity of the county to take out this policy of its insurance. The question is not before us, except arguendo, and by the provisions of the policy a decision on that question is of no importance. The insurance company is bound to the injured employee irrespective of the legal capacity of the county to take and pay for the policy.
The interpretation we have given to this policy is apparently the same as that given to it by the parties at the time and soon after the injury to plaintiff. The injury was reported, claim for compensation made, the claim was investigated by representatives of the insurance company, the insurance company acknowledged in writing its liability to plaintiff, as measured by the workmen’s compensation act, and paid total disability compensation at $15 per week for four weeks, when payments ceased.
But little more need be said. The plaintiff may maintain this action in his own name against the insurance company — the policy so provides and the authorities are to that effect. (Anthony v. Herman, 14 Kan. 494; Burton v. Larkin, 36 Kan. 246, 13 Pac. 398; Ross v. Bank, 113 Kan. 213, 214 Pac. 94; Finkelberg v. Continental Cas. Co., 126 Wash. 543, 36 C. J. 1132; American Automobile Ins. Co. v. Struwe, 218 S. W. 534 [Tex. Civ. App.]; Arizona Mut. Auto Ins. Co. v. Bernal, 23 Ariz. 276.)
The insurance company has not only waived the legal incapacity of the county, in having the policy issued, if such action were illegal (Green v. Annuity Association, 90 Kan. 523, 135 Pac. 586; Stanley v. Indemnity Association, 112 Kan. 412, 210 Pac. 1096), but has specifically contracted that such legal incapacity, if it existed, should not affect its obligations to plaintiff.
The judgment of the trial court in sustaining the demurrer of the board of county commissioners is affirmed; and its judgment in sustaining the demurrer of the insurance company is reversed, with directions to proceed in accordance with this opinion. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action is one brought by the Bremen Mutual Insurance Company against C. B. Ingman for money alleged to have been wrongfully paid to C. B. Ingman on property that be longed to A. T. Ingman, when the policy had never been transferred to C. B. Ingman although he was in possession of the land and property at the time of the loss for which this money was paid.
Plaintiff is a corporation organized and operating under the.laws of Kansas as a mutual company for the purpose of mutual insurance of its members against loss or damage by fire, lightning or tornado, and authorized to insure dwelling houses, barns, outbuildings, and personal property, being upon farms as farm property, and belonging to the member of the company, every person taking insurance with the company becoming a member thereof.
On May 24, 1919, A. T. Ingman made an application in writing for insurance in said company upon certain property therein mentioned, to the amount of $5,665, $350 on barn No. 2 including foundation, and $300 on hay in barn or barnyard, and the plaintiff issued and delivered to A. T. Ingman its policy of insurance No. 5906, wherein in consideration of the agreements and warranties contained thereon, and the receipt of a note for $113.30, insured the said A. T. Ingman against any immediate loss or damage by fire and lightning, not exceeding in aggregate the sum of $5,665, for the term of five years, from May 24, 1919, to May 24, 1924, subject, however, to the conditions and limitations in the by-laws of said company included in the policy.
One by-law is that when property is sold or conveyed, the policy must be transferred within ten days of the time of such sale or transfer, and if not done the secretary shall cancel the same, the secretary to receive 50 cents for each policy transferred.
By the record it appears that C. B. Ingram desired to enlist in the world war, and conveyed the farm by deed to his brother, who took possession while, his brother was absent, with an understanding that if he did not survive the war the property should be devoted to the benefit of his children. No consideration was paid for the transfer. When executed it was placed in a tin box in his home, to which both brothers had access, and defendant testified that while a deed had been executed he regarded the land to be his own'. While he was away the property was insured in the name of his brother and no retransfer of it had been made after his return until after the fire loss had occurred. When he returned to his home he took possession of the farm and his brother instead of formally transferring it back to him, indorsed on the deed the words “I hereby surrender all claim to above place.” Signed “A. T. Ingman.” There is no question of the destruction of the property by fire on September 8, 1922, nor as to the fact that notice of the loss was brought to the attention of the defendants.
The president, Frohberg, and the secretary, Herman Thiele, lived in the neighborhood and upon receiving verbal notice of the loss Frohberg went to defendant’s premises the next day to adjust it. He prepared a formal notice of loss and then observing that the property had been insured in the name of A. T. Ingman, he called attention to the ownership, and when defendant came to the matter of signing the notice, he asked Frohberg if it would be all right for him to attend to it and Frohberg said it would, and then defendant-signed the name of A. T. Ingman as well as his own to the notice. Frohberg said he thought it was an honest loss and that no further proof was necessary. There was testimony to the effect that the matter of title to the property was discussed and Frohberg said that in order to make the record straight defendant should have the policy transferred, and later said “I will see to it.”
The claim was presented to the board of directors by the president, on October 3, 1922, and the claim was allowed, a check was made to A. T. Ingman for $650, and delivered to the defendant, who soon afterwards cashed it. Within a few days Frohberg called and solicited an application for insurance on a barn built to replace the one which had been burned. A policy was issued to defendant as owner, and at that time Frohberg told the defendant to have the former policy which covered property other than that which had been destroyed transferred, but it was not done. It appears that in September, 1923, there was a second loss under policy 5609, and when notice thereof was given Thiele, the secretary inspected the loss and called attention to the fact that there had been no transfer of the policy and insisted that there was no liability. He demanded a return of the money which had been paid upon the first loss, and that being refused this action was brought.
. The contention of plaintiff is that as the insurance was taken out in the name of A. T. Ingman, as owner of the property, when he was not in fact the owner, the policy was void from its inception, and if he is to be regarded as an owner, there had been no transfer of the policy as the by-laws require, and no payment of the transfer fee, and hence no liability of the company.
It is contended by defendant that there was a waiver of irregularities in that there was testimony to the effect that the president, who was general agent of the insurance company, had knowledge of the condition of the title, had advised defendant to sign his brother’s name to the notice, calling attention to the lack of transfer of the policy and said that he would see that it was done. There was also testimony that the president presided at the meeting of the board where the loss was considered and ordered paid, and testimony, too, that the plaintiff did insure other property on the farm with full knowledge of the facts before the check was cashed, and that payment of loss with knowledge of the essential facts constitutes a waiver of the grounds of forfeiture. After the overruling of the demurrer to plaintiff’s evidence the defendant offered testimony in support of the waiver, and the court then instructed the jury to return a verdict in favor of the plaintiff.
The insurance taken out by A. T. Ingman while holding the legal title to the farm cannot be regarded as void. There was no fraud in the transaction nor anything which added to the hazard o.f the company. When plaintiff learned the facts as to ownership there was no return of the premium nor any steps taken towards the cancellation of the policy. After the insurance company was informed as to the state of the title, they insured the defendant as owner of other property. Under the testimony the court was not warranted in instructing a verdict in favor of plaintiff, as the testimony tended to show that the company had waived the grounds upon which a forfeiture might have been declared. A noncompliance with the conditions in the policy may be waived where, the insurer has knowledge of the essential facts, or rather it may be estopped to deny liability. (Wildey v. Sheppard, 61 Kan. 351, 59 Pac. 651; Insurance Co. v. Allen, 69 Kan. 729, 77 Pac. 529; Green v. Annuity Association, 90 Kan. 523, 135 Pac. 586; Graff v. Insurance Co., 107 Kan. 648, 193 Pac. 356; Stanley v. Indemnity Association, 112 Kan. 412, 210 Pac. 1096; Plotner v. National Fire Ins. Co., 118 Kan. 234, 234 Pac. 959.) In the Stanley case it was held:
“In construing policies of insurance the rule is that notwithstanding the agreement of parties a warranty may, by reason of facts and circumstances, be regarded as waived by the company, or, which amounts to the same thing, the company may be estopped to rely upon the warranty.” (Syl. fl 1)
In the course of the opinion it was said:
“And where the agent had knowledge of the existence of the facts which would render the contract void in its inception, if its provisions were insisted upon, it would be presumed that such provisions were waived, because the courts will not impute to the company the fraudulent intent to deliver and receive pay for an invalid policy. Upon this ground the agent’s knowledge of the fact that the property is vacant, or that there is concurrent insurance, or encumbrances, or his knowledge of facts relating to the ownership of the property, are regarded as knowledge of the company.” (p. 416.)
In the Plotner case the insured represented that he was the sole owner of real property upon which were the insured buildings, but it was found that he was only the owner of an undivided three-fourths of the property. Afterwards he acquired the other one-fourth and there being no indication that the insured was endeavoring to take unfair advantage by reason of the mistake in the application and first proof of loss, it was held that recovery might be had upon the policy. It was said that inasmuch as the agent who solicited the insurance had been told that he would have to settle as to a child’s rights in the property there was no deception and the policy was held to be valid. Here the plaintiff paid the insurance knowing the facts as to ownership and paid it upon the theory that it was an honest loss. There was no cancellation of the policy nor return of the premium it had received. There was nothing approaching fraud on the part of the insured and the hazard of the risk was not increased by the failure of the insured to obtain a transfer of the policy. Upon the testimony in the case the court was not justified in directing a verdict in favor of the plaintiff and hence the judgment must be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by '
Harvey, J.:
This is an action to enjoin the defendant from carrying out his order directing plaintiff to remove certain instruments from its assets within thirty days, for the reason that they are not legal investments for state banks. The trial court sustained a demurrer to plaintiff’s petition on the ground that it did not state facts sufficient to constitute a cause of action. Plaintiff has appealed.
Plaintiff alleges, in substance, that it is a state bank, chartered November 10, 1890, for a term of fifty years, for the following purposes, as set forth in its charter:
“That the purposes for which this corporation is formed are to carry on the business of receiving money on deposit, and to allow interest thereon, and of buying and selling exchange, gold, silver, coin, bullion, uncurrent money, bonds of the United States and of any state, county, township, school district, city or any other bonds and warrants; of loaning money on real estate, personal and collateral security, and of discounting negotiable notes and notes not negotiable; and on all loans made may keep and receive the interest in advance, and may do a general banking business.”
That on January 2, 1926, in the ordinary conduct of its business it did, from its assets, buy a first mortgage, collaterally secured, serial six per cent gold note of one John H. Kirby in the principal sum of $1,00(>, dated April 1, 1925, due February 1, 1927, and numbered 506 of the series.
This instrument is in the following form:
“Number 506 Unite® States op America Dollars
State op Louisiana 1000
FIRST MORTGAGE COLLATERALLY SECURED
Six Per Cent (6%) Serial Gold Note of
John H. Kirby
OP HOUSTON, TEXAS.
“For value received, John H. Kirby, a resident of the city of Houston, state of Texas, hereinafter referred to as the ‘maker,’ promises to pay to bearer, or, if registered, to the registered holder hereof, at the office of Whitney-Central Trust and Savings Bank, in the city of New Orleans, state of Louisiana, or, at the option of the holder, at the office of Illinois Merchants Trust Company, in the city of Chicago, state of Illinois, on the first day of February, 1927,
“One Thousand Dollars ($1,000)
in the United States gold coin of or equal to the present standard of weight and fineness, and to pay in like gold coin, interest at the rate of six per cent (6%) per annum thereon until paid, payable semiannually on the first day of August, 1925, and upon the first day of February and of August in each year thereafter until the maturity hereof, said interest being payable only upon presentation and surrender, as they severally mature, of the respective coupons for such interest hereto attached, at the office of the Whitney-Central Trust and Savings Bank in the city of New Orleans, state of Louisiana, or, at the option of the holder, at the office of Illinois Merchants Trust Company, in the city of Chicago, state of Illinois.
“This note is one of an issue of notes aggregating four million dollars ($4,000,000) face value of principal, all issued under and in accordance with, and all equally secured by a mortgage and collateral trust agreement with which this note is paragraphed for identification, executed by the maker to the Whitney-Central Trust and Savings Bank of New Orleans, Louisiana, as trustee, to which said mortgage and collateral trust agreement reference is hereby made for a description of the securities pledged and hypothecated, the nature and extent of the security, the rights of the holders of said notes thereunder, the terms and conditions upon which said notes are issued and secured, and the numbers, denominations and maturities thereof.
“This note is transferable by delivery unless registered upon the books kept for that purpose by the Whitney-Central Trust and Savings Bank, trustee, in the city of New Orleans, state of Louisiana, and registration noted hereon, after which no valid transfer can be made except on said books, until after it is discharged from registry upon the books of the trustee and made payable to bearer. After such discharge from registry this note shall again be transferable by delivery, and thereafter it shall continue subject to successive registrations and transfers to bearer as before. The attached coupons shall always be transferable by delivery, whether this note be registered or not.
“If default be made in the payment of the' principal hereof, or any installment of interest hereon, or any part thereof, or in the performance or observance of any of the covenants and agreements in said mortgage and collateral trust agreement, then the principal of this note may, prior to the expressed maturity hereof, be declared and caused to become due and payable in the manner and at the time or tim'es, and with the effect as provided in said mortgage and collateral trust agreement.
“Payment of any one or more or all of the notes of this issue may be anticipated by the maker on any semiannual interest payment date upon payment of the principal together with interest to date of payment and on complying with the provisions of said mortgage and collateral trust agreement with reference thereto, including the paym'ent of a premium of-% of the principal if the anticipated payment is made on or prior to February 1, 19 — , a premium of-% of the principal if the anticipated payment is made between August 1, 19 — , and August 1, 19 — , both inclusive, and a premium of -% of the principal if the anticipated payment is made between February 1, 19 — , and August 1, 19 — , both inclusive. These premiums are not cumulative but are exclusive one of the other.
“This note shall not become valid and binding upon said maker until the Whitney-Central Trust and Savings Bank, trustee, under said mortgage and collateral trust agreement, shall have signed the certificate indorsed hereon.
“In witness whereof, the said John H. Kirby has signed this note and caused the attached interest coupons to be executed with his printed or engraved facsimile signature, in the city of New Orleans, Louisiana, as of the first day of April, 1925.
(Signed) John H. Kirby.”
Interest coupons for each six months’ interest were attached.
The above instrument and other like instruments of the series were issued in accordance with and equally secured by a mortgage and collateral trust agreement executed by the maker to the Whitney-Central Trust and Savings Bank of New Orleans, Louisiana, as trustee. It is collaterally secured by certain Kirby Lumber Company first-mortgage six per cent sinking-fund gold bonds, executed by the Kirby Lumber Company, a corporation, created under the laws of Texas, in the total sum of $5,000,000, dated July 16, 1923, payable July 16, 1938, bearing six per cent interest, which bonds are secured by a deed of trust executed by the Kirby Lumber Company to the Millers Bank of Wilkes-Barre, Pa., as trustee, and under which the Whitney-Central Trust and Savings Bank of New Orleans has been substituted as trustee. The mortgage and collateral trust agreement contains articles, with appropriate sections and subdi visions thereof, pertaining to the notes, their issue and their authentication; the specific covenants of John H. Kirby; payment and cancellation prior to default; the redemption of notes prior to their due date; the securities pledged and mortgaged; the release of securities pledged and mortgaged; the enumeration of events constituting default; provisions in case of default; the compensation and duties of the trustee; the noteholder’s rights to sue; construction under the laws of Louisiana, and the acceptance by the trustee, all treated at length and with such particularity that they cannot be set out in full.
Plaintiff further alleged that on January 2, 1926, in the ordinary conduct of its banking business, it did, from its assets, buy a serial 5% per cent gold note of the Dierks Lumber and Coal Company, a corporation organized under the laws of Nebraska, in the principal sum of $1,000, dated February 1, 1925, due February 1, 1927, being number 234 of the series, a copy of which instrument is as follows:
“No. 234 United States op America $1,000
State op Nebraska
DIERKS LUMBER AND' COAL COMPANY
Serial 514% Gold Note
Due February 1, 1927.
“Dierks Lumber and Coal Company (hereinafter called the ‘company’), a corporation of. the state of Nebraska, for value received, promises to pay to the bearer, or if registered, to the registered owner hereof, on the first day of February, 1927, the principal sum of
“One Thousand Dollars ($1,000)
and to pay interest thereon from the first day of February, 1925, at the rate of five and one-half per cent less (5%%) per annum semiannually on the first days of February and August in each year until this note shall have been paid in full, but only upon presentation and surrender of the coupons hereto annexed as they severally mature. Both the principal of and interest on this note are payable at the principal office of The Coal and Iron National Bank of the city of New York, in the borough of Manhattan, city and state of New York, in gold coin of the United States of America of or equal to the standard of weight and fineness in effect on the first day of February, 1925, without deduction from principal or interest for any federal normal income tax not exceeding 2% in any year which the company or the trustees herein mentioned may be required or permitted to pay thereon or retain or deduct therefrom under any present or future law of the United States of America.
“As provided in the indenture hereinafter mentioned, the company will reimburse to the holder, or if registered, to the registered owner hereof, the Maryland securities tax not exceeding 4% mills per annum on each dollar of assessed value hereof, or the Pennsylania personal property tax not exceeding 4 mills per annum on each dollar of nominal value hereof, or the Connecticut personal property tax or exemption tax not exceeding in any one year 4 mills on each dollar of the principal amount hereof, or the Massachusetts income tax not exceeding 6% per annum on the income received from or on this note, which may be legally assessed upon such holder or registered owner by reason of his ownership hereof and paid by him, but in any case only upon delivery to the company of written application for reimbursement within sixty days after the payment of said tax (or in case of prepayment of said Connecticut tax, within 60 days after the original and each anniversary date of such prepayment) as provided in said indenture.
“This note is one of an authorized issue of notes of the company known generally as its serial gold notes issued and to be issued in one or more issues to an amount not exceeding in the aggregate the principal sum of five million dollars ($5,000,000) at any one time outstanding, all under and equally entitled to the benefits and subject to the provisions of an indenture dated the first dajr of February, 1925, executed by the company to The Coal and Iron National Bank of the city of New York, as trustee, to which indenture reference is hereby made for a statement of the terms and conditions upon which the notes are issued and the rights and obligations of the company, the trustee and the respective holders of the notes. As provided in said indenture, said notes are issuable in one or more issues, which may vary as to date, dates of maturity and rate of interest. This note is one of an issue for the aggregate principal amount of three million dollars ($3,000,000), dated the first day of February, 1925, and entitled ‘serial 5%% gold notes.’ The notes of said issue mature serially as follows: $650,000 principal amount on February 1, 1927, $650,000 principal amount on February 1, 1928, and $850,000 principal amount on February 1, 1929, and $850,000 principal amount on February 1, 1930.
“This note is redeemable at the option of the company on any interest-payment date upon notice as provided in said indenture at 100%% of the principal amount thereof, plus accrued interest thereon to the date set for redemption.
“This note shall pass by delivery unless registered as to principal in the name of the owner on the books of the company at the principal office of the trustee in the borough of Manhattan, city and state of New York, such registration being noted hereon. After such registration no transfer hereof shall be valid unless made on said books by the registered owner in person or by duly authorized attorney, and similarly noted hereon; but this note may be discharged from registry by being in like manner transferred on said books to bearer and thereupon transferability by delivery shall be restored; and this note may again from time to time be registered or transferred to bearer as before. Such registration shall not affect the negotiability of the coupons attached hereto, which shall continue to be payable to bearer and transferable by deliveiy.
“As- provided in said indenture, notes of the denominations of $1,000 and $500 at any time outstanding, when surrendered with all unmatured coupons attached and upon payment of charges, if required, may be exchanged for an equal aggregate principal amount of notes of the same tenor and maturity of the other denomination of numbers not contemporaneously outstanding, with all unmatured coupons attached.
“In case an event of default as defined in said indenture shall happen, the principal of all the notes of all issues may be declared, or may become, due and payable before maturity in the manner and with the effect provided in said indenture.
“No recourse shall be had for the payment of the principal or interest on this note or of any part hereof, or for any claim based hereon or-thereon or otherwise in any manner in respect hereof or in respect of said indenture, to or against any incorporator, stockholder, officer or director, past, present or future of the company, or of any predecessor or successor corporation, either directly or through the company or such predecessor or successor corporation, whether by virtue of any constitution or statute or rule of law, or -by the •enforcement of any assessment or penalty, or in any manner, all such liability being expressly waived and released by the acceptance hereof and as part of the consideration for the issue hereof.
“This note shall not be valid or become obligatory for any purpose until authenticated by the execution by the trustee of the certificate indorsed hereon.
“In Witness Whereof, the company has caused this note to be executed in its corporate name, by its president or a vice president and its corporate seal to be hereto affixed, duly attested by its secretary or an assistant secretary, and coupons for interest to be attached hereto bearing the facsimile signature of its treasurer, all in the city and state of New York, as of the first day of February, 1925. Dierks Lumber & Coal Company,
By II. L. Dierks, Vice Presiden^.”
Attest: De Verb Dierks, Secretary.
Interest coupons for each six months’ interest were attached.
As security for the payment of this instrument and others of the series the Dierks Lumber and Coal Company issued an indenture February 1, 1925, with Coal and Iron National Bank of the city of New York as trustee, whereby it obligated itself not to encumber further the assets of the Dierks Lumber and Coal Company, which are shown by the indenture to be far in excess of the amount of the notes issued.
The indenture contains appropriate articles, with sections and subdivisions thereof, pertaining to the notes, their issue, the security, the payment or redemption of the notes, the release of the security, the duties and compensation of the trustee, the formation and consolidation of subsidiary companies, events of default and proceedings thereafter, construction under the laws of New York, and the acceptance of the trustee at length and with such particularity that we cannot set them out in full.
It was further alleged that on January 6, 1926, defendant, being advised plaintiff had purchased these instruments, wrote plaintiff as follows:
“The attorney-general has held that these are not legal investments for state banks and you are hereby directed to remove same from the assets of your bank within thirty days.”
Plaintiff alleged that it is advised and believes that the instruments above mentioned are legal investments for state banks in this state, and that the investments were made as a part of its ordinary banking business and under the powers granted to it by its charter and the statutes of the state; that plaintiff must invest in such notes in order to make earnings on its investments, capital, surplus and deposits, and that if it is required to dispose of the notes herein set out and to refrain from investing in such notes hereafter, irreparable injury will be caused to its business which it is permitted to do under its charter and under the statute, for which it has no adequate remedy at law, etc.
Defendant’s demurrer to plaintiff’s petition raised the question whether it is legal for state banks to invest in the instruments above mentioned. The prudence of the investment, or the soundness of it from a financial viewpoint, are not in controversy here. The sole question before us is whether the law permits state banks to invest in instruments of this character. Our statute (R. S. 9-101, as amended by Laws of 1925, ch. 85), necessary to be considered in determining the question, reads as follows:
“Any five or more persons may organize themselves into a banking corporation, and shall be permitted to jcarry on the business of receiving money on deposit and to allow interest thereon, giving to the person depositing credit therefor; and of buying and selling exchange, gold, silver, foreign coin, bullion, uncurrent money, bonds of the United States, bonds of the state of Kansas, bonds of land banks organized under the federal farm-loan act and authorized to make loans secured by first mortgages on Kansas farm lands, bonds and warrants of cities, counties and school districts in- the state of Kansas, and state, county, city, township and school bonds issued in other states of the United States than Kansas, of loaning money on real estate, chattel and personal security at a rate of interest not to exceed the legal rate allowed by law; of discounting negotiable notes and of notes not negotiable, and to own a suitable building, furniture and fixtures for the transaction of its business, of the value not to exceed one-half of the capital and surplus of such banks: Provided, That nothing in this section shall prohibit such bank from holding and disposing such real estate as it may acquire through the collection of debts due it.”
Our statute has not always been as above quoted, but is the result of several amendments of our general banking act of 1891 (Laws of 1891, ch. 43). This authorized banking associations to buy and sell “bonds of the United States, of the state of Kansas, and of the city, county and school district in which any association shall be organized.” This was repealed and a new banking statute enacted by chapter 47, Laws 1897, which authorized banks to buy and sell “bonds of the United States and of the state of Kansas, and bonds and warrants of cities, counties, and school districts in the state of Kansas.” That was amended by chapter 79, Laws 1917, so that banks were authorized to buy and sell “bonds of the United States and of the state of Kansas, and bonds and warrants of cities, counties, and school districts in the state of Kansas, and state, county, city, township and school bonds issued in other states of the United States than Kansas.” The legislative history of this change should be noted. In the bill which created it (senate bill No. 123), these words were added: “together with such corporate bonds as shall be approved for that purpose by the bank commissioner of the state of Kansas,” and as so worded it passed the senate. The house amended the bill by striking out the words last quoted, and the senate concurred in the amendment. The statute as enacted in 1917 became R. S. 9-101. This was amended by chapter 85, Laws 1925, so as to include “bonds of land banks organized under the federal farm loan act and authorized to make loans secured by first mortgages on Kansas farm lands.” So the entire history of our legislation upon this question shows a constant enlargement of authority as to the kinds of bonds banks might buy and sell.
The argument of appellant is grouped about two questions: First, are the instruments above set out bonds or notes within the meaning of our statute (Laws 1925, ch. 85) ? Second, if they are bonds, then are Kansas state banks, under our statute (Laws 1925, ch. 85) prohibited from investing their assets therein?
A bond, as the term is here used, whether issued by the United States government, the state, or some governmental subdivision thereof, or by a private corporation, a partnership or an individual, is a written instrument which includes within its terms the promise by the maker to pay to bearer, or to a person named, or designated therein, or his order, a named sum of money, usually with interest at a named rate, at a fixed, or determinable future time. It may, or may not be secured by a lien upon specific real or personal property. It therefore contains the elements of an ordinary promissory note. Yet our statute, defining the business in which a banking corporation may engage (Laws 1925, ch. 85, supra), clearly distinguishes bonds —at least those issued by the United States, or by the states and governmental subdivisions thereof — from notes; for, had the legislature intended to authorize state banks to buy and sell, or to invest their assets in, bonds as freely as they eould buy and sell or invest in notes, there would have been no purpose in mentioning’ bonds, or any particular kind or kinds of bonds, in the statute. Yet the distinction between bonds and notes, as those terms are used in financial business, is not always easy to draw. Generally speaking, the term “bond” is given to those evidences of indebtedness issued by the United States, the state, or any governmental subdivision thereof. These, in addition to containing a promise to pay money, usually recite the purpose of the issue and refer to the statute under which they are authorized, and contain recitals as to the authority of the officials who executed them and the regularity of the proceedings. Their security is in the governmental body issuing them and in the statute authorizing their issue and providing for their payment. Ordinarily they are issued to obtain funds to make improvements of a permanent nature, but may be authorized to fund a current indebtedness. They are issued for such terms as the statutes provide, usually 10, 20, 30, or 50 years, and are generally regarded as long-term obligations, but may be issued for shorter terms, or to mature in series from one year to ten, or twenty-five, or any other number. But “notes,” maturing not later than two years, are authorized by our statute (R. S. 10-123) to be issued for certain purposes. These necessarily have the characteristics of municipal bonds, and are designated “notes” only because of their short maximum term.
The term “bond” is also applied to certain evidence of indebtedness issued by corporations. (See R. S. 17-610, 17-619, 17-1201, 52-606, 66-505, and other sections.) “Bonds” may be issued by partnerships, or by individuals. (See hi re Leland, Fed. Cas. No. 8229 ; Daniel on Negotiable Instruments, 2d ed., §§1487, 1495; Jones on Corporate Bonds and Mortgages, 3d eel, §230; 4 Elliott on Contracts, § 3580; Heft on Holders of Railroad Bonds and Notes; Dewing on The Financial Policy of Corporations; Chamberlain on Principles of Bond Investment; Osborne v. Missouri, K. & T. Ry. Co., 155 N. Y. S. 236; Brown v. Farm Mortgage Co., 112 Kan. 192, 210 Pac. 658.) The instruments issued may be called debentures, or debenture bonds (17 C. J. 1368), or by some other name (Bouvier’s Law Diet. p. 376). But corporations, partnerships and individuals may also issue notes as evidence of indebtedness. At times the words “bonds” and “notes” are used without much discrimination; that is, one issue may by the maker be called bonds, another similar issue, by another, or even the same maker, may be called notes. Sometimes the term for which the instruments are issued has a bearing upon the name given to them. If they are issued for a short term they are more likely to be called notes; if issued for a long term they are more likely to be called bonds. But there is no definite rule about it; bonds may be issued for as short a time as one year, and instruments called notes may be issued for as long a term as ten or fifteen years or more. Yet we must determine whether the instruments in question are notes, as they are called, or whether they are bonds. More accurately, we must interpret our statute (Laws 1925, ch. 85), as applied to the instruments in question and determine whether they should be classified, under our statute, as notes or as bonds. The name given the instruments by the makers is not controlling. (In re Fechheimer Fishel Co., 212 Fed. 357.) Which they are must be determined from the provisions of the instruments. It seems clear, by considering the several provisions of the statute, in conferring on banking corporations authority “to carry on the business ... of discounting negotiable notes and of notes not negotiable,” the legislature used the word “notes” as applying to the ordinary promissory notes used in the business affairs of our people. Such a note is an unconditional written promise signed by the maker to pay on demand, or at some future fixed or determinable date, a certain sum in money to the bearer, or to a person named therein, .or to such person or order. It may contain provisions respecting interest, place of payment, etc. Default consists in nonpayment, and the holder may then sue. The authority of the bank to discount it does not depend upon whether it is negotiable or nonnegotiable— hence, the definition of negotiable instruments in our negotiable-instrument law is not controlling. The instruments before us contain .much more than is necessary in notes. They recite the authority of the maker, the terms under which they are issued, refer to other instruments by which they are limited and must be interpreted, specific events of default are enumerated, and the rights of the holder in the event of default depend in part upon whether there is default, and to what extent, to holders of other instruments of the series, and the right of a holder to sue in case of default is limited by the rights or duties of the trustee, and whether or not the trustee performs his duties, provisions for redemption before maturity, and many other provisions not common in instruments we know in the business world as notes. These provisions are common to bonds issued by corporations, partnerships or individuals engaged in business. (See general authorities above cited, also Fletcher’s Corporation Forms, pp. 1277, 1358, 1382 et seq.) We have no hesitancy in classifying the instruments here in question as bonds. They are not notes within the meaning of our statute.
Passing to the next question: If the instruments in question are bonds, are Kansas state banks, under our statute (Laws 1925, ch. 85), prohibited from investing their assets therein? This question must be answered in the affirmative. Plaintiff is a banking corporation, organized, existing and doing business under and by virtue of our statutes. The statutory designations of the kinds of business it can do are grants of authority, and constitute its express powers. It has implied authority to do all things necessary or proper, incidental to these statutory grants of authority; these constitute its implied powers. But it has no authority to transact business not expressly granted by statute, or implied therefrom. (Magee on Banks and Banking, 3d ed., p. 231; Michie on Banks and Banking, p. 648; 3 R. C. L. 419.) Plaintiff calls attention to the wording of its charter, which includes “and may do a general banking business.” We need not stop to inquire whether that is a broader term than “banking corporation” as used in the statute, for a bank organized under and existing under a general banking law finds its powers in the statute rather than in the wording of its charter. (7 C. J. 586.) Our statute outlines the nature of business permitted by a banking corporation, and thereby defines the general banking business of state banks in this state. The wording of plaintiff’s charter, in other respects, does not enlarge its authority under the statute. .
Plaintiff has no authority to do business of a kind or character not authorized, either expressly or by implication, by statute. The legislature dealt with the subject of the kinds of bonds a state bank is permitted to buy and sell, and omitted to authorize the buying and selling of the bonds of corporations-, partnerships and individuals engaged in the industries. Hence, this power is necessarily excluded. In Talmage v. Pell, 7. N. Y. 328, under a statute expressly empowering banks to deal in certain property, among which state bonds are not mentioned, it was held the bank had no power to buy state bonds. (See, also, The Mount Vernon Bank v. Porter, 52 Mo. App. 244.)
Appellant calls our attention to the fact that many real-estate loans are evidenced by instruments called bonds, with interest coupons attached, and suggests that the conclusion here reached would make it illegal for state banks to buy or sell, or invest their assets in real-estate bonds. This suggestion is erroneous, for, under the statute (Laws 1925, ch. 85), banking corporations are permitted to carry on the business “of loaning money on real estate.” It is, therefore, not material whether the instrument which evidences such a loan is a note or a bond.
Some minor questions are argued, but we do not deem it necessary to discuss them. The judgment of the court below is affirmed. | [
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|
The opinion of the court was delivered by
Johnston, C. J.:
Sophia Ogg brought this action against Mary D. Ogg and William F. Ogg, to set aside a conveyance of a tract of land upon the ground that it had been made fraudulently; that is, to defraud plaintiff of her marital rights, she being the wife of William F. Ogg. The final decree of the court was unsatisfactory to both parties, and both have appealed.
Plaintiff alleged that she entered into a marriage contract with William F. Ogg in April, 1923; that on July 31, 1923, they were legally married; that prior to the marriage contract William F. Ogg represented to her that he owned a farm of 160 acres and some other property; that he was working for his father, Frank R. Ogg, at a salary of $100 per month; that she believed the representations so made and that William F. Ogg was in fact the owner of the land, ‘ and relying on his representations as to his property, she was induced to and did marry him. She further alleged that on June 25, 1923, after the marriage contract was made and before it was consummated, William F. Ogg conveyed the land to his mother, Mary D. Ogg, and that it was conveyed without consideration and for the purpose of defrauding the plaintiff and cheating her out of her marital rights, both the grantor and grantee knowing of the marriage contract, and of the approaching marriage between plaintiff and William F. Ogg. She also averred that the transfer was made without her consent or knowledge, and that had she known of the transfer she would not have entered into the marriage state: She asked for judgment setting aside the conveyance.
In their answer, defendants admitted the marriage of William F. Ogg to plaintiff, the making of the conveyance, but alleged that it was made before the contract of marriage was entered into and for a valuable consideration. There was a further averment that at the time of the marriage contract William F. Ogg was the owner of and possessed of sufficient property and income to support a wife and family, that Mary D. Ogg had no knowledge whatever of any marriage contract between the plaintiff and William F. Ogg at the time of the conveyance, and that the contract of sale was made and the money paid long before any such marriage contract was contemplated.
Testimony was introduced by plaintiff tending to show that William F. Ogg began calling on her in January, 1923, while she was engaged in teaching school; that prior to their engagement for marriage he told her that he owned the land in question; that on a visit to his parents after the engagement Frank R. Ogg, in the presence of his wife, asked her if William had shown her his farm, and she replied that he had. That prior to the marriage her husband represented himself to be the owner of the land, and she contracted marriage in reliance on his representations and of that of his parents that he was the owner of the land.
On the part of the defendants there was evidence tending to show that William F. Ogg told her before the marriage that he had sold the farm to his mother and was getting $50 per month from that source and $50 per month from the rent of a building. He denied that he made the representations to which his wife testified; and his mother testified that the contract for the purchase of the land from William was made on the last of February or first of March; that she arranged to buy the farm and to pay him $50 per month, he having said that the returns from the farm were not satisfactory, and he preferred to have a regular income of $50 per month. That while the contract was made about the first of March, the deed was not executed until in June, as she had intrusted the execution of the deed to' her husband and he had put it off from time to time. William said that the day he sold his farm to his mother, he told his father about it, and had said to his mother that he hadn’t received a dollar return from the farm since he owned it, and that the taxes were about $200 per year. In the course of the trial the court found that a legal contract had been entered into between the defendants, William F. Ogg and his mother, by which he agreed to convey the land to his mother; that the contract was entered into and money paid thereon before there was any engagement of marriage between the plaintiff and the defendant, William. It was further held that the deed executed by the defendant after the engagement to marry was made, was a good and valid instrument and conveyed the title in the land to Mary D. Ogg. There was a specific finding that there was no fraud practiced on the plaintiff by William F. Ogg and Mary D. Ogg in the contract to sell and convey the land. Judgment for defendants was given.
On a motion for a new trial the court modified that decree in the following particulars:
“The court finds that at the time of the oral contract between Mary D. Ogg and William F. Ogg, about March 1, 1923, there was a mutual understanding that at the death of Mary D. Ogg, the land in question would become the property of said William F. Ogg, and that he therefore has an equitable interest in said land. That Sophia Ogg has an inchoate statutory right of inheritance in William F. Ogg’s equitable interest in said land as the wife of William F. Ogg. It is therefore considered and adjudged that the plaintiff Sophia Ogg has an inchoate statutory right of inheritance in said land as the wife of William F. Ogg.”
The defendants complain that the modification made was not justified either by the pleadings or the findings of the court, while the plaintiff contends that the evidence does not justify the findings of the court with respect to fraud, and she urges that concealment and fraud were established. The action was in express terms one brought to set aside a conveyance because it was fraudulent and void. The petition was framed upon that theory and the prayer was that the conveyance be set aside as fraudulent and void. Considerable testimony was given for and against the proposition that there were false representations made by William F. Ogg, and fraud in the transaction mentioned, especially as to the coneyance of the farm to his mother, Mary D. Ogg. As already stated the court expressly found that the contract to sell the land was made before the marriage contract was entered into and that there was no fraud in the transaction, and further that the contract of sale and the conveyance were valid. In a written opinion stating the grounds of its judgment which is included in the record, the court said:
“The turning point in this case, as I see it, is the evidence of the contract of sale made on March 1, 1923, and counsel for the plaintiff, in the oral argument, conceded that there was substantial evidence to support the contract and the payment of part consideration. The date, March 1, was long before there was any engagement to marry, according to the evidence, and as I see it the adequacy or inadequacy of the consideration has very little to do with the matter to be determined here. . . . The consideration, of course, would be inadequate, yet here was W. F. Ogg wanted probably ready money. I can conceive how he believed that the regular amount of money received during the lifetime of his mother would be somewhat to his liking, and relieved him of responsibility. Then there was the further thing that undoubtedly was in the minds of both these parties, and that is that in a very few years probably he would inherit not only this property, but undoubtedly a much larger amount of property from his mother. The deed, of course, appears from this evidence to have not been executed until after there was an engagement to marry, but that under all the decisions that I have examined that seems to make no difference, if the contract to convey was made before there was any engagement to marry.
“There is the further proposition in this evidence, and that is the withholding of the deed from the record, which was explained by Mary D. Ogg, but even if it was intentionally withheld from the record it is not a fraud upon any legal rights of the plaintiff. It appears that Mary D. Ogg had possession of this property and was making improvements on it, and the installments made [paid] I am satisfied were more than the net income from the property except, perhaps, in a few exceptional cases. . . .
“There is one further observation. It appears to me from all this evidence that this evidence shows that instead of trying to defraud the plaintiff, that Mary D. Ogg and F. R. Ogg showed a willingness to be generous to the plaintiff, and a disposition to provide what appears to me to be adequate support for the plaintiff; to provide adequately for her present and future.
“Without going into matters any further or attempting to cover the entire matter I think this contract was made before there was any engagement to marry; that there was no fraud practiced on the plaintiff, and the judgment shall be for the defendants in the action.”
' In the modification of the judgment made on the motion for a new trial it will be observed that the court does not modify its findings as to the absence of fraud in the sale and conveyance' of the land or of the other fact that the contract of sale was made before the contract of marriage, and it did not grant a new trial nor undertake to set aside the conveyance. If the conveyance is free from fraud and was contracted prior to the engagement of marriage, there would be no valid ground for setting it aside. Conveyances of land as treated by the court cannot be lightly set aside nor overturned because of some indefinite understanding resting in parol. The extent to which the, court went on the motion for a new trial and in the modification was to find that there was an understanding that at the death of his mother the land would go back to her son. That understanding did not destroy the validity of the written instrument nor give rise to a trust affecting real estate. The mother did say in her testimony that she intended the farm should go back to William at her death. In explanation she said that it was their purpose to divide their property equally between William and Josephine at her death, and that the farm would go to William. It was a natural inference that the son would inherit the property, as it is stated that the mother and father are people of large means, and have but the two children, and it is not unreasonable that they intended the land should ultimately go back to William. In any event the understanding mentioned did not under the findings of the court operate to overthrow the deed which was in form an absolute and unconditional conveyance. It is conceded that an express trust cannot be engrafted on such a conveyance by an oral understanding. The implied or constructive trust spoken of by plaintiff is eliminated by the finding that there was no fraud in the transaction. To raise a trust ex maleficio■, the element of positive fraud in the transaction must exist. (Ryder v. Ryder, 244 Ill. 297.) Besides, as has been shown, the plaintiff did not ask to have a trust declared, and only asked to set aside the deed. The vague understanding resting in parol did not warrant the court in modifying the- findings and judgment previously rendered. It is argued by plaintiff that the findings of the court as to the absence of fraud were not sustained by the evidence, but a reading of the record satisfies us that the findings made are well supported by the testimony. Much is said as to the rights of a wife in her husband’s estate and as to the protection which the law affords where the husband is making a fraudulent disposition of property in which she has an interest. The plaintiff is still the wife of William and, of course, has an inchoate right in her husband’s real estate, which has the element of property to such a degree that an action can be maintained during the life of her husband for the protection of her inchoate interest in any property of his, and she may maintain an action to prevent a fraudulent disposition of the property. (Busenbark v. Busenbark, 33 Kan. 572, 7 Pac. 245.) One'of the findings, however, is that there was no fraud in the transaction, and the court, as we have seen, stated that “Mary D. Ogg and F. R. Ogg (William’s-father) showed a willingness to be generous to the plaintiff and a disposition to provide what appears to me to be adequate support for the plaintiff to provide for her present and future.”
It follows that the modification must be reversed and set- aside and the cause remanded with directions to enter judgment for the defendants. | [
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The opinion of the court was delivered by
Mason, J.:
Frank Falcone claimed to have been injured while in the employ of the Hamilton Coal and Mercantile Company under such circumstances as to entitle him to payment under the workmen’s compensation act. Arbitration being refused he brought action against the company on March 18, 1925, and obtained a judgment for $426 payable at once, and for periodical payments amounting to $12 a week until a total of $4,794 should have been received. On January 14, 1926, the defendant made application to the district court for a review of the judgment upon the grounds that it was obtained by fraud, undue influence and serious misconduct on the part of the plaintiff, and was grossly excessive, and that the plaintiff’s disability had ceased. Evidence was taken and the application was refused. The defendant appeals from that ruling.
The defendant produced three witnesses, the plaintiff none. The trial court made this statement in explanation of the decision:
“The court further finds that the evidence introduced on the hearing of defendant’s petition to review and modify shows that the plaintiff is not now suffering from any injury which arose out of and in the course of his employment in the defendant’s mine, but the court also finds that the witnesses base their testimony upon their opinion that the plaintiff never in fact did have any injury which arose out of and in the course of his said employment. The court is of the opinion that this question was settled by the findings of the jury; and there being no evidence upon which the court can base a finding that the plaintiff’s disability has ceased or diminished, the court is of the opinion that the petition to review and modify should be overruled.”
The case turns upon the interpretation of the statute relating to the review of a judgment, which reads:
“. . . Such judgment [one ordering periodical payments] may be reviewed at any time after the expiration of six months upon application of either party and the amount allowed by the court reduced or raised in accordance with the evidence introduced at the time of such review.” (R. S. 44-534.)
We think it clear the intention of the statute is not to permit a general review of the judgment or a reexamination of the questions of present fact determined at the trial, but to provide for a change in the amount allowed. The plaintiff in the original proceeding pleaded permanent partial disability due to impaired vision. The defendant’s answer*, while denying the existence of such impairment and others, alleged that if they existed they were due to causes other than and independent of any injury sustained by the plaintiff while in its employ. This issue was tried out and cannot be reexamined by the method here invoked.
Awards by a committee or arbitrator and judgments of a court were both made subject to review by additions made in 1917 to the workmen’s compensation act (R. S. 44-528, 44-584), although before that time an award might be canceled on grounds similar to those on which a modification may be now made. (Laws of 1911, ch. 218, § 29.) The defendant’s application for review, by referring to fraud, undue influence and serious misconduct, seems to assume that the provisions of the amendment concerning the review of awards are to be read into that relating to the review of judgments. Whether such is the case need not now be determined. The two additions to the statute have this in common, that their purpose is the same so far as relates to changes in the amounts allowed — a purpose to conform the allowance to1 existing conditions, and not to relitigate the question of liability. Of the statute relating to the successive review of awards it has been said:
“Whether the award was procured by fraud or undue influence, and whether the arbitrator acted without authority or was guilty of serious misconduct, depends on past facts which the future may not change, and is determinable once for all. There is no element of prophecy in the determination, and in such cases successive reviews are not permitted. The principle was recognized in the case of Kinzer v. Gas Co., 110 Kan. 574, 204 Pac. 999, and 114 Kan. 440, 219 Pac. 278.” (Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 248, 237 Pac. 1056.)
The finding of the trial court in the present case, already quoted, clearly establishes that the evidence introduced by the defendant tended to show, not that the plaintiff’s injury had been overestimated at the time of the trial, or that his condition had improved, but that the injury was not received under such circumstances as to make the defendant liable. That issue could not be reopened by invoking the statute relating to the review of judgments.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
R. S. Randall sued W. R. Oliver upon a claim of $1,-129.85 for threshing wheat. The defendant answered alleging that the plaintiff had operated the machine in such an unskillful way that he wasted 2,000 bushels of wheat, of the value of $2,200, on which account a recovery of $1,070.15 was sought. Judgment was rendered as asked in the petition, and the defendant appeals.
Complaint is made of an instruction, a part of which read as fol lows: “It was admitted in evidence and not disputed that a threshing machine in proper working order and properly handled will ordinarily throw into the stack with the straw from two to five per cent of the grain; that it is customary to contract with reference to the usual and ordinary amount of waste that the machine will make if handled properly and in good condition.” The defendant urges that this was foreign to the issue; that evidence relating to the subject was erroneously admitted; and that the real issue was presented by testimony in his behalf that the threshing was done under an agreement that the plaintiff would pay for all the wheat wasted, and leave it to the defendant to say how much that was. We regard the instruction given and the evidence on the subject as pertinent under the pleadings.
The answer contained allegations to this effect: It was agreed the wheat should be threshed in a careful and workmanlike manner. The plaintiff represented that his machine was in good order and capable of threshing the grain in a good workmanlike manner, and that he was an experienced thresherman and would properly thresh the wheat. The defendant believed and relied on these representations and warranties. In fact the machine was not in good order and the plaintiff was not a competent thresherman, and by reason thereof large quantities of wheat were lost. On complaint of this being made by the defendant the plaintiff, to hold the job, agreed to pay for all the grain wasted by reason of the failure of his machine to properly thresh and clean the grain. The defendant, believing and relying on this promise, permitted the plaintiff to complete the job. The plaintiff operated the machine in such an unskillful and unworkmanlike, careless and negligent manner, in failing to propely thresh and clean the wheat, that he wasted and lost 2,000 bushels. The answer contained no averment of an agreement that the defendant should be the judge of how much wheat was wasted.
Taking the answer as a whole the agreement it sets out is not one to pay for wheat unavoidably lost, but for losses due to his fault or that of the machine. The amount of wheat ordinarily lost when the machine was in good condition and was carefully handled was therefore an element to be considered. The claim that the plaintiff agreed to leave it to the defendant to say how much wheat was wasted, not having been pleaded, was admissible in evidence only so far as it bore upon the issues made by the pleadings, and as no instruction on the subject was asked, the omission to refer to it in the charge did not constitute error. The point is made that there was no denial of the testimony to the effect that the plaintiff agreed to pay whatever loss the defendant “believed he would sustain by reason of a poor job of threshing.” The jurors, however, were not bound to give credence to it for want of an explicit contradiction. Moreover the counter-abstract alleges there was such a denial. The controversy was one of fact and the fiñding of the jury controls.
The court submitted to the jury the question how many bushels of wheat went into each stack and the answer was, twenty-six. The defendant contends that the question had no bearing on the case, on the ground already indicated. We regard it as pertinent and at all events not prejudicial. A witness for the defendant testified that by looking at a straw stack he could tell how much wheat he could thresh out of it, and that he looked at seven of these and could have threshed 100 bushels out of each.
The rejection of evidence is assigned as error, but no showing was made as to what the witnesses would have testified to.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.;
This is an appeal from an order setting aside a judicial sale in a foreclosure proceeding, also an appeal from a later order confirming a later judicial sale in the same case. .The facts giving rise to the controversy before us are substantially as follows:
C. G. Devore owned a farm of-400 acres in Marion county, described as follows: The west half of the northwest quarter, and the southwest quarter of section twenty-six, and the southeast quarter of section twenty-seven, all in township twenty, range four. The land lies together in one block and is used as one farm. He sold this farm to Harry M. Clark. Clark and wife executed a first mortgage upon the entire 400 acres to the Prudential Insurance Company. They also executed a second mortgage on the same land to W. J. Rumold. They also executed a third mortgage upon the same land to their vendor, C. G. Devore. Default having been made, the mortgages were foreclosed. The decree entered May 26, 1925, gave the insurance company a personal judgment against the mortgagors for $17,752 and decreed the same to be a first lien upon all the land; gave W. J. Rumold a similar judgment for $717.32, and decreed the same a second lien upon all the land; and gave C. G. Devore a similar judgment for $4,515.43, and decreed the same to be a third lien upon all the land. The decree further provided that in default of payment within ten days of the several judgments an order of sale should issue out of the court directed to the sheriff, commanding him to advertise and sell all the real property above described, and to apply the proceeds arising'from the sale, first, in the payment of costs and taxes; second, in the payment of the amount found due the insurance company, with interest; third, in payment of the amount found due W. J. Rumold, with interest; fourth, in payment of the amount found due C. G. Devore, with interest. An order of sale conforming to the judgment was issued and the property was advertised for sale. Neither the judgment, the order of sale, nor the advertisement, made any provision for the sale of the land in separate tracts. The sheriff, however, did offer the land for sale in separate tracts, as follows:
Tract No. 1. West half of northwest quarter section twenty-six, for which he received a bid of $2,000.
Tract No. 2. East half or southwest quarter of section twenty-six, for which he received a bid of $2,400.
Tract No. 3. The north half of the southeast quarter of section twenty-seven, for which he received a bid of $2,400.
Tract No. 4. The south half of the southeast quarter of section twenty-seven, and the west half of the southwest quarter of section twenty-six, for which he received a bid of $11,889.23; making a total of $18,679.23.
He then offered the land as a whole, and received a bid of $23,256.-85 from W. J. Rumold, and sold the entire land to him for that sum. This sale was reported to the court and plaintiff moved to confirm it. Clark and wife then appeared and moved to set aside the sale, for the «reason that they claimed as their homestead the tract hereinbefore described as tract No. 4, and desired it to be sold separately. The court sustained the motion to set aside the sale, but made no specific order for the sale of the land in tracts. A second order of sale was issued under the date of September 2, 1925, and the sheriff gave notice of such sale. Neither this order of sale nor notice made any mention of selling the land in separate tracts. The sheriff, however, did sell the land in separate tracts, as previously described, as follows: •
Tract No. 1 to W. J. Rumold for $1,050.
Tract No. 2 to W. J. Rumold for $1,300.
Tract No. 3 to W. J. Rumold for $1,200.
Tract No. 4 to the Prudential Insurance Company for $15,558.46.
These sales aggregated $19,108.46, about enough to pay the insurance company and Rumold, leaving nothing to pay Devore. There was a motion to confirm this sale. Devore moved to set it aside. Upon the hearing of these motions it was shown, among other things, that Clark and wife had been adjudged bankrupt. They presented a copy of the order of adjudication and asked to be relieved from personal liability upon the judgments previously rendered against them. An order to that effect was made. The court confirmed the sale. Devore has appealed from the order setting aside the first sale, also from the order confirming the second sale. He contends that the action of the court was inequitable and unjust to him and should be reversed. The contention must be sustained.
In accordance with the statute (R. S. 60-3463) the trial court should confirm a judicial sale “if it finds the proceedings regular and in conformity with law and equity.” This authorizes the court, even when the proceedings are regular and in conformity to law, to refuse to confirm a sale for equitable reasons, that is, for reasons which would justify a chancellor sitting in a court of equity in passing upon the matter. It does not authorize the refusal to confirm a sale for reasons that are not supported by the law or for reasons that are not in conformity with equity. (Bank v. Murray, 84 Kan. 524, 528, 114 Pac. 847; Robinson v. Kennedy, 93 Kan. 514, 516, 144 Pac. 1002; Norris v. Evans, 102 Kan. 583, 590, 171 Pac. 606; Insurance Co. v. Stegink, 106 Kan. 730, 189 Pac. 965; Pool v. Gates, 119 Kan. 621, 240 Pac. 580.)
Taking up for consideration the first sale which was set aside by the court: It is conceded that the proceedings were regular and that the sale had been conducted in accordance with law. If the court was justified in setting it aside it was for equitable reasons. It is contended in support of the ruling of the court that the claim of homestead as to a part of the land (tract No. 4, as hereinbefore described) on the part of Clark and his wife, and their homestead rights thereto, are equities which outweigh the rights of the mort gagee Devore. This is not true when the assertion of such homestead rights, under such circumstances, is to defeat payment of the mortgage debt to the mortgagee. Homestead rights, and the assertion thereof, are superior, both in law and in equity, to the rights of general creditors. (Colby v. Crocker, 17 Kan. 527.) They are also superior to the rights of the holder of a judgment lien. (La Rue v. Gilbert, 18 Kan. 220.) But when persons own and occupy a homestead, and voluntarily execute a mortgage thereon to secure the payment of a valid debt, they waive their homestead rights in favor of such mortgagee, and they cannot thereafter assert such homestead rights when the effect thereof is to defeat the payment of such mortgage debt to such mortgagee. To permit them to do so would not accord either with law or with equity. And this is true whether the mortgage covered the homestead alone, or the homestead and other real property. (Chapman v. Lester, 12 Kan. 592; Colby v. Crocker, supra; La Rue v. Gilbert, supra; Frick Co. v. Ketels, 42 Kan. 527, 22 Pac. 580; Fraser v. Seeley, 71 Kan. 169, 79 Pac. 1081; Fidelity and Deposit Co. v. Helwig, 113 Kan. 174, 175, 213 Pac. 666.)
In Frick Co. v. Ketels, supra, the wording of the syllabus would appear to be opposed to this view, but it will be noted in that case that the claim of the mortgagor of his homestead rights did not result in the defeat of the payment of the mortgage debt. It is true that a court of equity, in the foreclosure of a mortgage covering homestead and other property, may decree that the nonexempt property be sold first, and if the debt be paid from the sale of such property that there should be no sale of the homestead, and that the homestead be sold only in the event the other property is insufficient to pay the debt. And this may be done even if the result is that general creditors or holders of ordinary judgment liens are unable to receive payment because the property of the debtor is exhausted. And a mortgagee whose mortgage covers the homestead and other real property cannot complain of such an order if in fact he receives payment of the mortgage debt. But if the effect of such an order on the mortgagee who has a mortgage on the homestead and other property is to defeat the payment of his mortgage debt, then the order becomes inequitable as to him. The owners of the homestead, having waived their homestead right by giving a mortgage thereon in order to receive money from the mortgagee, cannot be heard later to assert a homestead right to defeat the payment to the mortgagee. As zealous as this court is, and always has been, to recognize and preserve homestead rights, as is proper, there has been no case in which the mortgagors of a homestead have been permitted thereafter to assert against the mortgagee their homestead right when the result of such assertion was to defeat the payment of the mortgage debt.
Applying this rule to the situation before us, Clark and wife owned this 400-acre tract, which they used and occupied as their home.- They voluntarily mortgaged it as a whole to three separate parties to secure valid indebtedness. Default being made on the mortgages, they were foreclosed, with appropriate judgments and decrees, and the entire property was ordered sold. When sold in gross it brought enough money to pay all of the mortgage debts. When the Glarks asserted their homestead rights to 160 acres of it, and the sheriff acceded to their request to sell the land in parcels, although he had no order from the court to do so, the separate parcels did not bring enough at either of the sales at which that was attempted to pay the mortgage debts. The Clarks had been relieved of personal liability to Devore by the bankruptcy proceedings. The result of confirming a sale in parcels was to permit the Clarks, upon an assertion of their homestead rights, to defeat the payment of the debt to a mortgagee to whom they had specifically waived their homestead rights. This is inequitable and should not be permitted to stand.
Appellees contend that in view of the statute pertaining to redemption, the mortgagee is not injured, and therefore-cannot complain. A complaint of the sale of tracts of land for less than they were worth was held, in Fraser v. Seeley, supra, not to be detrimental to the complaining party, in view of the redemption statute. It is not pointed out how the doctrine of that case would be applicable here. Certainly any argument thereon would be speculative in the extreme, and we see no equitable basis upon which to apply it. But it is argued that Clark and wife were adjudged bankrupts, and by order of the bankruptcy court their right to redemption in the 400-acre tract of land, exclusive of the portion selected by them for their homestead, was sold, and for this reason there should be a separate sale of the homestead in this case. The bankruptcy proceedings were voluntary. If it is inequitable for the mortgagors to assert their homestead interest in the foreclosure proceedings in such a way as to defeat a mortgagee to whom they had waived such rights, it is inequitable for them to do it by voluntary proceedings in bankruptcy, or by any other voluntary act.
In the note, 44 A. L. R. 758 to 769, a number of cases are collected upon the marshaling of assets as affected by homestead laws. In the cases there cited we found none identical on the facts with the case before us, but we regard the conclusion here reached as in accord with the underlying equitable principles in all, or at least, the great majority of them.
The judgment of the court below will be reversed, with directions to set aside the order of November 6, 1925, confirming the sheriff’s sale, also the order of August 20, 1925, setting aside the sheriff’s sale, and with directions for the court to sustain the motion of plaintiff to confirm the sheriff's sale made on July 18, 1925. | [
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The opinion of the court was delivered by
Mason, J.:
The United States Fidelity and Guaranty Company issued to Ralph Sow’den a policy insuring him against the loss of certain property by burglary, theft or larceny. He brought this action against the company alleging the loss by theft and larceny of a diamond ring worth $375 and two earbobs worth $150, covered by the policy. He recovered judgment and the defendant appeals. The policy included this provision:
“Affirmative proof of loss or damage under oath on forms provided by the company must be furnished to the company at its home office in Baltimore, Md., within sixty days from the date of the discovery of such loss or damage.”
The proof of loss furnished to the defendant was made by the writing in of answers to printed questions on a prepared blank. The principal contention of the defendant is that at the trial there was an entire lack of affirmative evidence, or of substantial evidence,, that the insured property was stolen.
1. The wife of the plaintiff testified to this effect: The last time she saw the ring and earbobs was the night of July 5, 1923, at their home. She Was packing her things to go to Colorado. She left by automobile on the morning of July 6, taking her two children, three and ten years old, and her maid. The occupants of the house were those indicated, and another family consisting of a husband and wife, who lived in an upstairs room. The arrangement of the house was described in full detail. The door of the back porch was not locked, nor was the screen door hooked, because of the maid being out. The inside doors were not locked. When the packing was practically finished and the plaintiff had gone to bed, the witness, being afraid to travel with the ring and earbobs, seeing his bunch of keys on top of a chiffonier, where he was in the habit of placing them, put the ring on the keys and the earbobs beside them, thinking he would be more apt to see them there, and that the chiffonier, which was in a large room adjoining a sleeping porch where the family slept, was high enough so that the children could not reach them. She intended to tell him about them. She got up between four and five o’clock the next morning, called the maid, got the children up, ate breakfast and got into the car. She did not observe whether the jewelry was on the chiffonier. There was a rim around the top of the chiffonier that would prevent the ring and earbobs from rolling off. The plaintiff got up just before the others left, at about half past six. The witness did not tell him about the jewelry then, nor did she write him about it. After her return home she first had occasion to wear it in October. She asked her husband to bring it from the mill of the company of which he was president, where she supposed he had taken it. She never saw it again, never gave consent to anybody to take it, and knew nothing of its whereabouts. Nothing else was missing from the house, and there were no evidences of any disturbance.
The plaintiff testified to this effect: He placed his keys on the • chiffonier as already indicated. In the morning he picked them up and at that time there wlas nothing there by them. If the jewelry had been there he certainly would have picked it up. He never gave consent to anyone to take the jewelry. He first knew of its being missing when his wife asked him for it, as she related. A thorough search w'as made, which was fruitless. He had taken the family silver to the vault at the mill.
The maid gave this testimony: She saw the plaintiff’s wife place the jewelry on the chiffonier on top of the keys as narrated by her. She then wtent to a carnival with her sister, returning between eleven and eleven thirty. She came in through the back porch and did not lock the screen door. She knew nothing as to what became of the jewelry.
Of the couple who were occupying a room in the plaintiff’s home, the wife testified that she took care of the house after Mrs. Sowden left for Colorado; that on that morning she straightened up the room where the chiffonier was an did not see the jewelry, with which she was familiar; that in cleaning up she could not have failed to notice the large ring if it 'had been there. The husband testified he knew nothing about the jewelry.
The cases bearing on the character of evidence sufficient to prove that missing articles were stolen are fully collected in notes in 46 °L. R. A., n. s., 562, 567, 568; 41 A. L. R. 846, 851-853; and 44 A. L. R. 471, 472, the last one bringing the annotation to within a year. It is well established that even where a policy insuring against theft requires that the proof of the larceny shall be “direct and affirmative,” or even “conclusive,” circumstantial evidence may be sufficient. In the second of the notes referred to this language is used:
“It seems that under policies requiring direct and affirmative evidence of the burglary, larceny, or theft, the courts refuse to construe the term ‘direct and affirmative’ or ‘conclusive’ evidence in its strict, technical sense, as to do so would render the policy valueless except in the most unusual cases; thus, the fact that the evidence of theft is wholly circumstantial will not defeat a recovery on such policies.” (41 A.L.B.. 846, 851.)
It is said that even in the absence of any special provision as to the degree or character of proof required “as a rule, no recovery can be had upon policies indemnifying against loss by burglary, theft, or larceny where the evidence merely shows that property covered by the policy is missing.” (46 L. R. A., n. s., 561, 567.) That is obviously sound Taw. If a claimant under a theft insurance policy were to rest his case, so far as concerns this feature of it, upon his testimony that “the insured property has disappeared,” he would of course not be entitled to go to the jury upon the issue whether it had been stolen. But when to the bare fact of disappearance there is added all the known circumstances attending it, stronger reasons usually, and almost necessarily, appear for its being thought due to one cause rather than to another, so that there arises a basis for forming a rational judgment on the subject. And where upon an assembling of all the available information the hypothesis of larceny seems more probable than any other that can be suggested, no reason is apparent why the matter should not go to the jury to be determined on the fair inferences to be drawn from the facts directly established.
In the present case there was direct evidence that Mrs. Sowden left the jewelry on the chiffonier the night before starting for Colorado, the ring being on the bunch of keys and the earbobs beside it, and never saw any of it again. The jurors, aware that memory is fallible, especially in such matters, might think she was mistaken and that probably she later put it in a safer place and forgot it, but certainly no rule of law required them to disbelieve her testimony. The plaintiff’s statement that in the morning when he picked up his keys there was nothing else beside them was sufficient proof of that fact if the jury accepted it. It followed not merely naturally, but of necessity, that some one had taken the jewelry in the interval. Every person known to have been in the house in the meantime, or to have had a right to be there, was shown not to have touched it, except the two children, and there was evidence they were not tall enough to reach it. The circumstance that the porch door was not fastened readily suggests that a thief may have entered and taken the jewelry without leaving any other trace of his work. There are not many other plausible explanations open. An acquaintance might possibly have entered and borrowed the jewelry or taken it for a joke, but the time that elapsed before the trial in December, 1925, adds to the inherent improbability of such a theory, and is also quite inconsistent with the honest possession of the property by anyone. The likelihood of a somnambulist having concealed it would be plausible enough in fiction, but such an occurrence in real life is hardly sufficiently common to make it a factor here.
We regard this view as harmonizing with most “of the cases cited in the notes referred to. Schindler v. United States Fidelity & G. Co., 109 N. Y. S. 723, may seem to have a contrary tendency and is rather an extreme case against the insured. In the report there is little discussion and but a meager statement of facts. A bag of jewelry was placed in a closet in the morning by the plaintiff’s wife and by her found missing at night. A servant in the plaintiff’s employ was out a part of the afternoon. Whether anyone except the plaintiff’s wife testified, and whether anything was shown as to who had access to the place .or how entrance might have been made does not appear. A somewhat similar case is Duschenes v. National Surety Co., 139 N. Y. S. 881, where the policy contained a clause:
“The assured shall also produce direct and affirmative evidence that the loss of the article or articles for which claim is made was due to the commission of a burglary, theft, or larceny; the disappearance of such article or articles not to be deemed such evidence.”
In the opinion it was said:
“In order to protect itself from claims under the policy for loss of the articles covered by the policy by reason of some other cause than burglary, theft, or larceny, the company has provided that the insured must produce, not circumstantial, but direct and affirmative evidence of the wrong. Parties may be mistaken in their recollection of where they placed a piece of jewelry, but they are not apt to be mistaken in recollection as to matters directly and affirmatively showing a felony, and the defendant could reasonably provide that there could be no recovery unless, in addition to the testimony of the disappearance of the jewelry, the insured should produce testimony of a direct and affirmative kind that there has been a felony.” (p. 882.)
The rule as so stated and interpreted would seem to exclude a broken window as evidence tending to show a burglary, on the ground of being circumstantial instead of direct, and to prevent a recovery on the policy in all cases where a thief entered a house, stole property and escaped without being caught or seen.
We cannot agree that a clause such as that used in the policy here sued upon prevents proof of the larceny by wholly circumstantial evidence, or requires the triers of the facts to refuse belief to a statement of a witness as to where property w*as left. In the most recent reported case available this language is used:
“Plaintiff’s policy required that, upon the discovery of any loss, he should give affirmative proof of loss under oath, including a statement containing sufficient evidence of the commission of a burglary, theft, or larceny, to which the loss was due, and his belief as to the time of its occurrence. This requirement as to proof of loss is similar to that stated in Fienglas v. New Amsterdam Casualty Co. (Mun. Ct.), 151 N. Y. S. 371, in which the plaintiff obtained judgment upon proof of theft by circumstantial evidence. It is often impossible to obtain direct evidence of the loss of jewelry by theft, and such loss may be proved by circumstantial evidence. (Miller v. Mass. Bonding & Ins. Co., 247 Pa. 182, 93 A. 320, L. R. A. 1915D, 615.) The plaintiff was not required to prove by direct evidence the theft of the rings; it was enough if he showed circumstances sufficient to justify the inference that they had been stolen. . . .
“The testimony of plaintiff and his wife is direct and positive that the rings were placed in the jewel box. It appears that four other persons had access to the bedroom in which the box was kept. No person was authorized by the plaintiff or his wife to take the rings from the box, and it is not unreasonable to infer that the person who did abstract them did so w’ith a felonious intent. Cases holding the defendant liable for theft on circumstantial evidence are: Wolf v. Ætna A. & L. Co., 183 App. Div. 409, 170 N. Y. S. 787; Stick v. Fidelity & Deposit Co. (Sup.) 159 N. Y. S. 712; Haas v. Fidelity & Deposit Co., supra; Fienglas v. New Amsterdam Casualty Co., supra. The three years elapsing between the discovery of the loss of the rings and the date of the trial was a circumstance which might be considered by the jury in deciding whether the rings were mislaid or stolen. After a careful consideration of the evidence, as it does not clearly appear that the decision of the trial justice in denying the motion for a new trial on the ground that the verdict was against the evidence was erroneous, the exception thereto is not sustained.” (McDuff v. General Accident, Fire & Life Assur. Corporation, [R.I.] 131 Atl. 548, 549.)
2. In the blank furnished by the defendant on which proof of loss was required to be made one of the questions to be answered reads: “ [State] the manner in which the (burglary or theft) was committed:” The answer made was “Is not known for sure, articles taken from house.” To this had been added, and then stricken out, the words “or at least.” The defendant calls attention to this as tending to confirm its view! Whatever bearing the circumstance may have was for the consideration of the jury and trial court in determining the facts.
3. Objection is made to the refusal to give certain instructions asked. For the most part they involve the question already considered and x*equire xxo fux'ther discussion. One of them, however, asked the court to tell the jury that the proof of loss submitted to the defendant was not affirmative proof of theft or larceny and therefox’e the plaintiff could not recover. The transcript shows this entry at the beginning of the introduction of evidence:
“It is admitted that the proper proofs of loss have been made and notice of the loss has been made. These admissions, however, do not exclude either party from using any of the papers used in the proof of loss or notice of loss for any purpose they see fit to use such papers or notice.”
The defendant interprets this as a waiver merely of the tixne of making proof of loss. We regard it as going beyond that axxd covering as well the contents. Moreover the proof was written up by the defendant’s agent on blanks prepared by it. The questions seem to have been fairly answered under oath by the plaintiff and his wife within the limits of their information. If at the trial affirmative evidence of larceny was produced — as we hold to be the case — it would be manifestly unfair to set aside the verdict because of any lack of fullness of statement in a proof of loss made up under such circumstances.
4. Complaint is made of the giving of this instruction:
“And so, in this case, if you find from the evidence that it is probable that «the jewelry was misplaced or lost, and further find that there is no direct or positive evidence that the jewelry was in fact stolen, then the plaintiff can not recover.”
It is urged that this amounted to a submission to the jury of a question of law as to what constituted direct or positive evidence. We think no prejudice could have resulted, particularly in view of other instructions, such as these, which seem quite favorable to the defendant:
“The words, ‘affirmative proof,’ mean, direct or positive evidence. It means any direct or positive evidence tending to prove a certain fact. ... If the circumstances can be explained upon any reasonable theory other than the theory that a crime was committed, then such circumstances would not be sufficient to establish the fact that a crime was committed. . . . The mere mysterious disappearance of property insured against theft does not establish the fact that the property was stolen.”
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The opinion of the court was delivered by
Johnston, C. J.:
Ed Ferron was convicted under R. S. 58-318, •upon a charge that he had concealed and disposed of a Ford coupe and twenty acres of wheat without the consent of the mortgagee and with intent to defraud him. Defendant appeals.
The case has the unique feature that the court submitted special questions of fact to the jury upon which findings were made. It is the first instance in this state of submitting special questions in a criminal case which has come to the attention of the writer; how ever, neither party is complaining of the submission and there is no occasion to express an opinion as to the propriety of the practice. The special findings returned are as follows:
“1. What age do you find the defendant to be at the present time? A. Nineteen years.
“2. Do you find that the defendant needed said automobile at the time of its purchase by him from George Dodson? A. No.
“3. Do you find that the defendant sold said wheat with a criminal intent? A. Yes.
“4. Do you find that the defendant took said automobile to the state of Missouri with the criminal intent of concealing said automobile from George Dodson? A. No.
“5. Do you find that the defendant unlawfully concealed said automobile? A. No.
“6. Do you find that the defendant offers to return all the property that he now has, which property was covered by mortgage note of George Dodson? A. No.
“7. Do you find that the defendant has ever unlawfully and feloniously concealed, sold and disposed of said automobile or wheat? A. Unlawfully sold wheat.
“8. Do you find that George Dodson knew where said automobile was after the defendant left said automobile in Missouri? A. Not immediately after.
“9. Do you find that Ed Ferron represented himself to be twenty-one years of age at the time he executed and delivered the mortgage note to George Dodson, and do you find that George Dodson relied upon the statement made by him? A. We believe he did represent himself to be twenty-one years of age. Partially relied upon statements.
“10. Do you find that George Dodson was defrauded? A. Defrauded out of proceeds of wheat.”
The charge embraced the unlawful disposition of the Ford coupe and also of some wheat of the value of more than $20, but the jury by their findings have eliminated the accusation of the unlawful sale and disposition of the automobile and hence we have only for review the proceedings and conviction relating to the mortgaged wheat. The information so far as concerns the wheat is that the accused—
“At the county of Brown in the state of Kansas, on the-day of-a. d. 1925, then and there being, did then and there unlawfully and feloniously conceal, sell and dispose of, without the written consent of the mortgagee and with the intent to defraud the said mortgagee, ... an undivided one-half interest in twenty acres of wheat, which interest in said wheat was of the value of over twenty dollars, upon which said . . . wheat, one George Dodson held a chattel mortgage for the amount of $200, which chattel mortgage was duly recorded in the office of the register of deeds of Brown county, Kansas.”
A motion to quash the information on the grounds that it did not definitely state facts sufficient to notify the defendant of the offense against which he would have to defend and did not charge facts sufficient to constitute an offense punishable under the laws of the state, was overruled. The defendant has cause to complain of the ruling. The information failed to state that defendant had made a sale of property upon which the mortgagee had a lien. The statute provides that one who sells or disposes of property of the' value of $20 and under, upon which a mortgagee has a lien, shall be deemed guilty, of petty larceny and one who sells or disposes of mortgaged property of the- value of twenty dollars and over, on which the mortgagee has a lien, to the amount of over $20 shall be deemed guilty of grand larceny. Here the information does not allege that the defendant was the mortgagor, nor that the mortgage held by the mortgagee was a subsisting lien on the property. If the mortgage debt had been paid or had become barred and was no longer an existing lien, no offense would have been committed. While it was alleged that Dodson, a mortgagee, held a chattel mortgage on the wheat, it does not allege that he had a lien thereon, and that was an essential fact to constitute the offense. A governing rule is that if the allegations of the information may be true and the defendant still be innocent, the information is bad. (State v. Isaacson, 155 Minn. 377.) In the Isaacson case it was decided that:
“An indictment for selling mortgaged personal property without the consent of the mortgagee, which fails to show that an unpaid debt secured by the mortgage existed at the time of the sale, is fatally defective.”
And in the opinion it was said:
“If any fact essential to constitute the offense be omitted, the indictment is fatally defective, and it cannot be aided by inference or presumption.” (p. 379.)
In State v. Hughes., 38 Neb. 366, it was held:
“It is not sufficient in such an indictment to allege that the sale was made without the consent of the mortgagee, naming him. To constitute the offense, the sale of the property must have been made by the mortgagor during the existence of the mortgage lien, without the written consent of the owner and holder of the debt secured by the mortgage, and the indictment must so charge.”
Again the information failed to definitely describe the wheat, and gave no reason why a more particular description could not be given. The only description given was “an undivided half interest in twenty acres of wheat of the value of over twenty dollars.” It furnished no information as to whether it was growing wheat'or threshed wheat. If it was growing wheat it lacks the description of the land on which it was growing; if it was threshed wheat, nothing was stated as to its identity or location. It may have been growing wheat, as the information does not state the day or month of 1925 when the sale and disposition of the wheat was made. If it was done in the growing period it may well have been unripe wheat, and besides it was described in acres instead of in bushels. If it was done in midsummer, it may have been wheat in a granary, elevator or in some containers, that was sold. The defendant was entitled to have a definite description of the property in order that he might prepare his defense and that he be not subjected to another prosecution because of an indefinite description. The constitution ordains that in all prosecutions the accused is entitled to demand the nature and cause of the accusation and the criminal code provides that “the indictment or information must be direct and certain as it regards the party and the offense charged.” (R. S. 62-1005.)
In State v. Tilney, 38 Kan. 714, 17 Pac. 606, it was held that an information charging the larceny of money described as “National bank notes, United States treasury notes, and United States silver certificates, money of the amount and value of $1,000,” without any allegation of the inability of the prosecutor to give a more definite description is insufficient. It was there said: “That the rules of law and fairness to the accused, require that as definite a description as the nature of the property stolen will admit of, should be given and where the grand jury or prosecutor is unable to give a definite description, the fact should be stated.” (p. 716. See, also, Sturgis v. State, [Okla.] 240 Pac. 750; State v. Ellison, 152 Tenn. 181.) A person committing the acts denounced by the statute is deemed guilty of larceny, where the punishment may be as severe as imprisonment at hard labor for five years, and the property should be as definitely described as in ordinary cases of theft. The charge should be not only definite enough to advise the defendant with reasonable certainty of the accusation he is required to meet at .the trial, but also to enable him to plead the judgment rendered in bar of a subsequent prosecution for the same offense. Obviously a definite description of the property could have been given, and the information contains no' averment that a better description of the property could not be given. The statutory requirement that the offense shall be charged directly and with certainty is not met by mere inferential or argumentative averments, and we conclude that, the information was fatally defective. In view of this holding it is unnecessary to consider other objections raised in the subsequent proceedings.
The judgment is reversed and the cause remanded for a new trial.
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover damages for personal injuries. Plaintiff prevailed, and defendants appeal.
The' facts are substantially as follows: The plaintiff was engaged in dragging the country club road south of Pittsburg. He was riding a drag drawn by four horses. Defendant’s truck, driven by file defendant Dean, approached from the rear. The main traveled portion of the road was made of chat, eighteen feet wide, with a shoulder of dirt approximately fourteen inches on either side. Beyond each shoulder was a ditch about two feet deep. A few inches east of the graveled portion of the road, near where the accident occurred stood a power-line pole. Extending angularly to the south from the top of the pole was a guy wire anchored in the dirt shoulder about twelve or fifteen inches east of the graveled part of the road and about twelve feet from the bottom of the pole.
The drag on which the plaintiff was riding consisted of two bars running crossways of the road, connected together by angle braces. It was eight feet seven inches wide. It had a bar lever in the center for the purpose of regulating its operation. The doubletrees by which the horses pulled the drag were thirteen feet seven inches wide. Defendant’s truck was five feet nine inches wide.
The plaintiff was proceeding north, and was almost to the guy wire when he saw Dean approaching with the truck some seventy-five feet away. When Dean was about thirty-five feet distant he sounded his horn and plaintiff turned his team to the right, allowing the truck to pass. At about the time the truck passed the drag, one of the traces of the right-hand horse came in contact with the guy wire. At about the same time, the horse on the left shied toward the right, forcing the other horses toward the right, and the right-hand horse made a lunge pulling the drag up onto the guy wire. The plaintiff was thrown in such a way that his leg went through the drag and was broken in two places. He also suffered a rupture.
It was alleged that the defendant Dean, while in charge of the motor truck, instead of approaching the plaintiff and his horses at a reasonable and prudent and careful rate of speed and without regard to the condition of the road, negligently and carelessly attempted to pass at a high and dangerous rate of speed — twenty miles per hour — without giving plaintiff a reasonable opportunity to stop or control his horses, etc.
The jury returned a general verdict for plaintiff for $6,750, and answered special questions as follows:
“Q. 1. Did McCabe turn or drive his team to the right to let the truck past on the left, prior to the time the truck attempted to pass? A. Yes.
“Q.2. If you find there was anything in the actions of McCabe’s team which indicated that they were not under control at the time when the truck started to pass, please state what it was. A. No.
“Q. 3. At what rate of speed do you find the truck traveled in passing Mc-Cabe’s team? A. Miles per hour, (11) eleven.
“Q. 4. Do you find that prior to the time the truck attempted to pass, that McCabe knew of the presence of said guy wire on the east side of the road? A. Yes.
“Q. 5. At the time McCabe’s attention was first attracted to said truck approaching behind him, did McCabe know that said truck, if it passed, would necessarily have to pass close to his team? A. Yes.
“Q. 6. If McCabe had desired the defendant Dean not to pass his team, did McCabe have an opportunity, after his attention was first attracted to the truck approaching from the rear, to signal to the defendant Dean by raising his hand? A. Yes.
“Q. 7. Where was said truck with reference to the horses at the time plaintiff’s horse lunged? Give the distance. A. At the left of horses, (2) feet.
“Q. 8. Do you find that McCabe could have stepped off of said road drag at or prior to the time said truck started to pass and thus have been in a place of safety while said truck was passing? A. No.
“Q. 9. Do you find that plaintiff would have been injured if it had not been for the presence of said guy wire? A. No.
“Q. 10. If you find that the defendants were guilty of any negligence which caused plaintiffs injury, then please state what that negligence was. A. Driving too fast and too close, under the circumstances and the narrowness of the road.”
Error is assigned because the court refused judgment for defendants on the special findings.
The plaintiff testified that he had been dragging the country club road for fifteen years; that the guy wire had been there four years during that time; that he had seen it a good many times and knew where it was. From the evidence and findings it is clear that plaintiff knew of the presence and location of the guy wire; knew when the truck was seventy-five feet behind him and was approaching; knew that if it passed it must necessarily do so close to his team; and knowing it was approaching, turned or drove his team to the right to let it pass. If he had desired defendant Dean not to pass, he had an opportunity to signal to him to stop. There was nothing in the action of plaintiff’s team which indicated to Dean that it was not under control at the time he started to pass. He passed at a rate of only eleven miles per hour at a distance of two feet from the team. In addition to the special findings, there was evidence that Dean sounded his horn when thirty-five feet to the rear of plaintiff; that the entire road w*as practically of uniform width; that automobiles had been passing plaintiff’s team on this road in both directions; that Dean did not know of the presence of the guy wire and did not see it until after the accident. From all of which, we are of opinion that defendant Dean, in passing the plaintiff’s road drag, used reasonable and ordinary care under the circumstances in which he was placed. The evidence and special findings show clearly that the plaintiff, at least impliedly, invited Dean to pass. Knowing the location of the guy wire, he remained standing upon his moving road drag as he approached it, turned his team to the' right without indicating to Dean by signal or otherwise that he should stop. His action at least assured Dean that he had no objections to his passing. This occurred after Dean had signaled to him by sounding his horn, indicating his desire to pass. Under all the circumstances, it may be said that there was negligence on the part of the plaintiff, while Dean was absolved from negligence in passing.
The situation is somewhat emphasized when it is considered that the plaintiff was doing his work with a team accustomed for years to dragging the road and accustomed to being frequently passed in each direction by automobiles.
Under all the circumstances, we are of opinion that the conduct of the defendant Dean was such as would have been employed by an ordinarily prudent and careful person under like circumstances. Other questions presented in the briefs need not be discussed.
The judgment is reversed and the cause remanded, with instructions to render judgment for the defendants. | [
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The opinion of the court was delivered by
Six, J.:
This special employer construction accident case is before us on an appeal from summary judgment. Plaintiff Ulysses Scott was employed by Davlin Services, Inc., (Davlin) a temporary employment agency. He was sent by Davlin to a school construction job site to work as a manual laborer for the defendant Altmar, Inc., the general contractor. Scott was injured by a falling steel I-beam. He recovered workers compensation benefits from Davlin Services and later filed a personal injury tort action against Altmar. The district court sustained Altmar’s summary judgment motion, finding that Altmar was Scott’s special employer and, therefore, immune from suit under K.S.A. 44-501(b). Scott appeals.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer from the Court of Appeals on our own motion).
The question is whether the district court was correct in holding that as a matter of law, Scott and Altmar had an implied contract of employment.
Finding no error, we affirm.
FACTS
Altmar contracted with Davlin to provide manual laborers for Altmar on an elementary school construction project. Scott was asked to place blocks on the ground so that an Altmar employee could lower a steel I-beam onto the blocks with a forklift. Scott put the blocks in position. As he stood up to back away, the forklift moved suddenly, causing the I-beam to fall
Davlin, as a temporary employment agency, assigned Scott to his place of work. Upon his arrival at the job site each day, Scott would perform work that was to be done under Altmar’s general contract, and under the direction, control, and supervision of Alt-mar. Although an Altmar supervisor set a time for Davlin employees to arrive at the site, Altmar did not control when the Davlin employees would arrive at or depart from the job site. In several cases Davlin workers did not have their own transportation and had to rely on a Davlin van or other vehicle to transfer them to and from the site. When Davlin employees arrived on site, an Alt-mar superintendent or foreman set out the course of their day’s work.
Davlin’s agreement with Altmar prohibited Altmar from using Davlin workers to operate dangerous machinery or equipment not covered by Altmar’s insurance without Davlin’s consent. Altmar did not allow unskilled manual laborers, like Scott, to operate machinery or power tools because of their lack of experience and training. Although a member of Davlin’s management stopped by the job site one day, that person did not give instructions or directions to anyone at Altmar regarding either how to perform work under the general contract or how to use Davlin’s employees. Davlin was responsible for all tax withholdings on Davlin workers, and only Davlin had the right to fire Davlin workers. Altmar did not consider Davlin workers to be Altmar employees.
DISCUSSION
Scott contends that the district court erred in reasoning that his tort claim against Altmar was barred under K.S.A. 44-501(b) as a matter of law and in sustaining Altmar’s motion for summary judgment.
Before moving on to our analysis of the tension between Scott’s tort claim and the K.S.A. 44-501(b) workers compensation exclusive remedy bar, a comment on summary judgment is in order. Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as matter of law. K.S.A. 2000 Supp. 60-256(c). Summary judgment decisions are reviewed de novo. See Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, Syl. ¶ 2, 863 P.2d 355 (1992). We resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Bergstrom v. Noah, 266 Kan. 847, 871, 974 P.2d 531 (1999).
The essential facts here are documented in the parties’ summary judgment submissions. We agree with the district court that Scott’s statement of additional facts does not preclude summary judgment. Our standard of reviewing summary judgment is well established. See, e.g., Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995). We conclude that no genuine issues of material fact remain.
The controlling statute here, K.S.A. 44-501(b), says in part:
“Except as provided in the workers compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workers compensation act . . . .”
Under the K.S.A. 44-501(b) exclusive remedy provision, if an employee can recover workers compensation for an injury, he or she is barred from bringing a negligence suit for damages against an employer. Dillard v. Strecker, 255 Kan. 704, 708-09, 877 P.2d 371 (1994). The Workers Compensation Act is to be liberally construed in favor of bringing workers within its provisions. Robinett v. The Haskell Co., 270 Kan. 95, 101, 12 P.3d 411 (2000). We have noted that “ "no different rule of construction can be adopted where an injured workman for reasons which he regards sufficient seeks a remedy outside the compensation act.’ ” Bright v. Bragg, 175 Kan. 404, 411, 264 P.2d 494 (1953).
Here, the district court found that Scott was a special employee of Altmar. The term “special employee” refers to a lent employee. Bendure v. Great Lakes Pipe Line Co., 199 Kan. 696, 701, 433 P.2d 558 (1967). A special employee becomes the servant of the special employer and assumes die same position as a regular employee under the Workers Compensation Act. 199 Kan. at 701. Where the injured employee is determined to be both a special employee and a general employee, he or she may look to either or both of his or her employers for compensation. Bright, 175 Kan. at 412.
Scott claims Altmar failed to establish the existence of the required express or implied contractual employment relationship between Scott and Altmar. The district court found that Scott and Altmar entered into an implied employment contract and that no controverted issues of material fact precluded summaiy judgment.
In its memorandum decision, the district court noted that we have adopted the three-prong test promoted by Professor Larson to determine the existence of a special employer/employee relationship. See Bendure, 199 Kan. at 704; 3 Larson’s Workers’ Compensation Law § 67.01 (2001). The test is:
“When a employer lends an employee to another party, that party becomes liable for worker’s compensation only if
(a) the employee has made a contract of hire, express or implied, with the second employer;
(b) the work being done is essentially that of the second employer; and
(c) the second employer has the right to control the details of the work.
When all three of the above conditions are satisfied in relation to both employers, both employers will be hable for workers’ compensation and both will have the benefit of the exclusivity defense to tort claims.” 3 Larson s Workers’ Compensation Law § 67.01[1], p. 67-2.
If the conditions are satisfied, “the presence of a general employer somewhere in the background cannot change the conclusion that the special employer has qualified as an employer of this employee for compensation purposes.” 3 Larson’s Workers’ Compensation Law § 67.01[2], p. 67-3.
Scott argues that (1) there was no contract between Scott and Altmar and (2) Altmar lacked the right to control all aspects of Scott’s work, challenging prongs (a) and (c) of the Larson test. Scott focuses his appellate arguments on the issue of whether a contract of employment existed as a matter of law.
Altmar, advancing Bright v. Bragg, 175 Kan. 404, and Hobelman v. Krebs Construction Co., 188 Kan. 825, 366 P.2d 270 (1961), contends that Scott made an implied employment contract with Altmar when he voluntarily appeared at the project every day and consented to work under Altmar’s direction and control.
The test to determine a person’s status as a special employer is whether the employer has the right to control and direct the particular activity as a consequence of which the injury occurred. Bright, 175 Kan. at 412; see Bendure, 199 Kan. at 704-05 (disapproving Bright because relationship between seller and buyer “was that of vendor and vendee, not that of principal and contractor a term is to be understood in K.S.A. 44-503”). Bendure teaches that in determining whether special employer/employee relationship exists, a number of factors have evidentiary value, the most important of which is degree of control retained by person for whom the work is done.
Scott cites Bright v. Cargill, Inc., 251 Kan. 387, 837 P.2d 348 (1992), to support his contention that the determination of whether there was an implied contract between he and Altmar was a question for a jury.
The district court here distinguished Cargill from Scott’s case, noting that in Cargill we addressed the issue of whether the temporary employment agency had relinquished sufficient control of the worker to constitute abandonment and, therefore, eliminate any vicarious liability for the worker’s negligence. In Scott’s case, the issue was not the relinquishment of control with regard to a temporary agency’s vicarious liability. Instead, citing Bragg, the district court identified this issue: “Did Altmar have the right to control and direct the particular activity as a consequence of which the injury occurred?” We agree with the conclusion that the uncontroverted facts showed that Altmar did have the right.
Scott also relies on Bendure, 199 Kan. 696. Bendure was a steel company employee. He came on the premises of the defendant Great Lakes Pipe Line Company (Great Lakes) to deliver two steel I-beams. The conflicting evidence controversy revolved around the unloading of the truck. Bendure was injured while unloading the beams. He filed a personal injury action against Great Lakes. The district court directed a verdict in favor of Great Lakes after finding that at the time and place of and during the circumstances surrounding the injury, Bendure was a “special and statutory employee” of Great Lakes. 199 Kan. at 700. On appeal, we found that the evidence was conflicting on whether Bendure was a loaned employee and on whether (1) he had made a contract with Great Lakes, (2) the work being done was essentially that of Great Lakes, and (3) Great Lakes had the right to control the details of the work. We concluded the district court erred in sustaining Great Lakes’ motion for directed verdict as a matter of law. 199 Kan. at 705. Bendure is distinguishable from the facts here, as there was conflicting evidence concerning whether the I-beam delivery included unloading the product for fhe customer in Bendure. See 199 Kan. at 698-700.
We now turn to examine the third prong of the Larson test, involving Altmar’s right of control. Scott points out that Davlin, as a temporary employment agency, assigned him to his place of work. Davlin was responsible for all tax withholdings on Davlin workers, and only Davlin had the right to fire Davlin workers. Scott also argues that unlike the situation in Cargill, Altmar did not control the hours that Scott worked. The record shows that although an Altmar supervisor set a time for Davlin employees to arrive at the site, Altmar did not control when the Davlin employees would arrive at or depart from the job site. In his deposition, Robert Johnson, an Altmar superintendent, testified that in several cases Davlin workers did not have their own transportation and had to rely on a Davlin van or other vehicle to transfer them to and from the site. Scott also notes that Altmar did not consider Davlin workers to be Altmar employees.
Altmar contends that it is error to emphasize whether it intended Scott to be a “regular” employee. It notes that if this were a proper inquiry, an employee of a temporary agency could never be considered a special employee because companies that use temporary employees do so in order to avoid hiring additional permanent employees. Altmar argues that, instead, we must look at who had control of Scott once he arrived at the job site. We agree.
The undisputed facts show that Altmar controlled Scott’s actions at the time he was injured.
Larson appears to have analyzed the fact situation here:
“If, however, the general employer merely arranges for labor without heavy equipment, the majority of the cases hold that the worker becomes the employee of the special employer, although there is substantial contra authority. For example, employers obtaining workers from the kind of labor service typified by Manpower, Inc. have usually, but not invariably, been held to assume the status of special employer. Incidentally, most of these cases arose in the context of summary judgment motions against injured workers who were attempting to sue the borrowing employer in tort.” 3 Larson’s Workers’ Compensation Law § 67.05[3], p. 67-13.
The district court, relying on Corley v. Hardaway Co., 905 F. Supp. 923 (D. Kan. 1995), agreed with Altmar s assertion that an implied employment contract existed between Altmar and Scott as a special employer/employee. Other jurisdictions have upheld orders granting summary judgment in cases involving temporary personnel agencies. See Kelly v. Geriatric and Med. Serv., 287 N.J. Super. 567, 577-78, 671 A.2d 631, aff'd 147 N.J. 42, 685 A.2d 943 (1996); Meka v. Falk Corp., 102 Wis. 2d 148, 158, 306 N.W.2d 65 (1981), but see Borneman v. Corwyn Transport, Ltd., 212 Wis. 2d 25, 567 N.W.2d 887 (1997) (statutory amendment replaced loaned employee test).
In support of his contention that summary judgment was improper, Scott discusses Parson v. Proctor & Gamble Mfg. Co., 514 N.W.2d 891 (Iowa 1994); Hill v. Erdle Perforating Co., 53 App. Div. 2d 1008, 386 N.Y.S.2d 265 (1976); and Novenson v. Spokane Culvert, 91 Wash. 2d 550, 588 P.2d 1174 (1979).
We have examined the cases cited by the parties. It is significant here that Altmar controlled and supervised all aspects of work performed at the job site and that Davlin had no control over what work was to be done at the site by Scott, the temporary worker. There was no evidence to controvert the fact that Scott accepted Altmar s control and direction. By Scott’s conduct, he made an implied contract of hire with Altmar. As a special employer, Altmar was immune from Scott’s common-law negligence claim under the exclusive remedy provision of K.S.A. 44-501(b).
Affirmed.
Davis, J., not participating.
Brazil, Chief Judge Retired, assigned. | [
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|
The opinion of the court was delivered by
Lockett, J.:
Defendant Francis Doyle appeals from convictions of first-degree murder, attempted second-degree murder, and aggravated burglary, claiming (1) there was insufficient evidence to support the jury’s finding of premeditation; (2) the prosecutor’s closing argument violated the defendant’s due process right to a fair trial; (3) the trial judge’s failure to dismiss a prospective juror for cause was reversible error; and (4) the trial judge committed reversible error in admitting a 911 dispatch tape recording into evidence.
Doyle was a newspaper carrier for the Kansas City Star from 1975 to 1985, when he retired. Doyle had been an involved father and, after his wife was diagnosed with Alzheimer’s disease in 1977, he became the sole caretaker of his disabled wife until she entered a nursing home during the later stages of the disease. Subsequent to the death of his wife, Doyle began to exhibit subtle personality changes. Doyle was 79 years old at the time of the crimes.
One of the victims, Marguerite Bacher, had been married to Walter Bacher for 53 years and, for the last 35 years of their marriage, the Bachers lived on High Drive in Leawood, Kansas. Like Doyle, Walter worked as a newspaper carrier for the Kansas City Star. Walter died in 1995 after 40 years with the Kansas City Star.
After Walter’s death, Marguerite and Doyle became acquainted. Marguerite introduced Doyle to her nephew, Fred Cloud. Doyle helped Marguerite around the house. She gave him a key to the house so he could care for her dog and do other chores when she traveled.
In the fall of 1998, Marguerite returned to her high school in Caldwell, Kansas, for a class reunion. At that time, she became reacquainted with her high school boyfriend, Lawrence Kubik. He proposed, and they were married shortly thereafter.
Marguerite’s marriage to Kubik changed the relationship between Doyle and Marguerite. Kubik took over the odd jobs, like yardwork, that Doyle had performed prior to the marriage. Doyle began stalking Marguerite. This concerned Marguerite, but her nephew told her to let it go.
On the night of February 3, 1998, Doyle, who had the key to Marguerite’s house, removed his personalized license plate from the front of his car and drove to Marguerite’s house. Around 10 p.m., Marguerite’s neighbor, Norma Brooks, saw Doyle driving his car very slowly past Marguerite’s house. She thought it was unusual, but she was not concerned.
In the early morning hours of Februaiy 4,1998, a 911 dispatcher received a call from Marguerite’s address. The caller was a woman who asked that help be sent immediately. The dispatcher was unable to get any further information from the woman, who was clearly in distress. The dispatcher sent a call out to officers in the area.
Officers Randy Rausch, Todd Chappell, Greg Turney, and Paul Sullivan responded to the call. Rausch approached the one area of the dark house that had a light, the master bedroom. Rausch observed an individual swinging a baseball bat up and down in a chopping motion. Rausch shouted to alert the other officers to the attack. He called dispatch and requested an ambulance.
When the officers entered the house, they found there were two victims, Marguerite and Kubik. Kubik was in the bed and Marguerite was partly in the bedroom and partly in the bathroom. They then discovered Doyle crouched behind a table with a baseball bat in his hand. Doyle identified himself to the officers.
After securing Doyle, the officers checked the victims’ conditions. Kubik never spoke or moved. Marguerite was nonresponsive to questions from the officers. It was clear that both victims had suffered extensive trauma.
Doyle was arrested and interviewed. During the taped interview, Doyle discussed his friendship with Marguerite and her subsequent marriage to Kubik. Doyle said that he had received a telephone call from Marguerite at about 12:05 a.m. on February 4, 1998. Marguerite said she was having some trouble with Kubik and asked Doyle to come to the house. When he arrived, he had used his key to enter the house because there was no response when he rang the doorbell. He called out, but there was no answer. He went into the bedroom and found Kubik on the floor at the foot of the bed and Marguerite in the bathroom. Doyle described the scene as very bloody. He said he leaned over Kubik, who tried to fight him off. Doyle explained that was how he ended up with blood on his clothes. Doyle said Kubik eventually asked Doyle to “go get him.” Doyle said he did not go over to Marguerite. Rather, he picked up a baseball bat and started into the living room in search of the perpetrator. At that time, he heard the breaking glass and the voices of the officers. Doyle stated he hid behind the cabinet because he knew he was “in a mess” with the baseball bat in his hand. Doyle stated to the officers that he had nothing to do with Kubik’s and Marguerite’s conditions. Kubik did not survive. Marguerite survived, although she had sustained considerable trauma.
Kubik was 77 years old at the time of his death. An autopsy revealed 16 lacerations to Kubik’s head. Inside the skull, there was extensive bleeding, both inside and outside the dura. Over the surface of the brain, there were nine separate subarachnoid hemorrhages. There were 10 areas of injury to the tissues of the brain. On the vertex of Kubik’s skull, there were six lacerations, each the result of a different blow. On his forehead, there were two lateral lacerations, and on his left eye, there was a third. His nasal bridge and left cheek bone were fractured. His left ear had been tom off and sewn back on by the plastic surgeon at the hospital before Kubik died. The hemorrhaging and contusions were caused by blunt trauma or the forcible striking of the head, resulting in at least four skull fractures.
Kubik had suffered separate blows to the torso. One blow appeared to be high in the underarm area where there was a contusion. There was another contusion a little lower. There were fractures to the right third and fourth ribs and six to seven abrasions and contusions around the right elbow, right forearm, right hand, and left elbow, and two abrasions to the left forearm and left hand. There was a fracture of the small bone in the left hand. These may have been defensive wounds. The cause of Kubik’s death was blunt force injuries to the head, thorax, abdomen, and extremities. Of these, the blows to the head were most significant.
As a result of the attack, Marguerite underwent surgery on her right hand where four fingers had been broken; her left hand, where three fingers had been broken; and her left kneecap, which was also broken. Marguerite suffered skull fractures and was hospitalized for almost 6 months. She suffered memory loss of the attack, loss of the ability to walk, and she no longer has short-term memory. At the time of trial, she was still undergoing rehabilitation therapy to learn to walk, use the telephone, swallow, and to understand counting and the alphabet. She resided in a nursing home.
Doyle was charged with the first-degree premeditated murder of Kubik, attempted first-degree murder of Marguerite, and aggravated burglary. He was convicted of first-degree premeditated murder, attempted second-degree murder, and aggravated burglary. He was sentenced to fife without the possibility of parole for 25 years on the murder conviction, 49 months, to run consecutively, on the attempted second-degree murder conviction, and 32 months, to run concurrently, on the aggravated burglary conviction. Doyle appealed, raising four issues.
Evidence of Premeditation
At trial, Doyle’s defense was that he was not capable of forming criminal intent or premeditation because he had senile dementia or Alzheimer’s disease. When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000). Both the defense and the prosecutor agreed that Doyle suffered from some level of dementia — the issue was the degree of the disease and how the disease affected Doyle’s ability to form intent or premeditation.
Premeditation is a “ ‘state of mind’ relating to a person’s reasons and motives for acting as he or she did.” State v. Cravatt, 267 Kan. 314, 328, 979 P.2d 679 (1999). Unless a person actually communicates his or her reasons for taking another’s life, evidence of premeditation must be proved by circumstantial evidence. Such evidence, however, is sufficient to establish even the gravest offenses, as in this case. Premeditation cannot be inferred from the use of a deadly weapon alone, but it may be inferred where other circumstances also exist. 267 Kan. at 328-29; see State v. Hill, 233 Kan. 648, 652, 664 P.2d 840 (1983).
The experts in this case used different tests and criteria in making their determinations. The defense presented expert testimony of Dr. William O’Connor, a clinical psychologist who had interviewed and tested Doyle. O’Connor testified that the mental degeneration impaired Doyle’s ability to think abstractly and to reason verbally. O’Connor testified that Doyle had the normal ability to retain memories that he had known over a lifetime, but had an extremely low ability to grasp the present and retain information of the present. He testified that Doyle’s ability to “think through a new problem, prospectively . . . is grossly impaired.” O’Connor concluded Doyle was impaired and suffered from dementia and did not have the ability to premeditate a plan.
The prosecutor rebutted O’Connor’s testimony with the testimony of Dr. Patrick Hughes, a psychiatrist who examined Doyle for the State. It was Dr. Hughes’ opinion that Doyle’s senile illness did not approach the level of mental impairment needed to preclude an ability to form criminal intent or to premeditate.
In addition to the expert testimony, there was circumstantial evidence from which the jury could infer premeditation: the number of blows to the victims, Doyle’s removal of his license plate from his car prior to driving to Marguerite’s house, the absence of evidence of provocation, and Doyle’s fabricated statements to the police officers to avoid responsibility for the crime.
Doyle requests we reweigh the expert testimony and find in favor of the defense. In reviewing the sufficiency of the evidence, this court will not reweigh the evidence. It is the juiy’s function, not ours, to weigh the evidence and determine the credibility of witnesses. State v. Aikins, 261 Kan. 346, 391-92, 932 P.2d 408 (1997).
Viewing the evidence in a light most favorable to the prosecution, we find there was sufficient evidence for a rational factfinder to have found that Doyle was able and did premeditate the commission of the crimes.
Prosecutor’s Closing Argument
During closing argument, the prosecutor stated:
“Premeditation, as the Court instructed you, means to have thought about it beforehand. It does not mean that it had to be thought out beforehand two hours or one hour or a half an hour before the incident occurred. Something can be premeditated as soon as it happens.
“I would suggest to you that at some point in time, even if you don’t believe Mr. Doyle went over to the residence with the intent to murder those people, at such time, when he took this bat and starting hitting them, and hitting them, over and over and over again, at some point he thought about what he was doing, he knew what he was doing, and that any future blows that he would deliver were intended to kill those individuals.
“That is all that ‘premeditation’ means. It can be formed at any point in time. We believe, of course that we have showed you very ample evidence that there was premeditation in this case.
“Certainly, even if he hadn’t formed the intent to kill them at the time that he arrived at the residence, which wouldn’t make any sense, but even if that were the case, when he went into that house and he began striking and chopping at these people, he had thought about it. And for each successive blow, he knows, ‘I'm going to kill them.’ ” (Emphasis added.)
During jury deliberation, the jury sent a question to the court asking: “Is there a specific amount of time before a crime is committed that premeditated’ is applied?” The court answered with a written “No” to the question.
Doyle acknowledges that he did not object at trial to the prosecutor’s remarks in closing argument. He contends, however, that the prosecutor’s remarks rose to the level of misconduct which resulted in a fundamentally unfair trial.
If a claimed error implicates a defendant’s right to a fair trial, the appellate standard of review is the same regardless of whether the issue of prosecutorial misconduct is preserved by an objection at trial. If the claimed error rises to the level of a denial of the Fourteenth Amendment right to due process, the issue of prosecutorial misconduct will be addressed. The analysis of the effect of a prosecutor’s allegedly improper remarks in closing argument is a two-step process. First, an appellate court determines whether the remarks were outside the considerable latitude the prosecutor is allowed in discussing the evidence. In criminal trials, the prosecution is given wide latitude in language and in manner or presentation of closing argument as long as the remarks are consistent with the evidence adduced. Second, an appellate court must determine whether the remarks constitute plain error; that is, whether they are so gross and flagrant as to prejudice the jury against the accused and deny a fair trial, requiring reversal. State v. Pabst, 268 Kan. 501, Syl. ¶¶ 2,3, 996 P.2d 321 (2000).
Doyle relies on State v. Moncla, 262 Kan. 58, 70, 936 P.2d 727 (1997), for support. In Moncla, this court disapproved a jury instruction on premeditation that included a phrase stating premeditation “may arise in an instant.” However, the error in the instruction was not reversible error in that case because the evidence showed that the victim was struck in the head 18 times with a hammer and struck while a pillow was placed over her head. There was no evidence of provocation. Moncla left the murder scene before the victim was discovered, telling people he was going to work. Instead, Moncla went into hiding. Based on those facts, the Moncla court concluded that although the instruction was inappropriate, the record contained abundant evidence of premeditation and deliberation and the jury was not misled by the instruction. 262 Kan. at 73.
In State v. Jamison, 269 Kan. 564, 7 P.3d 1204 (2000), two witnesses identified the defendant as the shooter. Forensic evidence established that the bullets that killed the victims were shot from a gun identified as belonging to the defendant. The defendant was apprehended while journeying out of the state in a manner which suggested that he was attempting to flee. There was evidence of gang involvement, providing motive evidence as well as identity evidence. 269 Kan. at 571.
The jury was instructed in accordance with PIK Crim. 3d 56.04(b) that “premeditation means to have thought over the matter beforehand.” 269 Kan. at 572. The jury was also instructed that “ ‘[premeditation’ does not require a specific time frame.” 269 Kan. at 572.
On appeal, Jamison argued that the prosecutor’s final argument, which included the statement that premeditation can occur in an instant, confused the jury regarding the law and rendered its verdict without evidentiary support.
The Jamison court noted the jury was instructed that statements and arguments of counsel are not evidence. The jury was also advised of the definition it must apply in deciding whether there had been premeditation. Under those facts, the prosecutor’s misstatement of the law on premeditation was not reversible error.
In State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001), this court recognized that the prosecutor’s misstatement of the law can rise to the level of denying the defendant a fair trial. In Holmes, the victim was shot and killed in a struggle over a gun. Holmes was convicted of premeditated murder. There was no evidence of premeditation before the struggle began.
The prosecutor stated in closing argument that “premeditation can occur in an instant. That’s the law in the State of Kansas.” 272 Kan. at 497. That the prosecutor’s statement was a deliberate misstatement of the law was evidenced by the prosecutor’s statements to the trial judge during the jury instructions conference that such a statement in the court’s instructions to the jury would be error. Under the Holmes facts, the prosecutor’s deliberate misstatement of the law regarding premeditation was found to be reversible error.
Here, there is no indication that the prosecutor purposefully misstated the law. Furthermore, there is evidence of premeditation: Doyle went to Marguerite’s house late at night with the keys to her house in his pocket; Doyle had removed his personalized license plate from his car prior to going to Marguerite’s house; Doyle backed his car into Marguerite’s driveway in such a way as to avoid detection; Doyle told the police that he had not committed the crime but had interrupted an intruder who had committed the crime; and there is no evidence that the attack was provoked.
The jury instruction in this case was a correct statement of the law on premeditation. The facts clearly support a finding that the murder of Kubik was premeditated. In addition, the record does not clearly indicate what the jury was asking. We note that Doyle was convicted of the premeditated murder of Kubik and the attempted second-degree murder of Marguerite. Thus, the jury’s question about premeditation must have concerned the attempted first-degree premeditated murder charge for the crime against Marguerite and not the crime against Kubik. Therefore, any error by the prosecution regarding premeditation was harmless.
Failure to Dismiss a Prospective Juror for Cause
A juror may be challenged for cause when the juror’s state of mind with reference to the case or any of the parties to the case is such that the court determines there is doubt that the juror can act impartially and without prejudice to the substantial rights of any party. A trial judge’s ruling on a challenge for cause will not be disturbed unless it is clearly erroneous or an abuse of discretion is shown. State v. Heath, 264 Kan. 557, Syl. ¶ 16, 957 P.2d 449 (1998).
Doyle contends that the trial judge committed reversible error in failing to strike for cause one prospective juror whom defense counsel passed for cause.
During voir dire, the following exchange took place between Mr. Anderson, the defense counsel, and the panel:
“[Mr. Anderson:] Are there any persons on the panel that believe that — the best way to describe it would be, “Where there is smoke there must be fire,’ in other words, somebody has been charged so she or he must somehow be guilty of something? Are there any persons that believe that?
“MR. NUNNICK: Yes, sir.
“MR. ANDERSON: Would you please tell me a little about that.
“MR. NUNNICK: I believe the defendant was caught red-handed, from what I read, you know. He was in the residence.
“THE COURT: Wait just a moment. I don’t think that is responsive to the question. Do you remember me earlier talking about being circumspect if you express an opinion about what you’ve read?
“MR. NUNNICK: Okay.
“THE COURT: Are you saying that you’ve formed that opinion and it is going to affect your ability to keep an open mind?
“MR. NUNNICK: Not necessarily, Your Honor. What I know is what I’ve read in the paper, you know, like everybody has probably read on this case.
‘THE COURT: I think that that is really the basis of the question, what you read in the paper is not fact.
“MR. NUNNICK: Well—
“THE COURT: I’m not going to get into a debate about it. I’m simply saying that is what he is asking, if you can deal with the facts, not the opinions or the statements in the paper.
“I think at least you were aiming towards that area.
“MR. ANDERSON: That was kind of what I was hoping to get, but I think that I got something different than that. That is a pretty strong statement. He has indicated, I think, a fairly strong belief at this point in time.
“Do you believe, simply, Mr. Doyle is guilty based upon what you read?
“MR. NUNNICK: No, not at all.
“MR. ANDERSON: I asked if you thought that — who might think, “Where there is smoke there is fire,’ and you raised your hand, and I asked you to tell me about that. Can you expound a little more?
“MR. NUNNICK: I don’t know exactly how to put this. You said, Do I have a preconceived notion? Just from what I’ve read in the media. However, the way that you stated it, you said, I can’t remember the term that you used, ‘But if it walks like a duck, talks like a duck . . . .’
“MR. ANDERSON: “Where there is smoke there is fire’?
“MR. NUNNICK: Right.
“MR. ANDERSON: Yeah.
“MR. NUNNICK: From what — I don’t want to say this again, but from what I’ve read, I don’t want to put too much credence on that, but it seems to me that there is so much in the paper, intimate details that, I don’t have a preconceived notion, but it is in the back of my head. I’m trying to be honest—
“MR. ANDERSON: Yes, sir.
“MR. NUNNICK: — and it couldn’t possibly be to where I could hold up the proceeding by my beliefs, but I—
“MR. ANDERSON: I appreciate your honesty.
“MR. NUNNICK: That’s just it. I don’t want to make it sound like I believe that the man is guilty or not, but, you know, you do have kind of a preconceived notion after reading some of the press coverage.”
The defense attorney challenged prospective juror Nunnick for cause, and the trial court refused to strike the juror for cause. The defense attorney then struck the juror with a peremptoiy strike. On appeal, Doyle argues that the trial court had a duty to insure a fair panel regardless of whether he could use one of his peremptory challenges to remove Mr. Nunnick from the panel, and the failure to do so was an abuse of discretion.
The failure to excuse a juror for cause does not constitute a ground for reversal unless the defendant was prejudiced thereby. Peremptoiy challenges are means to achieve the end of an impartial juiy, and so long as the jury that ultimately sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not violate the Sixth Amendment. Heath, 264 Kan. 557, Syl. ¶ 17. Doyle does not cite any actual prejudice resulting from the failure to excuse the juror for cause. This issue is without merit.
Admitting Evidence
The admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitraiy, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. State v. Lumley, 266 Kan. 939, 950, 976 P.2d 486 (1999).
Over the objections of defense counsel, the prosecution was allowed to play the tape of the 911 call from Marguerite to the dispatcher. The defense counsel asserted that the tape added nothing to the evidence and was highly prejudicial. The State argued that the tape provided evidence of premeditation. The court overruled the objection and played the tape for the jury.
We have reviewed the 911 tape. The tape records a hysterical woman’s voice requesting immediate help, without any explanation of why she needs help. It contains no evidence of premeditation. Furthermore, Doyle did not deny committing the alleged acts; his defense went to his mental capacity to form criminal intent and premeditation.
However, the admission of the tape was not error. The probative value of the evidence on the tape was not highly prejudicial, and the defendant was aware that evidence would be offered. See K.S.A. 60-445. The evidence against Doyle was overwhelming. The jury did not accept Doyle’s mental defect defense.
Affirmed.
Davis, J., not participating.
Brazil, Chief Judge Retired, assigned. | [
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|
Per Curiam:
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator’s office against James K. Craig, of Wichita, an attorney admitted to the practice of law in Kansas.
The formal complaint filed against respondent alleges violations of KRPC 1.3 (2000 Kan. Ct. R. Annot 310), diligence and promptness; 1.4 (2000 Kan. Ct. R. Annot. 320), communication; 1.16(d) (2000 Kan. Ct. R. Annot. 371), terminating representation; 5.3 (2000 Kan. Ct. R. Annot. 404), responsibility for nonlawyer assistants; 1.5 (2000 Kan. Ct. R. Annot. 330), fees; 1.15 (2000 Kan. Ct. R. Annot. 360), safekeeping property; and 8.4(c) (2000 Kan. Ct. R. Annot. 420), misconduct; and Supreme Court Rule 207 (2000 Kan. Ct. R. Annot 237), failure to cooperate.
A hearing before a panel of the Kansas Hoard for Discipline of Attorneys was held on January 10, 2000, in the hearing room of the office of Disciplinaiy Administrator, Topeka, Kansas. Respondent appeared in person and through counsel, G. Craig Robinson. The Deputy Disciplinary Administrator dismissed the allegation in the complaint that respondent violated Supreme Court Rule 207. Respondent testified at the panel hearing and stipulated to the facts and to the violations of KRPC as set forth in die complaint. The panel found, by clear and convincing evidence, the following:
“2. In addition to being a licensed attorney, until December 31, 2000, the Respondent also was a licensed private detective. The Respondent’s private de tective agency was also located at 1065 North Waco Street, Wichita, Kansas 67203-3950.
“3. In 1994, the Respondent purchased tire ‘Divorce Clinic’ from the widow of Richard Hilton. The Respondent’s ‘Divorce Clinic practice amounted to a divorce mill, handling a large volume of low-cost uncontested divorce cases. The Respondent recently sold die ‘Divorce Clinic’ practice to James W. Wilson and Kathleen Kent. The Respondent is in die process of establishing a practice similar to die ‘Divorce Clinic’ but in the bankruptcy field.
Morris Complaint — DA7579
“3. On Wednesday, February 3, 1999, Robert Morris met with die Respondent’s wife, Hazel Craig, Office Manager for die Respondent’s law practice. At diat time, Mr. Morris paid $190.00 and retained die Respondent to file an action for divorce. Mr. Morris informed Mrs. Craig diat time was of the essence. Mrs. Craig assured Mr. Morris that die paperwork would be filed on die following Friday or Monday.
“4. The Respondent failed to prepare and file die necessary pleadings. Mr. Morris’ wife filed a divorce action and obtained temporary orders. On February 8, 1999, Mr. Morris was served with a copy of die petition filed by his wife. Mr. Morris took die petition to die Respondent’s law office, met with Mrs. Craig again, and provided a copy of the paperwork to Mrs. Craig. Mrs. Craig assured Mr. Morris diat an answer would be filed widiin twenty days. At diat time, Mr. Morris told Mrs. Craig what he wanted to receive in die divorce.
“5. Mr. Morris later contacted the Respondent’s office again. Mr. Morris met widi Diana Perry, who was, at the time, die Respondent’s Legal Assistant, and again provided information about what he wanted to receive in the divorce.
“6. The Respondent failed to file an answer to the petition. As a result, a default judgment was entered against Mr. Morris on April 8, 1999. The journal entry awarded Mr. Morris’ wife die house, all of die equity in die house, her retirement account, and odier property that she had previously agreed to provide to Mr. Morris.
“7. On May 3, 1999, die Respondent finally entered his appearance in behalf of Mr. Morris. At that time, the Respondent filed an untimely answer and motion to modify die temporary orders.
“8. On May 24, 1999, Mr. Morris went to the Respondent’s office to discuss the motion to modify the temporary orders. At diat time, Mr. Morris learned that the divorce had been previously granted. That was die only personal contact that Mr. Morris ever had with die Respondent.
“9. Subsequently, Mr. Morris filed a complaint with die Disciplinary Administrator’s office regarding the Respondent’s actions. Thereafter, die Respondent acknowledged that he had failed to provide diligent representation to Mr. Morris.
“10. Later, Mr. Morris sued the Respondent. To avoid Mr. Morris’ claim, the Respondent and his wife filed a bankruptcy case. Mr. Morris’ claim against die Respondent was discharged in die bankruptcy case.
“11. The Respondent has not refunded Mr. Morris’ retainer, nor made any attempts to make Mr. Morris whole following the misconduct.
Troijer Complaint — DA7608
“12. Charles Troyer retained the Respondent in a post-divorce matter. The matter was scheduled for hearing, but later continued. The Respondent’s wife incorrectly informed Mr. Troyer óf tire new hearing date. As a result, Mr. Troyer did not appear at the scheduled hearing.
“13. At one point, the Respondent discussed tire journal entry with Mr. Troyer. Mr. Troyer objected to certain language contained in the journal entry. The Respondent failed to object to die proposed journal entry and, subsequently, die court signed die journal entry.
“14. Throughout die course of die representation, die Respondent failed to return Mr. Troyer’s telephone calls.
Long Complaint — DA7669
“15. Randy Long retained the Respondent to represent him in two separate paternity actions and paid die Respondent $600 therefor. Subsequently, the Respondent failed to return Mr. Long’s telephone calls.
“16. The Respondent failed to enter his appearance and failed to take any action in behalf of Mr. Long. As a result, default judgment was entered against Mr. Long. Mr. Long did not learn of die entry of default judgment until his wages were garnished.
“17. The Respondent filed a motion to set aside die journal entry, but failed to have die motion scheduled for hearing. The Respondent dien filed a second motion to set aside die journal entry and scheduled that motion for hearing.
“18. Because the Respondent had not been diligent, Mr. Long terminated die Respondent and demanded diat the Respondent refund die retainer. The Respondent refused to refund die retainer.
“19. To date, the Respondent has never refunded Mr. Long’s retainer.
Blaine-Scogin Complaint — DA7719
“20. In August 1998, Rhonda Blain-Scogin retained the Respondent to represent her in an action for divorce. At that time, Ms. Blaine-Scogin paid die Respondent a retainer of $1,500.
“21. Ms. Blaine-Scogin asked die Respondent to obtain child support and spousal support. The Respondent failed to obtain temporary orders of support. The court ordered diat child support be calculated and paid during die pendency of die divorce action. The Respondent failed to calculate the child support as ordered. As a result, over a year elapsed widiout Ms. Blaine-Scogin receiving court ordered financial support from her husband.
“22. Ms. Blaine-Scogin also asked the Respondent to seek an emergency divorce. Ms. Blaine-Scogin provided a doctor’s letter as support for die requested emergency divorce. The Respondent failed to request that die court grant an emergency divorce.
“23. At one point, Ms. Blaine-Scogin took off work for a meeting with the Respondent to prepare for the pre-trial conference. Without informing Ms. Blaine-Scogin, until she arrived at his office for die meeting, the Respondent canceled die meeting and continued her pre-trial conference hearing because he needed to go to Colorado and investigate a murder case in his capacity as a private detective.
“24. Throughout the representation of Ms. Blaine-Scogin, the Respondent failed to keep Ms. Blaine-Scogin reasonably informed of die status of her case. He repeatedly misled Ms. Blaine-Scogin regarding child support, scheduled court hearings, and the status of the case.
“25. Eventually, Ms. Blaine-Scogin hired replacement counsel. Ms. Blaine-Scogiris subsequent attorney immediately obtained an order for support and a divorce decree.
Dewey Complaint — DA7789
“26. Peggy Dewey retained die Respondent to represent Ms. Dewey s son in a pending divorce action. Ms. Dewey paid the Respondent $600 for that representation.
“27. Subsequendy, Ms. Dewey’s son was arrested for violating a protection from abuse order. Ms. Dewey engaged die Respondent’s associate, John Myzer, to represent her son. Ms. Dewey paid die Respondent $500 for diat representation. The day after the Respondent was retained, die city prosecutor dismissed the case on his own motion.
“28. Because neither the Respondent, nor his associate took any action to achieve the dismissal, Ms. Dewey requested that the $500 retained be returned to her. The Respondent refused to return the retainer, explaining that he had applied die $500 for outstanding fees associated widi the divorce action. Ms. Dewey never agreed to pay any additional monies for die representation of her son in die divorce action.
“29. To date, the Respondent has not refunded the $500 to Ms. Dewey.
Trust Account Complaint — DA8023
“30. During 1999, die Respondent had three trust accounts:
“a. At Intrust Bank, the Respondent had an established trust account titled die James K. Craig, Attorney at Law, Trust Account, account number 175366. During die first week of June 1999, six checks for filing fees were returned due to insufficient funds. Thereafter, on June 15, 1999, diat account was closed due to excessive overdrafts. At die time diat it was closed, it had a negative balance of $983.21.
“b. On May 13,1999, Mrs. Craig opened a trust account titled James K. Craig, d/b/a The Divorce Clinic Trust Account at Southwest National Bank, account number 419-631-7. On May 21, 1999, four checks for filing fees were returned due to insufficient funds.
“c. On July 20, 1999, the Respondent opened a trust account titled the James K. Craig, Attorney at Law Trust Account at Commerce Bank, account number 671122099.
“31. In the spring of 1999, the Respondent was sued by several creditors, including Southwestern Bell Telephone. Additionally, the Internal Revenue Service (hereinafter ‘IRS’) issued a levy against tire Respondent for failing to pay taxes.
“32. Southwestern Bell Telephone obtained a judgment against the Respondent and, after tire Respondent failed to pay tire judgment, Southwestern Bell Telephone garnished the Respondent’s bank accounts, including dre Respondent’s trust accounts. Mrs. Craig contacted ‘Mona’ at Soutírwest National Bank and informed her drat trust accounts are not subject to garnishment. Thereafter, the garnishment was released. Eventually, the judgment owed to Soudrwestem Bell Telephone was discharged in bankruptcy.
“33. The Respondent and his wife deposited personal funds into the trust account at Southwest National Bank and, drereby, avoided dreir creditors and dre IRS. Some of dre personal and office expenses paid tirrough the trust account are as follows:
Check No. Payee Date Amount For
1010 Jane Austin May 28, 1999 288.00 32 hours
1011 Hazel Craig May 28, 1999 500.00
1014 Hazel Craig May 28, 1999 760.32
1015 A&H Cleaning May 31, 1999 103.00 To cover insufficient funds ck
1016 Hazel Craig June 2, 1999 100.00
1017 A&H Cleaning June 2, 1999 122.50
1018 1021 Office Depot DMA June 2, 199 June 8, 1999 80.19 108.00
1022 Michelle Kester June 8, 1999 17.00
1023 Eye Associates June 8, 1999 65.00
1032 Hazel Craig June 18, 1999 1000.00 Filing fees
“34. While the trust accounts were extant, the Respondent failed to maintain complete records of tirem.
“35. Currently, dre Respondent does not utilize his trust accounts. Mrs. Craig testified drat drey do all business in ‘cash.’ The Respondent requires his clients to pay him in cash and Mrs. Craig pays dre filing fees in cash. Mrs. Craig testified drat she keeps the cash in an envelope and that dre cash includes unearned fees.
“36. Mrs. Craig testified drat dre IRS levy, to date, has not been satisfied.”
The panel made the following conclusions of law:
“1. Attorneys must act with reasonable diligence and promptness in representing dreir clients. Because the Respondent failed to act widr reasonable diligence and promptness in representing Mr. Morris, Mr. Long, and Ms. Blaine-Scogin, die Hearing Panel concludes diat the Respondent violated KRPC 1.3.
a. In die Morris matter, die Respondent failed to timely file a divorce petition, failed to timely file an answer to the petition filed by Mr. Morris’ wife, and failed to take any corrective action.
b. The Respondent failed to file an answer in behalf of Mr. Long. Because of die Respondent’s failure, default judgment was entered against Mr. Long, and his wages were garnished, widiout die benefit of a paternity test.
c. Additionally, with regard to Ms. Blaine-Scogin (DA7719), the Respondent failed to apply for and obtain an emergency divorce and failed to obtain temporary orders, including an order for child support. As a direct result of die Respondent’s failure, Ms. Blaine-Scogin did not receive any child support for a period of thirteen mondis.
“2. KRPC 1.4(a) provides:
‘A lawyer shall keep a client reasonably informed about die status of a matter and promptly comply with reasonable requests for information.’
By failing to return telephone calls and by failing to provide accurate information regarding scheduled court hearings, die Hearing Panel concludes diat the Respondent failed to keep Mr. Morris, Mr. Troyer, Mr. Long, and Ms. Blaine-Scogin reasonably informed about the status of their cases, in violation of KRPC 1.4(a).
“3. KRPC 1.15(a) provides:
'A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection widi a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas. Odier property shall be identified as such and appropriately safeguarded. Complete records of such account funds and odier property shall be kept by the lawyer and shall be preserved for a period of five years after termination of representation.’
The Respondent violated KRPC 1.15(a) when he commingled his personal funds with client funds and when he failed to maintain adequate trust account records.
“4. KRPC 1.16(d) requires attorneys to ‘refund [] any advance payment of fee that has not been earned.’ The Hearing Panel concludes that die Respondent violated KRPC 1.16(d) when he failed to return die unearned fee of $500 to Ms. Dewey.
“5. KRPC 5.3 provides as follows:
“Widi respect to a nonlawyer employed or retained by or associated with a lawyer:
‘(a) a partner in a law firm shall make reasonable efforts to ensure that die firm has in effect measures giving reasonable assurance that the person’s conduct is compatible widi the professional obligations of die lawyer.
‘(b) a lawyer having direct supervisory audiority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible widi die professional obligations of die lawyer; and
‘(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the rules of professional conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner in die law firm in which the person is employed, or has direct supervisory authority over the person, and knows of die conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
With respect to his representation of Mr. Morris, the Respondent violated KRPC 5.3, when he failed to assure that the actions of his staff were compatible with his professional obligations as a lawyer.
“6. It is professional misconduct for a lawyer to ‘engage in conduct involving dishonesty, fraud, deceit or misrepresentation.’ KRPC 8.4(c). The Hearing Panel concludes that the Respondent engaged in conduct involving dishonesty and fraud when he concealed personal funds from his creditors by placing the funds in his trust account.”
The panel applied the ABA standards for imposing lawyer sanctions and considered ABA Standard 3 in making its recommendation as to the discipline to be imposed against the respondent.
The panel found the following aggravating factors: prior disciplinary offenses (respondent was informally admonished for having violated KRPC 1.1 and KRPC 1.3), dishonest or selfish motive (respondent acted dishonestly and selfishly), a pattern of misconduct, and substantial experience in the practice of law. The panel found several mitigating circumstances including acknowledgment of the violations, cooperation with disciplinary investigation, previous good character and reputation, cooperation during the hearing, and remorse.
In addition to the above-cited factors, the panel has thoroughly examined and considered ABA Standard 4.12. That standard provides, in pertinent part: “Suspension is generally appropriate when a lawyer knows or should know that he is dealing improperly with client property and causes injury or potential injury to a client."
The panel then concluded its recommendation as follows:
“The Hearing Panel unanimously recommends that Respondent be suspended from tiie practice of law in the state of Kansas for a period of one year.
“Mrs. Craig also testified that Mr. Morris was the only client who had a claim discharged in bankruptcy. Accordingly, die Hearing Panel recommends that the Court order the Respondent to pay restitution to the following clients in the following amounts: Randy Long, $600; Rhonda Blaine-Scogin, $1,500; and Peggy Dewey, $500.
“Additionally, the Hearing Panel recommends that during the suspension period, the Respondent enroll in and successfully complete twelve hours of law office management continuing legal education. The twelve hours of law office management continuing legal education is in addition to the standard annual continuing legal education requirements and should include a segment on trust account use and management.
“It is clear to the Hearing Panel that the Respondent does not understand the requirements of KRPC 1.15. The procedure currently utilized by the Respondent and his wife in maintaining client funds is a continuing violation of KRPC 1.15 and a practice designed to continue to hide assets from their creditors, including die IRS. In order to ensure that client funds are appropriately safeguarded, die Hearing Panel recommends that the Respondent be required to undergo a reinstatement hearing. See Kan. Sup. Ct. R. 219.
“At the reinstatement hearing, the Respondent should be required to establish diat he understands the requirements of KRPC 1.15. Additionally, the Respondent should also be required to establish that he has a system in place to appropriately track and account for all unearned fees. Finally, at die reinstatement hearing, die Respondent should be required to establish tiiat he has paid full restitution and has successfully completed the twelve hours of law office management continuing legal education, as described above.”
The court, having considered the record herein and the reports of the hearing panel, concurs in the findings, conclusions, and recommendation of the panel.
It Is Therefore Ordered that James K. Craig be suspended from the practice of law in the State of Kansas for a period of 1 year, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2000 Kan. Ct. R. Annot. 224).
It Is Further Ordered that in the event respondent should seek reinstatement, he shall be subject to all of the reinstatement requirements of Supreme Court Rule 219 (2000 Kan. Ct. R. Annot. 274).
It Is Further Ordered that the respondent make the following restitution: Randy Long, $600; Rhonda Blaine-Scogin, $1,500; and Peggy Dewey, $500.
It Is Further Ordered that respondent successfully complete 12 hours of law office management continuing legal education. The 12 hours shall be in addition to the standard annual continuing legal education requirements and should include a segment on trust account use and management.
It Is Further Ordered that respondent fully comply with Supreme Court Rule 218 (2000 Kan. Ct. R. Annot. 266), that the costs of these proceedings be assessed to the respondent, and this opinion be published in the official Kansas Reports. | [
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|
The opinion of the court was delivered by
Lockett, j.:
Defendant appeals the district court’s revocation of his probation and his sentence of 15 years to life in prison on a conviction of possession of cocaine, a class B felony due to a prior conviction. Defendant claims the trial court erred (1) in finding he violated his probation; (2) in fading to consider the factors set out in K.S.A. 21-4601 and K.S.A. 21-4606 when imposing a sentence greater than the statutory minimum sentence; and (3) in refusing to modify his sentence as recommended by the Topeka Correctional Facility (TCF). Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1).
Graham’s original convictions of possession of methamphetamine, possession of marijuana, and possession of cocaine were affirmed in State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989). Graham’s sentence was later commuted to 15 years to life by Governor Finney. In 1998, as a result of a K.S.A. 60-1507 action which alleged ineffective counsel in allowing an uncounseled Arkansas conviction to be considered in determining Graham’s sentence, this court reversed the judgment of sentence and remanded the case for resentencing.
Graham, who had served 10 years of his original sentence, was resentenced for possession of cocaine, a class B felony. The sentence for a class B felony committed in 1989 was a minimum term of 5 to 15 years and a maximum term of 20 years to fife. K.S.A. 21-4501(b) (Ensley 1988). The judge imposed a 15-year to life sen tence. After resentencing Graham, the district court suspended imposition of the sentence and placed Graham on 1 year of probation, supervised by court services. Later, the district court, after finding that Graham had violated the terms of his probation, revoked Graham’s probation. Graham appealed. The basis for revoking Graham’s probation was that while on probation Graham had twice tested positive for narcotics and had been arrested for possession of controlled substances. Graham contends that the district court improperly considered documents that were not admitted into evidence in finding that he had violated the terms of his probation.
A probationer may not have his or her probation revoked unless it is made to appear that the probationer has failed to comply with the conditions of probation. Swope v. Musser, 223 Kan. 133, Syl. ¶ 2, 573 P.2d 587 (1977). Once there has been evidence of a violation of the conditions on which probation was granted, revocation is in the sound discretion of the district court. 223 Kan. at 136.
On the first check, Graham tested positive for marijuana and amphetamine. To confirm the results, Michael Tyson, Graham’s probation officer, poured Graham’s urine sample from a styrofoam cup into another container and sent the sample to LabCorp for analysis. LabCorp confirmed Tyson’s finding. During a follow-up visit, Tyson discussed the LabCorp test results with Graham and recommended that Graham enter a chemical dependency treatment program. Graham agreed to enter a program and submitted to an assessment process at Charter Hospital. Graham did not enter treatment.
At a subsequent check, Graham again tested positive for amphetamine and marijuana. Tyson confronted Graham with the results. Graham denied using prohibited substances. To obtain confirmation of his test results, Tyson sent the second sample to LabCorp. LabCorp determined that there was an insufficient amount of urine in that sample to test for amphetamine. The specimen was sufficient to test for marijuana. LabCorp confirmed the presence of marijuana in the urine. Tyson informed Graham of the results of the second confirmation test, and Tyson filed a motion to revoke Graham’s probation.
At the probation revocation hearing Tyson, who was certified to conduct urinalysis testing, testified concerning the two occasions Graham had field-tested positive for amphetamine and marijuana. Tyson stated that contamination of the testing materials could invalidate the result of a urine test and that great caution was necessary in collecting and testing a sample. Tyson testified that Graham urinated into a styrofoam cup that was setting on a shelf in the specimen collection room. Tyson stated that the cup was not individually wrapped or otherwise protected from contamination. Although discussed, the LabCorp reports were not submitted for admission as evidence.
The district court found that on two occasions, Graham’s urine had tested positive for prohibited substances. Usage of controlled substances was prohibited by the conditions of Graham’s probation. Once the State presents prima facie proof of a violation of a condition of probation, the defendant has the burden of coming forward with evidence to meet and overcome this prima facie proof. State v. Miller, 20 Kan. App. 2d 378, Syl. ¶ 10, 888 P.2d 399 (1995). Two positive results on separate occasions for prohibited substances establishes sufficient evidence to support the district court’s decision to revoke Graham’s probation.
Graham first argues that the lab tests were not rehable because the styrofoam cup, which was not wrapped to protect against contamination, could have been contaminated. Graham then contends that the LabCorp results, which were testified to by Tyson, were inadmissible hearsay and were erroneously considered by the district court. Graham bases this complaint on the statutory requirements for the admission of written statéments at revocation hearings and on the constitutional guarantee that he be afforded the right of confrontation.
K.S.A. 22-3716 sets out the procedure to be used during probation revocation hearings. The statute provides that the State shall have the burden of establishing the violation of probation. Lab-Corp’s written reports of its test results were discussed at the probation revocation hearing but not admitted as evidence.
In a probation revocation proceeding, the defendant is entitled to only minimal due process rights. Thus, the full panoply of rights due in a criminal proceeding is not applicable to probation revocations. State v. Yura, 250 Kan. 198, 201, 825 P.2d 523 (1992). Among the minimum requirements of due process in a probation revocation hearing is the right to confront and cross-examine adverse witnesses. 250 Kan. at 207. The probationer s right of confrontation, however, may be dispensed with if the trial court finds good cause for not allowing confrontation. 250 Kan. at 207-08.
Graham did not object to the testimony regarding the LabCorp results. Because of the lack of objection, the trial court was not required to make specific findings for admission of the evidence. The erroneous admission of evidence may not be raised on appeal absent a timely objection to the evidence, so stated as to make clear the specific ground of the objection. K.S.A. 60-404; State v. Sutton, 256 Kan. 913, 924, 889 P.2d 755 (1995).
We note that the Kansas Legislature enacted the harmless error rule. K.S.A. 60-261 states:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
Here, no objection based on lack of confrontation was made to the district court relating to the LabCorp reports. If Graham had objected, the trial court would have been required to make specific findings regarding good cause for not allowing confrontation, and this court would have a basis for reviewing the district court’s reasons. Because no objection was made to consideration of the LabCorp test results, we find no error.
Furthermore, unsubstantiated and unreliable hearsay cannot, consistent with due process, be the sole basis for a probation revocation. When hearsay is reliable, however, it can be the sole basis for a probation revocation. When hearsay is offered as the only evidence of the alleged violation, the indicia of reliability must be substantial. Miller, 20 Kan. App. 2d at 389. The probation officer, who was certified to conduct urinalysis testing, testified that on two occasions Graham had field-tested positive for amphetamine and marijuana. The probation officer substantiated the unadmitted LabCorp reports, giving the reports a substantial indicia of reliability.
Graham next contends that the district court’s failure to state statutory factors when imposing a sentence greater than the statutory minimum sentence was error.
K.S.A. 21-4601 provides:
“This article shall be liberally construed to the end that persons convicted'of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangeroús offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fine or assignment to a community correctional services program whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
K.S.A. 21-4606(b) provides:
“The following factors, while not controlling, shall be considered by the court in fixing the minimum term of imprisonment:
“(1) The defendant’s history of prior criminal activity;
"(2) The extent of die harm caused by the defendant’s criminal conduct;
“(3) Whether die defendant intended that the defendant’s criminal conduct would cause or threaten serious harm;
“(4) The degree of die defendant’s provocation;
“(5) Whether there were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense;
“(6) Whether the victim of the defendant’s criminal conduct induced or facilitated its commission;
“(7) Whedier die defendant has compensated or will compensate the victim of the defendant’s criminal conduct for die damage or injury diat the victim sustained.”
The seven factors set forth in K.S.A. 21-4606(b) are to be considered by the court in fixing the minimum term of imprisonment which is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime. Where the sentence exceeds the minimum, the legislature intended that the sentencing judge place on the record a detailed statement of the facts and factors the judge considered. Failure to do so does not always indicate the sentencing court abused its discretion. Each case is to be considered on its facts. State v. McDonald, 250 Kan. 73, 82-83, 824 P.2d 941 (1992).
Although a district court need not expressly consider the K.S.A. 21-4601 objectives on the record, where the district court has completely failed to follow the policy set forth in K.S.A. 21-4601 in sentencing a defendant, the court has abused its discretion and the sentence imposed must be set aside and the case remanded for the purpose of resentencing in accordance with the proper statutory procedure. State v. Johnson, 255 Kan. 156, 162, 872 P.2d 247 (1994). It is important to note that the sentencing judge here originally sentenced Graham in 1987 and placed Graham on probation in 1998.
At Graham’s original sentencing in 1987, two prior convictions were admitted into evidence. One conviction resulted from an uncounseled plea in an Arkansas prosecution for possession of cocaine with the intent to deliver, which was later successfully challenged. The other conviction was a Kansas conviction for possession of cocaine. Because of the two prior convictions, Graham’s sentence was statutorily enhanced to life imprisonment. When sentencing Graham in 1987, the trial court stated:
“In imposing the sentence, the Court is required to take into consideration the defendant’s past history of criminal activity. There have been a number of misdemeanor offenses, not terribly important to this Court other than showing the defendant’s attitude toward his responsibilities, not indicating any great propensity to commit violent offenses or any such nature as that, but merely a general attitude to disregard and disdain[s] from reckless driving to speeding. However, with respect to three-time conviction — or third time conviction of possession of cocaine, this Court must consider that this is no longer a victimless crime. I do not know how much trafficking or distribution or whatever of cocaine or possession with the intent to deliver is his previous conviction. I don’t know how much this has been spread out to other people, but it’s obviously, it’s a continuing act of Mr. Graham which he has no intention to terminate.
“He’s been placed on probation twice before, and with that extended leniency, saw fit to continue that activity. There is no provocation, there is no inducement, there is no substantial grounds for excusing or justifying such conduct. It has been apparent to the defendant that his behavior is unlawful, he’s been warned and had opportunities on many occasions to bring his activity into conformity but it’s obvious that this man has an attitude where he is not going to conform his behavior to tlie societal norms and live widiin die penal — or live within die requirements of the criminal statutes. It is obvious that he intends to break these laws. It is just as obvious that this Court is required to impose the sentences which are provided by law.
“Mr. Graham has written to this Court through die Court Services Office a long and extensive personal plea as to what he thinks of this case. It is very indicative of die fact diat Mr. Graham, diroughout all of diese documents — and diey are some extensive writing — continues to blame eveiyone else in the world for Iris problems which he created by his own possession of diis substance.
“It is not eveiyone else’s fault in diis world Mr. Graham, diat you have committed these offenses, it is your fault, and you are going to have to do die sentence. And tiiis Court imposes the term of life imprisonment as required by those statutes of the State of Kansas, places you in die custody of die Secretary of Corrections for the term of life imprisonment.”
When revoking Graham’s conviction in 1998, the court stated:
“The Court notes diat the defendant originally received a harsh sentence. The Court also notes that tile defendant has received clemency from the Governor of the State. The Court notes the defendant has also received an opportunity for an early probation from this Court, and that he has served approximately ten years in — in prison.
“The purpose of sentencing is not to merely follow die statute. And die statutes and the laws are made to control behavior in society, and die severity of die punishment increases proportionately with die need to modify that behavior. Harsh sentences are provided by statute to give notice of the importance of die statute and the importance of the crime, and as an incentive to prevent certain behaviors. That normally works widi a majority of society.
“And diis Court thought, in placing Mr. Graham on probation, that 10 years of behavior modification in prison, and die sword of a large sentence hanging over his head was going to be enough to rehabilitate Mr. Graham; and that widi such a harsh sentence as a possibility, Mr. Graham’s only obligation was to complete one year widiout violating the law or die conditions of probation.
“I felt diat when I placed Mr. Graham on probation for diat one year, that I would be able to tell within one year whedier or not he could, whether or not he was rehabilitated, whether or not he could live without violating the law. That’s probably the only tiring that I did right.”
“There’s only one place where this syllogism of the proportionate sentence doesn’t work, and that’s when there is an antisocial or asocial personality, Mr. Graham, because in diis particular case die old expression is ‘A leopard can’t change it’s spots.’ And you can’t change your personality You can change your behavior, but you can’t change your personality, any more than I can change mine.
“In diis ease, a long sentence was unable to change you. Your own child, diat needs you, wasn’t able to change your — your behavior. The drugs you took weren’t able to change you. A — a liberal probation, given to you, wasn’t able to change you. The Court placing trust and responsibility on your shoulders, wasn’t able to change you.
“And in my view, you’re not at this time physically dependent upon any drugs. And you do not appear to be, after today, and after being in custody, there appears to be no — no change in your behavior, no sign of dependence. And I don’t see any drug program or treatment program being of any value to you. A person of— of your abilities would probably not — would probably be able to see through die obvious program of — of most drug treatment programs, and I don’t think you’ll ever get anything out of it.
“It appears to this Court, that the original sentencing, which took into consideration a number of factors, and which was reduced to a 15 to life, which was die appropriate sentence at diat time, shouldn’t be — that your sentence at this time should not be greater or lesser [dian] that sentence which was your original sentence at diis point in time.
“So the Court, for that reason, recommits you to die Secretary of Corrections of the State of Kansas for a term of not less [than] 15, no[r] more [than] life.”
Graham asserts that the district court’s failure to expressly consider on the record the factors set out in K.S.A. 21-4601 and K.S.A. 21-4606 at the 1998 hearing was an abuse of discretion requiring a new sentencing. We disagree.
Although in 1998 the sentencing court focused primarily on Graham’s lack of motivation to rehabilitate, the judge by reference included the factors it considered during the original 1989 sentencing. The judge considered Graham’s history of prior criminal activity, factor (1) of K.S.A. 21-4606, which demonstrated to the judge an unwillingness on Graham’s part to rehabilitate. The judge observed that Graham was not drug-dependent, factor (5), an excuse or justification. The district judge determined that the other five factors were not relevant.
Although the seven factors set forth in K.S.A. 21-4606(b) are to be considered by the court in fixing the minimum term of imprisonment, failure to do so does not always indicate the sentencing court abused its discretion. Each case is to be considered on its facts. See McDonald, 250 Kan. at 82-83.
After sentencing Graham, the sentencing court ordered that Graham submit to a psychological evaluation. At the 120 day callback hearing, the report from the TCF recommended that Graham be reinstated on probation with court services, obtain outpatient counseling, and maintain stable employment. The district court refused to modify the sentence. Graham argues that the district court erred by refusing to modify his sentence.
K.S.A. 2000 Supp. 21-4603(d) requires a district court to modify a defendant’s sentence upon an unequivocal recommendation by TCF, unless the court makes required findings on the record. State v. Bruce, 255 Kan. 388, 398, 874 P.2d 1165 (1994). The district court must find and set forth with particularity its reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification. State v. Miller, 260 Kan. 892, 926 P.2d 652 (1996).
The district judge found that the recommended conditions of probation which Graham would be subject to were the same conditions he violated. The judge observed that while on probation, Graham had committed acts which again subjected Graham to drug charges. In short, the district judge concluded that Graham was not amenable to probation because of Graham’s continued use of illegal narcotics, even after spending 10 years in prison. Based on Graham’s past and continued use of illegal narcotics, the district judge found that Graham continued to pose a threat to himself and to society.
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|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Kevin B. Peterson, from his conviction by a jury of manufacture of methamphetamine. He had also been convicted of possession of methamphetamine with intent to sell, deliver, or distribute, and possession of a controlled substance with no drug tax stamp. The Court of Appeals reversed those convictions, but affirmed the conviction for manufacture of methamphetamine. Peterson petitioned this court for review of the Court of Appeals’ affirmance of the trial court’s denial of his motion to suppress and his conviction for manufacture of methamphetamine. We granted the petition largely because there was a conflict between this case and State v. Martens, 29 Kan. App. 2d 361, 28 P.3d 408 (2001). Our decision in Martens is also filed on this date.
The Kansas Bureau of Investigation (KBI) officers executed a search warrant on Steve Schmidt’s home in rural Mitchell County, Kansas. When questioned, Schmidt indicated that the items found at the residence were part of a methamphetamine lab. Schmidt approached officers about making a deal with the prosecutor to inform on another methamphetamine manufacturer in return for dismissal of the charges against him. Later, after negotiating the deal to drop charges against him, Schmidt told KBI Special Agent Doug Younger that he was storing chemicals at his residence for Peterson and that when he had visited Peterson’s house on June 24, Peterson was completing a batch of methamphetamine. In addition, Schmidt indicated that Peterson had a methamphetamine lab setup in the basement of his residence and also in a trailer north of his house.
After obtaining a search warrant, agents from the KBI and officers from Mitchell County, Osborne County, and the Hays Police Department executed a search of Petersons residence, also located in Mitchell County, Kansas. Agent Younger testified that officers utilized respirators and a gas meter during the search, and that the gas meter began making a loud shrieking noise at the front porch of the residence, indicating potentially explosive levels of ether or phosphine gas. Officers seized methamphetamine, pseudoephedrine tablets, and chemicals such as acetone and Coleman fuel. Peterson was not home at the time of the search, but was apprehended coming toward the residence by a deputy within a half mile of the house.
Agent Younger interviewed Peterson, and Peterson told Younger that he had been using methamphetamine for 10 to 15 years, purchasing 2 to 3 ounces at a time from a person in Nebraska. Peterson told Younger that he then would distribute the methamphetamine to his regular customers. He also indicated that during the month of May 1998, he had been collecting items to manufacture methamphetamine and gathering information from books and the Internet to learn how to manufacture it. Peterson said that since the time he learned to manufacture methamphetamine, Schmidt wanted Peterson to finish processing methamphetamine for him.
KBI Senior Special Agent Matt Lyon located four bottles of Mini-Thins, which contain ephedrine hydrochloride, a precursor chemical for the manufacture of methamphetamine, in a white purse in the bedroom where Peterson’s wife was sleeping. He also found a porcelain funnel, a set of scales, and a bowl containing an off-white powder in the bedroom. On the top shelf of the bedroom closet, Lyon found the book “Methamphetamine, Third Edition, Uncle Fester.”
Several items seized at Peterson’s house tested positive for methamphetamine. A black purse found in the bedroom contained a rock of methamphetamine weighing 48.39 grams. The purse also held several small baggies containing methamphetamine in a white powder form. A funnel and a soup bowl found in the bedroom tested positive for residue of methamphetamine. Finally, methamphetamine was also identified in a solution in a glass jar in the freezer.
At trial, Lyon testified that “we found finished product. It was evidence that he had actually completed the process and actually manufactured the methamphetamine . . . .” On cross-examination, however, Lyon admitted he could not determine whether the methamphetamine he found had been purchased or had been processed by Peterson.
At trial, Schmidt stated that he and Peterson had been friends for 9 or 10 years. Schmidt testified that he last observed Peterson cooking methamphetamine on June 24, 1998, at Peterson’s house. Schmidt described what he meant when he said Peterson cooked the methamphetamine by stating: “He had a glass jar about that (indicating) tall, that (indicating) big around. We put it on the stove, put some acetone on it, tried to dry it out, and came into a powder form, and then I purchased some and left.” Schmidt said he paid Peterson $200 or $250.
Schmidt confirmed Peterson’s statement to officers that he had asked Peterson to cook methamphetamine for him and stated that in the past he had used methamphetamine with Peterson. In addition, Schmidt testified that 3 or 4 months prior to June 24,1998, he had seen Peterson cooking methamphetamine in the trailer.
Peterson was sentenced to a controlling term of 51 months imprisonment and 36 months post-release supervision for the primary offense of manufacture of methamphetamine.
On July 27,2001, a three-member panel of the Court of Appeals issued its opinion affirming Peterson’s conviction for manufacture of methamphetamine. It further concluded that considering the evidence adduced, an instruction on the lesser included crime of simple possession was merited and reversed Peterson’s conviction for possession of methamphetamine with intent to sell and no drug tax stamp because no such instruction was given.
In addition, the Court of Appeals found that K.S.A. 1997 Supp. 65-4159 provided alternate means for its violation; in short, the court wrote that 65-4159 criminalized both the conduct of actually manufacturing methamphetamine and the conduct of attempting to manufacture methamphetamine. Therefore, the court concluded that the offenses charged were not duplicitous and a separate instruction on attempt was not needed. '
JURY INSTRUCTIONS
For Ms first assertion of error, Peterson argues that because the crimes of manufacturing and attempt to manufacture methamphetamine are separate and distinct offenses requiring proof of different elements, the trial court erred by refusing to submit his proposed Instructions Nos. “B,” “C,” and “J” to the jury. Peterson further contends that none of the elements of attempt were set forth in Instruction No. 9.
“When reviewing challenges to jury instructions, we are required to consider all the instructions together, read as a whole, and not to isolate any one instruction. If the instructions properly and fairly state the law as applied to the facts of the case, and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error even if they are in some way erroneous. [Citation omitted.]” State v. Mitchell, 269 Kan. 349, 355, 7 P.3d 1135 (2000).
Our analysis of this issue involves the interpretation of K.S.A. 1997 Supp. 65-4159. Interpretation of a statute is a question of law, and our review is unlimited. An appellate court is not bound by the district court’s interpretation of a statute. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
In its review of this matter, our Court of Appeals stated:
“K.S.A. 1997 Supp. 65-4159 covers manufacturing or attempting to manufacture a controlled substance. Both manufacturing and attempting to manufacture have the same severity level and penalty. K.S.A. 1997 Supp. 65-4159. There is not a separate offense for attempting to manufacture. A separate instruction is not necessary in order to convict. The statute simply provides alternative means by which the statute can be violated.”
The Court of Appeals concluded the trial court did not err in instructing the jury.
In Martens, 29 Kan. App. 2d 361, another panel of the Court of Appeals held that the crime of attempt to manufacture a controlled substance was a separate and distinct offense from the crime of manufacture of controlled substance. There, the panel stated:
“K.S.A. 1997 Supp. 65-4159 is titled, in part, as ‘Unlawful manufacturing or attempting such of any controlled substance.’ The title of the statute however, is not dispositive to the issue of whether the statute creates a single offense because ‘[t]he title or caption prefacing the text of a statute is prepared by the revisor of statute's (K.S.A. 77-133[b]) and “forms no part of the statute itself.” [Citation omitted.]’ State v. Larson, 12 Kan. App. 2d 198, 201, 737 P.2d 880 (1987).
“Section (a) of K.S.A. 1997 Supp. 65-4159 states as follows: ‘Except as authorized by tire uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.’ (Emphasis added.) We interpret this subsection as providing the elements of the offense. The only means of violating the statute is manufacturing a controlled substance or a controlled substance analog. Because tire statute does not specify attempted manufacture of a controlled substance as a means of violating the statute, attempted manufacture of a controlled substance is a separate offense created under K.S.A. 21-3301(a). This interpretation is supported by PIK Crim. 3d 67.21-A (1999 Supp.), which lists manufacture of a controlled substance, not attempted manufacture, as the means of violating K.S.A. 1997 Supp. 65-4159.” 29 Kan. App. 2d at 365.
K.S.A. 65-4159 was enacted in 1990 and amended in 1993 and 1994. Prior to the 1994 amendment, the statute included language which prohibited “the unlawful manufacturing or attempting to unlawfully manufacture any controlled substance.” K.S.A. 65-4159; K.S.A. 1993 Supp. 65-4159. However, in 1994, the legislature performed an extensive revision of 65-4159, dividing it into four subsections and changing the language of the first subsection to read: “(a) Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture any controlled substance or controlled substance analog.” The 1994 amendment omitted the phrase “or attempting to unlawfully manufacture” from subsection (a) that set forth the statutory prohibition.
Subsections (b) and (c) of 65-4159 still refer to “attempting to manufacture.” However, those subsections simply effectuate the same penalty for attempting to unlawfully manufacture as for the actual manufacture of a controlled substance and do not criminalize any specific conduct.
By its amendment of 65-4159(a), the legislature omitted the phrase “or attempting to unlawfully manufacture” previously seen in the statute. “When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. [Citation omitted.]” Kaul v. Kansas Dept. of Revenue, 266 Kan. 464, 471, 970 P.2d 60 (1998), cert. denied 528 U.S. 812 (1999). Therefore, we conclude that following its amendment in 1994, 65-4159 no longer includes the crime of attempting to manufacture a controlled substance.
K.S.A. 21-3107 states:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is:
“(c) an attempt to commit the crime charged.”
Under the plain language of K.S.A. 1997 Supp. 21-3107(2)(c), attempt to manufacture methamphetamine may be considered a lesser included crime of the manufacture of methamphetamine. Here, the trial court failed to provide a separate instruction on attempt to manufacture methamphetamine.
We find that the instructions given by the trial court, when considered as a whole, failed to properly and fairly state the law and were likely to mislead the jury. Therefore, we reverse Peterson s conviction for manufacture of methamphetamine and remand this matter for a new trial.
By reason of our decision on this issue, the remaining issues are moot.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, James C. Trickey, an attorney admitted to the practice of law in Kansas, whose last known business address is Lenexa, Kansas.
The hearing panel concluded that Trickey violated Kansas Rules of Professional Conduct (KRPC) 1.1 (2001 Kan. Ct. R. Annot. 312) (competence); KRPC 1.3 (2001 Kan. Ct. R. Annot. 323) (diligence); KRPC 1.4 (2001) Kan. Ct. R. Annot. 334) (communication); KRPC 1.16(d) (2001 Kan. Ct. R. Annot. 387) (declining or terminating representation); and Kansas Supreme Court Rule 207 (2001 Kan. Ct. R. Annot. 246) (duties of the bar and judiciary).
Based upon clear and convincing evidence, a unanimous hearing panel made the following findings of fact and conclusions of law.
“FINDINGS OF FACT
"1. James C. Trickey (hereinafter ‘the Respondent’) is an attorney at law, Kansas Attorney Registration No. 11704. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Lenexa, Kansas 66215. The Respondent was admitted to the practice of law in the state of Kansas on September 23,1983. On October 20, 2000, the Kansas Supreme Court suspended the Respondent’s license to practice law for failing to fulfill the continuing legal education requirements. The Respondent remains on administrative suspension.
“Complaint of Mike Polys (DA7860)
“2. Mike Polys retained the Respondent to provide representation in traffic court proceedings in the Municipal Court of Overland Park, Kansas, and the District Court of Wyandotte County, Kansas. Mr. Polys paid the Respondent $200 for the representation.
“3. Mr. Polys attempted to contact the Respondent on numerous occasions. However, Mr. Polys’ attempts were unsuccessful. The Respondent failed to return Mr. Polys’ telephone calls.
“4. The Municipal Court of Overland Park issued a warrant for Mr. Polys’ arrest, because the Respondent failed to appear in behalf of Mr. Polys at one or more hearings. After the Respondent failed to appear in Wyandotte County District Court in Mr. Polys’ behalf, Mr. Polys’ bond was canceled.
“5. The Respondent failed to keep Mr. Polys adequately informed regarding the status of the cases.
“Complaint of Glenna L. Blair (DA7865)
“6. In February, 1999, Glenna L. Blair met with the Respondent regarding her financial difficulties. At that time, the Respondent informed Ms. Blair that given her circumstances it would be appropriate to file a chapter 13 bankruptcy. The Respondent assured Ms. Blair that she would be able to keep her home and her car. At that time, the Respondent agreed to file a chapter 13 bankruptcy case in behalf of Glenna L. Blair. Ms. Blair provided the Respondent with the financial information necessary for the Respondent to prepare and file the bankruptcy petition.
“7. In March, 1999, Ms. Blair received a summons in a mortgage foreclosure action regarding her home. Ms. Blair provided the summons to the Respondent.
“8. In the following months, the Respondent repeatedly assured Ms. Blair that he was handling her bankruptcy matter. The respondent never provided Ms. Blair with written correspondence regarding the status of the representation. Typically, the contacts between the Respondent and Ms. Blair occurred by telephone, in a local bar or restaurant, or at Ms. Blair’s home. Often when the Respondent met with Ms. Blair, he was intoxicated.
“9. In July, 1999, Ms. Blair received notice that her home was being sold. Ms. Blair provided the notice to the Respondent. The Respondent assured Ms. Blair that he would take care of it.
‘TO. In November, 1999, Ms. Blair received notice that she was being evicted from her home. Thereafter, the Respondent filed a motion to set aside the foreclosure sale. However, the Respondent failed to have the motion set for hearing. The motion was not ruled upon.
“11. Finally, on December 20, 1999, the Respondent filed the chapter 13 petition for bankruptcy. The Respondent failed to inform Ms. Blair that she needed to appear in court on December 22,1999. As a result, the trustee filed a motion to dismiss.
“12. On January 5, 2000, Ms. Blair paid the Respondent $300. Aso on January 5, 2000, Ms. Blair went to court with the Respondent. At that time, they met with the trustee, William Griffin. The trustee informed the Respondent and Ms. Blair that the plan filed by the Respondent was completed improperly and that, because it had previously been foreclosed upon, the house was not protected by the bankruptcy action.
“13. The bankruptcy court granted the trustee’s motion and dismissed Ms. Blair’s chapter 13 bankruptcy.
“14. After receiving additional notices concerning eviction from her home, on January 26, 2000, Ms. Blair contacted the Respondent. The Respondent came to Ms. Blair’s home at 10 p.m., in an intoxicated state. Ms. Blair decided to terminate, the services of the Respondent.
“15. With the help of her mother, Ms. Blair retained new counsel. Ms. Blair’s new attorney explained to Ms. Blair that, while she had been earlier, she was no longer a good candidate for a chapter 13 bankruptcy case. Ms. Blair’s new attorney filed a chapter 7 bankruptcy action in behalf of Ms. Blair.
“16. Because the Respondent failed to timely file a chapter 13 petition in bankruptcy for Ms. Blair, Ms. Blair suffered unnecessary financial loss attempting to retain her home. Ultimately, Ms. Blair lost her home as a result of the Respondent’s misconduct.
“17. The Respondent failed to timely respond to requests made by the disciplinary investigator.
“Complaint of Steve Laterra (DA7891)
“18. Steve Laterra retained the Respondent to sue ‘Jerry’s Outdoor Equipment, Inc.’ regarding a defective tractor. On December 17, 1998, the Respondent filed the case in the District Court of Wyandotte County, Kansas, case numbered 98C5763.
“19. After the case was filed, Mr. Laterra attempted to contact the Respondent by letter and by telephone regarding the status of the case. The Respondent failed to respond to Mr. Laterra’s letters and failed to return Mr. Laterra’s telephone calls for in excess of one year.
“20. In January, 2000, Mr. Laterra sent the Respondent a letter. The letter was returned and marked undeliverable. Mr. Laterra telephoned the Respondent. However, a recording indicated that the Respondent’s telephone number had been disconnected.
“21. Also in January, 2000, Mr. Laterra contacted a new attorney to try to ascertain the status of the case. The Respondent failed to respond to requests for information from Mr. Laterra’s new attorney.
“22. In March, 2000, Mr. Laterra went to the District Court of Wyandotte County, Kansas, and examined the court file. At that time, Mr. Laterra learned that the Respondent failed to appear at a discovery conference held March 26, 1999, and, that as a result, the case was dismissed.
“23. Mr. Laterra provided original documents to the Respondent in order to initiate the lawsuit. The Respondent has never returned those documents.
“CONCLUSIONS OF LAW
“1. Based upon the above findings of fact, the Hearing Panel concludes, as a matter of law, that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16(d), and Kan. Sup. Ct. 207.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ’Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent failed to competently represent Ms. Blair when he failed to take appropriate action to protect Ms. Blair’s ownership rights in her home. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Mr. Polys, Ms. Blair, and Mr. Laterra.
a. The Respondent failed to diligently represent Mr. Polys when he failed to appear in court in Mr. Polys’ behalf.
b. The Respondent failed to diligently represent Ms. Blair when he failed to file a chapter 13 petition in bankruptcy for several months and when he failed to protect Ms. Blair’s ownership rights in her home.
c. The Respondent failed to diligently represent Mr. Laterra when he failed to appear in court for the discovery conference, resulting in a dismissal of Mr. Laterra’s case.
Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. Polys, Ms. Blair, and Mr. Laterra, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. KRPC 1.4(a) provides:
‘A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’
The Respondent failed to return telephone calls to Mr. Polys, Ms. Blair, and Mr. Laterra. Additionally, the Respondent failed to respond to letters from Mr. Laterra. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“5. KRPC 1.16(d) provides:
‘Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law.’
At the time the Respondent ceased his representation of Mr. Laterra, the Respondent failed to ‘take steps to the extent reasonably practicable to protect’ Mr. Laterra by failing to provide notice to Mr. Laterra allowing time for employment of other counsel and by failing to return original documents to Mr. Laterra. The Hearing Panel concludes that, accordingly, the Respondent violated KRPC 1.16(d).
“6. Kan. Sup. Ct. R. 207(b) provides as follows:
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
The Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 207(b) by failing to provide information requested by the disciplinary investigator in a timely manner.
“RECOMMENDATION
“In making this recommendation for discipline, the Hearing Panel considered the factors outline by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and adequate communication.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, all three of the Respondent’s clients suffered actual injury: Mr. Polys’ bond was canceled and an arrest warrant was issued for him; Ms. Blair lost her home; and Mr. Laterra’s cause of action was dismissed.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline' to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has previously been censured for violating KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.15, and Kan. Sup. Ct. R. 207. In re Trickey, 268 Kan. 835, 999 P.2d 964 (2000).
“Pattern of Misconduct. Included in this case are three complaints. Each complainant encountered similar problems with the Respondent. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, and Kan. Sup. Ct. R. 207. As such, the Respondent committed multiple offenses.
“Vulnerability of Victim. Mr. Polys, Ms. Blair, and Mr. Laterra were vulnerable to the Respondent’s misconduct.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in the state of Kansas in 1983. At the time he engaged in the misconduct, the Respondent had practiced law for approximately 16 years. As such, the Respondent has substantial experience in the practice of law.
“Indifference to Making Restitution. The Respondent has made no attempt to provide restitution to the victims.
“Although counsel for the Respondent made statements in mitigation of the Respondent’s misconduct, no evidence was presented to support those comments.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 4.42. That standard provides, in pertinent part:
‘Suspension is generally appropriate when:
‘(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client, or
‘(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’
“Based upon the above findings of fact, conclusions of law, and Standard 4.42, the Hearing Panel unanimously recommends that the Respondent be indefinitely suspended from the practice of law in the State of Kansas.”
The respondent, by his attorney, files no exceptions to the hearing panel’s final report. The court, having considered the record, the final hearing report, the factors and aggravation and mitigation, and the panel’s recommendation, adopts and concurs in the findings, conclusions, and recommendations of the hearing panel. The court unanimously finds that the respondent should be indefinitely suspended from the practice of law in the state of Kansas.
It Is Therefore Ordered that James C. Trickey be and he is hereby indefinitely suspended from the practice of law in the state of Kansas commencing as of the date of this order.
It Is Further Ordered that James C. Trickey make appropriate restitution to the three clients involved.
It Is Further Ordered that in the event James C. Trickey should seek reinstatement, he be subject to all of the reinstatement requirements, including a hearing as provided by Supreme Court Rule 219 (2001 Kan. Ct. R. Annot 285).
It Is Further Ordered that at the reinstatement hearing, James C. Trickey be required to show that he is current with his Kansas Continuing Legal Education requirements and that he is current with the Kansas Supreme Court annual fees and the Kansas Continuing Legal Education annual fees.
It Is Further Ordered that James C. Trickey shall comply with Supreme Court Rule 218 (2001 Kan. Ct. R. Annot. 276) and pay the costs of this action, that this opinion shall be published in the official Kansas Reports, and that the costs of the proceeding shall be assessed to James C. Trickey. | [
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The opinion of the court was delivered by
Larson, J.:
Calvin Hullum was charged with 42 felony counts and, after a 7-day jury trial, was convicted of first-degree felony murder, aggravated criminal sodomy, two counts of rape, one count of attempted rape, three counts of aggravated kidnapping, two counts of kidnapping, four counts of aggravated robbery, four counts of robbery, seven counts of aggravated burglaiy, and one count of burglary. The charges arose from a string of crimes committed by Hullum between September 1998 to May 1999. On appeal, he contends (1) that his interviews with the police as well as other witness testimony which he claims are fruit of the poisonous tree should have been suppressed, (2) that his upward departure sentence was improper, and (3) that his life sentence for felony murder constitutes cruel and unusual punishment.
Hullum does not challenge the sufficiency of the evidence on appeal. Therefore, the factual background of these convictions will not be discussed except insofar as it is relevant to the issues raised.
When Hullum was originally arrested, due to the discovery of his fingerprint at one of the crime scenes, he was advised of his Miranda rights and then driven to the home where the print was recovered. The detective stopped in front of the house and asked Hullum if he had ever been inside. Hullum said he had never been there. When asked if he was sure, Hullum said he was absolutely sure he had never been to that house before. The detective then drove Hullum to the Kansas City Police Department.
At the station, Hullum was again advised of his Miranda rights, and he signed a form acknowledging that he had been advised of his rights and was waiving them. In part, the form stated: “I am willing to make a statement and answer questions. I do not want a lawyer at this time.” Immediately after he waived his rights, the detective asked Hullum again if he had ever been to the house at which they stopped. Hullum became slightly upset and responded, “No, I never been in there, man.” The detective then asked him why his fingerprints were in there. The detective testified that Hullum then “visually says you got me, don’t you, man.”
Five recorded statements were taken after this point on May 20, 1999, and May 21, 1999. In those statements, Hullum admitted to his involvement in several crimes, and during his third recorded interview named his cousin, Charles Thompson, as his accomplice on three of the break-ins. There is nothing in the transcript of the interviews that suggests Hullum was coerced into making the statements, nor were any promises made or threats lodged against him. Hullum was advised of his rights and acknowledged he had been advised of his rights prior to each interview. He also executed an additional waiver of rights form on May 21, 1999, and on at least two occasions expressly stated that he did not desire an attorney to be present during the questioning.
Hullum moved to suppress his recorded statements prior to trial, claiming that they were taken in violation of his Miranda rights, after he had invoked his right to an attorney. He also objected to the testimony of Charles Thompson, whom Hullum claimed would not have testified for the State had Thompson not been informed that Hullum implicated him.
Hullum’s motion to suppress was based on a statement from the first recorded interview, which he claimed was not properly transcribed. The Kansas City Police Department transcribed the statement, which began approximately 10 minutes after he signed a waiver of rights form, as follows:
“Q: Have you been advised that you have the right to remain silent; that any statement you make can be used against you as evidence in court; that you have the right to the presence of an attorney, either retained by you or one appointed for you without cost and that the attorney can be present while you are being questioned?
“A: Yeah, (inaudible) ....
“Q: Let’s start with . . .: Pardon me.
“A: Can I (inaudible) ....
“Q: Okay, you signed this form right?
“A: Uh-huh.
“Q: Okay, the advice of rights form you remember signing that? Is that a yes or a no?
“A: Yes, sir.
“Q: And are you drunk now, are you drunk?
“A: No.
“Q: Are you high? You been smoking crack?
“Q: You know what we’re talking about? You don’t have any trouble understanding us, right? Were you involved in the burglary in 5-18-99 to 1722 N. 26th Street?
“A: Yeah.”
From this point, the interview continued with Hullum responding to questions posed by the detective.
In his motion to suppress, Hullum argued that at the points where the State transcribed the responses as inaudible, he was actually requesting an attorney. He proposed the following version of the interview:
“Q: Have you been advised that you have the right to remain silent; that any statement you malee can be used against you as evidence in court; that you have the right to the presence of an attorney, either retained by you or one appointed for you without cost and that the attorney can be present while you are being questioned?
“A: Yeah, but I . . . uh . . . .
“Q: Let’s start with ....
“A: So can I have that? Can I?
“Q: Pardon me.
“A: Can I have one? You know, I’m doing all of (inaudible).
“Q: Okay, you signed this form, right?”
The remainder of this portion of Hullum’s interview is transcribed identical to that in the police transcript.
The second time when Hullum claims he invoked his right to counsel, at the end of the interview, was transcribed by the police department to read:
“Q: Do you have anything else you want to add to your statement?
“A: (inaudible)
“Q: You want to talk to a lawyer? Do you want to talk to a lawyer?
“A: No. No. No, man I want to see what’s going on man. I want to talk to you man.”
Hullum claimed in his suppression motion that he stated the following:
“Q: Do you have anything else you want to add to your statement?
“A: I believe for now I want to talk to a lawyer, my own lawyer.
“Q: You want to talk to a lawyer? Do you want to talk to a lawyer without (inaudible)?
“A: No, no, no. Man, I want to see what’s going on man. I want to talk to you man.”
The tape recording of the interview was not included in the record on appeal although it was given to and reviewed by the trial judge who heard the motion to suppress.
In his motion to suppress, Hullum’s counsel requested that the court find whose version of the interview was correct. While the court denied the motion to suppress, finding that Hullum had been properly advised of his rights and freely waived them including his right to counsel, the court never articulated on the record a specific finding as to which transcription of the interview was correct. The trial court found Hullum had “not requested counsel at the critical time involved in this particular case.” Based on this ruling it is obvious the trial court completely discounted the version of the interview which Hullum’s counsel presented.
At trial, the State called 56 witnesses in its case in chief. Hullum did not present any evidence in defense, nor did he testify on his own behalf. The State did not introduce any portion of the recorded interviews of Hullum as evidence for its case. Hullum was convicted of the counts as previously stated and brings the present appeal. Our jurisdiction is pursuant to K.S.A. 22-3601(b)(l) (imposition of maximum sentence of life imprisonment).
Hullum first argues that during his initial interview with the police on two separate occasions he invoked his right to counsel. He contends the trial court erred in failing to grant his motion to suppress the statements and any fruits thereof.
Our standard of review when analyzing a district court’s ruling on a motion to suppress evidence was recently set forth in State v. Toothman, 267 Kan. 412, 416, 985 P.2d 701 (1999), in this manner:
“An appellate court reviews the factual underpinnings of a district court’s decision ‘by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review.’ 263 Kan. 727, Syl. ¶ 1. See State v. Hopper, 260 Kan. 66, 68-69, 917 P.2d 872 (1996).”
Substantial evidence was recently described in State v. Haskins, 262 Kan. 728, Syl. ¶ 1, 942 P.2d 16 (1997).
“Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which die issues can reasonably be resolved. Stated in another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.”
Hullum correctly asserts that in custodial interrogations, a request for counsel must end the questioning. In support he cites Minnick v. Mississippi, 498 U.S. 146, 147, 112 L. Ed. 2d 489, 111 S. Ct. 486 (1990), in which the United States Supreme Court began: “To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, we have held that the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel. Miranda v. Arizona, 384 U.S. 436, 474, 86 S. Ct. 1602 (1966).” See, Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981).
In his brief, Hullum states: “[T]he context of the police transcript clearly indicates that Mr. Hullum unequivocally invoked his right to counsel.” He has absolutely nothing to substantiate this statement except an argument made by his counsel in his motion to suppress. Nothing from the police transcript reflects that Hullum requested an attorney. Hullum is shown acknowledging that he had been advised of his rights, and, when directly questioned at the end of the interview, he expressly states that he does not want counsel but would prefer to speak to the authorities. He specifically waived counsel in the written advice of rights he initialed and signed before the interview began.
Hullum’s argument on appeal is based on the version of the interview as interpreted by his own legal counsel and submitted to the court in the motion to suppress. The prosecutor never agreed that this transcription was correct, nor did the trial court find it to be more accurate than the version of the police department. Rather, after a thorough review of the recorded interview, the trial court found that Hullum did not invoke his right to counsel.
The interviewing detective testified at the preliminary hearing that he did not recall Hullum requesting an attorney at any time. The detective also testified that his question at the end of Hullum’s first interview directly eliciting whether he wanted an attorney was precipitated by a comment from Hullum he could not understand, but in which Hullum mentioned the word “lawyer.” In follow up, the detective stated that he inquired whether Hullum wanted an attorney, to which Hullum responded he did not. The detective stated that Hullum often mumbled during the interviews.
While Hullum’s mumbling does not appear to arise to an ambiguous request for counsel, we recently analyzed such a request and the accompanying duty of the investigating officers in State v. Bailey, 256 Kan. 872, 878-79, 889 P.2d 738 (1995). After expressly waiving his rights, later in the custodial interrogation the defendant asked if he should ask for an attorney and whether he needed an attorney. The officers did not attempt to clarify whether tire defendant was requesting an attorney, but instead told the defendant that it was his decision. After analyzing the most recent decision of Davis v. United States, 512 U.S. 452, 129 L. Ed. 2d 362, 114 S. Ct. 2350 (1994), we opined: “There is no obligation to stop questioning if the statement concerning counsel is not unambiguous or unequivocal.” 256 Kan. at 882. Bailey s request was held to be at best an ambiguous one and not necessitating the cessation of the interview in order to seek clarification.
At the preliminary hearing, the interviewing detective was asked by Hullum’s counsel about his statement. The following colloquy took place:
“Q: At the end of his first statement that you heard, didn’t you hear him say ‘I want to talk to a lawyer?’
“A: No. I asked him if he wanted a lawyer. He said something about a lawyer. I couldn’t understand what it was. Lot of times he was mumbling. I specifically asked him on the tape ‘Do you want a lawyer?’ and he said no.
“Q: You didn’t hear him say he wanted a lawyer then?
“A: No. I asked him if he wanted a lawyer and he said no.”
The detective in our case did not err in asking Hullum to clarify his mumbled mention of a lawyer, but in fact met and exceeded his duty under present case law. As was stated by the Davis Court: “Of course, when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. . . . But we decline to adopt a rule requiring officers to ask clarifying questions.” (Emphasis added.) 512 U.S. at 461.
The test to determine whether a suspect is requesting an attorney is an objective one. See State v. Morris, 255 Kan. 964, 975, 880 P.2d 1244 (1994) (“The test to determine if a suspect is asserting Miranda rights under Edwards is an objective inquiry, requiring some statement that can reasonably be construed to be an expression of a desire for an attorney’s assistance.”) If a suspect inaudibly mumbles that he desires an attorney, it is not error for an investigating officer to seek a clarification of that request.
Hullum’s Miranda rights were not violated. There is insufficient support in the record that Hullum at any time during his interrogation made an unambiguous or unequivocal request for counsel. We conclude the trial court properly interpreted the interview tape. It was not made a part of the record on appeal. Our rule is clear that an appellant has the “burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, an appellate court presumes that the action of the trial court was proper.” State v. Moncla, 262 Kan. 58, 68, 936 P.2d 727 (1997). Such is the case here.
There is substantial competent evidence to support the trial court’s refusal to suppress Hullum’s statements. The record does not support Hullum’s self-serving interpretation of his own interview.
Hullum next argues that the witness testimony of Charles Thompson and Nova Glin were the product of the alleged illegal interviews and therefore inadmissable as fruits of the poisonous tree.
This court has held that where the tree is not poisonous, neither can be its fruit. State v. McCowan, 226 Kan. 752, 756, 602 P.2d 1363 (1979) (defendant’s challenge to evidence as “fruit of the poisonous tree” was found to be without merit where trial court had ruled his Miranda rights were not violated). Hullum’s argument fails for the reasons we have previously stated. We need not consider the State’s arguments that these witnesses would have inevitably been identified in the investigation once Hullum’s fingerprint was found and witnesses were interviewed.
Hullum contends the trial court’s upward departure, doubling the presumptive sentence for one of his rape convictions, was in violation of State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). The State correctly concedes that his sentence was in violation of this court’s decision in Gould. Hullum’s rape sentence which was doubled is vacated, and this matter must be remanded for resentencing of that count.
Hullum finally argues that his life sentence for felony murder is cruel and unusual punishment under the Eighth Amendment of the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.
Hullum did not raise this argument below. In fact, both by written motion and during oral argument, Hullum used the length of his felony murder sentence to support his motion for downward departure on the other sentences. As this court has consistently held, “when constitutional grounds are asserted for the first time on appeal, they are not properly before us for review. State v. Steadman, 253 Kan. 297, 306, 855 P.2d 919 (1993).” State v. Coffman, 260 Kan. 811, 925 P.2d 419 (1996). We will not consider the issue or retreat from our previous decision of State v. Goodseal, 220 Kan. 487, Syl. ¶ 4, 553 P.2d 279 (1976).
All of the convictions are affirmed. We vacate the doubled rape sentence and remand for resentencing of that conviction as required by Gould. | [
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|
The opinion of the court was delivered by
Brazil, J.:
The Kansas Juvenile Justice Authority (JJA) appeals the district court’s decision adjudicating J.M. as a chronic offender II pursuant to K.S.A. 38-16,129 and committing him to a juvenile correctional facility.
J.M. pled no contest to one count of burglary and one count of felony theft on December 28, 2000. The district court adjudicated J.M a juvenile offender and sentenced him to 1 year of probation. On April 24, 2001, the State filed a motion to modify J.M.’s sentence, alleging he ran away from his assigned home a number of times. During one of these occasions, J.M. stole a vehicle. The State recommended that J.M. be committed to a juvenile correctional facility. The court in its May 4, 2001, journal entry determined J.M. was a “chronic II escalating felon” and sentenced him to 12 months in a juvenile correctional facility. In doing so, the court considered J.M.’s prior juvenile record consisting of one case: On December 21,1998, J.M. pled no contest to one count of criminal trespass and one count of criminal damage to property. The court considered these to be “two prior misdemeanor adjudications” under K.S.A. 38-16,129(a)(3)(B)(i).
The record contains a copy of the JJA placement screening form, which was faxed to the district court. The “NOT ACCEPTED” box on the form was checked. The court noted it received the placement screening form from the JJA and recognized that the JJA disagreed with the chronic offender II, escalating felon determination. However, the court maintained its position and ordered the JJA to comply with its original order committing J.M. to the correctional facility.
The court denied the JJA’s motion to reconsider and the JJA has appealed.
The JJA argues the district court erred in determining J.M. met the definition of chronic offender II under K.S.A. 38-16,129(a)(3)(B)(i):
“(B) The chronic offender II, escalating felon is defined as an offender adjudicated as a juvenile offender for an offense which, if committed by an adult, would constitute:
(i) One present felony adjudication and two prior misdemeanor adjudications;
“Offenders in this category may be committed to a juvenile correctional facility for a minimum term of six months and up to a maximum term of 18 months. The aftercare term for this offender is set at a minimum term of six months and up to a maximum term of 12 months.”
The JJA argues the 1998 case should not be considered to be two separate adjudications. If the 1998 case is one adjudication, then J.M. fails to meet the definition of chronic offender II under K.S.A. 38-16,129(a)(3)(B)(i), as that subsection requires two prior misdemeanor adjudications.
The JJA first argues that comparison to the adult sentencing guidelines is not appropriate because the adult criminal system differs from the juvenile criminal system. Second, the JJA focuses on legislative intent, arguing the amendments to the Juvenile Justice Code were intended to decrease the number of juveniles sentenced to commitment. Last, the JJA argues State v. Magness, 240 Kan. 719, 732 P.2d 747 (1987), supports its position. We reject those arguments.
Both parties discuss in their briefs on appeal whether comparison of the juvenile system with the adult system is appropriate. Such comparison weighs heavily in favor of counting both counts in the prior adjudication separately. K.S.A. 21-4710(a) requires multiple counts in a single complaint to be counted separately. K.S.A. 2000 Supp. 21-4711(f) makes the rules applicable to juvenile cases for purposes of adult sentencing: “Except as provided in subsections (4), (5) and (6) of K.S.A. 21-4710 and amendments thereto, juvenile adjudications will be applied in the same manner as adult convictions. Out-of-state juvenile adjudications will be treated as juvenile adjudications in Kansas.”
The Court of Appeals in In re S.A.J., 29 Kan. App. 2d 789, 31 P.3d 320 (2001), rejected a comparison to the criminal system:
“A juvenile does not have a constitutional right to a speedy trial in matters conducted under the Kansas Juvenile Offenders Code. See In re T.K., 11 Kan. App. 2d 632, 634-36, 731 P.2d 887 (1987). Consequently, the 90-day and 180-day rules enumerated in K.S.A. 22-3402 are not applicable. Absent the speedy trial requirements, of K.S.A. 22-3402, and with no other statutory time requirements specified in the juvenile code, the issue to be determined is solely whether appellant’s case was heard without unnecessary delay. See K.S.A. 38-1651.”
However, the defendant juvenile in S.A.J. asked the court to read into the juvenile code the statutoiy speedy trial rules found at K.S.A. 22-3402. In contrast, the comparison with the adult system in the present case is merely intended to interpret language otherwise found in. the juvenile code.
The interpretation of a statute is a question of law, and this court’s review is unlimited. Hartford Cas. Ins. Co. v. Credit Union 1 of Kansas, 268 Kan. 121, 124, 992 P.2d 800 (1999). The rules of statutory interpretation are well known:
“The fundamental rule of statutoiy construction is that the intent of the legislature governs when that intent can be ascertained from the statute. [Citation omitted.] The general rale is that criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The rale of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. [Citations omitted.] In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]” State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998).
While a strict construction of K.S.A. 38-16,129(a)(3)(B)(i) would require the prior adjudications to be from separate cases, such construction must be subordinate to the intent of the legislature, as the quotation above suggests. A survey of Chapter 38, Article 16 of the Kansas Statutes Annotated shows an intent on the part of the legislature to give meaning to a prior adjudication involving multiple counts.
K.S.A. 38-1622(a) governs the form of pleadings for cases against juveniles:
“(a) Complaint. (1) Any person 18 or more years of age having knowledge of a juvenile who appears to be a juvenile offender may file with the court having jurisdiction a verified complaint, in writing, which shall state, if known:
(E)for each count, the official or customary citation of the statute, ordinance or resolution which is alleged to have been violated, but error in the citation or its omission shall not be grounds for dismissal of the complaint or for reversal of a trial if the error or omission did not prejudice the respondent.” (Emphasis added.)
The emphasized language in the above quotation shows that multiple counts in a juvenile case are contemplated. K.S.A. 38-1625(a) authorizes a district court to issue a summons which informs the juvenile when he or she should appear in court to “answer the offenses charged in the complaint.” (Emphasis added.) It is clear from K.S.A. 38-1625(a) that the legislature contemplated multiple counts in one juvenile case. By providing authority for the State to bring actions involving multiple counts in a single juvenile case, the legislature presumably meant to give meaning to those multiple counts. There is a presumption that the legislature does not intend to enact useless or meaningless legislation. Haiiford, 268 Kan. at 132. On the other hand, tire statute would have meaning in the context of counting a juvenile adjudication later under the adult criminal system because there the multiple juvenile adjudications are counted separately. See K.S.A. 2000 Supp. 21-4711(f).
K.S.A. 38-1634 governs the effects of a plea of nolo contendere. The language used in that section is instructive:
“A plea of nolo contendere is a formal declaration that the respondent does not contest the charge. When a plea of nolo contendere is accepted the court shall adjudge the respondent to be a juvenile offender. The plea cannot be used against the respondent as an admission in any other action based on the same act.”
Clearly, the above section uses language of singularity, i.e., “charge” is singular.
In the event the case is contested, the section governing adjudication is found in K.S.A. 38-1655:
“If the court finds that the respondent committed the offense charged or an included offense as defined in subsection (2) of K.S.A. 21-3107 and amendments thereto, the court shall adjudicate the respondent to be a juvenile offender and may issue a sentence as authorized by this code.”
The language is again singular, i.e., “offense.” As the above quotations show, there is authority to charge multiple counts; it follows, then, that K.S.A. 38-1655 should be interpreted as providing authority for the district court to adjudicate each of the counts charged and that each one would constitute an adjudication. Viewed this way, a single case might involve multiple adjudications.
The JJA’s reliance on the Magness opinion is flawed. The Magness court interpreted an early version of K.S.A. 38-1602 which excluded from the definition of juveniles those who committed a felony “after having been adjudicated in two separate priorjuvenile proceedings as having committed an act which would constitute a felony if committed by an adult.” (Emphasis added.) 240 Kan. at 720; see K.S.A. 38-1602 (Ensley). The State had charged Magness in two separate juvenile cases. Magness was adjudicated to be a juvenile offender in the separate cases but during the same hearing. Later, the State brought an adult criminal action with the belief that the version of 38-1602 in effect excluded the possibility of a juvenile prosecution. The district court disagreed, dismissing the case because Magness had only one prior juvenile “proceeding.” 240 Kan. at 720.
On appeal, this court considered the State’s argument that “combining the two cases for adjudication at one hearing was immaterial.” 240 Kan. at 720. The Magness court rejected the State’s argument and dismissed the State’s appeal. 240 Kan. at 723. In its analysis, the court cited general principles of statutory construction, focusing on the legislative purpose and intent. 240 Kan. at 721. The Magness court considered materials from the Judicial Council, which had drafted the preliminaiy version of the legislation. These materials indicated that the rationale behind the requirement of “two separate prior juvenile proceedings” was an effort to give the juvenile system two attempts to rehabilitate the juvenile. 240 Kan. at 722.
The Magness case might actually be used against the JJA in the present case. The Magness court construed the statutory phrase “two separate prior juvenile proceedings,” while the statutory language in the present case is “two prior misdemeanor adjudications,” K.S.A. 38-16,129(a)(3)(B)(i). The language is obviously different. It is presumed the legislature knew of the ramifications of the Magness decision when it enacted K.S.A. 38-16,129. See In re Tax Appeal of American Restaurant Operations, 264 Kan. 518, 524, 957 P.2d 473 (1998) (“The legislature is presumed to know the law.”). Had the legislature wanted to make clear “separate” cases were required, it proved it was able to do this with the language used in tire prior version of K.S.A. 38-1602, which was at issue in Magness. K.S.A. 38-16,129(a)(3)(B)(i) would read as follows: “one present felony adjudication and two separate prior juvenile proceedings resulting in misdemeanor adjudications.” Clearly, the legislature did not insert the word “separate”; to do so would have been simple and logical had this been the intent.
K.S.A. 38-1636(a)(2), which governs when the State may bring an adult charge against a minor, also specifically uses the word separate:
“(2) At any time after commencement of proceedings under this code against a respondent who was . . . charged with a felony or with more than one offense of which one or more constitutes a felony after having been adjudicated or convicted in a separate prior juvenile proceeding as having committed an offense which would constitute a felony if committed by an adult and the adjudications or convictions occurred prior to the date of the commission of the new act charged and prior to the beginning of an evidentiary hearing at which the court may enter a sentence as provided in K.S.A. 38-1655, and amendments thereto, the county or district attorney may file a motion requesting that the court authorize prosecution of the respondent as an adult under the applicable criminal statute.”
The defendant in State v. Fultz, 24 Kan. App. 2d 242, 943 P.2d 938, rev. denied 263 Kan. 888 (1997), picked up on the idea that the purpose of the legislation is to give the juvenile a second chance. Fultz appealed his conviction as an adult. While Fultz was 17 years old at the time of the crime, the State eventually charged him as an adult under 38-1602, which required that the juvenile have had two separate prior juvenile adjudications to try him or her as an adult. While both of Fultz’ prior adjudications were final, there had not been a dispositional hearing in one of the cases. Fultz argued, relying in part on Magness, that the district, court did not have jurisdiction to try his case because there had not been a disposition in one of the cases.
The Fultz court rejected the argument the legislature intended to always give a juvenile a second chance, finding that while Fultz had not had a dispositional hearing, he had been adjudicated, which was sufficient under the statute. 24 Kan. App. 2d at 247.
Given the provisions in Chapter 38 of the Kansas Statutes Annotated, which contemplate multiple counts in a single juvenile case, it is logical to give meaning to such multiple adjudications for purposes of K.S.A. 38-16,129. Further, the legislature’s failure to expressly require separate proceedings, when it had done so in the past, compels the finding that separate proceedings were not intended in K.S.A. 38-16,129. The district court is affirmed.
Affirmed.
Davts, J., not participating.
Brazil, S.J., assigned. | [
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|
The opinion of the court was delivered by
Larson, J.:
This appeal raises the issues of whether a peremptory writ of mandamus should have been issued and attorney fees allowed when the trial court ruled in favor of a university newspaper editor in resolving the friction between the exclusions from disclosure of criminal investigations records in the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq., and the statement in K.S.A. 8-1611 that accident reports shall not be privileged or held confidential.
While the ultimate issues and rulings are fairly straightforward and focused, the factual background and conflicting statutory provisions require a recitation in considerable detail.
On September 16, 2000, a fatal motor vehicle accident occurred on Highway 10 near Olathe, Kansas, wherein a car being driven by a 16-year-old minor, S.S., at a high speed went out of control, crossed a median, and struck a car driven by Felica Bland, resulting in her death. A blood alcohol test of S.S. showed a .15 blood alcohol concentration and questions immediately arose concerning the source of S.S.’s alcoholic consumption. There were 23 police officers, medical personnel, and fire department members at the scene of the accident, in addition to numerous witnesses.
An investigation of the accident commenced and statements were taken to determine if criminal charges should be filed. A complaint was ultimately filed against S.S.
On or about October 3, 2000, Nathan Willis, editor of the University Daily Kansan newspaper, made a request through one of his employees to the Topeka office of the Kansas Highway Patrol (KHP) for a copy of the accident report. The employee was informed the report had arrived but because a fatality was involved, the report could not be released until it was reviewed by a person who was not available until October 9.
The Daily Kansan employee called the KHP from October 9 through October 12, and was informed the report had not yet been reviewed or was not yet in the system. On October 13, she was informed the report might not be released because it involved a juvenile. On October 16, she was told the report would not be released because S.S. was being charged with a felony, making it part of a continuing criminal investigation.
On October 19, 2000, Willis made a written request under the KORA for access to the report. The KHP responded by a letter dated October 25, 2000, that the KORA request was denied because the report constituted a “criminal investigation record” which was exempt from disclosure under K.S.A. 45-221(a)(10). Willis obtained counsel who contacted the records custodian on October 27, 2000, and contended the accident report was required to be released under K.S.A. 8-1611. A promised returned phone call was not made.
Willis filed this present action on November 29, 2000, seeking (1) a declaratory judgment that the KHP’s actions were contrary to law and in violation of the KORA and that the records sought are public records, (2) an order enjoining the KHP from any further violations of the KORA, (3) an order in mandamus compelling the KHP to comply with the law and honor Willis’ request for access to public records now and in the future, (4) an award of attorney fees under K.S.A. 45-222(c), and (5) the payment of costs and such other and further relief as the court might deem just and equitable.
The KHP filed a motion to dismiss, asking the court to find that the record requested was a criminal investigation record as defined by K.S.A. 45-217(b) and not subject to disclosure except by appropriate court findings and order under K.S.A. 45-221(a)(10). The KHP submitted the record for in camera inspection by the court. The KHP made no specific argument with regard to the requested attorney fees, except to contend there was no violation of the KORA and that Willis’ action should be dismissed “in its entirety.”
Willis responded to the KHP’s motion and also moved for a peremptory order of mandamus pursuant to K.S.A. 60-802(b), claiming that he had a clear right to the record in that K.S.A. 8-1611 mandates that the information contained in the accident report is not privileged or confidential. In his motion, Willis clarified that he was only requesting the information on the form prepared for the Kansas Department of Transportation (KDOT) as required by K.S.A. 8-1612, not the entire criminal record.
Without a hearing, the court issued a memorandum decision and order. The court treated the KHP’s motion as one for summary judgment. The court found that the information in the KDOT accident report could not be held privileged or confidential under K.S.A. 8-1611(b) and ordered the record released. The court denied Willis’ motion for peremptory mandamus. The court found that because it was a matter of first impression in Kansas whether a motor vehicle accident report prepared under K.S.A. 8-1611 is accessible to the public under the KORA, the right was not clear and therefore not subject to an order of peremptory mandamus under K.S.A. 60-802(b). The court also found that the KHP had a reasonable basis under the KORA exception which it relied on in denying Willis’ request and thus concluded that attorney fees could not be awarded. The court finally noted that due to its ruling it was unnecessary to address Willis’' additional claims “for declaratory judgment and injunctive relief.”
Willis appealed the trial court’s denial of a peremptory writ of mandamus and his request for attorney fees.
We begin our analysis of the two issues raised by Willis by highlighting the order which was not appealed. The trial court required the accident report to be released to Willis and this order was not appealed by the KHP. Willis is appealing the nature of the relief he received in contending that a peremptory writ of mandamus under K.S.A. 60-802(b) should have been issued. In actuality, except for attorney fees he obtained the exact relief he asked for— the release of the accident report.
The standard of review is not, as Willis contends, to view the record in the light most favorable to him as is the case with summaty judgment. See Bergstrom v. Noah, 266 Kan. 847, 871-72, 974 P.2d 531 (1999). We have previously said in State, ex rel., v. Paulsen, 204 Kan. 857, Syl. ¶ 2, 465 P.2d 982 (1970), that “[a]n order in mandamus is a discretionary one and does not issue as a matter of right, nor unless the defendant’s legal duty is clear, and if it is not clear, the writ should not issue, the burden of showing the right to relief being on the plaintiff.”
To the extent that we are required to construe applicable statutes, our review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). In doing so we recognize the following rules of statutory construction:
“The fundamental rule of statutoiy construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to malee them consistent, harmonious, and sensible.” Harris Enterprises, Inc. v. Moore, 241 Kan. 59, Syl. ¶ 1, 734 P.2d 1083 (1987).
The basis under which Willis contends mandamus should have been granted is the wording of K.S.A. 45-222(a), which relates to civil remedies under the KORA:
“The district court of any county in which public records are located shall have jurisdiction to enforce the purposes of this act with respect to such records, by injunction, mandamus or other appropriate order, in an action brought by any person, the attorney general or a county or district attorney.”
The issuance of a peremptoiy writ of mandamus is statutorily provided for in K.S.A. 60-802:
“(a) Generally. Relief in tire form of mandamus shall be obtained under the same procedure as relief in other civil actions. If it be desired in connection with any mandamus proceeding to stay any proceedings or acts pending determination of the mandamus proceeding, the plaintiff may combine therewith an application for relief under article 9 of this chapter. The judgment in mandamus shall specify with particularity the act or acts which the defendant is compelled to perform or enjoined from performing.
“(b) Peremptory order. When the right to require the performance of the act is clear, and it is apparent that no valid excuse can be given for not performing it, a peremptoiy order of mandamus may be allowed in the first instance.”
Mandamus also carries with it standing requirements, as recently set forth by this court:
“Mandamus may not be invoked to control discretion. Mandamus does not enforce a right that is in substantial dispute. A party must be clearly entitled to the order sought before mandamus is proper.’ Link, Inc. v. City of Hays, 268 Kan. 372, 375, 997 P.2d 697 (2000). Where an order of the trial court denies a litigant a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked.’ State ex rel. Stephan v. O’Keefe, 235 Kan. 1022, 1025, 686 P.2d 171 (1984).
“ Whether or not a private individual has brought himself within the narrow limits of the well-established rule must be determined from the particular facts of each individual case.’ Mobil Oil Corporation v. McHenry, 200 Kan. 211, 243, 436 P.2d 982 (1968).” Kansas Bar Ass’n v. Judges of Third Judicial Dist., 270 Kan. 489, 491, 14 P.3d 1154 (2000).
It could be argued that this question is moot because Willis has received the document he requested. The friction between K.S.A. 8-1611 and the exception under the KORA in 45-221(a)(10) has been resolved. However, we complete our analysis of tire question as to the issuance of the peremptory writ of mandamus in that it was specifically requested by Willis and denied by the trial court.
In the context of requesting a mandamus order, Willis’ argument might also be deemed to fail for lack of standing. As this court has previously held, mandamus is not appropriate where “ a plain and adequate remedy at law exists.’ ” Amalgamated Meat Cutters, Etc. v. Johnson, 178 Kan. 405, 411, 286 P.2d 182 (1955). Certainly, Willis has received an adequate remedy at law, in that an order by the district court was issued requiring the accident document sought to be released.
While we will ultimately hold that the trial court granted Willis “other appropriate” relief as authorized under K.S.A. 45-222(a) and the denial of the peremptory writ of mandamus was proper, we now set forth the statutoiy provisions of the KORA relating to exceptions restricting disclosure and the language of K.S.A. 8-1611 which Willis contends clearly required disclosure as they relate to the issue of whether “the right to require the performance of the act is clear.” K.S.A. 60-802(b).
The legislative policy must be deemed to be considered in Willis’ favor, as K.S.A. 45-216(a) states: “It is declared to be the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy.” The “unless otherwise provided by this act” wording brings into play the language of K.S.A. 45-221(a), which provides numerous specific exceptions to the disclosure of public records and states in subsection 10:
“(a) Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose:
(10) Criminal investigation records, except that the district court, in an action brought pursuant to K.S.A. 45-222, and amendments thereto, may order disclosure of such records, subject to such conditions as the court may impose, if the court finds that disclosure:
(A) Is in the public interest;
(B) would not interfere with any prospective law enforcement action;
(C) would not reveal the identity of any confidential source or undercover agent;
(D) would not reveal confidential investigative techniques or procedures not known to the general public;
(E) would not endanger the life or physical safety of any person.”
K.S.A. 45-217(b) defines criminal investigation records as “records of an investigatory agency or criminal justice agency . . . compiled in the process of preventing, detecting or investigating violations of criminal law, but does not include . . . records pertaining to violations of any traffic law other than vehicular homicide as defined by K.S.A. 21-3405.” (Emphasis added.)
The accident report requested by Willis was that required to be completed by K.S.A. 8-1611 and K.S.A. 8-1612.
“(a) Every law enforcement officer who:
(1) Investigates a vehicle accident of which a report must be made as required in this article; or
(2) otherwise prepares a written report as a result of an investigation either at the time of and at the scene of the accident or thereafter by interviewing the participants or witnesses, when such accident under paragraphs (1) or (2) results in injury or death to any person or total damage to all property to an apparent extent of $500 or more, shall forward a written report of such accident to the department of transportation within 10 days after investigation of the accident.
“(b) Such written reports required to be forwarded by law enforcement officers and the information contained therein shall not be privileged or held confidential.” K.S.A. 8-1611(a), (b).
“(a) The department of transportation shall prepare and upon request supply to police departments, sheriffs and other appropriate agencies or individuals, forms for written accident reports as required in this article, suitable with respect to the persons required to make such reports and the purposes to be served. The written reports shall call for sufficiently detailed information to disclose, with reference to a vehicle accident, the cause, conditions then existing and the persons and vehicles involved.” K.S.A. 8-1612(a).
Neither party disputes, and the record supports, -that DOT Form 850 (the accident report) is the form prepared by KDOT and supplied to law enforcement agencies as required by these statutes.
While we will discuss briefly the interplay between K.S.A. 8-1611(b) and K.S.A. 45-221(a)(10), which both parties discuss, it is of primary importance to be clear that this issue is not before the court. What is first before this court is whether the trial court erred in not issuing a peremptory order of mandamus under the facts of this case.
We have previously cited Johnson, 178 Kan. 405, on the question of standing, but the case is really more appropriate in considering whether a peremptory order of mandamus was required under the facts of this case. In Johnson, a temporary restraining order had been issued which prevented a labor union from picketing. The union asked the Kansas Supreme Court in an original action to dissolve the order under G. S. 1949, 60-1704 (the predecessor statute to K.S.A. 60-802[b] with substantially the same language). The issue was whether the general order of mandamus should be issued, a peremptory writ should be issued, or not to issue a writ at all. The court restated the issue as:
“Was the lack of jurisdiction to entertain the action in the first place and to issue the restraining order so plain and well settled as to make it the clear legal duty of defendants to dissolve such restraining order once the law was called to defendants’ attention? If it was the clear, legal duty of defendants to dissolve such order, then mandamus will lie and a peremptory writ should issue.” (Emphasis added.) 178 Kan. at 411.
The law appeared clear that the restraining order should not have been issued. The Johnson opinion reviewed applicable cases which so held and found that a peremptory order of mandamus was proper but declined to issue the writ because the restraining order had already been dissolved. 178 Kan. at 421.
Willis concedes there is no Kansas appellate decision deciding the friction between K.S.A. 8-1611 and K.S.A. 45-221(a)(10), but contends that Attorney General Opinions Nos. 79-17, 79-98, and 98-51 support his argument that a clear duty existed to turn over the accident report. We do not agree. First, it is the well-settled position of this court that attorney general opinions are not binding law in Kansas, but are merely persuasive authority. City of Junction City v. Cadoret, 263 Kan. 164, 173, 946 P.2d 1356 (1997). Second, the attorney general opinions did not face the precise arguments raised by the KHP in this case. Third, Opinion No. 79-98 involves criminal history records, not criminal investigation records. Fourth, Opinion No. 79-17 is based in large part on K.S.A. 1978 Supp. 74-2012, which has subsequently been amended to no longer include a direct reference to ’’accident reports.” K.S.A. 2001 Supp. 74-2012. Finally, not only are attorney general opinions limited to persuasive value, this question involves interpretation of statutes over which appellate review is plenary. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d. 1027 (1998).
The KHP'argued the reports do not lose their privileged or confidential nature until after the investigation of the accident is complete, which does not occur until the report is transmitted to the KDOT within 10 days after investigation of the accident. K.S.A. 8-1611(a)(2). While it is more logical that this refers to the basic information of the DOT form rather than the entire criminal investigation that may later ensue, there was a colorable argument that the report and the investigation were so intertwined that the legal duty to turn over the report was not so clear as to require the granting of a peremptory order of mandamus.
The more difficult analysis is whether a fatality accident report where a criminal felony prosecution is being considered comes within the guise of the public records exception under the KORA.
Under K.S.A. 45-221(a)(10), criminal investigation records need not be disclosed except under order by the district court. Criminal investigation records are defined by the Act and specifically do not include records of traffic violations, “other than vehicular homicide as defined by K.S.A. 21-3405.” (Emphasis added.) K.S.A. 45-217(b). Vehicular homicide is “the unintentional killing of a human being committed by the operation of an automobile ... in a manner which creates an unreasonable risk of injury to . . . another and which constitutes a material deviation from the standard of care which a reasonable person would observe under the same circumstances.” K.S.A. 21-3405. Neither party disputes and the record supports the conclusion that Scott’s actions fit within this definition.
Thus, there exists a clear legislative directive that records relating to this accident are excepted from disclosure requirements of the KORA. Potentially, the legislature did not desire to permit accident reports of vehicular homicide to have the open record protection offered by the KORA (such as a 3-day requirement to turn them over, or attorney fees for failing to release the records), but at the same time the legislature desired the information to not be confidential or privileged so that eventually all interested parties could obtain access to it. While this may or may not be the proper resolution of this issue, what is apparent is that the KHP made a reasonable argument that accident reports involving vehicular homicide are not covered by the KORA.
The interplay of K.S.A. 8-1611(b), which labels the information contained in accident reports as not “privileged or confidential,” and K.S.A. 45-221(a)(10) and K.S.A. 45-217(b), which exempt records of vehicular homicide from KORA disclosure requirements, had not previously been addressed by any appellate court. It most certainly is not a question that without some published direction or additional legislative expression can be answered in a manner which “leaves no doubt at all” that a legal duty existed under the KORA for the KHP to disclose the report to Willis at his request. Therefore, a clear right did not exist as required by K.S.A. 60-802(b), and Willis’ motion for a peremptory order of mandamus was properly denied.
As a final matter, Willis argued in his brief that the trial court “effectively rewrote” K.S.A. 45-222(a), “which expressly provides for the remedy of mandamus in KORA actions.” K.S.A. 45-222(a) provides:
“The district court of any county in which public records are located shall have jurisdiction to enforce the purposes of this act with respect to such records, by injunction, mandamus or other appropriate order, in an action brought by any person, the attorney general or a county or district attorney.”
Clearly, the trial court’s action fell within the statutory parameter of “other appropriate order” when it ordered release of the record. Willis’ argument that mandamus is the only correct means by which a trial court can grant relief under the KORA is without merit.
Additionally, we note that the manner in which our appellate courts would construe the K.S.A. 45-221(a)(10) exception is not presently clear in light of Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 734 P.2d 1083 (1987). Harris involved the application of the KORA to criminal investigation files, in which we held that while a definable public interest existed, an in camera inspection correctly resulted in the trial court exercising its discretion to find that they contained no information which would “ ‘promote the public interest found in this case.’ ” 241 Kan. at 67. Our court went on to state:
“Finally, we note that the legislature’s intent in enacting K.S.A. 45-221(a)(10) is clear. Criminal investigation files are sensitive. Raw investigative files nearly always include the names of many innocent people. Where the files are open to public scrutiny, the potential for injury is great. In addition, if criminal investigation files are open, many people with information which might lead to a resolution qf the investigation will refuse to disclose such information. Investigations will be badly hampered. Thus, only under very restricted circumstances may the district court require disclosure.” 241 Kan. at 67.
The position taken and the arguments made by the KHP had reasonable grounds for success and were clearly sufficient so that the peremptory writ of mandamus should not have been issued.
Finally, we consider Willis’ claim for attorney fees. In doing so, we rely on everything we have said concerning why a peremptory writ of mandamus should not have been issued.
The trial court refused to grant attorney fees, finding that “this issue appears to be one of first impression and the Respondent relied upon an exception to disclosure under KORA that was not without some reasonable basis.”
In considering the trial court’s denial of attorney fees under K.S.A. 45-222, the Kansas Court of Appeals in Southwest Anesthesia Serv., P.A. v. Southwest Med. Ctr., 23 Kan. App. 2d 950, 954, 937 P.2d 1257 (1996), stated: “The award of attorney fees is a matter within the discretion of the district court.” At the time Southwest Anesthesia was decided, the provisions of K.S.A. 45-222(c) (Furse 1993) stated: “[T]he court may award attorney fees.” The “may” was changed to “shall” by L. 2000, ch. 156, sec. 4, which appears to remove the court’s discretion if the court finds the denial was not in good faith or without a reasonable basis in fact or law.
K.S.A. 45-222(c) states: “In any action hereunder, the court shall award attorney fees to the plaintiff if the court finds that the agency’s denial of access to the public record-was not in good faith and without a reasonable basis in fact or law.” The agency’s action must both be “not in good faith” and “without a reasonable basis in fact or law” in order to grant attorney fees.
First, lacking any factual or evidentiary hearing, there was absolutely no showing that the KHP’s actions in responding to Willis’ request was “not in good faith.” Second, the question presented was one of first instance to our courts. There was a “reasonable basis in fact or law” for the KHP’s argument, although it was not ultimately successful. The trial court properly refused to grant Willis’ attorneys fees.
Affirmed.
Davis, J., not participating.
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The opinion of the court was delivered by
Allegrucci, J.:
William P. Moore, III, contacted Bruce Bird, an engineer, regarding his ability to design a bridge that would meet Moore’s needs. Moore sued Bird Engineering Company, P.A., (Bird Engineering) alleging defects in Bird’s design for a bridge built on Moore’s residential property. After a bench trial, the district court entered judgment in favor of Moore. The district court found against Bird Engineering for breach of contract, breach of express warranty, violation of the Kansas Consumer Protection Act (KCPA), and negligence. Bird Engineering appealed. Disagreeing with the district court’s view that Bird Engineering engaged in a deceptive act or practice in violation of the KCPA, the Court of Appeals affirmed the judgment in part, reversed in part, and vacated in part. This court granted Moore’s petition for review and Bird Engineering’s cross-petition for review.
On appeal to the Court of Appeals, Bird Engineering argued that there was a lack of substantial competent evidence supporting the district court’s conclusion that it engaged in a deceptive act or practice under the KCPA. The Court of Appeals disagreed with the district court’s conclusion that motive was immaterial to a violation of K.S.A. 50-626(b)(l) and, therefore, agreed with Bird Engineering that the district court’s failing to find “intent to deceive” was erroneous.
In these circumstances and because the court does not weigh conflicting evidence, pass on credibility, or redetermine questions of fact, Garvey Elevators, Inc. v. Kansas Human Rights Comm’n, 265 Kan. 484, 496-97, 961 P.2d 696 (1998), the district court’s findings of fact appropriately furnish the basis for the following statement of facts:
In early 1993, Moore began a search for a home site in the country. His ex-wife, who was a real estate agent, located the property he ultimately purchased, through which Wolf Creek runs. Moore was interested in the property if an appropriate bridge could be built across the creek to the proposed home site.
Moore’s ex-wife made the initial contact with Bird. Hoping to make the sale at a price Moore would agree to, she indicated to Bird that she was looking to see if a bridge could be built for $20,000, at which price she said she could make the sale to Moore.
Subsequently, Moore and Bird met directly to discuss getting a cost estimate together for a bridge. Bird claims that his understanding from his initial meeting with Moore’s ex-wife was that the bridge would only need to be able to'carry a single car to the home site — a separate, low-water bridge elsewhere on the property could be used for trucks or other, heavier vehicles. Bird contends that this was also the explicit or implicit understanding in his discussions with Moore. Bird testified that the first discussion he had with Moore regarding specific weight capacities did not occur until sometime in mid-to late 1994, after Moore had consulted with the engineering firm of Shafer, Kline & Warren, P.A. (Shafer, Kline) about the project. The exact date of the first discussion between Moore and Bird about weight requirements is unknown. The district court concluded that Bird’s recollection was in error and that weight requirements were discussed between them, at the latest, before Bird proceeded to develop detailed engineering plans for construction of the bridge. .
Moore’s initial request to Bird Engineering was to prepare a preliminary cost estimate for a bridge that would provide access to the home site even during periods of veiy heavy rain, specifically sufficient to allow access at the 100-year flood level. Bird Engineering agreed to provide that cost estimate. There may or may not have been discussion at that point about the load limits for the bridge. Moore believes that he told Bird even in that initial conversation that he wanted emergency equipment to be able to use the bridge. It is not clear whether those discussions took place before or after the initial cost estimate had been prepared, but that does not need to be determined to decide the issues before the court. There were discussions about another means of driving to and from the home site via a low-water , entry point, which would be inaccessible in periods of heavy rain or high water.
On May 21, 1993, Bird faxed a “rough cost” estimate to Moore, quoting a $2,000 engineering fee for bridge design, flood plain computations, and to submit for approval of the plans. Total cost of the bridge, with a $3,000 contingency, was estimated to be $25,000.
After receiving the cost estimate, Moore proceeded to purchase the property. From his viewpoint, the cost estimate gave him sufficient assurance that the cost of the bridge would be reasonable and within his intended budget.
After purchasing the property, Moore asked Bird to proceed with design work and permit requests. By this time, the parties discussed the types of vehicles that should be able to use the bridge. Moore specifically noted that emergency equipment, including small fire trucks, should be able to use the bridge. Bird agreed to proceed with the design of a bridge to suit Moore’s intended purposes.
On July 2, 1993, Bird transmitted an application for a permit to construct the bridge over Wolf Creek to the Johnson County Planning Office and, either directly or through the Johnson County Planning Office, to various state agencies with relevant regulatory authority.
Bird completed engineering drawings for the bridge on about September 9, 1993. The plans were submitted to Moore soon thereafter.
On September 24, 1993, Moore wrote the following notes in his spiral-bound Day-Timer planning calendar: “Bruce Bird[.] Bridge Max Design Load 16 Tons[.] Fire dept. 592-3926[.] Tanker -largest trucks. Largest tanker 1630 gal. Gross Wt. Loaded 31,000 lb. Routinely cross 8 + 10 ton bridges.” The district court concluded that this entry was, in fact, made by Moore on September 24, 1993, as shown. It was not “manufactured evidence” created by Moore after the dispute between the parties arose.
Moore proceeded to hire a contractor to do the construction work in accordance with the Bird Engineering plans. As the project went along, there was consultation with Bird on a number of aspects of the work. Bird set stakes to show the site for the bridge abutments. He also examined some of the soils to determine their suitability and gave advice on some other aspects of the work.
Bird’s plans did not call for “hooking” vertical steel rods into the pads of the bridge abutments. Nor did his plans specify the depth to which these vertical rods were to be embedded into the pads even without hooks. Bird was consulted about this during the construction phase. He said that hooking was not required and advised drilling some holes and anchoring the steel into the pads with epoxy. That was done as instructed. However, the method used was insufficient, either because hooking should have been done or because the steel rods were not sufficiently embedded into the pads. In either event, Bird’s plans did not specify an appropriate method of solving this issue so that the structural integrity of the abutments would meet the necessary design loads.
Another engineer from Bird Engineering, Julie Davis, observed pouring of the concrete on the south bridge abutment. Moore had hired Bird Engineering to do some supervision work on the project. Bird Engineering had the opportunity to observe the key features of the installation and use of the vertical steel rods, as well as other work related to problems ultimately found in this project.
No one from Bird Engineering advised Moore of any significant problems associated with the construction of the bridge abutments or of any material deviation made by the contractors from the plans provided by Bird Engineering.
In late November 1993, the abutments had been constructed. Moore hired Robert Smith, a contractor who had worked with Moore previously, to backfill dirt around the abutments. Moore was on site while this work began but was about 1,000 feet away. Shortly after starting the work, Smith reported to Moore that the south abutment had begun to crack. In addition, it was also discovered that the abutment had moved a few inches.
Bird Engineering contends that Smith probably hit the abutment or in some other manner developed uneven loading against it. The district court concluded that Smith did not hit the abutment. Smith’s method of backfilling the abutments was reasonable in this situation. The abutment cracked because of inadequate design, inadequate design detail, and inadequate embedding of the vertical steel rods. The abutment moved for the same reasons. As Shafer, Kline’s Gary Strack noted at trial, bridge abutments are not designed to move several inches.
Bird was consulted after this crack was noticed. He indicated to Moore that it should not be a problem and said to continue the backfill around it. Bird suggested some caulking or sealant should be placed into the crack.
Moore decided at this point to postpone further construction until after the winter. Moore did not plan to move into the house to be built there until August 1994.
On January 10, 1994, Bird Engineering forwarded an invoice to Moore for $725 for “inspection” services. The bill was for 6 hours at $45 per hour and 7 hours at $65 per hour. The time at $45 per hour presumably reflected the work of Davis; the remainder was presumably for work by Bird.
Moore paid the invoice for inspection services. He also paid Bird Engineering $2,000 for the engineering services in design of the bridge.
Later, Bird apparently concluded that the cracks in the abutment needed repair. On March 14, 1994, Bird sent a letter to Moore. He said, in part: “I looked at the bridge again, and think a slab should be added. It will repair the cracks and retain the abutment if needed. I recommend doing both ends.” Accompanying the letter was a one-page drawing.
After receiving Bird’s March 14 submittal, Moore decided that he wanted to consult with another engineering firm about the project. He employed Shafer, Kline to review the work done to date and what needed to be done to complete the bridge project.
On April 26,1994, two engineers at Shafer, Kline, Michael Williams and Gary Strack, sent a letter to Moore criticizing the initial bridge design and the fix suggested by Bird in his March 14 letter. The Williams/Strack letter said, in part: “It is our opinion that if the bridge is constructed as shown on the [Bird Engineering] bridge plans, it will not perform satisfactorily and, in fact, may eventually become unserviceable. . . . We do not recommend installing the approach slab as indicated on a drawing enclosed with Bird Engineering’s letter to you on March 14. This fix, as shown, does not appear to adequately address the problem.” Williams and Strack also said that “[a]t a minimum, the bridge should be capable of supporting trucks built on straight frames, i.e., rural fire truck, dump truck, delivery truck.”
Moore told Bird of the Shafer, Kline criticisms of Bird’s work and also arranged a joint meeting among Moore, Bird, and Shafer, Kline.
Moore subsequently proceeded to hire Shafer, Kline to prepare plans for modifications and improvements to the bridge, which they completed in the summer of 1994.
Each of these primary actors has a recollection of a series of events that differs significantly from the others in terms of time sequences, what events caused which other events, which conversations occurred at which times, etc. The district court concluded one of them must be significantly in error on some of the basic facts.
The district court reiterated its conclusion that Moore actually did make the Day-Timer entry shown on September 24, 1993, on that date and that it accurately reflects his conversation with Bird. According to the district court, this piece of evidence, which was apparently not available to Bird when he “reconstructed” his recollection of the events, is completely inconsistent with Bird’s version of events. It confirms that Bird told Moore that the bridge had been designed to accommodate at least the smaller sized fire trucks of the rural fire district. It also confirms that, after receiving the plans and hearing Bird’s oral statement that the bridge was designed as requested to handle such loads, Moore double-checked with the fire district to learn the actual weight of its trucks.
Bird no doubt accurately recalls his initial conversation with Moore’s ex-wife, the real estate agent for Moore’s purchase of the property, that Moore would like to build the bridge in an economical way. No doubt Moore made similar statements and tried to save money wherever he could in the project. However, the court concludes that Moore did tell Bird that he wanted the bridge to be able to carry the load of the expected fire trucks of the fire district and that, based on his intention at the time to meet that agreed standard, Bird told Moore that it had a load capacity of 16 tons or 32,000 pounds.
Bird admits that the bridge, as he designed it, was not capable of carrying a load of 32,000 pounds. Bird testified at trial that he designed the bridge to carry loads up to 8,000 pounds. He said that he chose that weight limit based upon his knowledge that Moore drove a Chevy Suburban and that a similar vehicle Bird had owned a few years earlier had weighed 5,600 pounds. Bird said that he chose 8,000 pounds to account for such a vehicle carrying a heavy load, plus a small safety factor.
The district court found it hard to understand how Bird came to design the bridge in the manner he did, assuming the conversations with Moore took place as the court had concluded they did (and as documented in the Day-Timer). If Bird forgot the load weight that he had agreed to design the bridge for, his comments on September 24 could have been either a knowing misrepresentation or simply made in confusion. The district court concluded that it need not attempt to discern his motives in that conversation. Bird knew at the time of trial that his calculations were made for a designed load of 8,000 pounds. He certainly had reason to know that at the time of the September 24 conversation and at the time, earlier in September, when he delivered the plans to Moore.
Moore petitions this court to review the Court of Appeals’ holding that intent to deceive is an essential element of K.S.A. 50-626(b)(1) of the KCPA. Bird’s cross-petition for review questions the application of the KCPA to transactions for professional engineering services. If the Court of Appeals erred in assuming that the KCPA applies to engineering services, then we need not decide the issue raised by Moore’s petition for review. Thus, we first consider whether the KCPA is applicable to engineering services.
Before we do that, it would be helpful to reiterate certain applicable rules of statutory construction. “Interpretation of a statute is a question of law in which appellate review is unlimited.” Kansas Dept. of SRS v. Paillet, 270 Kan. 646, 16 P.3d 962 (2001).
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.] Stated another way, when a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998).
The district court stated: “It cannot be seriously doubted that the plaintiff was a consumer and that the defendant was a supplier under the KCPA, even though no cases involving the provision of engineering services have reached the appellate courts.” The Court of Appeals’ majority opinion states: “It is not necessary to analyze the application of the KCPA to the engineering services giving rise to the action below. For the purposes of this opinion, we shall assume the applicability of the KCPA . . . .” Bird takes exception to that assumption and prays that we reverse that portion of the Court of Appeals’ decision.
Although Moore recovered full damages against Bird Engineering for breach of contract, at issue here is Moore’s claim under the KCPA which if granted provides an additional $5,000 civil penalty and reasonable attorney fees.
K.S.A. 50-623 calls for the KCPA to be construed liberally to streamline the law of consumer transactions and to protect consumers from unscrupulous suppliers. K.S.A. 50-624 defines terms used in the KCPA. “ ‘Consumer’ means an individual or sole proprietor who seeks or acquires property or services for personal, family, household, business or agricultural purposes.” K.S.A. 50-624(b). “ ‘Supplier’ means a manufacturer, distributor, dealer, seller, lessor, assignor, or other person who, in the ordinary course of business, solicits, engages in or enforces consumer transactions, whether or not dealing directly with the consumer.” K.S.A. 50-624(i). “ ‘Consumer transaction’ means a sale, lease, assignment or other disposition for value of property or services within this state (except insurance contracts regulated under state law) to a consumer; or a solicitation by a supplier with respect to any of these dispositions.” K.S.A. 50-624(c). The definition of services is very broad:
“ ‘Services’ includes:
“(1) Work, labor and other personal services;
“(2) privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, hospital accommodations, funerals and cemetery accommodations; and
“(3) any other act performed for a consumer by a supplier." K.S.A. 50-624(h).
In the present case, Moore is a consumer within the meaning of the statute in that he is an individual who sought services for personal purposes. Bird is a supplier within the meaning of the statute in that he is a person who, in the ordinaiy course of business, engages in consumer transactions. The consumer transaction in this case is Bird’s sale of his engineering services to Moore. Those services consist of Bird’s work in designing the bridge for Moore. The comfortable fit of the present parties and transaction within the statutory definitions confirms the district court’s- impression that the KCPA applies.
Bird Engineering argues that, notwithstanding the apparent fit within the definitions, this court never has applied the KCPA to professional services and should not start now. It contends that the KCPA was not intended to cover the odd transaction between individuals and the engineers for the reasons that “[f]ew consumers shop for engineering services, and engineers who provide such services are not in the business of mass-producing, advertising or selling such services.”
Bird Engineering relies on Vort v. Hollander, 257 N. J. Super. 56, 607 A.2d 1339 (1992). Vort, an attorney, sued his clients for his fees; the clients counterclaimed, alleging malpractice and violation of the Consumer Fraud Act. It was dismissed on summary judgment, and the clients appealed. With regard to the consumer fraud claim, the appellate division stated:
“Defendants’ contention that they have a right to establish their entitlement to damages under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -48, is without merit. ‘The purpose of the [Consumer Fraud] Act was to prevent deception, fraud or falsity, whether by acts of commission or omission, in connection with the sale and advertisement of merchandise and real estate.’ Fenwick v. Kay Am. Jeep, Inc., 72 N.J. 372, 376-77, 371 A.2d 13 (1977). Although the sale of certain services also falls within the purview of the Act, it is clear that attorney’s services do not fall within the intendment of the Consumer Fraud Act.
“In Neveroski v. Blair, 141 N. J. Super. 365, 358 A.2d 473 (1976), this court concluded that real estate brokers were exempt from the Act, under the following reasoning: •
‘A real estate broker is in a far different category from the purveyors of products or services or other activities. He is in a semi-professional status subject to testing, licensing, regulations and penalties through other legislative provisions. Although not on the same plane as other professionals such as lawyers, physicians, dentists, accountants or engineers, the nature of his activity is recognized as something beyond the ordinary commercial seller of goods or services — an activity beyond the pale of the act under consideration.' [Id. At 379, 358 A.2d 473 (citation omitted) (emphasis added)].
In 1975 the Legislature amended the Act to include deceptive practices in connection with the sale of real estate. L. 1975, c. 294, § 1, eff. Jan. 19, 1976. The Legislature, however, has not amended the Act to include professionals generally, despite our longstanding holding in Neveroski. Moreover, the practice of law in the State of New Jersey is in the first instance, if not exclusively, regulated by the New Jersey Supreme Court. N. J. Const. (1947), Art. VI, § II, par. 3; In re Li Volsi, 85 N.J. 576, 583, 428 A.2d 1268 (1981). Had the Legislature intended to enter the area of attorney regulation it surely would have stated with specificity that attorneys were covered under the Consumer Fraud Act.” 257 N. J. Super. at 61-62.
The New Jersey court distinguished the legal profession on the basis that it is regulated exclusively by the state Supreme Court. 257 N. J. Super. at 62. Historically, attorneys were held to be ex-, empt from liability under the Sherman Antitrust Act. That exemption was known as the “learned profession” exemption. The learned profession originally included only lawyers, medical doctors, and clergy. See “The Learned Profession Exemption of the North Carolina Deceptive Trade Act: The Wrong Bright Line?” 15 Campbell L. Rev. 223, 250-51 (1993).
However, the application of the KCPA to the legal profession is not before us. The narrow issue before this court is whether the engineering services rendered in the present case are covered by the KCPA. We make no determination here as to application of the KCPA to other professional services.
Finally, this court’s recent decision in Alexander v. Certified Master Builders Corp., 268 Kan. 812, 1 P.3d 899 (2000), detracts still further from Bird’s position. One of the questions certified to this court by the federal district court was whether Certified Master Builder Corporation (CMB), under the facts of the case, was a supplier within the meaning of the KCPA. CMB is a trade organization created to promote the home building industry., For the following reasons, die court answered the certified question in the affirmative:
“CMB argues that it is merely a trade agency and should not be included in the definition of a supplier. It states that it merely informs or accommodates its members in a transaction. Further, CMB argues that including trade organizations in the definition would produce a chilling effect on such organizations and make them warrantors for the performance of their members.
“However, it is clear from the facts that CMB’s role in the transactions was greater than it represents. The facts indicate that one of the purposes of CMB was to promote the home building industry. To that end, CMB encouraged its members to identify themselves as members and to use promotional material supplied to them by CMB. Further, CMB distributed a brochure to the general public which encouraged the public to contract with CMB members and provided a detailed list of the benefits of doing so. The brochure also represented that each of the members met a rigorous set of standards. CMB also advertised its program in newspapers. In this respect, CMB operated in the same manner as an advertising agency.
“Clearly, CMB, through its use of newspaper advertising and the distribution of its brochure, ‘solicited’ consumers to contract with its member builders. The building of a home is a consumer transaction. See K.S.A. 50-624(c) (defining a consumer transaction as a sale, lease, assignment or other disposition for value of property or services to a consumer or a solicitation by a supplier with respect to any of those dispositions). A party may be a supplier whether or not it deals directly with the consumer. Under the particular facts outlined, we conclude that CMB is a supplier under K.S.A. 50-624(i).
“CMB’s argument that holding it to be a supplier will have a chilling effect on trade organizations and make it a guarantor of the performance of its members is not well taken. CMB is not a guarantor of the performance of its members. However, CMB is responsible for statements it makes in soliciting consumers to contract with its members. CMB did not warrant that its members would do flawless work. However, CMB did represent to consumers that certain benefits would be obtained as the result of contracting with a CMB member builder and that such builders had met certain standards for membership. Such representations fall within the ambit of the KCPA.” 268 Kan. at 825-26.
We conclude that within the meaning of the KCPA, Moore is a consumer, Bird is a supplier, and the sale of Bird’s services to Moore is a consumer transaction. Thus, the judgment of the district court and the assumption by the Court of Appeals is correct. Hav ing so held, we turn to the Court of Appeals’ holding that intent to deceiye is an essential element of K.S.A. 50-626(b)(l).
Moore based his claim under the KCPA on Bird’s representing to him that the bridge he designed had the load capacity specified by Moore. The district court found that Moore specified a load capacity of 32,000 pounds but that Bird designed a bridge with a load capacity of 8,000 pounds. With regard to Moore’s claim for breach of the KCPA, the district court concluded:
“K.S.A. 50-626 forbids ‘deceptive acts and practices’ in consumer transactions, which includes making representations ‘knowingly or with reason to know that . . . services have . . . characteristics, . . . uses . . . [or] benefits . . . that they do not have,’ K.S.A. 50-626(b)(l)(A), or that ‘services are of a particular standard, quality, grade, style or model, if they are of another which differs materially from die representation.’ K.S.A. 50-626(b)(l)(D). Here, defendant represented that the bridge had been designed to handle loads up to 32,000 pounds. Defendant knew or had reason to know at the time that representation was made that it was untrue. Accordingly, he engaged in a deceptive act or practice under the Kansas Consumer Protection Act.” (Emphasis added.)
Thus, the district court’s conclusion was phrased precisely as the statute is phrased. The district court further concluded:
“Bird Engineering engaged in a deceptive act or practice when Bird told Moore that the bridge had been designed to handle loads'of 32,000 pounds, even though Bird Engineering knew or should have known that it had not been designed to ■withstand loads of that magnitude. The difference between a design to handle loads of 8,000 pounds, as claimed by Bird Engineering, and 32,000 pounds is a material difference.”
The Court of Appeals majority had a different view of what constituted a deceptive act or practice. Citing Gonzales v. Associates Financial Serv. Co. of Kansas, 266 Kan. 141, 166, 967 P.2d 312 (1998), the Court of Appeals concluded that intent to deceive is a requirement of K.S.A. 50-626. With regard to the evidence, the Court of Appeals stated: “[Tjhere is no showing in the record that Bird Engineering misstated facts with the intention of deceiving Moore. In fact, Moore testified that Bird did not intentionally deceive him.” Thus, the Court of Appeals held that Bird Engineering did not violate the KCPA.
Judge Knudson dissented “from that part of the majority’s opinion reversing the district court’s judgments under the KCPA.” Judge Knudson reasoned:
“Under K.S.A. 50-626(b)(l), intent to deceive is not an element necessary to prove a deceptive act or practice. It is sufficient if Bird knew or should have known that the bridge was not designed to have a capacity of 32,000 pounds when he made that representation to Moore. The majority’s reliance on Gonzales is misplaced; the Gonzales court was interpreting K.S.A. 50-626(b)(2) and (3), wherein proof of willfulness is specifically required.”
Subsection (a) of K.S.A. 50-626 makes any deceptive act or practice in connection with a consumer transaction a violation of the KCPA. Subsection (b) of K.S.A. 50-626 is a list of illustrative deceptive acts and practices. Subsection (1) of subsection (b) provides in relevant part:
“(b) Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act, whether or not any consumer has in fact been misled:
(1) Representations made knowingly or with reason to know that:
(A) Property or services have sponsorship, approval, accessories, characteristics, ingredients, uses, benefits or quantities that they do not have;
(D) property or services are of particular standard, quality, grade, style or model, if they are of another which differs materially from the representation.”
In accordance with the statutory provisions under which Moore sought recovery, the district court found that Bird represented to Moore that the bridge design was what the consumer had requested when Bird knew or had reason to know that it was not. The phrase “knowingly or with reason to know” that fixes the intent requirement in subsection (1) of K.S.A. 50-626(b) differs from the language selected by the legislature for fixing the intent requirement in subsections(2) and (3) of K.S.A. 50-626(b), the subsections at issue in Gonzales. They provide:
“(b) Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act, whether or not any consumer has in fact been misled:
(2) the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact;
(3) the willful failure to state a material fact, or the willful concealment, suppression or omission of a material fact.”
Gonzales was a consumer loan case, which focused on K.S.A. 16a-2-401(9)(b) of the Kansas Uniform Consumer Credit Code (UCCC). The principal issue was whether, under the UCCC provision, the origination fee charged by the finance company could be based on the entire amount financed or whether it had to be based only on the amount of new money advanced when Gonzales refinanced loans. Resolution of the principal issue “influence[d] the resolution of other issues.” 266 Kan. at 142. The court concluded that the UCCC authorized an origination fee based on the entire amount financed. 266 Kan. at 156-57. Among the secondary issues was the question of whether the finance company’s conduct violated K.S.A. 50-626(b)(2) and (3). The finance company raised the defense that “it fully complied with [Truth in Lending Act] requirements and thus its behavior cannot be deceptive.” 266 Kan. at 166. And, of course, the court already had concluded that the finance company’s origination fee complied with the UCCC. Thus, the court found “no showing in the record that Associates either purposefully withheld relevant information or misstated facts with the intention of deceiving Gonzales.” 266 Kan. at 166. In accordance with the statutory provisions under which Gonzales sought recovery, the court found that the finance company had not willfully used false information and had not willfully failed to provide material information.
When enacted in 1973, K.S.A. 50-626(b)(l) did not require representations to be made “knowingly or with reason to know.” And K.S.A. 50-626(b)(2) and (3) required “intentional” use and “intentional” omission respectively. L. 1973, ch. 217, sec. 4. In 1976, the legislature amended K.S.A. 50-626(b) to add “knowingly or with reason to know” to subsection (1). L. 1976, ch. 236, sec. 3. In 1991, the legislature added the phrase “whether or not any consumer has in fact been misled” to the root provision of subsection (b). In addition, the legislature changed the word “intentional” in subsection^) (2) to “willful” and changed one of the incidents of the word “intentional” in subsection (b)(3) to “willful.” L. 1991, ch. 159, sec. 2. In 1993, the legislature changed the other incident of the word “intentional” in subsection (b)(3) to “willful.” L. 1993, ch. 177, sec. 1. The change made to K.S.A. 50-626 in the 2000 legislative session did not affect any of the subsections involved in this discussion. L. 2000, ch. 167, sec. 1.
In Gonzales, the court cited Porras v. Bell, 18 Kan. App. 2d 569, 857 P.2d 676 (1993), and Remco Enterprises, Inc. v. Houston, 9 Kan. App. 2d 296, 677 P.2d 567, rev. denied 235 Kan. 1042 (1984), Porras involved alleged defects in a new house built by the defendants. Plaintiff sought recovery under the subsections under discussion here — K.S.A. 50-626(b)(l)(A) and (D), (b)(2), and (b)(3). The trial court had refused “to make intent an element of plaintiff s KCPA claim.” 18 Kan. App. 2d at 570. Stating that “intent was required; mere nondisclosure was not sufficient,” the Court of Appeals reversed and remanded for a new trial. 18 Kan. App. 2d at 570. The decision in Porras does not distinguish between the intent required for subsections (b)(1) on the one hand and (b)(2) and (3) on the other, but there was no need to under the circumstances.
The wording of the statutory provisions at issue in the present case differs from that of the statutory provisions at issue in Gonzales. The legislature is presumed to have expressed its intent through the language it chose for a statutory scheme. See In re Marriage of Killman, 264 Kan. 33, 42, 955 P.2d 1228 (1998). When a statutory scheme is plain, the court must give effect to the intention of the legislature as expressed. 264 Kan. at 42-43. In Gonzales, the court gave effect to the intention of the legislature as expressed in K.S.A. 50-626(b)(2) and (3). In the present case, the district court gave effect to the intention of the legislature as expressed in K.S.A. 50-626(b)(l). The pattern instructions reflect the differing intent requirements for these subsections. See PIK Civil 3d 129.02 through 129.04. Here, the district court correctly held that intent was not required.
The Court of Appeals is affirmed in part and reversed in part. The district court is affirmed. | [
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|
The opinion of the court was delivered by
Abbott, J.:
This action is brought by the Attorney General of the State of Kansas pursuant to article 10, § 1 of the Kansas Constitution, which provides for reapportionment of senatorial and representative districts.
On April 5, 2002, the attorney general filed a petition with the clerk of the court to determine the validity of 2002 Substitute for House Bill 2625. The bill had passed the Kansas House of Representatives by a 105 to 16 margin. The exact plan was subsequently passed unchanged by the Kansas Senate on March 7, 2002, by a 39 to 1 margin. Governor Bill Graves signed the bill on March 11, 2002. When the attorney general filed her pleadings in this court to determine the validity of the bill, the court immediately entered an order scheduling a hearing on the petition for Wednesday afternoon, April 17, 2002. To provide wide public notice of the hearing, the court directed the clerk of the court to publish a copy of the scheduling order one time in each of 13 newspapers of wide circulation: The Topeka Capital-Journal, The Kansas City Kansan, The Kansas City Star, The Wichita Eagle, The Emporia Gazette, The Salma Journal, The Hutchinson News, The Pittsburg Morning Sun, The Garden City Telegram, The Junction City Daily Union, The Manhattan Mercury, The Lawrence Journal-World, and The Arkansas City Traveler. A copy of the scheduling order also appeared in the Kansas Register and was posted on the Supreme Court’s website at www.kscourts.org. Interested persons were invited to file written statements in support of or in opposition to the proposed reapportionment before noon on Tuesday, April 16, 2002, and those submitting written statements were invited to make oral presentations. Interested persons submitting written statements were not required to present their views orally to the court. No written statements were filed.
The attorney general appeared in person and argued the case. She recommended to the court that it approve the reapportionment legislation.
The attorney general provided maps of the House districts for the entire state and individual maps of the House districts for numerous counties, including Sedgwick, Shawnee, and Wyandotte Counties. The maps were admitted by the court and made a part of the record.
Upon consideration of the matter, the court examined the petition filed by the attorney general, along with its exhibits, and the written statement and the brief filed by the attorney general. The court also examined the maps of the representative districts provided by the attorney general and took judicial notice of other relevant official records.
Despite the lack of objection, the court is required by article 10, § 1(b) of the Kansas Constitution to examine the legislation and
determine the validity of the reapportionment legislation. “ ‘In determining whether a reapportionment act is valid, a court must examine both the procedure by which the act became law and the substance of the apportionment act to determine that it satisfies constitutional requirements.’ ” In re House Bill No. 3083, 251 Kan. 597, 601, 836 P.2d 574 (1992) (quoting In re Substitute for House Bill No. 2492, 245 Kan. 118, Syl. ¶ 1, 775 P.2d 663 [1989]).
Some general rules of law for examining reapportionment legislation which the court used as guidelines follow.
Beginning with Baker v. Carr, 369 U.S. 186, 237, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962), where the United States Supreme Court held the principle of one person-one vote applies to state legislative as well as congressional districts, the high court has decided numerous reapportionment cases. In Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964), the United States Supreme Court noted that both houses of a bicameral legislature must be apportioned on a population basis, finding that the Equal Protection Clause of the Fourteenth Amendment requires a state to “make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable.” 377 U.S. at 577. However, the Court noted that mathematical exactness is not a “workable” requirement, stating that “the machinery of government would not work if it were not allowed a little play in its joints.” 377 U.S. at 577 n.57 (quoting Bain Peanut Co. v. Pinson, 282 U.S. 499, 501, 75 L. Ed. 2d 482, 51 S. Ct. 228 [1930]).
In White v. Regester, 412 U.S. 755, 763, 37 L. Ed. 2d 314, 93 S. Ct. 2332 (1973), the United States Supreme Court held that a population deviation with an overall range of 9.9% (5.8% over-representation to 4.1% under representation) between Texas legislative districts did not prove a prima facie case of discrimination in violation of the Equal Protection Clause. This court followed that rule in In re House Bill No. 3083, 251 Kan. at 606, acknowledging a permissible total deviation of 10% from an “ideal” district, as stated in Regester when reapportioning the 1992 Kansas House and Senate districts. Relatively minor population deviation in legislative districts was held not to dilute the weight of one’s vote such that one is denied fair and effective representation. Regester, 412 U.S. at 764. Following Mahan v. Howell, 410 U.S. 315, 35 L. Ed. 2d 320, 93 S. Ct. 979 (1973), and Gaffney v. Cummings, 412 U.S. 735, 37 L. Ed. 2d 298, 93 S. Ct. 2321 (1973), the United States Supreme Court noted that state legislative reapportionment statutes are not subject to the stricter standards of reapportionment of congressional districts. Regester, 412 U.S. at 763. From Regester and its progeny, the 9.9% overall range or total variation from the number of people in an ideal district remains the United States Supreme Court’s limit before a prima facie violation of the Equal Protection Clause has been shown, requiring justification based on a rational state policy.
The United States Supreme Court has identified a number of legislative policies which, if consistently applied, might justify a deviation from an ideal district population. Those policies include: “making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives.” Karcher v. Daggett, 462 U.S. 725, 740, 77 L. Ed. 2d 133, 103 S. Ct. 2653 (1983); see Bush v. Vera, 517 U.S. 952, 977, 135 L. Ed. 2d 248, 116 S. Ct. 1941 (1996).
While article 10 of the Kansas Constitution requires this court to determine the validity of the reapportionment act, the constitution does not define “valid,” nor does it specify any criteria for determining the validity of a reapportionment act. Kan. Const, art. 10. This court has previously noted that the reapportionment act must be valid as to the procedure in which it became law and as to the substance of the apportionment itself to meet the constitutional requirements. In re House Bill No. 3083, 251 Kan. at 601; In re Senate Bill No. 220, 225 Kan. 628, 632, 593 P.2d 1 (1979).
If an apportionment plan is constitutionally sound, it is immaterial that districts could have been drawn with smaller percentage deviations, and this court will not invalidate it. A political gerrymandering challenge was dismissed by this court because there had not been a showing of an equal protection violation. In re House Bill No. 3083, 251 Kan. at 607-09.
The one person-one vote principle originates from the guarantees of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The substantive doctrine of one person — one vote means that, as nearly as practicable, one person’s vote is to be worth as much as another person’s vote.
The United States Supreme Court has issued numerous opinions with regard to reapportionment since 1992. These cases have mainly dealt with the 1982 amendments to the Voting Rights Act. Section 2 of the Voting Rights Act prohibits any “standard, practice or procedure,” including redistricting plans, that result in discrimination against minority voters. 42 U.S.C. § 1973 (1994). These cases have balanced the competing issues of whether state and local governments must create a “majority-minority” representative district or whether state and local governments must simply provide minority voters with an effective chance to elect candidates of their choice. A majority-minority district is a district where the members of a particular minority group have over 50% of the population in a specific representative district.
Section 2 of the Voting Rights Act focuses on equal political opportunity and political effectiveness. Johnson v. De Grandy, 512 U.S. 997, 1014, 129 L. Ed. 2d 775, 114 S. Ct. 2647 (1994). The purpose of 42 U.S.C. § 1973 is to create minority opportunity districts, not maximization of minority voting strength. States may not dilute a minority group’s voting strength by dividing such a group among numerous representative districts. On the other hand, a state may not dilute a minority group’s strength by “packing” as many members of such a group into one district as possible and, thus, diluting the minority group’s bloc voting strength in adjacent districts. “In general, minority representation may not be diluted by fracturing, packing, or other methods of gerrymandering of political boundaries.” In re House Bill No. 3083, 251 Kan. at 610.
Courts are to review the “totality of the circumstances” in determining whether a minority group has the opportunity to participate in the political process. De Grandy, 512 U.S. at 1024. In determining the totality of the circumstances, it is important to determine the proportionality between the number of minority controlled districts and the minority’s share of the state’s relevant population. 512 U.S. at 1020. In determining the totality of the circumstances in establishing a district, the state must keep in mind that the Equal Protection Clause of the Fourteenth Amendment prohibits the excessive and unjustified use of race in redistricting. Shaw v. Reno, 509 U.S. 603, 632, 125 L. Ed. 2d 511, 113 S. Ct. 2816 (1993). “Race must not simply have been ‘a motivation for the drawing of a majority-minority district’ . . . but ‘the “predominant factor” motivating the legislature’s districting decision’ ” in order to show improper use of race ás a criterion. Easley v. Cromartie, 532 U.S. 234, 241, 149 L. Ed. 2d 430, 121 S. Ct. 1452 (2001). In other words, race may be a motivating factor in drawing a particular representative district. However, race may not be the predominant factor in drawing that same representative district. 532 U.S. at 241.
In Growe v. Emison, 507 U.S. 25, 122 L. Ed. 2d 388, 113 S. Ct. 1075 (1993), the United States Supreme Court applied the 1982 amendments to § 2 of the Voting Rights Act to determine when a “minority-majority” district must be created. In creating a “minority-majority” district the three prerequisites articulated in Thornburg v. Gingles, 478 U.S. 30, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986), are applicable: first, “that [the minority group] is sufficiently large and geographically compact to constitute a majority in a single member district”; second, “that it is politically cohesive”; and third, “that the white majority votes sufficiently as a bloc to enable it . . . usually to defeat the minority’s preferred candidate.” 478 U.S. at 50-51; Emison, 507 U.S. at 40. “Unless these points are established, there neither has been a wrong nor can be a remedy.” 507 U.S. at 40-41.
This court accurately predicted the trends in reapportionment law when it followed Gingles in determining the validity of the 1992 Kansas legislative districts. “[T]he test is whether, ‘as a result of a challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice.’ ” In re House Bill No. 3083, 251 Kan. at 610.
In applying § 2 of the Voting Rights Act, the state must be wary of the “Shaw Doctrine,” first articulated in Shaw v. Reno, 509 U.S. 603, which held the Equal Protection Clause of the Fourteenth Amendment prohibits the excessive and unjustified use of race in redistricting. The Shaw Doctrine requires a court to determine, then balance, the extent to which the state considered race on one side and how much it considered “traditional race-neutral districting principles” on the other. See Vera, 517 U.S. at 958. When the traditional race-neutral districting principles outweigh the race-based factors, the newly drawn district is presumed to be constitutional. When the race-based factors outweigh the traditional race-neutral districting principles, the district is considered to be an unlawful racially gerrymandered district.
Other traditional race-neutral districting principles include respect for political subdivisions. When a state divides cities, townships, counties, school districts, towns, and other recognized political entities among several representative districts, the appearance of a “racial gerrymander” is clear unless the state can point to some compelling reason, other than race, why the districts were drawn in tire manner in which they were.
The shared community interests may not simply be based on race itself but include shared broadcast and print media, public transport infrastructure, and institutions such as schools and churches. Vera, 517 U.S. at 964.
Another legitimate political goal is safely retaining seats for the political parties. See Cromartie, 532 U.S. at 239 (stating that the creation of a safe Democratic seat was a constitutionally valid political objective).
The guidelines establish precincts (VTDs) as the “building blocks” to be used for drawing district boundaries based on official 2000 United States Census maps. Districts are to be compact and contiguous. 251 Kan. at 606-07. Integrity of existing political subdivisions is to be preserved where practicable. See Miller v. Johnson, 515 U.S. 900, 906, 182 L. Ed. 2d 762, 115 S. Ct. 2475 (1995); Shaw, 509 U.S. at 646; Vera, 517 U.S. at 977; Moon v. Meadows, 952 F. Supp. 1141, 1148 (E.D. Va.), aff'd 521 U.S. 1113 (1997).
Similarities of interest, including social, cultural, racial, ethnic, and economic interests common to the population of the area, are to be considered. Redistricting plans are not to have the purpose or the effect of diluting minority voting strength.
The procedure by which the reapportionment legislation was enacted has not been challenged. There is no evidence that legislative meetings or actions were conducted in secret. In the absence of evidence of violation of constitutional or statutory law, or any evidence that the applicable legislative rules were not followed, we do not find any procedural inadequacies.
Next, our review of Substitute for H.B. 2625 takes up the substantive validity of the legislation on representative districts. The bill divides the state into 125 single-member state representative districts. The ideal representative district would consist of 21,378 persons. The ideal figure can be obtained by dividing the state adjusted population figure of 2,672,257 by 125.
The largest district is District 10 located in Douglas and Franklin Counties with a population of-22,447 (or +5%) while the smallest district is District 3 located in Crawford County with a population of 20,320 (or -4.95%). Applying the 2000 census figures as adjusted to the current districts reveals an overall deviation of 9.95%, a range that is constitutional. Because the House plan’s deviation of 9.95% is less than the 10% standard discussed above, it is presumed valid for Fourteenth and Fifteenth Amendment purposes.
Only four “new” districts that are not represented by current members of the Kansas House of Representatives were added. These districts are the 38th District in Douglas and Johnson Counties; the 48th and 49th Districts in Johnson County; and the 105th District in Sedgwick County.
Conversely, only eight current members of the House of Representatives are in districts containing other sitting members of that body. These eight sitting members of the House of Representatives are in four districts. Two districts, the 35th and the 116th, potentially pit incumbent members of the Democratic Party against each other in a primary election. Two other districts, the 62nd and 110th, potentially pit an incumbent from the Republican and Democratic Parties against each other in the general election.
Districts meriting special attention appear in Wyandotte and Sedgwick Counties. The two districts in Wyandotte County of African-American majorities located in the northeast part of Kansas City, Kansas, were drawn to more evenly benefit the African-Amer ican population. District 34 has a total 67.8% African-American population and District 35 has a total 59.7% African-American population. District 37 which lies south of District 34 has a total African-American population of 21.6%. Clearly there are two African-American majority districts and an additional district with sufficient African-American population to influence an election.
The reapportionment plan retains District 89 in Sedgwick County, represented by an African-American female in north-central Wichita. In 1992, District 89 was a majority-minority district. Under the current redistricting plan, District 89 has a total 49.1% African-American population. District 84, which adjoins District 89 on the south, was retained with a total 55.2% African-American population. District 84 is represented by an African-American. District 103 has been retained and is the district where the most significant concentration of the Hispanic population (38.1%) is located. The remaining Hispanic population in Wichita is fairly well distributed through the city and does not represent any appreciable percentage of the population of any district other than the 103rd District. An example of the distribution of Hispanic voters throughout Wichita is expressed by the fact that a Hispanic male represents House District 100. Clearly, there is one majority African-American district that is currently represented by an African-American. In addition, there is one district strongly influenced by Hispanics in Sedgwick County and another majority district which is represented by a Hispanic person.
We further note that a member of the Native American Osage Nation represents House District 67 in central Kansas. Additionally, an African-American female represents House District 44 in Lawrence. Both of those House members represent white majority districts.
None of the Kansas legislative districts created in Substitute H.B. 2625 appear to violate the one person-one vote principle. No challenge has been raised, and minority representatives of these districts were consulted and participated in drawing the lines for these districts.
Our review of the substantive validity of the reapportionment legislation includes a determination of whether the districts are compact and contiguous as drawn. “[L]ack of contiguity or compactness raises immediate questions as to political gerrymandering and possible invidious discrimination which should be satisfactorily explained by some rational state policy or justification.” In re House Bill No. 2620, 225 Kan. at 834. However, “[t]he mere fact that a political entity, such as a county, is split does not vitiate the act.” In re House Bill No. 3083, 251 Kan. at 607-08.
After examining the maps of the districts provided, we conclude that no violations exist that would require a satisfactory explanation.
Substitute H.B. 2625 draws new boundaries for the 125 House seats. The bill passed the legislature with fairly strong bipartisan support, and it has been signed by the Governor. Legislation is presumed to be constitutional.
Under the circumstances disclosed herein, we conclude the reapportionment plan for the House does not violate the one person-one vote principle guaranteed by the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Judgment is entered upholding the validity of 2002 Substitute for H.B.2625. | [
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|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Alrick Eugene Payne, Sr., from his conviction by a jury of felony murder, aggravated robbery, possession of cocaine, and possession of drug paraphernalia. Payne appeals, contending that the evidence was illegally seized and should have been suppressed, leaving insufficient evidence remaining to convict him.
On Thursday, March 2, 2000, Leavenworth police officers discovered the moderately decomposed body of 65-year-old Eddie Harris in the front room of his residence. Michael Handler, M.D., a forensic pathologist, determined that Harris died from a stab wound to the left side of his neck which severed his carotid artery. Harris had last been seen alive on February 26, 2000, and his neighbors had requested that police check on him. There was no sign of a forced entry into Harris’ house, and Harris’ vehicle, keys, and wallet were missing. At the scene, police found a bloody knife wrapped in cloth. Police also found calendars with all the days marked off through Saturday, February 26, 2000.
That evening, officers were sent to surveil a vehicle belonging to Harris parked in the 800 block of Dakota Street. Officers were instructed to bring anyone who tried to enter the vehicle to the police station. At 8:50 p.m., Payne got inside the vehicle.
With guns drawn, Officer Joe Tavano pulled Payne out of the car and placed him on his chest in the roadway while another officer handcuffed him. Officer David O’Brien helped Tavano get Payne off the roadway, and Tavano patted Payne down for weapons as soon as they picked him up. Tavano testified he felt what he recognized instantly was a crack cocaine pipe, which he retrieved from Payne’s pocket. Tavano testified that he asked Payne whose car it was, and Payne said it belonged to Harris. Payne also stated that he had borrowed the car from Harris “3 days ago.” Payne was not told he was being arrested at that time, and none of the officers read him his Miranda rights. An arrest warrant had not been issued.
Officer William Slusher testified that when Payne asked why he was being taken into custody, the following discourse took place:
“I told him for a suspicious death, and he was being taken into custody for that. And then I asked him whose car is that and he said Eddie Harris’ car. And I asked him how long he had the car and he said for about three days. At that point they were picking him up off the ground when the conversation was going on. And they were leading him away and he like stopped and looked towards me and said, ‘So Eddie Harris is dead?’ And I told him at that time, ‘Well, you need to talle to the detectives about it.’ ”
None of the officers present had mentioned anything to Payne about Harris being dead.
After transporting Payne to the police station, but before placing Payne in a detention cell, O’Brien again searched Payne, removing a wallet and an Amoco credit card belonging to Harris from Payne’s pockets. Inside Payne’s shirt pocket O’Brien also removed a small rock of crack cocaine.
Detective Kevin Crim interviewed Payne at approximately 10:30 p.m. on March 2, 2000. Payne told Crim that on the previous Saturday, February 26, or on Sunday, Harris let him use his car. Payne said the last time he saw him, Harris was in the front room of his home watching television. Payne said that Harris gave him the car keys, the registration, and his gas credit card to use for a couple of days.
At 1:19 a.m., on March 3, 2000, Sergeant Dale Warren and Officer Traglio took a second statement from Payne. As Payne was being moved from the holding cell to the county jail, he asked to talk to someone about Harris. Warren took Payne to the interview room, handed him a paper which explained his Miranda rights, and read his rights to him. Payne signed a waiver of the right to remain silent and to have a lawyer present.
Warren asked Payne how he had knowledge of Harris’ death, and he replied, “Eyewitness.” Then Payne stated the name “Browning.” Payne spontaneously stated, “After I tell you his name, the rest of the story, then I think I need to talk to the district attorney because I need to make some better deal.”
Police later determined that Shawn Browning was connected to Harris’ homicide. Browning spoke with police for about 60 minutes, detailing how he had stabbed Harris and that he was the only one who had physical contact with Harris. At Payne’s trial, Browning refused to testily, so the trial court ruled that Browning was an unavailable witness. The trial court allowed the State to present the testimony of Crim concerning Browning’s statement to police.
In his statement, which was incoherent at times, Browning said another person was present during the murder but would not mention that person’s name. Browning told police he contemplated killing Harris for about years because Harris was gay and had made advances toward Browning. After choking Harris, Browning reported that he told Payne that Harris “won’t go out like I wanted him to.” He told Payne to go get him a knife, and Payne did. In addition, Browning indicated that after he killed Harris, he and Payne left in Harris’ car and went to Kansas City. Browning told police he took full responsibility for what happened.
Glen Arnold, an employee at Lansing Amoco, testified at the preliminaiy hearing and at trial that on Wednesday, March 1,2000, a man identifying himself as Harris came to the Amoco station and used Harris’ credit card to purchase gas, snacks, and cigarettes. Arnold said that the man was Payne and indicated that Payne had signed the receipt in Harris’ name.
Wilton McCoy, an inmate at the Ellsyvorth Correctional Facility, testified that he was in the Leavenworth County jail with Payne in March 2000. McCoy said that he was acquainted with Payne, Browning, and Harris. McCoy stated that Payne told him that he, Browning, and Harris were doing drugs together, and Harris had said he would supply more drugs but later refused, which made Payne and Browning angry. Then McCoy related that Browning started to beat Harris, Payne said he joined in, and then they stabbed Harris a couple of times.
Prior to trial, Payne filed motions to suppress the crack cocaine, the cocaine pipe, and the statements Payne made following his arrest to police and to any inmates. The motions to suppress were based on the theory that the officers had exceeded the permissible scope of a Terry stop and frisk. See Terry v. Ohio, 392 U.S. 1, 18, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
At the suppression hearing, Judge Frederick N. Stewart held that the officer’s actions went beyond a Terry search and, in fact, constituted an arrest. Further, Judge Stewart found that the arrest was lawful because Payne’s possession of Harris’ property without any apparent authority constituted probable cause for his arrest. Finally, Judge Stewart denied Payne’s motion to suppress based on his finding that “this search was a search incident to a lawful arrest.”
Payne was tried before a jury in the District Court of Leavenworth County. Following a 2-day trial, the jury found Payne guilty of (1) murder in the first degree, in violation of K.S.A. 21-3401; (2) aggravated robbery, in violation of K.S.A. 21-3427; (3) possession of cocaine, in violation of K.S.A. 2001 Supp. 65-4160; and (4) possession of drug paraphernalia, in violation of K.S.A. 2001 Supp. 65-4152.
Payne was sentenced to life imprisonment for the murder charge, with a 59-month consecutive prison sentence for the aggravated robbery. As for the remaining convictions, Payne received concurrent sentences of 11 months’ imprisonment for the possession of cocaine and 12 months’ jailtime for the possession of drug paraphernalia.
Payne filed a timely appeal to this court from the trial court’s denial of his motions to suppress and his motion for a new trial. In addition, Payne appeals the propriety of his conviction and sentence.
I. SEARCH INCIDENT TO A LAWFUL ARREST AND TO SUPPRESS
The first issue for our review is whether the trial court erred when it found that the search of Payne’s person by Leavenworth police officers was a lawful search incident to arrest and, thus, denied Payne’s motion to suppress.
“When a motion to suppress evidence is filed, the State bears the burden of proving to the trial court the lawfulness of the search and seizure. State v. Damm, 246 Kan. 220, 222, 787 P.2d 1185 (1990) (citing Mincey v. Arizona, 437 U.S. 385, 390-91, 57 L. Ed. 2d 290, 98 S. Ct. 2408 [1978]). If the findings of the trial court on a motion to suppress evidence are based on substantial evidence, the appellate court must not substitute its view of the evidence for that of the trial court. [Citation omitted.]” State v. Wonders, 263 Kan. 582, 588-89, 952 P.2d 1351 (1998).
According to Payne, he was without a doubt “seized,” but was not arrested because two of the police officers involved testified they did not believe this was an arrest. Payne contends that since the officers were not armed with a search warrant, since he was not under arrest, and since the officer had no probable cause to believe what he felt in Payne’s pocket was a weapon, the act of reaching into his pocket was an intrusive, unwarranted, and illegal search. Payne argues that under Terry, officers could permissibly conduct a brief search for weapons, but could not justify their search and subsequent discoveiy of the crack pipe.
In addition, Payne asserts that the rock of crack cocaine discovered in his shirt pocket at the police station should also be suppressed as “fruit of the poisonous tree,” since it was obtained as a result of finding the crack pipe. Therefore, Payne requests this court to reverse the trial court’s decision and remand, with orders to suppress both the crack pipe and the rock of cocaine.
Payne’s possession of the car belonging to Harris provided sufficient probable cause for an arrest. The trial court correctly decided that officers discovered the crack pipe and rock of cocaine only after, based on probable cause, they had placed Payne under arrest. The Fourth Amendment to the United States Constitution only prohibits unreasonable searches; thus, the officer’s search of Payne was a reasonable search incident to his lawful arrest.
1. Arrest v. detention.
The first matter for our determination is whether the actions of the Leavenworth police officers constituted an arrest or a detention.
K.S.A. 22-2202(4) defines “arrest” as “the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime.” The United States Supreme Court has equated custody with “whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125, 77 L. Ed. 2d 1275, 103 S. Ct. 3517 (1983).
This court has previously stated: “ ‘Arrest as defined in the Kansas Code of Criminal Procedure contemplates more than the temporary restraint of a person by a law enforcement officer. It is the restraint of a person in order that he or she may be forthcoming to answer for the commission of a crime.” State v. Boone, 220 Kan. 758, Syl. ¶ 7, 556 P.2d 864 (1976). Moreover, “[a]n arrest is made by an actual restraint of the person arrested . . . .” K.S.A. 22-2405.
Further, in Alvarado v. City of Dodge City, 238 Kan. 48, 708 P.2d 174 (1985), this court distinguished a “detention” from an “arrest.” “ ‘[Detention’ is defined to mean the temporary restraint of a person by a law enforcement officer. ‘Arrest’ is defined as the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime.” 238 Kan. at 61.
Here, the Leavenworth police officers did more than temporarily restrain or detain Payne. When Payne entered the vehicle and started the engine, Officer Tavano pulled Payne out of Harris’ car and placed him on his chest in the roadway while another officer handcuffed him. Police had their guns drawn and pointed at Payne as he was pulled from the car.
Nothing in the record indicates that officers would allow Payne to proceed to the station for further investigation on his own accord. As one officer noted, “when you are taken out of a car at gunpoint, you are under arrest and you are not free to go.” Payne admits that at that point, he was “no longer free to leave.” Reviewing the totality of the circumstances, Payne’s freedom of movement was restrained to the degree associated with a formal arrest.
Therefore, the trial court was correct in ruling that Payne was arrested, not detained. Payne’s assertion that he was not arrested fails.
2. Lawfulness of the arrest.
Next, we must determine whether the arrest was lawful. Here, an arrest warrant had not been issued because law enforcement officials did not know the identity of the person or persons who had taken Harris’ car.
“If a warrantless arrest is challenged by a defendant, the burden is on the State to justify the arrest was not only authorized by the statute, but that it was permissible under the Fourth Amendment to the United States Constitution. The constitutional validity of a warrantless arrest depends upon whether the arresting officer had probable cause to believe that the person arrested had committed a felony.” State v. Aikins, 261 Kan. 346, Syl. ¶ 2, 932 P.2d 408 (1997).
At the suppression hearing and at the hearing on posttrial motions, the trial court found that this was a lawful arrest. Judge Stewart explained his reasoning by stating:
“It appears from the evidence presented at the preliminary hearing and the evidence presented today that Mr. Payne was in possession of a vehicle which was the property of Eddie Harris, who just had been found dead and apparently murdered, and Mr. Payne was in possession of that property without any apparent authority. The officers had probable cause to arrest him at that point, and based upon the fact that they knew the crime of murder had been committed, and it appeared that there was at least probable cause to believe Mr. Payne was involved in the commission of that offense and at least possession of the stolen property at that point.”
The United States Supreme Court has written:
“[T]he judgment of the Nation and Congress has . . . long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like.” United States v. Watson, 423 U.S. 411, 423-24, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976).
Our court stated in Aikins, 261 Kan. 346:
“Probable cause for arrest without a warrant depends upon the probabilities arising from known facts and circumstances. Probable cause exists when the practical considerations of everyday life would lead a reasonable and prudent officer to believe a felony has been or is being committed.” Syl. ¶ 3.
“In determining whether probable cause to arrest exists, all the information in the officer’s possession, fair inferences therefrom, and facts may be taken into consideration that might not be admissible on the issue of guilt.” Syl. ¶ 6.
Here, the Leavenworth police officers were instructed to set up surveillance of Harris’ vehicle in connection with the investigation of Harris’ murder. Police knew Harris lived alone, had been murdered, and that his car and keys were missing from his residence. Officers were directed to watch the vehicle and to stop anyone trying to operate or enter it and hold him or her in custody for questioning. Officer Slusher watched Payne as he cautiously approached the vehicle, walking away from it once, then turning around “and kind of looking like is anybody watching me . . . .” When officers apprehended Payne he was in Harris’ vehicle and had started the engine. Two officers immediately parked their vehicles to the front and rear of Harris’ car to prevent Payne from fleeing the scene. Although Payne was not advised that he was under arrest, Officer Slusher testified that he felt he had enough probable cause to arrest the person in the car without a warrant.
The information known by the officers at the time of Payne’s arrest could cause a reasonable and prudent officer to believe a felony had been or was being committed. At the very least, the officers knew Payne was in possession of a vehicle that belonged to a murder victim and saw Payne glancing furtively before approaching and entering the vehicle. The trial court did not err in finding that probable cause existed for Payne’s arrest; thus, that the arrest was lawful.
3. Seizure of the crack pipe.
Next, we consider the reasonableness of the search leading to the seizure of the crack cocaine pipe from Payne’s shirt pocket.
An officer’s search of an arrested person incident to an arrest is a well-established exception to the requirement of a search warrant. Police may conduct a warrantless search of an arrested person, and in addition the immediate surrounding area may be searched contemporaneously with the arrest. See New York v. Belton, 453 U.S. 454, 457, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981).
The Kansas Legislature has codified this exception in K.S.A. 22-2501, which states:
“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of
“(a) Protecting the officer from attack;
“(b) Preventing the person from escaping; or
“(c) Discovering the fruits, instrumentalities, or evidence of the crime.”
Payne argues on appeal that the crack cocaine pipe should have been suppressed by the trial court because it was evidence obtained as the result of an illegal search.
Following the arrest, officers assisted Payne in standing up, and then conducted a pat-down search. Officer Tavano testified that he felt a pipe in Payne’s shirt pocket as he patted him down for weapons as soon as they picked Payne up off the ground. Officer O’Brien testified that Tavano pulled some cards out of one of Payne’s pockets and, after they put Payne in the back of a police vehicle, Tavano struggled to put the two cards back in Payne’s left shirt pocket. According to O’Brien, at that time Tavano looked at what was in Payne’s pocket and found the crack pipe. At the preliminary hearing, Tavano stated: “I felt the pipe, it was short, I am familiar with it, what a Crack pipe is. I knew it to be nothing else but a pipe and removed it.”
“Under the plain view doctrine, if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.” Wonders, 263 Kan. 582, Syl. ¶ 3. “The plain feel exception ... is applicable to lawful searches in Kansas.” 263 Kan. 582, Syl. ¶ 7. “The legality of a law enforcement officer s seizure of property in plain view or on plain feel is immediately apparent if there is reasonable or probable cause to associate the property with criminal activity.” 263 Kan. 583, Syl. ¶ 11.
Here, officers conducted a search of Payne’s person following his arrest in an attempt to locate any weapons he might be carrying. Their actions can be characterized as a search for the purpose of protecting the officers from an attack or to keep Payne from escaping. Further justification for the search can be found in the plain feel exception.
The trial court correctly denied Payne’s motion to suppress the crack pipe. Payne’s argument that tire search was not legal is without merit.
4. Seizure of the crack cocaine.
Payne also argues that the rock of cocaine discovered in his shirt pocket at the police station should be suppressed.
In State v. Copridge, 260 Kan. 19, 918 P.2d 1247 (1996), the defendant argued that the district court erred in failing to suppress evidence collected during a search of his personal effects and clothes conducted while officers booked him into jail. This court found that the defendant’s effects were lawfully seized, and, therefore, officers could search them without a warrant or probable cause. There, we stated:
“[WJhere a defendant has been taken into custody and his or her personal effects have been lawfully seized and retained for safekeeping, the defendant has no expectation of privacy and officers may thereafter take a ‘second look’ at the inventoried personal effects without a search warrant and remove any evidence." 260 Kan. at 23.
“ ‘ “While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest in weapons, means of escape, and evidence.’ ” [Citation omitted.]” 260 Kan. at 24 (quoting United States v. Edwards, 415 U.S. 800, 808-09, 39 L. Ed. 2d 771, 94 S. Ct. 1234 [1974]).
The search of Payne’s person at the jail was a reasonable custodial search for weapons, means of escape, and evidence. Payne’s assertion of error fails.
II. STATEMENTS TO POLICE AND INMATES
Next, Payne challenges the propriety of the trial court’s denial of his motion to suppress statements he made during his arrest and to inmates at the Leavenworth County jail.
“ When analyzing a district court’s suppression of evidence, an appellate court reviews the factual underpinnings of a district court’s decision by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh the evidence. The ultimate determination of the suppression of evidence is a legal question requiring independent appellate review.’ ” State v. Pritchett, 270 Kan. 125, 128, 11 P.3d 1125 (2000) (quoting State v. Toothman, 267 Kan. 412, Syl. ¶ 1, 985 P.2d 701 [1999]).
In arguing this second assertion of error, Payne employs essentially the same reasoning in his argument for the suppression of the crack pipe and rock of crack cocaine. Payne contends there was insufficient probable cause for an arrest and, therefore, the officer’s warrantless searches during his detention were per se unreasonable. Building on these assumptions, Payne then argues that “all evidence [his statements] recovered subsequently] . . . should have been suppressed.”
“The prosecution has the burden of proving whether a confession or admission is admissible. On appeal, an appellate court will not reverse a determination that a confession was freely, voluntarily, and intelligently given if there is substantial competent evidence to support the determination. The legal conclusion drawn from those facts is reviewed de novo.” State v. Jacques, 270 Kan. 173, Syl. ¶ 4, 14 P.3d 409 (2000).
“Substantial evidence is evidence that possesses both relevance and substance and furnishes a substantial basis of fact from which the issues can reasonably be resolved. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” 270 Kan. 173, Syl. ¶ 5.
First, we note that Payne does not contest the trial court’s admission of the statements he made during custodial police interviews. During those interviews, Payne was advised of his Miranda rights and voluntarily signed waiver forms. Payne only challenges the statement he made during his arrest and the statement he made to a fellow inmate at the Leavenworth County jail.
First, we consider Payne’s statement at the scene of his arrest. When police officers apprehended Payne, they failed to read him his Miranda rights. Officer Slusher testified that Payne’s statement during the arrest indicated his potential involvement in Harris’ murder.
“In the landmark case of Miranda v. Arizona, 384 U.S. 436, 444, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), the United States Supreme Court held the prosecution cannot use statements, whether inculpatory or exculpatory, stemming from custodial interrogation, unless it proves that procedural safeguards were used to secure tire defendant’s privilege against self-incrimination. These safeguards include informing the person in custody, prior to interrogation, of his or her Fifth Amendment rights to remain silent, to consult with an attorney, and to have an attorney present during interrogation. Further, if the person in custody states that he or she wants an attorney, all questioning must cease until the attorney is present. [Citations omitted.] A waiver of Miranda rights need not be in writing. [Citation omitted.]” State v. Williams, 268 Kan. 1, 12-13, 988 P.2d 722 (1999).
As we noted above, clearly Payne was in police custody and placed under arrest at that time. The officers had not advised Payne of his Miranda rights when he made the statement. The question for our consideration here is whether his statement was voluntary or was made in response to interrogation.
Interrogation in tire context of police custody refers to “words or actions on the part of the police (other than those normally attendant to arrest and custody) that tire police should know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 64 L. Ed. 2d 297, 100 S. Ct. 1682 (1980). “[T]he voluntariness of a statement should be determined on the basis of the totality of the surrounding cir cumstanees.” State v. Ferguson, 254 Kan. 62, 85, 864 P.2d 693 (1993).
Officer Slusher testified that “[officers] were leading [Payne] away and he like stopped and looked towards me and said, ‘So Eddie Harris is dead?’ ” None of the officers present had mentioned that Harris was the murder victim. There was no evidence to suggest that this statement was made in response to an inquiry of police. Significantly, Payne does not assert on appeal that this statement was made in a nonvoluntaiy manner or as a result of police coercion. We find that Payne’s statements during his arrest were not the result of interrogation and were made voluntarily.
Next, we consider Payne’s statement to inmate McCoy at the Leavenworth County jail. McCoy testified that Payne told him that when Harris refused to buy drugs, it made Payne and Browning angry. McCoy said, according to Payne’s story, Browning started to beat Harris and Payne joined in, and then they stabbed him a couple of times.
Once again, there is no evidence suggesting that Payne’s statements to McCoy were the result of police interrogation or were not voluntarily made. Nor is there any assertion by Payne that this statement was nonvoluntary or the result of police coercion.
Substantial evidence supports the trial court’s decision to deny Payne’s motions to suppress. Further, because we have determined that the officers lawfully arrested Payne, his intimation that these statements should have been suppressed as “the fruit of the poisonous tree” is incorrect. We conclude that substantial competent evidence supports the trial court’s decision to refuse to suppress these statements.
III. SUFFICIENCY OF EVIDENCE
Finally, Payne contends that if the drugs, the crack pipe, and his statements had been properly suppressed as the fruit of the poisonous tree of his illegal arrest, “then there would have been no evidence harmful to Mr. Payne, except the lone fact that he was found in possession of Mr. Harris’ car.”
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a ration^ factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Jasper, 269 Kan. 649, 655, 8 P.3d 708 (2000).
Here, we found the trial court properly denied Payne’s motions to suppress the crack cocaine, the pipe, and Payne’s statements. The challenged evidence does not constitute fruit of the poisonous tree of an illegal arrest.
Viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found Payne guilty beyond a reasonable doubt.
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|
The opinion of the court was delivered by
Six, J.:
This is David A. Moncla’s third appeal from his conviction of first-degree murder, K.S.A. 21-3401. His conviction was affirmed in State v. Moncla, 262 Kan. 58, 936 P.2d 727 (1997) (Moncla I). He later moved for a new trial under K.S.A. 22-3501 based on newly discovered evidence. Moncla advanced two affidavits from prison inmates in support of his motion. The affidavits showed that another person admitted involvement in and/or knowledge of the murder for which Moncla was convicted. The district court conducted a nonevidentiary hearing, heard arguments, and summarily denied the motion. Moncla appealed. Finding that the district court abused its discretion in denying the motion without evaluating the credibility and materiality of paper evidence, we reversed and remanded for further proceedings. See State v. Moncla, 269 Kan. 61, 4 P.3d 618 (2000) (Moncla II). After conducting an evidentiary hearing, the district court again denied Moncla’s new trial motion.
Our jurisdiction is under K.S.A. 22-3601(b)(l) (conviction for an off-grid crime). The single issue is whether the district court abused its discretion by again denying Moncla’s motion for a new trial.
Finding no error, we affirm.
FACTS
We repeat the facts from Moncla II, to set the stage for our disposition here.
“Moncla received a ‘hard-40’ sentence for the murder of Diane Swinney. See K.S.A. 21-4638. Swinney died after sustaining 18 blows to the head with a hammer. An employee of Swinney’s named Kevin Robertson discovered her body. Swinney owned a bar. She lived just a few blocks away from her bar in the upstairs apartment of a home. Moncla and two other individuals had been staying at the home. Moncla sometimes slept on a recliner in Swinney’s room. On the night of her death, Swinney closed her bar around 2 a.m. The next morning Moncla left Swinney’s house on foot. He told one of the other house occupants he was late for work. He also said Swinney was having sex with someone and he did not wish to watch. Moncla went to John Bayliff s house. He told Bayliff he was awakened that morning by a man-hitting him over the head with a gun. According to Moncla, three men were in the room. Moncla was pushed into a bathroom. He could not see Swinney, but heard several slaps or hits and heard someone say, ‘[W]e’re going to have to take a loss on this one.’ Moncla, 262 Kan. at 62. He also heard the name Kevin. After the men left, Moncla went into the bedroom and saw Swinney on the floor. She was beaten up, crying, and holding a pillow over her head. Swinney told Moncla to ‘stay out of it,’ so he left. 262 Kan. at 62. Bayliff related this story at trial.”
“In Moncla’s direct appeal, his defense was described as follows:
‘The defendant testified on his own behalf and claimed that others had committed the crime. He presented evidence of Swinney’s mounting debts to suggest a motive. He also attacked the police investigation as inadequate in following up leads on other suspects. The defendant claimed that Robertson, the man who found the body, was involved in the murder and that a man named Danny Long committed the murder. The police had received a Crime Stopper tip on Long. In addition, Robert Wisley, a friend of Long’s, testified that Long approached him in a bar and confessed to Swinney’s murder, specifying that he used a hammer to do it.’ 262 Kan. at 63.
“Moncla filed a motion for new trial based on affidavits from Scott Staggs and Allen Richards, two inmates at the El Dorado Correctional Facility. Staggs stated that he was a cellmate with Robertson at El Dorado, during which time Robertson claimed to be involved in the death of Swinney. According to Staggs, Robertson specifically admitted being with Swinney on die night of her death. Robertson told Staggs he was there partying’ with his brother. Robertson and his brother asked Swinney for some ‘dope.’ When Swinney did not comply, they began to threaten her, and soon Robertson’s brother hit Swinney in the head with a hammer. The brother continued to hit Swinney about 18 times. The two then put a pillow over Swinney’s head. They washed their hands in the kitchen sink and left through the back door.
“In the second affidavit, Allen Richards explained that he met Robertson in the El Dorado infirmary while Robertson was recovering from knee surgery. According to Richards, Robertson said he knew of the Swinney murder and how the police had put the wrong man in jail. Robertson said there was no way Monda could have committed the murder. Richards believed Robertson was suggesting that he had committed the crime. Then Robertson explained to Richards that he had used a hammer as his weapon and that Swinney had died from being hit in the head. When Robertson realized that Richards knew Monda, the discussion ended.” 269 Kan. at 62-63.
The Hearing
At the second hearing on the motion for a new trial, the hearing from which Monda now appeals, the district court heard testimony from several witnesses, including Scott Staggs and Allen Richards, the two inmates furnishing the affidavits.
Staggs' testimony
According to Staggs, he first encountered Robertson in the Sumner County jail, not in the El Dorado Correctional Facility (El Dorado). Staggs thought he and Robertson were in the jail together in 1994. According to Staggs, Robertson discussed Swinney s murder for several days and said he and his brother, Billy Robertson, went to Swinney’s house to get drugs. According to Staggs, Robertson said they robbed Swinney because they did not have money for the drugs. Robertson claimed that his brother then hit Swinney with a hammer. Staggs testified Robertson said that he testified against the man who was ultimately convicted, but Robertson never identified Monda by name during the conversations. Robertson’s alleged version of events included Robertson hitting Swinney in the face, and his brother, Billy, hitting her in the head with a hammer. They allegedly dragged her body into the bedroom, clubbed her roughly 18 times, put a pillow over her head, took the drugs, and left.
Staggs testified that 4 years later, while he was incarcerated at El Dorado, he learned through a fellow inmate that Monda was the individual allegedly set up by Robertson. Staggs drafted a letter to two detectives and to the Chief Appellate .Attorney for Sedgwick County, in which he notified them of what he had heard from Robertson. During his time at .El Dorado, Staggs was assigned to push Robertson’s wheelchair in the infirmary and, thus, again met Robertson.
On cross-examination, Staggs acknowledged some discrepancies between the information he originally reported and his testimony at the evidentiary hearing. He testified that in his letter to the authorities, he said Robertson was responsible for the murder, but in the affidavit provided to the public defender’s office, Staggs said Robertson’s brother was the one who hit Swinney in the head. Staggs denied ever having a fading out with Robertson while they were together at the Sumner County jail.
Richards’ testimony
Richards was incarcerated at El Dorado with Staggs and Monda. Richards was kept in the same cell house with Monda in 1996. Richards testified at the evidentiary hearing that he worked in the infirmary when Robertson was recovering from surgery. According to Richards, he overheard a conversation between Robertson and another inmate. Robertson said he did not know how “Dave (Monda) got found guilty” because Robertson was “the only person that knew what type of weapon was used.” Richards said Robertson “used David’s first name and last name.”
Richards testified that the Swinney murder was the topic of conversation for 6 or 7 days after Monda was sent to the Lansing State Penitentiary. Richards acknowledged that he was acquainted with Monda at the time he overheard the conversation, but he did not realize Monda was incarcerated for a homicide. During cross-examination, Richards acknowledged that he never had a face-to-face conversation with Robertson.
Mondas testimony
Monda also testified at the evidentiary hearing. He said he never had direct contact with Staggs. When asked if he was aware of Staggs’ letters and meetings with the public defender’s office, Monda said he was made aware of them after the fact. Monda testified that he knew Richards from the El Dorado Correctional Facility. At the end of his cross-examination, Monda testified that Swinney was alive when he left. Monda said he was not sure if the others were gone when he left. He said they still could have been in the house for all he knew. When asked if they were still in the bedroom upstairs, Monda said, “No, they went downstairs.”
Chief investigator s testimony
Kevin Barnes, the chief investigator at El Dorado, testified that Monda, Richards, and Staggs were housed in the same cell house and cell block for periods of time.
Robertson’s testimony
Robertson also testified at the evidentiary hearing. According to Robertson, he and Staggs spent about 3 weeks together at the Sumner County jail. Robertson said that when he was in the infirmary at El Dorado, Staggs came to him and asked him about Moncla’s case. Robertson told Staggs that he had found his friend’s body and that Monda supposedly killed her.
Contrary to Staggs’ testimony, Robertson testified that he had “all kind of problems” with Staggs at the Sumner County jail. The two men “got in to words” one day, and the guards moved Robertson across the hall from Staggs. When Staggs was in the cell across the hall he would spit and throw things into Robertson’s food tray. Robertson said Staggs did everything he could to irritate Robertson. All of this happened before Staggs became Robertson’s wheelchair attendant.
When asked if he knew Richards, Robertson replied, “Not really.” He denied telling Richards anything about Swinney’s murder. He also denied having a “trust relationship” with Staggs and knowing Monda at the time of the murder. When asked if he had ever seen Monda or met him before, Robertson said, “I think one time at the bar. I don’t know for sure.” At El Dorado, he saw Moncla pass by. After that, Robertson started getting threats and “everybody was saying [Robertson] was a snitch.” According to Robertson, Moncla allegedly showed paperwork to inmates that said Robertson was a snitch. Robertson found out through a detective that Staggs and Richards claimed he had confessed the murder to them.
After hearing arguments and considering the testimony, affidavits, and trial evidence, the district court denied Moncla’s motion for a new trial. The district court found that “the evidence involved here is not material enough that would raise a reasonable possibility of a different finding at another trial.”
DISCUSSION
The same district judge presided at Moncla’s trial and at the K.S.A. 22-3501(1) hearing. Moncla argues that the district court abused its discretion by denying his motion for a new trial. We disagree.
Our standard of review of an order denying a K.S.A. 22-3501(1) motion for a new trial is generally limited to whether the district court abused its discretion. Under the abuse of discretion standard, if a reasonable person could agree with the district court’s decision, it will not be disturbed on appeal. State v. Thomas, 257 Kan. 228, 229, 891 P.2d 417 (1995). The rules governing motions for new trials based on newly discovered evidence are well established. See Moncla II, 269 Kan. at 64-65. K.S.A. 22-3501(1) provides in pertinent part:
“The court on motion of a defendant may grant a new trial to him if required in the interest of justice. ... A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment.”
The district court discounted the hearing testimony and affidavits of Staggs and Richards. It found that each affidavit was suspect. The district court noted that Staggs’ affidavit contained allegations “that certain conversations occurred in regard to this murder prior to the murder having . . . occurred.” It also noted that Staggs’ testimony conflicted with his affidavit.
At the hearing, Staggs testified that his affidavit incorrectly showed that he was cellmates with Robertson in El Dorado (that was in 1996, after the murder). Instead, Staggs said they were cellmates in Sumner County jail (that was in 1994, before the murder). Staggs initially testified that his conversations with Robertson about the Swinney murder took place in the Sumner County jail in 1994. In addition, in Staggs’ affidavit he said Robertson told him that Swinney’s murder took place on July 15, 1995. The record shows that the murder took place on January 16, 1995, and that Monda was charged with first-degree murder on February 1, 1995.
The district court also found inconsistency in the affidavit and testimony of Richards regarding his personal knowledge. In Richards’ affidavit, Richards said that Robertson told him how he used the hammer and how the victim died. The affidavit also said Robertson immediately avoided the subject of Swinney’s death when Robertson realized that Richards knew Monda. However, Richards testified that he had overheard conversations that Robertson had with other inmates about the murder.
Finally, the district court found: (1) the evidence at trial pointed to Moncla’s guilt, and (2) at best, the affidavits and testimony of Staggs and Richards only suggested that there were two people involved. Staggs’ hearing testimony named Robertson and his brother as Swinney’s murderers. Monda had testified at trial that three other people, including Robertson, were in Swinney’s bedroom on the night of the murder. However, according to Monda, after the perpetrators left, Swinney was beaten up but still alive. He testified at trial that she asked him to “stay out of it,” so he left her and left the house.
The testimony of Staggs and Richards fails to explain how, if Monda was removed from the situation, blood was detected on his jeans in a spatter pattern, which was consistent with the type of action that would create impact-type stains. The authorities were unable to identify the blood on Moncla’s jeans as Swinney’s because gasoline had been spilled on his jeans. While there was evidence that Swinney’s head was covered, the forensic expert testified that Swinney received “some of the blows . . . without any type of covering on her head.” See Moncla I, 262 Kan. at 62-63. There were three small blood spatter stains on the bathroom floor where Monda daimed he was held at gunpoint. All of this evidence was presented to the jury.
The jury heard Moncla’s testimony at trial regarding Robertson’s alleged connection to the crime. Robertson was also called to testily. When Monda saw Robertson, Monda asserted that he recognized him and his voice as the man who held him at gunpoint on the night of Swinney’s murder. Robertson had worked with Swinney at the bar. He had an alibi witness for the night of the murder. The alibi witness testified that on the night of January 15, 1995, she went to Star’s Bar, where she talked to Robertson. They left the bar together around 1 or 2 a.m., and Robertson spent the night at her home.
We conclude that the district court did not abuse its discretion in denying Moncla’s motion for a new trial.
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The opinion of the court was delivered by
Six, J.:
We revisit Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S.Ct. 2348 (2000), to decide whether the fact of a prior juvenile adjudication must be charged in the indictment and proven to a jury beyond a reasonable doubt before it can be included in a defendant’s criminal history score.
Travis Hitt appeals his presumptive sentence following a plea of guilty to conspiracy to commit aggravated battery. Before the Court of Appeals, Hitt argued for the first time that his juvenile adjudications should not have been included in his criminal history. He reasoned that his juvenile adjudications were the result of pro ceedings in which he did not have the right to a jury trial. The Court of Appeals in an unpublished opinion affirmed the district court, deciding that Hitt’s juvenile adjudications were correctly included in his Kansas Sentencing Guidelines Act (KSGA) criminal history score. See K.S.A. 2001 Supp. 21-4704.
We granted Hitt’s petition for review to resolve this first impression issue. K.S.A. 20-3018(b).
We hold that Hitt’s juvenile adjudications were correctly included in his KSGA criminal history score. We affirm the Court of Appeals and the district court. Hitt received a sentence within the presumptive range, the sentence is not subject to challenge on appeal, and Apprendi does not apply. See K.S.A. 21-4721(c)(l).
FACTS
Hitt was charged with aggravated battery, conspiracy to commit aggravated battery, aggravated burglary, and criminal damage to property. He agreed to plead guilty to conspiracy to commit aggravated battery in exchange for the State’s agreement to dismiss the remaining charges. Hitt was on a felony bond for burglary of a non-dwelling when his actions resulting in the charges here occurred. The State also agreed to remain silent on the issue of whether the sentence for the instant crime should run consecutive to or concurrent with the sentence on the burglary charge. The district court accepted Hitt’s guilty plea.
Hitt’s criminal history included one juvenile person felony, four juvenile nonperson felonies, one juvenile nonperson misdemeanor, and one adult nonperson felony. He did not object to the corresponding criminal history score of “C.” The severity level of the crime combined with Hitt’s criminal history score resulted in a presumptive prison term of 34 to 38 months. Hitt filed a motion for downward dispositional and/or durational departure. At sentencing, he asked the court to place him on probation. The district court denied Hitt’s motion for departure and sentenced him to 38 months’ imprisonment, to run consecutive to the sentence imposed on the burglary.
DISCUSSION
Hitt argues that juvenile adjudications included in a criminal history score increase the penalty for a crime beyond the pre scribed statutory maximum. He reasons that under Apprendi, juvenile adjudications must be charged in the indictment and proven to a jury beyond a reasonable doubt. Because the KSGA provides that juvenile adjudications may be included in the criminal history score absent these requirements, Hitt contends the KSGA is unconstitutional on its face and as applied to his sentence.
Though Hitt fails to target a specific statute, he presumably refers to K.S.A. 21-4710(a), which provides in part:
“Criminal history categories contained in the sentencing guidelines grid for nondrag crimes ... are based on the following types of prior convictions: . . . person felony juvenile adjudications, nonperson felony juvenile adjudications . . . person misdemeanor juvenile adjudications, nonperson class A misdemeanor juvenile adjudications . . . [and] select class B nonperson misdemeanor juvenile adjudications . . . .”
While not central to our analysis, K.S.A. 21-4709, K.S.A. 2001 Supp. 21-4711, and K.S.A. 2001 Supp. 21-4714(b)(5) also mention the use of prior juvenile adjudications in a defendant’s criminal history score.
We begin our analysis by acknowledging the appropriate standard of review. A constitutional attack on a statute presents a question of law subject to unlimited review. The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity. If there is any reasonable way to construe the statute as constitutionally valid, we should do so. State v. Heironimus, 262 Kan. 796, 802, 941 P.2d 1356 (1997).
Hitt’s Argument
In Apprendi, the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. Hitt acknowledges that the plain language of Apprendi does not require that a jury confirm the existence of a prior conviction beyond a reasonable doubt before the conviction can be used to increase a sentence by elevating the criminal history score. He argues instead that juvenile adjudications are not prior convictions, and, more importantly, unlike adult convictions, juvenile ad judications do not result from proceedings in which the defendant has a right to a jury trial. Thus, Hitt asserts that juvenile adjudications do not come within the “prior conviction” exception to Apprendi’s general rule.
He relies on State v. LaMunyon, 259 Kan. 54, 59, 911 P.2d 151 (1996), where we said: “It is well established that a juvenile adjudication is not a ‘criminal conviction.’ ” When LaMunyon was decided, K.S.A. 38-1601 (Furse 1993) made clear that no “order, judgment or decree of the district court, in any proceedings under the provisions of this code, [shall] be deemed or held to import a criminal act on the part of any juvenile.” In 1996, the Kansas Legislature revamped the Juvenile Offenders Code. In doing so, it amended K.S.A. 38-1601 to eliminate the “not a criminal act” language and instead, emphasized the primary goals of the newly named Juvenile Justice Code: to promote public safety, hold juvenile offenders accountable, and help all juveniles live more productively and responsibly. L. 1996, ch. 229, sec. 2. Because of the change to K.S.A. 38-1601, LaMunyon is less helpful in advancing Hitt’s position.
Hitt’s more significant argument is that Apprendi’s concern with the right to a jury determination of factors increasing a sentence removes juvenile adjudications from the prior conviction exception because there is no right to jury trial in juvenile matters.
Apprendi’s Prior Conviction Exception
To understand Apprendi’s treatment of the prior conviction exception, we must first consider Almendarez-Torres v. United States, 523 U.S. 224, 140 L. Ed. 2d 350, 118 S.Ct. 1219 (1998). There, the Court considered a federal statute that criminalized the return of a deported alien into the country without special permission. The statutory maximum penalty for the crime was 2 years’ imprisonment. The same statute provided that if the alien in question was deported after the commission of an aggravated felony, the maximum prison term was 20 years. The issue was whether a 20-year maximum term defined a separate crime, requiring that the existence of the aggravated felony be charged in the indictment and proven to the jury, or simply authorized an enhanced penalty under certain circumstances.
In considering the constitutional implications, the AlmendarezTorres Court reasoned that “the sentencing factor at issue here— recidivism — is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.” 523 U.S. at 243. Further, “[Consistent with this tradition, the Court said long ago that a State need not allege a defendant’s prior conviction in the indictment or information that alleges the elements of an underlying crime, even though the conviction was ‘necessary to bring the case within the statute.’ [Citation omitted.]” 523 U.S. at 243. Almendarez-Torres concluded that “to hold that the Constitution requires that recidivism be deemed an ‘element’ of petitioner’s offense would mark an abrupt departure from a longstanding tradition of treating recidivism as ‘go[ing] to the punishment only.’ [Citation omitted.]” 523 U.S. at 244.
The conclusion in Almendarez-Torres was later put into context in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S.Ct. 1215 (1999). Jones considered the federal statute criminalizing carjacking, which provided for a maximum penalty of 15 years’ imprisonment, 25 years’ imprisonment if serious bodily injury resulted, and up to life imprisonment if death resulted. Jones was charged and convicted of carjacking without mention of serious bodily injury. The sentencing court found by a preponderance of the evidence that the victim sustained serious bodily injury and sentenced Jones to 25 years in prison.
Jones concluded that the carjacking statute as written established three separate offenses by its specification of distinct elements, each of which must be charged in the indictment and proven to a jury beyond a reasonable doubt. 526 U.S. at 252. The Court distinguished Almendarez-Torres by explaining:
“Almendarez-Torres . . . stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment, the precise holding being that recidivism increasing the maximum penalty need not be so charged. But the case is not dispositive of the question here, not merely because we are concerned with the Sixth Amendment right to jury trial and not alone the rights to indictment and notice as claimed by Almendarez-Torres, but because the holding last Term rested in substantial part on the tradition of regarding recidivism as a sentencing factor, not as an element to be set out in the indictment. The Court’s repeated emphasis on the distinctive significance of recidivism leaves no question that the Court regarded that fact as potentially distinguishable for constitutional purposes from other facts that might extend die range of possible sentencing. [Citations omitted.] One basis for that possible constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense, and certainly unlike the factor before us in this case, a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” 526 U.S. at 248-49.
With this background we turn to Apprendi. The Court in Apprendi was not faced with the issue of whether the defendant’s prior convictions could be used to increase his sentence. Rather, Apprendi challenged the use of the trial court’s finding that the crime was committed with a biased purpose to enhance his sentence for possession of a firearm. In the shadow of Jones, Apprendi argued that the existence of a biased purpose was an element of the crime that, pursuant to the Sixth and Fourteenth Amendments to the United States Constitution, must be proven to a jury beyond a reasonable doubt. The Court agreed, concluding that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. 530 U.S. at 490.
The Apprendi Court acknowledged that in Almendarez-Torres it had approved of the use of the fact of a prior conviction to enhance the defendant’s sentence even absent a jury finding as to the existence of the conviction beyond a reasonable doubt. 530 U.S. at 488.
The pedigree of the prior conviction exception makes clear that it is rooted in (1) the historical use of recidivism as the “most traditional” factor supporting the sentencing court’s increase of a criminal sentence, rather than functioning as an element of a crime to be set out in an indictment; and (2) the notion that a prior conviction, unlike any other so-called sentencing factor, is cloaked in substantial procedural safeguards.
The question becomes whether the absence of the jury trial safeguard in juvenile adjudications is enough to remove it from the narrow exception for prior convictions built into the Apprendi rule.
Post-Apprendi Analysis
Our search for an answer to the above question leads us to U.S. v. Tighe, 266 F.3d 1187 (9th Cir. 2001). Tighe pled guilty to bank robbery, felon in possession of a firearm, and interstate transportation of a stolen vehicle. He was informed for tire first time at the plea hearing that his criminal history may trigger the provisions of the Armed Career Criminal Act (ACCA), see 18 U.S.C. § 924(e) (2000). ACCA mandates a minimum sentence of 15 years for anyone convicted of being a felon in possession of a firearm who has three previous convictions for a violent felony or a serious drug offense. The trial court concluded that Tighe had at least three prior convictions for violent felonies, among them a juvenile adjudication, and imposed a 15-year sentence for the firearm conviction.
Tighe appealed, arguing in part that the provision for a 15-year mandatory minimum sentence rendered the ACCA unconstitutional on its face under Apprendi. The Ninth Circuit Court of Appeals quickly disposed of the argument, citing Apprendi and Almendarez-Torres and concluded:
“Under the current state of the law, the Constitution does not require prior convictions that increase a statutory penalty to be charged in the indictment and proved before a jury beyond a reasonable doubt. [Citations omitted.] Accordingly, we affirm the district court’s holding that ACCA is constitutional on its face.” 266 F.3d at 1191.
The as-applied challenge was another matter. The majority began its analysis with the admission that Tighe’s argument had little surface appeal.
“At first blush, it may appear that Tighe’s 1998 juvenile adjudication, which Congress has characterized as a prior conviction’ for the purposes of ACCA, falls precisely within Apprendi’s exception for ‘the fact of a prior conviction,’ thus foreclosing Tighe’s argument that the use of that adjudication at sentencing to increase his maximum penalty violated Apprendi. Such an analysis, however, ignores the significant constitutional differences between adult convictions and juvenile adjudications. [Citations omitted.] Neither Apprendi, nor Almendarez-Torres — the case upon which Apprendi relied to create the ‘prior conviction’ exception to its general rule — specifically addressed the unique issues that distinguish juvenile adjudications from adult convictions, such as the lack of a right to a juiy trial in most juvenile adjudications.” 266 F.3d at 1192-93.
After a review of Almendarez-Torres Jones, and Apprendi, the Tighe majority concluded:
“[T]he prior conviction’ exception to Apprendi s general rale must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable doubt burden of proof, therefore, do not fall within Apprendi s ‘prior conviction’ exception.” 266 F.3d at 1194.
The Tighe dissent pointed out that the Ninth Circuit had previously declared the 15-year mandatory minimum sentence component of the ACCA to be a penalty enhancement. Thus, the dissent concluded that the three prior convictions were not'elements of the crime and need not be included in the indictment or proven to a jury beyond a reasonable doubt. 266 F.3d at 1198. The dissent also pointed out that in a pre-Apprendi case, United States v. Williams, 891 F.2d 212 (9th Cir. 1989), cert. denied 494 U.S. 1037 (1990), the Ninth Circuit held that where a juvenile received all the process constitutionally due at the delinquency proceeding stage, the later use of the juvenile adjudication for a sentence enhancement was constitutionally sound. 266 F.3d at 1198-99.
More relevant to our discussion, however, is the dissent's criticism of the majority's interpretation of Jones. The dissent repeated an essential passage from Jones:
“ ‘One basis for that constitutional distinctiveness [of prior convictions] is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense ... a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt and jury trial guarantees.’ ” 266 F.3d at 1200 (quoting Jones, 526 U.S. at 249.).
The dissent then remarked:
“I do not believe the language plucked from Jones provides sufficient authority to overrule (albeit implicitly) this court’s decision in Williams, nor do I think the majority’s attempt to distinguish Williams is valid. In my view, the language in Jones stands for the basic proposition that Congress has the constitutional power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant presumably received all the process that was due when he was convicted of the predicate crime. For adults, this would indeed include the right to a juiy trial. For juveniles, it does not. Extending Jones’ logic to juvenile adjudications, when a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement.” 266 F.3d at 1200.
The Juvenile Justice Code
The special treatment of juvenile offenders because of age is not an inherent or constitutional right but rather results from statutoiy authority. State v. Coleman, 271 Kan. 733, 736, 26 P.3d 613 (2001). In Kansas, these rights are set out in the Juvenile Justice Code, K.S.A. 38-1601 et seq. A juvenile has the right to an attorney, K.S.A. 38-1606; the right to have the offense proven beyond a reasonable doubt, K.S.A. 38-1654; and the right to fair notice of the charges filed, K.S.A. 38-1612, K.S.A. 38-1622, and K.S.A. 38-1633. A panoply of additional rights are set forth in K.S.A. 38-1633, including the presumption' of innocence and the rights to trial without unnecessary delay, to confront witnesses, and to testify or decline to testify.
There is, however, no right to jury trial. K.S.A. 38-1656 states:
“In all cases involving offenses committed by a juvenile which, if done by an adult, would make the person hable to be arrested and prosecuted for the commission of a felony, the judge may order that the juvenile be afforded a trial by jury. Upon the juvenile being adjudged to be a juvenile offender, the court shall proceed with sentencing.”
We have held that there is no federal or state constitutional right to jury trial in juvenile proceedings. State v. LaMunyon, 259 Kan. 54, 62-63, 911 P.2d 151 (1996); Findlay v. State, 235 Kan. 462, 463-64, 681 P.2d 20 (1984). Further, K.S.A. 38-1656 does not grant a juvenile the right to request or demand a jury trial. The decision to grant a trial is entirely up to the court. The court is not required to state a reason for its decision, and the decision is not appealable. Findlay, 235 Kan. at 463-64, 466.
The advent of the KSGA, with its calculation of sentences based on the severity level of the crime and the defendant’s criminal history score, brought into question whether juvenile adjudications could be considered in calculating criminal history. Clearly, the legislature intended it to be so, as reflected in the plain language of K.S.A. 21-4710(a). The constitutionality of this practice was challenged in LaMunyon, 259 Kan. at 59-65.
LaMunyon
In LaMunyon, we acknowledged that the KSGA expressly requires inclusion of juvenile adjudications in a criminal history score. 257 Kan. at 57. Further:
“The fact that a juvenile adjudication is not a ‘criminal act’ has not been interpreted to mean that a juvenile adjudication can have no impact upon the sentence for a subsequent ‘criminal conviction.’ Considering a juvenile adjudication in calculating an offender’s criminal history score under the KSGA does not turn that adjudication into a criminal act. The terms ‘criminal act’ and ‘criminal history score’ simply mean different things.” 259 Kan. at 61.
We recognized that Nichols v. United States, 511 U.S. 738, 128 L. Ed. 2d 745, 114 S.Ct. 1921 (1994), held that an uncounseled misdemeanor conviction could be used to enhance the sentence for a subsequent offense. Further, we noted that in State v. Delacruz, 258 Kan. 129, 133-36, 899 P.2d 1042 (1995), we used Nichols to justify our conclusion that the use of an uncounseled but constitutionally sound misdemeanor conviction could be used in determining a criminal history score under the KSGA. See LaMunyon, 259 Kan. at 63-65.
In LaMunyon, we likened a nonjury juvenile adjudication to an uncounseled adult misdemeanor conviction — both obtained absent rights that did not attach to the particular type of offense. We concluded:
“Here, the defendant’s juvenile adjudications were constitutional even if he had no right to a jury trial in those proceedings. Because the juvenile adjudications were not constitutionally infirm, they may be used in calculating the defendant’s criminal history score under the KSGA.” 259 Kan. at 65.
LaMunyon was decided several years before Apprendi and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). In Gould, we adopted the Apprendi rationale to declare that the “Kansas scheme for imposing upward departure sentences, embodied in K.S.A. 2000 Supp. 21-4716, is unconstitutional on its face.” 271 Kan. 394, Syl. ¶ 3. We said:
“Gould received a sentence beyond the statutory maximum based upon a court finding of certain aggravating factors found by a preponderance of the evidence. Apprendi, on the other hand, requires ‘any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’ 530 U.S. at 490. Any other procedure ‘is an unacceptable departure from tire jury tradition that is an indispensable part of our criminal justice system. 530 U.S. at 497.’ ” 271 Kan. at 413.
The Court of Appeals’ Unpublished Decision
It is against this backdrop that the Court of Appeals faced Hitt’s argument that his juvenile adjudications should not have been included in his criminal history score. The Court of Appeals first considered Apprendi, Gould, and Almendarez-Torres. These three were distinguished on the basis that in Almendarez-Torres, the defendant’s prior aggravated felony convictions were held to be elements of the crime of illegal re-entry, whereas here, the issue is calculation of a criminal history score. The Court of Appeals observed that prior juvenile adjudications are not mentioned in the Kansas statute criminalizing aggravated battery, and the criminal history score is determined according to an entirely independent statute which applies to all crimes.
Second, the Court of Appeals relied on LaMunyon to conclude that because Hitt failed to show his juvenile adjudications were unconstitutional, the adjudications were correctly included in his criminal history score.
After the Court of Appeals’ decision here, State v. Spates, 29 Kan. App. 2d 1089, 36 P.3d 839 (2001), and State v. Hatt, 30 Kan. App. 2d 84, 38 P.3d 738 (2002), were filed. Spates’ and Hatt’s treatment of the juvenile adjudication issue is consistent with the Court of Appeals’ resolution of Hitt’s claim.
Analysis
It is clear from a survey of the available case law that there are two schools of thought in responding to Hitt’s contention. The first follows the Tighe majority: Because juvenile offenders do not enjoy the right to a jury trial, nonjury juvenile adjudications lack the due process protections required by Apprendi-, thus, they cannot be used to increase a defendant’s sentence for a later crime. The sec ond follows the Tighe dissent: If juvenile adjudications are constitutionally sound according to the more limited set of rights afforded in juvenile proceedings, they may be used to increase a defendant’s sentence for a later crime. Neither approach may be effortlessly applied to dispose of Hitt’s appeal.
While the Tighe majority opinion is worthy of our consideration, we are not bound by its conclusions. A decision to exclude nonjury juvenile adjudications from the criminal history score, even limited to a prospective application, would have an unprecedented effect on the sentences of an untold number of criminal defendants. The practical impact of such a decision would rival and potentially exceed that of Gould. There, a relatively limited number of criminal defendants “in the pipeline” had received an upward departure sentence. Here, it would appear that far more defendants have a criminal history score bolstered by juvenile adjudications. To remove juvenile adjudications from the KSGA calculation would require the resentencing of many and result in lighter sentences for them and future defendants.
More importantly, in Gould, the dictates of Apprendi clearly applied to the Kansas departure statute. Here, neither Apprendi nor any other binding case precedent clearly or cleanly applies to the issue at hand. It is difficult to justify upending the KSGA without an unmistakable mandate from the United States Supreme Court.
We reason, first, that Almendarez-Torres made clear that prior convictions are the most traditional basis for a court’s decision to increase a sentence. Second, Jones, while not directly on point, did emphasize that Almendarez-Torres was based in large part on the historical role of recidivism in sentencing. Third, Apprendi clearly carved out an exception for prior convictions. The Apprendi Court, while not entirely at ease with the exception, was comforted by “the certainty that procedural safeguards attached to any Tact’ of prior conviction.” 530 U.S. at 488.
The Apprendi Court spoke in general terms of the procedural safeguards attached to a prior conviction. It did not specify all procedural safeguards nor did it require certain crucial procedural safeguards. There is no dispute that many procedural safeguards attach to juvenile adjudications under the federal and state Constitutions and also under Kansas statutes.
As a final matter, Hitt argues in passing that prior juvenile adjudications must be charged in the indictment. Though Hitt did not properly brief the issue and it might otherwise be deemed abandoned, see State v. Brown, 272 Kan. 843, Syl. ¶ 1, 35 P.3d 910 (2001), it is more economical to address it here.
The indictment argument is the same whether the criminal history involves adult convictions or juvenile adjudications. We encountered and resolved the indictment argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781, (2002). At issue in Ivory was whether, in light of Apprendi, prior adult convictions may be used as part of the criminal histoiy score under the KSGA. We concluded that they may be included. Ivory controls the indictment issue here.
Apprendi created an exception allowing the use of a prior conviction to increase a defendant’s sentence, based on the historical role of recidivism in the sentencing decision and on the procedural safeguards attached to a prior conviction. Juvenile adjudications are included within the historical cloak of recidivism and enjoy ample procedural safeguards; therefore, the Apprendi exception for prior convictions encompasses juvenile adjudications. Juvenile adjudications need not be charged in an indictment or proven to a jury beyond a reasonable doubt before they can be used in calculating a defendant’s criminal history score under the KSGA. Hitt’s arguments as to the constitutionality of the KSGA and his sentence fail.
We affirm the district court and the Court of Appeals.
Davis, J., not participating.
Brazil, S.J., assigned. | [
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|
Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against the Respondent, E, Collins Hunter II, alleging violations of Kansas Rules of Professional Conduct (KRPC) 1.4(b) (communication) (2001 Kan. Ct. R. Annot. 334), 1.16(a)(1) (representing a client in violation of the KRPC) (2001 Kan. Ct. R. Annot. 387), 5.5(a) (unauthorized practice of law) (2001 Kan. Ct. R. Annot. 424), 8.4(d) (engaging in conduct prejudicial to administration of justice) (2001 Kan. Ct. R. Annot. 437), Kansas Supreme Court Rule 208(a) (attorney registration) (2001 Kan. Ct. R. Annot. 254), and Kansas Supreme Court Rule 218(a) (suspended attorney) (2001 Kan. Ct. R. Annot. 276). The panel recommends suspension from the practice of law for 90 days, and the Deputy Disciplinary Administrator recommends a suspension for 1 year. We adopt and impose the panel’s recommendation of suspension from the practice of law for 90 days.
Hunter is an attorney admitted to the practice of law in Kansas in 1997. In his answer to the Deputy Disciplinary Administrator’s formal complaint, the respondent admitted nearly all of the allegations contained in the formal complaint. The hearing panel admitted exhibits from the Deputy Disciplinary Administrator and the respondent without objection.
After hearing the testimony presented and the arguments of the parties, and after reviewing the exhibits admitted into evidence, the panel made the following findings of fact and conclusions of law:
“1. E. Collins Hunter (hereinafter ‘the Respondent’) is an attorney at law. . . . His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Kansas City, Missouri ....
“2. In 1992, the Respondent was admitted to the practice of law in Maryland. Thereafter, in 1996, the Respondent was admitted to the practice of law in Missouri. On April 25,1997, the Respondent was admitted to the practice of law in Kansas.
“3. For the compliance period ending June 30, 1998, the Respondent failed to pay the registration fee, failed to pay the continuing legal education fee, and failed to report continuing legal education hours.
“4. On August 3,1998, the Continuing Legal Education Commission sent the Respondent notice via certified mail, as required by Kan. Sup. Ct. R. 806(b), that the Respondent had failed to pay the continuing legal education fee and failed to report continuing legal education hours. The Respondent received that notice and personally signed the receipt for the certified mail. After receiving the notice that he failed to comply with the requirements to maintain his license, the Respondent took no corrective action.
“5. Thereafter, on November 4,1998, the Kansas Supreme Court suspended the Respondent’s license to practice law in Kansas for his failure to comply with the rules of the court. On November 5, 1998, the Clerk of the Appellate Courts sent the Respondent a copy of the Order of Suspension, via certified mail. The mailing was returned to the Clerk of the Appellate Courts, marked ‘unclaimed.’ From the face of the envelope, it is apparent that the United States Postal Service attempted to deliver the order on three dates.
“6. For the compliance period ending June 30, 1999, the Respondent failed to pay the registration fee, failed to pay the continuing legal education fee, and failed to report continuing legal education hours.
“7. On September 17,1999, the Respondent called the Clerk of the Appellate Courts’ office and requested information regarding reinstatement. On that same date, the Respondent called the Continuing Legal Education Commission, also requesting information regarding reinstatement. Even though the Respondent placed two telephone calls in an attempt to find out how to regain his license to practice law in Kansas, the Respondent failed to take the necessary steps to be reinstated.
“8. For the compliance period ending June 30, 2000, the Respondent failed to pay the registration fee, failed to pay the continuing legal education fee, and failed to report continuing legal education hours.
“9. In October, 2000, Forrest Oberg retained the Respondent to represent him in a limited civil action that had been filed against Mr. Oberg and his son in the District Court of Johnson County, Kansas, by Manny’s Bonding Company. Mr. Oberg had previously served as a co-signor on bond written to ensure Mr. Oberg’s son’s appearance in a criminal case. Apparently, Mr. Oberg’s son failed to appear at a court hearing and the bond was forfeited. Thereafter, Manny’s Bonding Company instituted the subject limited civil action. Mr. Oberg hired the Respondent to contest the action. At that time, Mr. Oberg paid the Respondent $100.00. Later, Mr. Oberg paid the Respondent an additional $750.00.
“10. On October 19, 2000, the Respondent appeared in the District Court of Johnson County, Kansas, in behalf of Mr. Oberg at the ‘answer docket.’ The Respondent entered his appearance and a general denial. The matter was scheduled for trial on November 16, 2000. While discussing the case, the Respondent informed Kevin Dellett, counsel for Manny’s Bonding Company that he had a ‘problem’ with some continuing legal education hours. At that time, the Respondent did not inform Mr. Dellett that the Respondent’s license to practice law was suspended.
“11. During the morning hours of November 16, 2000, the Respondent contacted Mr. Dellett seeking a continuance, because his ‘Kansas counsel’ was unable to attend the hearing. Mr, Dellett questioned the Respondent’s need for local counsel. The Respondent reminded Mr. Dellett of his ‘problem’ with the continuing legal education hours. The Respondent then informed Mr. Dellett, for the first time, that the Respondent’s license to practice law in Kansas was suspended. Mr. Dellett told the Respondent that he would not agree to a continuance unless Mr. Dellett’s client would agree to it.
“12. The Respondent and Mr. Oberg met in the courthouse prior to trial. At that time, the Respondent informed Mr. Oberg that the Respondent had a 'small problem.’ The Respondent told Mr. Oberg that he was going to try to get the matter continued, but that if he was unable to do so, Mr. Oberg would have to represent himself.
“13. The Respondent appeared with Mr. Oberg in the District Court of Johnson County, Kansas. At the time the case was called, Mr. Dellett was not present in the courtroom. However, Mr. Dellett’s partner, Michael A. Halleran, appeared in his stead. After the parties entered their appearances, Mr. Halleran informed the court that he had concerns about the Respondent’s authorization to practice law in Kansas. Shortly thereafter, Mr. Dellett arrived. Because the court was addressing other cases at that time, Mr. Dellett, the Respondent, and their clients gathered in the hallway and discussed the case.
“14. It was at that time that Mr. Oberg first learned that the Respondent’s license to practice law in Kansas was suspended.
“15. Thereafter, Mr. Oberg entered into negotiations with Mr. Dellett. Mr. Oberg and Mr. Dellett settled the case. Mr. Oberg confessed judgment and agreed to pay $3,500.00. Manny’s Bonding Company agreed to dismiss the case if Mr. Oberg paid the settlement amount. Thereafter, Mr. Oberg paid $3,500.00 to Manny’s Bonding Company and Manny’s Bonding Company dismissed the lawsuit.
“16. After the parties informed the court of tire settlement terms and at Mr. Dellett’s insistence, the Respondent informed the court that he was suspended from die practice of law in Kansas.
“17. On Januaiy 5, 2001, Mr. Dellett appeared before the Municipal Court of Overland Park, Kansas. At the time that hp arrived, Mr. Dellett observed the Respondent sitting in a courtroom with a client. The Respondent’s chent was Oma LaMaster.
“18. When appearing before the Municipal Court of Overland Park, Kansas, attorneys are required to sign a sign-in sheet. On the sign-in sheet, attorneys write their names, their Supreme Court numbers, and their client’s name. The prosecutor meets with die attorneys in the order that they sign in. After meeting with the prosecutor in one courtroom, defense attorneys and their clients proceed to a second courtroom to appear before the judge.
“19. At that time, Mr. Dellett approached the Respondent and asked him whether he had resolved his problem. The Respondent informed him that he had not. Mr. Dellett told the Respondent that he needed to make sure that everyone knew that he was not authorized to practice law in Kansas.
“20. Mr. Dellett noticed that the Respondent signed the prosecutor’s sign-in sheet ‘Collins Hunter for Orna LaMaster’ and Usted his Kansas Supreme Court number ....
“21. Mr. Dellett was in the courtroom when Ms. LaMaster appeared before the judge. At that time, Ms. LaMaster appeared pro se. The Respondent was not present in the courtroom. Judge Amold-Berger asked Ms. LaMaster where her attorney was. Ms. LaMaster told the judge that the Respondent said something about needing to take a test, but was unable to do so until later in the month, and that she should request a continuance. Mr. Dellett informed Judge Amold-Burger that the Respondent’s Ucense was under suspension. Judge Amold-Burger granted Ms. LaMaster a continuance so she could obtain a new attorney.
“22. From the time he was suspended in November, 1998, and continuing through January 5, 2001, the Respondent actively practiced law in Kansas.
“23. It was not until mid-January, 2001, and upon advice of his counsel, that the Respondent notified his clients, opposing counsel, and the courts that his license to practice law in Kansas was suspended.
“24. After paying the necessaiy fees, attending continuing legal education courses, and reporting the necessary number of continuing legal education hours, on March 29, 2001, the Kansas Supreme Court reinstated the Respondent’s license to practice law. At the time he was reinstated, Trish Heim of the Clerk of the Appellate Court’s office forwarded to the Respondent a copy of the Reinstatement Order and the Respondent’s Supreme Court card.
“25. The Respondent refunded $850.00 to Mr. Oberg for unearned attorney fees. Shortly before the disciplinary hearing, the Respondent paid Mr. Oberg $3,500.00. At the hearing on this matter, Mr. Oberg testified that, even though on November 16, 2000, tire Respondent had put him in terrible position, he was satisfied by the payment of full restitution and had no personal grievance with Respondent.
“CONCLUSIONS OF LAW
“1. Based upon the above findings of fact, the Hearing Panel concludes, as a matter of law, that the Respondent violated KRPC 1.4(b), KRPC 1.16(a)(1), KRPC 5.5(a), KRPC 8.4(d), Kan. Sup. Ct. R. 208(a), and Kan. Sup. Ct. R. 218(a), as detailed below.
“2. KRPC 1.4(b) provides: ‘[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.’ Id. The Respondent failed to inform Mr. Oberg regarding the status of his license and Mr. Oberg’s need to obtain other counsel prior to the scheduled hearing. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(b).
“3. Attorneys are prohibited from representing clients when that representation will result in a violation of the Kansas Rules of Professional Conduct or other law. See KRPC 1.16(a)(1). In this case, the Respondent’s representation of Mr. Oberg violated KRPC 5.5 (the unauthorized practice of law). Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.16(a)(1).
“4. KRPC 5.5 prohibits the unauthorized practice of law. Because the Respondent continued to practice law after his license to do so had been suspended, the Hearing Panel concludes that the Respondent violated KRPC 5.5.
“5. ’It is professional misconduct for a lawyer to: . . . engage in conduct that is prejudicial to the administration of justice.’ KRPC 8.4(d). The Respondent violated this provision by failing to inform Mr. Oberg that he was unable to practice law in Kansas and leaving Mr. Oberg unrepresented at a scheduled trial.
“6. Kan. Sup. Ct. R. 208(a) provides:
‘All attorneys, including justices and judges, admitted to the practice of law before the Supreme Court of the State of Kansas shall annually, on or before the first day of July, register with the Clerk of the Appellate Courts upon such forms as the Clerk shall prescribe; provided that in the year of an attorney s admission to the bar, the attorney shall register within thirty days after the date of admission. At the time of each registration, each registrant shall pay an annual fee in such amount as the Supreme Court shall order. Attorneys may register as: active; inactive; retired; or disabled due to mental or physical disabilities. Only attorneys registered as active may practice law in Kansas.’
Id. The Respondent failed to ‘register with the Clerk of the Appellate Courts’ and ‘pay an annual fee’ as required by Kan. Sup. Ct. R. 208(a). Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 208(a).
“7. Attorneys who are suspended, for any reason, are required to notify their clients, opposing counsel, and the courts of the suspension. See Kan. Sup. Ct. R. 218(a). That rule provides:
‘In the event any attorney licensed to practice law in Kansas shall hereafter be . . . suspended from the practice of law pursuant to these Rules, . . . such attorney shall forthwith notify in writing each client or person represented by him or her in pending matters, of his or her inability to undertake further representation of such client after the effective date of such order, and shall also notify in writing such client to obtain other counsel in each such matter. As to clients involved in pending litigation or administrative proceedings, such attorney shall also notify in writing the appropriate court or administrative body, along with opposing counsel, of such inability to further proceed, and shall file an appropriate motion to withdraw as counsel of record.’
Id. In this case, the Respondent was suspended on November 4,1998. It was not until mid-January, 2001, that the Respondent notified his clients, opposing counsel, and the courts of his suspension. Accordingly, Hearing Panel concludes that the Respondent failed to ‘forthwith notify in writing each client or person represented by him or her in pending matters,’ in violation of Kan. Sup. Ct. R. 218(a).
“[8], The Disciplinary Administrator alleged in the Formal Complaint that the Respondent also violated KRPC 1.1 ánd KRPC 1.3. The evidence does not support findings that the Respondent violated KRPC 1.1 and KRPC 1.3. Therefore, the allegations in the Formal Complaint that the Respondent violated KRPC 1.1 and KRPC 1.3, are dismissed.
“RECOMMENDATION
“In making this recommendation for discipline, the Hearing Panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to the administration of justice and his profession.
“Mental State. The Respondent knowingly violated his duty to the administration of justice and his profession by not maintaining the license requirements for continuing to practice in Kansas while accepting representation of clients in Kansas courts.
“Injury. Mr. Oberg and Ms. LaMaster suffered at least potential injury as a result of the Respondent's] misconduct. While Mr. Oberg paid the Respondent attorney fees and paid the judgment initially, the Respondent has reimbursed Mr. Oberg for these payments. There is no information in the record as to whether the Respondent repaid Ms. LaMaster for any attorney fees Ms. LaMaster paid the Respondent. [At oral arguments before the Kansas Supreme Court, the Respondent said he had repaid Ms. LaMaster.]
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Multiple Offenses. The Respondent violated KRPC 1.4(b), KRPC 1.16(a)(1), KRPC 5.5(a), KRPC 8.4(d), Kan. Sup. Ct. R. 208(a), and Kan. Sup. Ct. R. 218(a). As such, the Respondent committed multiple offenses on multiple clients.
“Deceptive Practices During Disciplinary Process. It appears that the Respondent engaged in deceptive practices regarding three subject matters: (1) whether the Respondent placed the telephone calls to the Continuing Legal Education Commission and to the Clerk of the Appellate Courts, (2) when did the Respondent learn that his license had been suspended, and (3) when did the Respondent receive his Supreme Court card in the mail.
“Whether the Respondent placed the telephone calls to the Continuing Legal Education Commission and to the Clerk of the Appellate CourtsP
“Records from the Continuing Legal Education Commission indicate that the Respondent placed a telephone call to the commission on September 17, 1999, requesting information on reinstatement. Additionally, records from the Clerk of the Appellate Courts indicated, likewise, that a telephone call was made that day regarding the necessary steps the Respondent would have to take to be reinstated in Kansas.
“At the hearing on this matter, the Respondent testified that he ‘did not recall’ making the telephone calls to the Continuing Legal Education Commission and the Clerk of the Appellate Courts. On this point, the Respondent’s testimony lacks credibility. The Hearing Panel concludes that the Respondent placed the telephone calls and that the Respondent engaged in deceptive practices when he testified that he ‘did not recall’ placing the telephone calls.
“When did the Respondent learn that his license had been suspended?
“Throughout the disciplinary process, the Respondent has maintained that Mr. Dellett informed the Respondent that the Respondent’s license had been suspended. However, Mr. Dellett testified that the Respondent indicated that he had a ‘problem’ with continuing legal education hours in October, 2000. Mr. Dellett further testified that on November 16, 2000, the Respondent informed him that the Respondent’s license was suspended.
“In various items of correspondence, the Respondent has indicated that he learned of the suspension from Mr. Dellett during December, 2000, November, 2000, and October, 2000.
“On January 10, 2001, the Respondent self-reported that he engaged in the unauthorized practice of law. In his letter to Disciplinary Administrator Stañ Hazlett, the Respondent stated that in December, 2000, Mr. Dellett informed the Respondent that his license was under suspension.
“In his February 20, 2001, letter to Mr. Diehl, the Respondent stated that he was not aware that his license to practice law in Kansas was suspended until confronted by Mr. Dellett [on November 16, 2000],
“On June 6, 2001, the Respondent wrote to Mr. Michael E. Whitsitt, attorney investigator for the Johnson County Ethics and Grievance Committee. In the letter, the Respondent indicated that he ‘actually found out that [he] was suspended in Kansas ... in October, 2000.’ On June 13, 2001, the Respondent wrote to Mr. John M. Parisi, attorney investigator for the Johnson County Ethics and Grievance Committee. In the letter to Mr. Parisi, the Respondent indicated that he learned of his suspension in October, 2000.
“Finally, at the hearing on this matter, the Respondent testified that he first learned of the suspension from Mr. Dellett in the October/November, 2000, time period.
“Certainly the Respondent knew that his license was suspended by November 28,2000, because on that date the Respondent wrote to the Clerk of the Appellate Courts and to the Continuing Legal Education Commission.
“Consistent with the records of the Continuing Legal Education Commission, the records of tire Clerk of the Appellate Courts, and the memory of Mr. Dellett, the Hearing Panel concludes that the Respondent knew of his suspension on or before September 17, 1999. Accordingly, the Hearing Panel concludes that the Respondent engaged in deceptive practices when he testified that he did not learn of the suspension until the October/November, 2000, time period.
“When did the Respondent receive his Supreme Court card in the mail?
“At the hearing on this matter, during questioning by his attorney, the Respondent testified that he received his Supreme Court card in the mail in July, 2000. However, when specifically questioned by the Deputy Disciplinary Administrator, the Respondent admitted that he did not remember when he received his Supreme Court card in the mail and that he may have received it after he was reinstated. The Respondent’s inconsistent testimony is further evidence that the Respondent engaged in deceptive practices during the disciplinary process.
“Substantial Experience in the Practice of Law. The Respondent was admitted to the practice of law in Maryland in 1992. The Respondent was admitted to the practice of law in Missouri in 1996. Finally, the Respondent was admitted to the practice of law in Kansas in 1997. At the time the Respondent committed the misconduct, the Respondent had been practicing law and attending continuing legal education courses for six years. On the other hand, the Hearing Panel believes this factor to be mitigated by the fact that during much of the Respondent’s practice he was in the Judge Advocate General corps and a Missouri Public Defender where most of the administrative details for licensing were handled for him and fees were waived.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of Dishonest or Selfish Motive. The Respondent’s misconduct, that being the unauthorized practice of law, was not motivated by dishonesty and selfishness. The Respondent was licensed to practice in Missouri and that is where the predominate portion of his practice is located.
“Restitution. The Respondent not only refunded the attorney fees paid by Mr. Oberg, but also repaid Mr. Oberg for the entire amount of the settlement in the limited civil action.
“Remorse. At the hearing on this matter, the Respondent expressed remorse for engaging in the misconduct.
“Statement by the Complainant Expressing Satisfaction with Restitution. Mr. Oberg testified that he was satisfied with the restitution paid by the Respondent.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 4.62. That standard provides that ‘[suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.’ Id. In this case, the Respondent knowingly deceived Mr. Oberg by failing to inform him, at the time he was retained, that the Respondent’s license to practice law in Kansas was under suspension.
“The Hearing Panel unanimously recommends that Respondent be suspended from the practice of law in Kansas for a period of ninety days.
“Costs are assessed against the Respondent in an amount to be certified by the Office of the Disciplinary Administrator.”
A finding of attorney misconduct requires proof “by clear and convincing evidence.” Supreme Court Rule 211(f) (2001 Kan. Ct. R. Annot. 259). The panel’s findings of fact are supported by clear and convincing evidence and, with the conclusions of law, are adopted as the findings of this court.
It Is Therefore Ordered that E. Collins Hunter II is hereby suspended from the practice of law in the State of Kansas for a period of 90 days from May 31, 2002, the date of our opinion.
It Is Further Ordered that the respondent shall comply with Supreme Court Rule 218(a) (2001 Kan. Ct. R. Annot. 276), and, at the end of the 90-day suspension, the Respondent will be reinstated upon furnishing proof of compliance thereof to the Clerk of the Appellate Courts, that the costs of the proceeding be assessed to the Respondent, and that this opinion be published in the official Kansas Reports.
!‘2 The Respondent repeatedly testified that he ‘did not recall’ whether he placed the telephone calls to the Clerk of the Appellate Courts and the Continuing Legal Education Commission. However, at the time the calls were placed, the Respondent did not have a partner or anyone in his employ who might have made the telephone calls.”
“3 At the hearing on this matter, during questioning by his attorney, the Respondent testified that he received his Supreme Court card in the mail in July, 2000. However, when questioned by the Deputy Disciplinary Administrator, the Respondent testified that he ‘discovered’ the Supreme Court card in his ‘folder’ the night before the hearing. The Respondent then testified that he did not remember when he received his Supreme Court card in the mail and that he may have received it in July, 2000, because of the date of the card. The Hearing Panel believes that tire Respondent was attempting to deceive the Hearing Panel through his testimony.” | [
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The opinion of the court was delivered by
Six, J.:
Ronald Graham was convicted after a bench trial of one count of possession of methamphetamine and one count of possession of marijuana. Based on evidence of two prior convictions, the district court found that Graham’s otherwise severity level 4 crimes became severity level 1 crimes under K.S.A. 2001 Supp. 65-4160(c). Combined with Graham’s criminal histoiy score of “H,” he received a presumptive sentence of 150 months. Graham now appeals his convictions and sentence.
Our jurisdiction is under K.S.A. 20-3018(c) (transfer on our own motion).
The issues are whether: (1) the police conducted an illegal search of Graham’s car, (2) the district court erred in allowing Graham to waive his right to counsel, (3) the evidence was sufficient to support Graham’s convictions, and (4) Graham’s enhanced sentence was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).
Finding no error, we affirm.
FACTS
Graham is no stranger to this court. A background review will be helpful in linking the facts of his current arrest and conviction with the issues. Graham’s original convictions of possession of methamphetamine, possession of marijuana, and possession of cocaine were affirmed in State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989). His sentence was later commuted to 15 years to life by Governor Joan Finney. In 1998, because of a K.S.A. 60-1507 action that alleged ineffective counsel, we reversed and remanded for resentencing. See Graham v. State, 263 Kan. 742, 952 P.2d 1266 (1998).
Graham had served 10 years of his original sentence and was resentenced for possession of cocaine, a class B felony. The sentence for a class B felony committed in 1989 was a minimum term of 5 to 15 years and a maximum term of 20 years to life. K.S.A. 21-4501(b) (Ensley). The district judge imposed a 15-year to life sentence. After resentencing, the district court suspended imposition of the sentence and placed Graham on 1 year of probation, supervised by court services. Later, the district court, after finding that Graham had violated the terms of his probation, revoked probation. The district court’s decision was affirmed in State v. Graham, 272 Kan. 2, 30 P.3d 310 (2001).
We now move forward to the facts behind this fourth appeal. On February 8,1999, during his probationary period, Graham appeared in Geary County District Court on a motion to suppress in an unrelated case. Sergeant Mike Life of the Junction City Police Drug Task Force was in the courtroom. At the time of the hearing, Sergeant Life knew that Graham had an outstanding warrant for a probation violation. The warrant had been outstanding since November 1998. Due to “safety” and “investigative concerns,” the sergeant decided not to serve the warrant until Graham could be stopped in a controlled setting.
After Graham and two female companions, Cindy Tucker and Tammy Taylor, left the hearing, the Junction City Police Department stopped Graham’s car. Graham, who was seated in the front passenger seat, was placed under arrest on a probation violation warrant for unlawful drug use.
Sergeant Life searched Graham’s car incident to his arrest. The sergeant testified that he could see what he believed to be marijuana in plain view on the front passenger floorboard when Graham was removed from the front passenger seat. While standing outside Graham’s car, the sergeant was able to distinguish the marijuana fairly easily as the carpet in the car was black. As he moved closer to the suspected marijuana, the sergeant noticed more marijuana in the car and detected the odor of burnt marijuana.
Graham’s car was seized and transported to the police station for a thorough search. The officers found a small amount of methamphetamine in a pair of men’s shorts in the trunk. They also found a jacket containing Graham’s identification and more marijuana. A pack of rolling papers was found in the glove box.
Graham filed a motion to suppress the evidence seized from his car. At the suppression hearing, Sergeant Life testified that he had two reasons for arresting Graham outside the courthouse: (1) concern for the safety of the officers and the general public, and (2) the opportunity to search Graham’s vehicle incident to an arrest. The district court (1) rejected the State’s claim that the delay in serving the arrest warrant served any safety purpose, (2) found that serving the arrest warrant did not, by itself, justify a search of Graham’s car, and (3) denied the motion to suppress based on a finding that the marijuana on the floorboard was in plain view.
Graham’s court-appointed defense attorney, at Graham’s request, filed a motion to withdraw as counsel. Graham also waived his right to a jury trial. The district court granted the motions, and the withdrawing attorney assisted Graham as advisory counsel during the bench trial. At sentencing, the district court denied Graham’s motion for a downward dispositional or downward durational departure.
DISCUSSION
The Search
Graham argues that the police conducted an illegal search of his car. We review the factual underpinnings of a district court’s decision not to suppress the fruits of the search by a substantial competent evidence standard. The ultimate legal conclusion drawn from those facts is reviewed by a de novo standard. We do not reweigh the evidence. State v. Crum, 270 Kan. 870, 872, 19 P.3d 172 (2001).
The Fourth and Fourteenth Amendments to the United States Constitution prohibit unreasonable searches and seizures. Unless a search falls within one of a few exceptions, a warrantless search is per se unreasonable. See Katz v. United States, 389 U.S. 347, 357, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). Under the plain view exception to the search warrant requirement, a law enforcement official can seize evidence of a crime if “ ‘(1) the initial intrusion which afforded authorities the plain view is lawful; (2) the discovery of the evidence is inadvertent; and (3) the incriminating character of the article is immediately apparent to searching authorities.’ ” State v. Canaan, 265 Kan. 835, 843, 964 P.2d 681 (1998) (quoting State v. Parker, 236 Kan. 353, Syl. ¶ 2, 690 P.2d 1353 [1984]).
Marijuana was seized from the passenger floorboard of Graham’s car after Graham was arrested for a probation violation. At the suppression hearing, Sergeant Life testified that if he arrested Graham in his car, he would have “the ability to search . . . incident to arrest.” He testified that after Graham was taken out of the car and placed in custody, he could “see . . . what appeared to be marijuana on the floor, in plain view.” The sergeant described the substance as “[pjieces of green vegetation, not large, . . . that looked — appeared to have been dropped on the floorboard.” He indicated that, based on his training and experience, he determined there was a good possibility that it was marijuana.
On cross-examination, Sergeant Life testified:
“Q. . . . When did you see the marijuana?
“A. After he [Graham] was removed from the car, I could see it on the floorboard. I got into the car to look closer and also search incident to arrest.
“Q. All right. When did you malee the determination in your own mind that this was marijuana you were looking at?
“A., As I got closer I could — it appeared to be marijuana. I could smell burnt marijuana coming from the ashtray that was right there next to me.
“Q. Was this before or after you got in the car?
“A. After I got in the car.”
Graham asserts that the State failed to meet the first prong of the plain view exception. Officers stopped Graham’s car in order to arrest him for a probation violation. The district court found that Sergeant Life did not have authority to search Graham’s car incident to the arrest. As Graham correctly points out, the State did not appeal from this finding. Graham contends that the sergeant did not make any determination regarding the green vegetation on the floorboard until he had illegally entered the car. However, in looking at the sergeant’s testimony at the suppression hearing, it is clear that he first observed the suspected marijuana while standing outside of the car and then confirmed his belief after getting into the car. The initial observation that afforded authorities the plain view of the contraband was lawful.
Graham notes that Sergeant Life thought he was justified in searching the car as a search incident to an arrest. When asked at the suppression hearing why he served Graham’s warrant away froin the courtroom, the sergeant said, “Besides the safety issues, as a- police officer, arresting Mr. Graham, away from the courtroom, in his car, would give me, . . . the ability to search . . . incident to arrest.”
Graham argues that it was the sergeant’s intention to search his car from the moment Graham stepped outside of the courtroom. Therefore, Graham concludes that there was nothing inadvertent about Sergeant Life’s discovery. The State points out that the discovery of the marijuana on the floorboard was not a result of a search; rather, the sergeant saw the vegetation while he stood outside of the car.
Graham relies on City of Overland Park v. Sandy, 2 Kan. App. 2d 176, 576 P.2d 1097, aff'd 225 Kan. 102 (1978). In Sandy, the Court of Appeals upheld the seizure of items in plain view after a random driver’s license check. According to Graham, Sergeant Life was engaged in “a scheme ... to carry out a plain view search upon an unfounded suspicion that [Mr. Graham] was involved in other illegal or criminal activities.” See 2 Kan. App. 2d at 180-81.
On petition for review in Sandy, we upheld the seizure of the contraband but did not comment on the Court of Appeals’ language on which Graham relies. See City of Overland Park v. Sandy, 225 Kan. 102, 106, 587 P.2d 883 (1978). We note that this court’s authorization of random stops in Sandy, 225 Kan. 102, was effectively overruled by Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). See State v. Deskins, 234 Kan. 529, 536, 673 P.2d 1174 (1983).
The Sandy opinion is not helpful in the analysis of Graham’s situation. Here, the police did not make a random stop; instead, they made a stop based on an outstanding warrant. The sergeant saw contraband in plain view. Although he thought he could perform a search incident to arrest, the marijuana on the floorboard was observed before a search was conducted. Sergeant Life thought the green vegetation in plain view on the black floorboard was marijuana.
The third prong of the plain view exception requires that “the incriminating character of the article is immediately apparent to searching authorities.” Canaan, 265 Kan. at 843. Again, Graham contends that Sergeant Life did not conclude that the material on the floorboard was marijuana until he got into the car. We disagree. Even before the confirmation, the sergeant had reasonable cause to believe the vegetation was marijuana based on his training and experience.
Graham also asserts that officers illegally impounded his car, rendering inadmissible any evidence found from the search. Graham advances the impoundment argument for the first time on appeal. Thus, the issue is not properly before us. See State v. Mason, 268 Kan. 37, 39, 986 P.2d 387 (1999).
We find no error in the district court’s denial of Graham’s motion to suppress.
Waiver of Counsel
Graham also argues that the district court failed to correctly warn and question him before allowing him to waive his right to counsel. This contention lacks merit. A criminal defendant who before trial clearly and unequivocally expresses a wish to proceed pro se has the right to self-representation after a knowing and intelligent waiver of the right to counsel. A knowing and intelligent waiver requires that the defendant be informed on the record of the dangers and disadvantages of self-representation. The choice is to be made “ ‘with eyes open.’ ” State v. Collins, 257 Kan. 408, 413, 893 P.2d 217 (1995).
Graham contends that the district court never warned him about the dangers and disadvantages of self-representation or questioned him about his decision to proceed pro se after receiving such warnings. The record shows that Graham was questioned about his decision in two separate hearings. The district court required Graham to sign a journal entry, prepared by the State, before it would allow Graham’s defense counsel to withdraw. The original journal entry is not in the record on appeal. The transcript of the May 18, 2000, waiver hearing shows that Graham did sign such a journal entry and had no questions about the document or the information contained within it. The appearance docket does not show whether a written waiver was filed with the district court at the time of the hearing.
The record does contain a May 11, 2000, journal entry, signed by Geary County District Judge Larry Bengtson and Tony Cruz, Assistant Geary County Attorney, which was filed in the district judge’s office on February 7, 2002. (It appears that this document was recreated for the record on appeal.) The journal entry reflects the district court’s substantial findings with respect to Graham’s request to proceed pro se and to waive a jury trial. The journal entry reflects that the district court informed Graham that he would be held to the same standard of legal knowledge as an attorney, and he informed the court that he still wished to represent himself. The district court stated: “Pursuant to Faretta v. Califor nia, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), the Court finds that the defendant knows what he is doing and does so ‘with eyes open.’ ” Other findings were also consistent with those recommended in Barbara, Kansas Criminal Law Handbook, pp. 11-10, 11-11 (1992). See State v. Lowe, 18 Kan. App. 2d 72, 76-77, 847 P.2d 1334 (1993).
The hearing transcripts show that the district court questioned Graham about why he thought he could represent himself better than appointed counsel. Graham expressed several points of dissatisfaction with previous counsel. Defense counsel said, “[Q]uite frankly, I’ve dealt with Mr. Graham for a long time [and] while no lawyer would ever suggest that somebody not school trained in law really is probably competent to do this, if anybody is, who’s not school trained in law, I think Mr. Graham is.” The district court agreed.
The district court informed Graham of-his possible maximum sentence. It also questioned Graham about his decision to waive a jury trial. Graham said he had talked with his counsel at length about a jury trial and that he would still prefer a bench trial. After approving the journal entry in which Graham waived his right to counsel and waived his right to a jury trial, the court granted Graham’s request to represent himself.
The district court kept appointed counsel on the defense as advisory counsel. Graham had no objection to this arrangement. A review of the trial transcript shows that counsel was present throughout the trial as advisory counsel to Graham, assisting and advising him. Counsel made many objections and arguments, including the closing argument. Counsel also questioned some witnesses.
The record as a whole shows that Graham understood the disadvantages of self-representation and knowingly and voluntarily waived his right to be represented by counsel. See People v. Romaro, 694 P.2d 1256, 1265 (Colo. 1985) (“The appointment of advisory counsel is one method of ensuring that the defendant has available a resource person from whom he can seek direction on matters pertinent to his defense and, if necessary, who can take over the case in the event the defendant is unable to continue.”); Metcalf v. State, 629 So. 2d 558, 563 (Miss. 1993) (“An accused could place the trial judge in a difficult situation by insisting on a pro se trial, and, upon conviction, claim that he/she did not have the benefit of counsel and did not knowingly waive counsel. . . . In such delicate situations, the question of counsel waiver must be determined on the facts of each case.”). Under the facts here, Graham made a knowing and intelligent waiver of counsel.
Sufficiency of the Evidence
Graham argues that there was insufficient evidence to support his convictions for possession of methamphetamine and possession of marijuana. We disagree.
Our standard of review is well known. When the sufficiency of the evidence is challenged in a criminal case, we review all the evidence, viewed in the light most favorable to the prosecution. If we are convinced after our review that a rational factfinder could have found the defendant guilty beyond a reasonable doubt, we affirm. Mason, 268 Kan. at 39.
Graham cites State v. Perry, 16 Kan. App. 2d 150, 823 P.2d 804, rev. denied 249 Kan. 777 (1991), to advance his contention that the evidence was insufficient to support his convictions, claiming that his case is distinguishable from Perry. We are not persuaded by Graham’s contention. Perry appealed several convictions, including one count of cocaine possession. When he was pulled over by a trooper, there were two occupants in the car, Perry and a woman passenger. Officers were given consent to search the car, and cocaine was found. Perry was driving the car in which drugs were found. The cocaine was found in a duffel bag within the passenger compartment of the car. The duffel bag contained men’s toiletries and no women’s possessions. The bag was found behind the driver’s seat. The Court of Appeals found that the facts were sufficient to lead to the inference of Perry’s possession of the cocaine. 16 Kan. App. 2d at 157.
Here, Graham was sitting in the front passenger seat. Marijuana was observed on the passenger side floorboard. Graham testified in his defense. He believed Tucker and Taylor were selling narcotics. In the trunk, officers found marijuana inside a backpack and a men’s shirt. A jacket was also found in the trunk. One jacket pocket contained a video rental card belonging to Graham and marijuana residue. The officers also found a pair of men’s running shorts in the trunk. Methamphetamine was found in a dollar bill in the shorts’ pocket. Graham testified that he saw Tucker wearing the shorts the day before the search.
According to Sergeant Life, Tucker said that the shorts belonged to Graham and that he wore them all the time. Tucker testified that she had seen Graham wearing the shorts. The sergeant testified Taylor had “just had a baby and she was quite large.” He thought the shorts were too small for her. The sergeant testified that Tucker was veiy thin, and he thought the shorts were too big for her. Tucker testified that at that time she wore a size 3-4, with a 27-inch waist. According to the appellate record, Graham weighed 180 pounds at the time he was booked, and Taylor weighed 175 pounds. The record does not show their heights. A former Geary County Attorney testified that his office had previously prosecuted Graham for possession of methamphetamine, cocaine, and marijuana. In the earlier case, Graham had also used the defense that the clothing in which the drugs were found belonged to someone else.
The district judge as the trier of fact observed and heard the various witnesses. We do not reweigh the evidence. In applying our standard of review we conclude that the evidence was sufficient to support Graham’s convictions.
The Apprendi Issue
Finally, Graham contends that under Apprendi, his constitutional rights were violated when the district court increased his sentence for the possession of methamphetamine based on his two prior drug convictions. See K.S.A. 2001 Supp. 21-4705; K.S.A. 2001 Supp. 21-4720(b)(3); K.S.A. 2001 Supp. 65-4160(c). We disagree.
As the State notes, Graham failed to raise this issue below. Sentencing occurred in August 2000, after Apprendi was filed (June 26, 2000). Generally, a constitutional issue not raised before the district court cannot be raised on appeal. See State v. Shears, 260 Kan. 823, 837, 925 P.2d 1136 (1996). However, in Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967), we recognized exceptions to the general rule. We relied on the Pierce exceptions in order to address an Apprendi argument raised for the first time on appeal in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). We follow our reasoning in Gould and consider the sentencing issue here.
Graham contends that Apprendi prevents the use of prior convictions to increase a sentence beyond the statutoiy maximum unless proven to a jury beyond a reasonable doubt. The crime of possession of methamphetamine is generally a severity level 4 offense. See K.S.A. 2001 Supp. 65-4160(a). Because Graham had two prior drug convictions, the State charged him with felony possession of methamphetamine with a crime severity level of 1. See K.S.A. 2001 Supp. 65-4160(c).
Graham was sentenced under the KSGA grid for drug crimes. See K.S.A. 2001 Supp. 21-4705. Under K.S.A. 2001 Supp. 65-4160(c) (unlawful acts relating to possession of opiates, opium, narcotic drugs or designated stimulants):
“If any person who violates this section has two or more prior convictions under this section or substantially similar offenses under the laws of another jurisdiction, then such person shall be guilty of a drug severity level 1 felony.”
According to Graham, his statutoiy maximum sentence is derived from consideration of crime severity level “4,” not level “1,” and a horizontal axis criminal history score of “H.” He does not dispute his criminal history score. Using a criminal histoiy score of “H,” the presumptive sentence for a severity level 1 drug offense is 142-150-161 months’ imprisonment. Using the same criminal histoiy, the presumptive sentence for a severity level 4 drug offense is probation, with an underlying prison term of 12-13-14 months. See K.S.A. 2001 Supp. 21-4705.
Graham argues that under Apprendi all facts, including prior convictions, that increase the penalty for a crime beyond the prescribed statutory maximum must be submitted to a juiy and proved beyond a reasonable doubt. His argument is belied by the language of Apprendi, which held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime must be submitted to a jury, and proved beyond a reasonable doubt.” (Emphasis added.) 530 U.S. at 490.
In State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), a nondrug case, we concluded that Apprendi does not apply where the sentence imposed was based in part upon a defendant’s prior convictions, where the prior convictions operated to increase his criminal history score and his sentence. Here, Graham objects to the use of his prior convictions to increase the severity level of the crime and thus his sentence. The net effect is the same: The fact of Graham’s prior convictions was used to increase his sentence, which does not implicate the protections articulated in Apprendi.
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The opinion of the court was delivered by
Abbott, J.:
Appellant filed a civil suit against appellee C.S. in the District Court of Shawnee County using the pseudonym “Unwitting Victim” instead of his name. C.S. immediately filed a motion to dismiss and a request for sanctions. On February 16, 2001, Shawnee County District Judge Terry L. Bullock granted C.S.’s motion to dismiss, finding that appellant’s privacy interest was not of sufficient magnitude to warrant the use of an alias petition. Appellant now appeals the district court’s dismissal of die civil suit. The matter is before this court pursuant to our own transfer under the authority of K.S.A. 20-3018(c).
Appellant’s petition alleged four separate counts against C.S. In Count I, appellant alleged that C.S. failed to indicate that she had herpes prior to or during their intimate relationship and that it was not until after appellant developed genital sores that C.S. admitted she had contracted herpes 5 years earlier. In Count II, appellant claimed he was entitled to the return of an engagement ring given to C.S. or damages in the amount of $10,000. In Count III, appellant alleged that C.S. “enticed” appellant into placing funds into a joint checking account and then appropriated his money without his consent. Finally, in Count IV, appellant claimed that “[i]n addition to giving [appellant] herpes, the combination of [C.S.’s] drug use and sexual activity with homosexuals, has placed [appellant] in imminent fear of having contracted the deadly disease AIDS.”
Appellant sought money damages of $500,000 in connection with Count I; the return of the engagement ring or $10,000 for Count II; $8,000 in damages in connection with Count III; and $500,000 in connection with Count IV.
Within 2 weeks of the date the petition was filed, C.S. filed a motion to dismiss and request for sanctions. C.S. contended that appellant’s petition was inappropriately captioned contrary to K.S.A. 60-210. According to C.S., appellant filed the petition keeping his identity private “while attacking the Defendant’s character, morality, etc. in the sole effort to harass, embarrass, besmirch, smear, malign and otherwise destroy the reputation of the Defendant.” C.S. additionally remarked in her motion to dismiss:
“That the Defendant is a self-employed person dealing in hygiene of others, and the allegations contained in this Petition are damaging to her career and financial industry and to make such allegations as a strong armed tactic to obtain a ring purchased with joint funds is without excuse and should not be tolerated by this Court.”
Judge Bullock granted C.S.’s motion to dismiss, finding that appellant’s petition had been improperly filed in violation of K.S.A. 60-210(a). Judge Bullock first found that K.S.A. 60-210(a) expressly requires petitions to include the names of the parties and that there were no Kansas cases allowing the use of alias petitions. However, Judge Bullock then discussed the Tenth Circuit Court of Appeals case M.M. v. Zavaras, 139 F.3d 798 (10th Cir. 1998), which involved the issue of whether a plaintiff could use a pseudonym.
Judge Bullock quoted a portion of the Zavaras opinion, stating that the use of a pseudonym by the plaintiff is a rare procedure to be allowed only where an important privacy interest is recognized. Then, concluding that appellant had “not displayed a privacy interest of such exceptional magnitude as to warrant anonymity,” Judge Bullock held that appellant’s petition had been improperly filed in violation of K.S.A. 60-210(a).
Following Judge Bullock’s decision, appellant filed a motion to alter or amend the judgment pursuant to K.S.A. 60-259. Appellant alternatively requested that the district court allow him to amend his petition using his real name. The district court wrote that no new arguments or authorities had been presented and summarily denied the motion.
Appellant timely perfected his appeal pursuant to K.S.A. 60-2102(a). The notice of appeal indicates that appellant contests both the dismissal of the lawsuit and the denial of his motion to alter or amend.
Appellant requests this court to reverse the decision of the district court to dismiss and allow appellant to proceed using a pseudonym, or in the alternative, to permit the appellant to amend the petition using his real name.
The district court’s decision granting dismissal may be broken into two distinct parts. The first part of the district court’s decision involved the legal determination that under K.S.A. 60-210(a), a plaintiff may file an anonymous lawsuit where an important privacy interest exists. The second part of the court’s decision involved a factual determination that appellant failed to display a privacy interest of a magnitude sufficient to warrant anonymous filing and, thus, that appellant’s petition violated K.S.A. 60-210(a). Therefore, it is suitable to treat the two parts of the decision separately, applying the appropriate standard of review to each part.
The first part of the district court’s decision consists of the legal conclusion that under K.S.A. 60-210(a), a plaintiff may file an anonymous lawsuit where an important privacy interest exists. We must determine whether 60-210(a) allows a plaintiff to institute a lawsuit anonymously. Such a determination entails the interpretation of K.S.A. 60-210(a). “ ‘Interpretation of a statute is a question of law. An appellate court’s review of questions of law is unlimited.’ ” Glassman v. Costello, 267 Kan. 509, 517, 986 P. 2d 1050 (1999).
K.S.A. 60-210(a) provides:
“Caption; names of parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in K.S.A. 60-207(a). In the petition the title of the action shall include the names of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.” (Emphasis added.)
Here, appellant simply filed his petition using the pseudonym “unwitting victim” in place of his name. Appellant did not seek an order from the district court, but simply filed his petition under a fictitious name “to preserve his anonymity and to further prevent additional damage to plaintiff.” Appellant has also indicated that he wishes to avoid “the social stigma associated with venereal diseases and the grave emotional burden that results from its admission in future personal relationships.”
Appellant argues in favor of interpreting 60-210(a) as allowing anonymous or pseudonymous pleading, noting that the United States Supreme Court in Roe v. Wade, 410 U.S. 113, 124, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973), implicitly recognized the propriety of employing a fictitious name in anonymous pleadings. This assertion is uncontested. Appellant additionally contends that because the Kansas Rules of Civil Procedure are modeled after the Federal Rules of Civil Procedure, and because the federal courts of Kansas and the Tenth Circuit acknowledge a plaintiff s right to proceed under a fictitious name, this court should also be persuaded to recognize the practice.
Despite the United States Supreme Court’s implicit recognition of the practice of proceeding under a pseudonym, neither Kansas statutory nor case law explicitly recognize the propriety of anonymous or pseudonymous pleading. However, Kansas statutes and Kansas Supreme Court rules clearly mandate anonymity for juveniles involved in court proceedings. See K.S.A. 38-1507, K.S.A. 38-1552, and K.S.A. 38-1607; Supreme Court Rule 7.043 (2001 Kan. Ct. R. Annot. 50).
In addition, various Kansas statutes provide for confidentiality for witnesses and others under specific circumstances. See e.g., K.S.A. 60-436 (providing that crime stoppers chapter member or government witness may keep the identity of an informant confidential); K.S.A. 39-1411(d) (mandating that the identity of the person reporting violations to the Kansas Department of Health and Environment not be disclosed unless it is adjudicated that the need for the information outweighs the need for confidentiality); K.S.A. 65-5603 (prohibiting treatment personnel from revealing the identity of a person that has been or is receiving mental, alcoholic, narcotic, or emotional treatment).
The Tenth Circuit Court of Appeals, however, has clearly expressed recognition of the propriety of anonymous pleading. Even so, the Tenth Circuit has narrowly defined the permissible instances where a plaintiff may be identified by a pseudonym.
In Lindsey v. Dayton-Hudson Corp., 592 F.2d 1118 (10th Cir.), cert. denied 444 U.S. 856 (1979), the plaintiff filed suit against Target Stores for false imprisonment, malicious prosecution, assault and battery, slander, and civil rights violations. Summary judgment was granted against plaintiff and he subsequently appealed. In a portion of its analysis, the Tenth Circuit Court of Appeals considered the plaintiff s contention that he should have been allowed to proceed anonymously under the fictitious name John Doe. The Lindsey court wrote:
“This use of pseudonyms concealing plaintiffs’ real names has no explicit sanction in the federal rules. Indeed it seems contrary to Fed. R. Civ. P. 10(a) which requires the names of all parties to appear in the complaint. Such use obviously may cause problems to defendants engaging in discovery and establishing their defenses, and in fixing res judicata effects of judgments. Yet the Supreme Court has given the practice implicit recognition in the abortion cases, Roe v. Wade, 41 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), and Doe v. Bolton, 410 U.S. 179, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973), with minimal discussion. Most of the cases permitting the practice have involved abortion, birth control, and welfare prosecutions involving abandoned or illegitimate children. We have found only a few cases where the propriety of the technique was discussed.
“While the issue is not free from doubt we think all cases we reviewed implicitly, at least, recognize that identifying a plaintiff only by a pseudonym is an unusual procedure, to be allowed only where there is an important privacy interest to be recognized. It is subject to a decision by the judge as to the need for the cloak of anonymity.” 592 F.2d at 1125.
In Coe v. United States Dist. Court for Dist. of Colorado, 676 F.2d 411 (10th Cir. 1982), the Tenth Circuit again considered the practice of identifying a plaintiff only by a pseudonym. There, a physician filed a complaint for injunctive and declaratory relief to restrain the Colorado disciplinary board from conducting a public hearing on a formal disciplinary complaint. In Coe, the Tenth Circuit quoted Southern Methodist University Ass'n v. Wynne & Jaffe, 599 F.2d 707 (5th Cir. 1979), which discussed germane characteristics of anonymous suits:
“Under certain special circumstances, however, courts have allowed plaintiffs to use fictitious names. ‘[Wjhere the issues involved are matters of a sensitive and highly personal nature/ such as birth control, abortion, homosexuality, or the welfare rights of illegitimate children or abandoned families, the normal practice of disclosing the parties’ identities yields ‘to a policy of protecting privacy in a very private matter.’ Id. However, the cases affording plaintiffs anonymity all share several characteristics missing here. The plaintiffs in those actions, at the least, divulged personal information of the utmost intimacy; many also had to admit that they either had violated state laws or government regulations or wished to engage in prohibited conduct. . . . Furthermore, all of the plaintiffs previously allowed in other cases to proceed anonymously were challenging the constitutional, statutory or regulatory validity of government activity.” 599 F.2d at 712-13.
The Coe court ultimately weighed Dr. Coe’s need for individual and professional privacy against the public’s right to know the facts surrounding the disciplinary proceedings. The court concluded that the public interest outweighed Coe’s privacy interest.
Judge Bullock cited the Tenth Circuit case of Zavaras as instructive. In Zavaras, a female inmate at a Colorado state facility brought a class action under 42 U.S.C. § 1983 (1994), alleging that the Executive Director of the Department of Corrections denied inmates funds for abortion services. After a United States District Court judge denied the inmate’s motion for leave to proceed under a pseudonym, she appealed.
The Zavaras court observed that the test for anonymous pleading set forth in Tenth Circuit decisions involved “a weighing of a privacy issue against the public interest.” 139 F.3d at 802. The Zavaras court held that although Fed. R. Civ. Proc. 10(a), the federal counterpart to K.S.A. 60-210(a), did not bar a plaintiff from filing suit using a pseudonym, the judge’s denial of the motion did not constitute an abuse of discretion. 139 F.3d at 802.
Appellant also cites C.R.K. v. Martin, 1998 WL 1100062 (D. Kan. 1998), where the United States District Court for the District of Kansas refused to dismiss a case filed by a minor female plaintiff on the grounds that she had filed an anonymous civil action under the Violence Against Women Act, 42 U.S.C. § 13981 (1994). It is unclear whether the Martin court allowed plaintiff to proceed anonymously due to her minority. There, Judge Belot wrote:
“Defendant also moves to dismiss under Fed. R. Civ, P. 12(b)(6), alleging the plaintiffs complaint was not properly verified and the complaint is anonymous in violation of Fed. R. Civ. P. 10(a). Doc. 10. The court shall deny this motion.
“The decision whether to allow the plaintiff to proceed under a fictitious name to preserve her anonymity involves a weighing of plaintiff s privacy against the public interest. See M.M. v. Zavaras, 139 F.3d 798, 802 (10th Cir. 1998). That decision is one committed to the district court’s ‘informed discretion.’ Id. at 803. Due to the highly sensitive and personal nature of the allegations in the complaint, the court finds it appropriate for plaintiff to proceed under a pseudonym. The defendant knows the plaintiff s identity, based on the plaintiff s initials and the mother’s full name on the verification. Unlike M.M., see id. the present case does not involve the expenditure of public funds, and the court sees no compelling public interest in making the identity of the plaintiff known to the public.” 1998 WL 1100062, "2.
These cases convince us that K.S.A. 60-210(a) should not act as an absolute bar to suits identifying a plaintiff by a pseudonym. Although anonymous or pseudonymous litigation is an atypical procedure, where an important privacy interest outweighs the public interest in the identity of the plaintiff, the plaintiff should be allowed to proceed anonymously.
Therefore, we find that Judge Bullock did not err in concluding that although K.S.A. 60-210(a) expressly requires the names of the parties, that statute does not bar anonymous or pseudonymous suits where an important privacy interest is recognized.
We now turn to the second part of the district court’s decision where it found that the appellant failed to display a privacy interest of a magnitude sufficient to warrant anonymous filing. The Tenth Circuit Court of Appeals set forth its appellate standard of review when considering a court’s refusal to permit an action to proceed anonymously.
“We believe that the proper standard of review upon appeal is whether the trial court abused its discretion.” Lindsey, 592 F.2d at 1125. “An abuse of discretion occurs where the district court clearly erred or ventured beyond the limits of permissible choice under the circumstances.” Wright ex rel. Trust Co. of Kansas v. Abbott Labs., 259 F.3d 1226, 1233 (10th Cir. 2001).
The record reveals that Judge Bullock did not conduct a hearing for the presentation of evidence and arguments on appellant’s claimed privacy interest. Instead, the district court’s decision appears to have been based solely on the pleadings, motion to dismiss, and responses of the parties. In addition, the district court’s decision does not recite any specific findings or relevant factors.
While foreign courts have adopted substantive tests enumerating factors for consideration when deciding whether a plaintiff may proceed anonymously, few, if any, mandate procedural requirements for the trial court. See, c.g., Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. 464 (E.D. Pa. 1997) (listing substantive factors for determining the propriety of pseudonymous litigation with no procedural guidelines); Doe v. Blue Cross & Blue Shield of Rhode Island, 794 F. Supp. 72 (D. R.I. 1992) (allowing anonymous litigation where public disclosure of plaintiff s identity would result in social stigma or threat of physical harm with no instruction as to procedure); Doe v. Bodwin, 119 Mich. App. 264, 326 N.W.2d 473 (1982) (setting forth factors for consideration and remanding matter to trial judge for redetermination with no procedural requirements).
In Zavaras, 2 days after plaintiff filed her complaint, the district court denied her motion for leave to proceed in pseudonym. There is no mention of a hearing, and presumably the district court’s decision was based solely on the pleadings. There, the Tenth Circuit Court of Appeals observed:
“In the situation in the case now before us, it is clear that the district court exercised ‘informed discretion’ and weighed the plaintiff s claimed right to privacy against the countervailing public interest in determining that the motion to proceed under a fictitious name should be denied.” 139 F.3d at 803.
At the time of the district court’s decision, there was no Kansas statutory authority or case law mandating a certain procedure for determining whether a plaintiff could proceed anonymously. Moreover, Tenth Circuit decisions concerning anonymous pleading provided no guidance to the district court on procedural requirements. See generally Zavaras, 139 F.3d 798; Coe, 676 F.2d 411; Lindsey, 592 F.2d 1118. We therefore find that in this instance, the district court did not abuse its discretion by looking solely to the pleadings.
One legal scholar has suggested procedures for handling applications for pseudonymous litigation. See Steinman, Public Trial, Pseudonymous Parties: When Should Litigants be Permitted to Keep Their Identities Confidential, 37 Hastings L. J. 1 (1985).
“The author recommends that, when a plaintiff seeks to sue pseudonymously, the complaint and summons should be captioned with a fictitious name substituted for plaintiff s true name, and that the same fictitious name should be used in the body of the pleading and summons. At the time the complaint is filed, or shortly thereafter, plaintiff should file and serve on all other parties to the litigation a motion requesting leave to proceed pseudonymously. In order to enable the court to balance plaintiffs interests in confidentiality against the public interest in access, plaintiff s motion should be accompanied by affidavits containing the facts supporting pseudonymity . . . and by a memorandum of law citing pertinent legal precedent.
“If plaintiff has no objection to disclosing his identity to co-plaintiffs or to defendants and their counsel, plaintiff should so indicate in the motion. Plaintiffs motion should request a protective order specifying the persons entitled to know plaintiff s identity and prohibiting them from further dissemination [sic] the information. ... If plaintiff objects to disclosing his identify either to other litigants and their counsel, or to both the adversaries and the court, plaintiff should again so indicate in the initial motion and memorandum of law.
“The other parties should then file papers indicating their agreement with or opposition to the relief plaintiff has requested. Insofar as they oppose pseudonymity, the parties should file sworn factual material and memoranda of law in support of their position. The court should also permit the press and public to oppose pseudonymity and any related orders proscribing dissemination of identifying information to the public or press.
“The court should then rule on plaintiffs motion, entering appropriate orders supported by findings of fact and conclusions of law adequate to justify its decisions and sufficient for appellate review. If the trial court denies plaintiff permission to sue pseudonymously, it should order dismissal without prejudice and with leave to amend the complaint to substitute plaintiffs true name.” 37 Hastings L.J. at 86.
We recommend the above procedure with the following reservation. It would seem appropriate until the court has an opportunity to examine the allegations that both parties be identified in the pleadings by a pseudonym. It would also seem appropriate that the allegations be incorporated by reference into the pleadings but be contained in a separate instrument that is sealed and remains sealed until the trial judge deems otherwise.
Anything that could be embarrassing to either party should be included in the motion which should be sealed and remain sealed until ordered to be opened by the trial judge.
Only in the rarest of cases should the trial judge allow the use of pseudonyms.
Next, we turn to the substantive portion of the district court’s determination that appellant failed to display a privacy interest of sufficient magnitude to warrant anonymity. Since Zavaras was cited in the district court’s decision, we must presume that this was the test applied by Judge Bullock. The Tenth Circuit Court of Appeals in Zavaras set forth a balancing test, stating that the district court must weigh “the plaintiffs claimed right to privacy against the countervailing public interest in determining that the motion to proceed under a fictitious name should be denied.” 139 F.3d at 803.
“Many courts have attempted to articulate a standard for determining the propriety of pseudonymous litigation. A review of the case law indicates that courts which have addressed this issue have formulated various standards, albeit dissimilar, through which the competing interests at stake have been weighed to determine whether a party should be permitted to proceed in pseudonym. [Citation omitted.] This Court recognizes the strong public interest militating against pseudonymity — the public right of access to civil judicial records and proceedings. The public right of access to civil judicial proceedings has as its bases, constitutional law, the common-law and public policy grounds. The public’s right to know the true identity of the parties is concomitant with the right of public access to judicial proceedings and records. [Citation omitted.] In contrast to these public interests, there exists private and public interests that favor the use of pseudonyms in litigation. For example, litigants may have a strong interest in protecting their privacy or avoiding physical harm. [Citation omitted.] Further, the public may have a strong interest in protecting the privacy of plaintiffs in controversial cases so that these plaintiffs are not discouraged from asserting their claims. It is these competing interests, in addition to others not mentioned herein, that courts have attempted to balance in determining whether a party should be permitted to proceed in pseudonym.” Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. at 466-67.
We find that the balancing test set forth in Zavaras which weighs the interests of the public against the interests of the party seeking anonymity is proper. Therefore, this court adopts the balancing test of Zavaras. When determining whether to allow a party to proceed under a fictitious name, a district court must weigh the plaintiffs claimed right to privacy against the countervailing public interest militating against pseudonymity.
To determine whether a litigant has established cause for anonymity, the legal scholar mentioned above crafted nine factors for a court’s consideration when weighing the interests of the public against the interests of the party seeking anonymity. See Steinman, 37 Hastings L J. at 37-43. In 1997, the United States District Court for the Eastern District of Pennsylvania adopted the nine factors test, stating:
“The factors which support the use of pseudonymous litigation are as follows: (1) the extent to which the identity of the litigant has been kept confidential; (2) the bases upon which disclosure is feared or sought to be avoided, and the substantiality of these bases; (3) the magnitude of the public interest in maintaining the confidentiality of the litigant’s identity; (4) whether, because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigant’s identities; (5) the undesirability of an outcome adverse to tire pseudonymous party and attributable to his refusal to pursue the case at the price of being publicly identified; and (6) whether the party seeking to sue pseudonymously has illegitimate ulterior motives. [Citation omitted.]
“On the other side of the scale, the factors which militate against the use of a pseudonym are as follows: (1) the universal level of public interest in access to the identities of litigants; (2) whether, because of the subject matter of this litigation, the status of the litigant as a public figure, or otherwise, there is a particularly strong interest in knowing the litigant’s identities, beyond the public’s interest which is normally obtained; and (3) whether the opposition to pseudonym by counsel, the public, or the press is illegitimately motivated. [Citation omitted.]” 176 F.R.D. at 467-68.
To determine whether the district court reached the correct decision here, we apply the nine factors test to the facts of this case. First, the appellant’s identity is known to the defendant, but not to the public at large. Notably, the appellant instituted measures to keep his identity unknown by the public by using the pseudonym “unwitting victim.” Second, appellant stated in his petition that he brought suit under a fictitious name “to preserve his anonymity and to further prevent additional damage to plaintiff.” In his brief, appellant indicates he wishes to avoid “the social stigma associated with venereal diseases and the grave emotional burden that results from its admission in future personal relationships.” The basis for nondisclosure appears to be related to the humiliation and social stigma appellant would potentially suffer upon public disclosure that he had contracted an incurable venereal disease. While public knowledge could result in social stigma, there is no indication that the appellant will suffer criminal sanctions, physical harm, or economic hardship. Third, a narrow public interest exists in maintaining the confidentiality of the litigant’s identity because of the intimate subject matter of this suit. Fourth, the issues involved in the litigation concerning C.S.’s potential liability for allegedly infecting appellant with a venereal disease appear more factual in nature than legal. Fifth, appellant has not indicated that he will refuse to pursue the case if he must be publicly identified. Sixth, C.S. alleges that appellant is acting with illegitimate ulterior motives, keeping his name private while attacking C.S. in an effort to harass and embarrass her.
Next, we consider the factors adverse to the use of a pseudonym. Here, the most potent factor militating against anonymity is the universal public interest in access to the identities of litigants.
“This Court recognizes the strong public interest militating against pseudonymity — the public right of access to civil judicial records and proceedings. The public right of access to civil judicial proceedings has as its bases, constitutional law, and the common-law and public policy grounds. The public’s right to know the true identity of the parties is concomitant with the right of public access to judicial proceedings and records.” Doe v. Provident Life and Acc. Ins. Co., 176 F.R.D. at 466-67.
The Fifth Circuit Court of Appeals wrote in Wynne & Jaffe that “the mere filing of a civil action against other private parties may cause damage to their good names and reputation and may also result in economic harm. . . . Basic fairness dictates that those among the defendants’ accusers who wish to participate in this suit as individual party plaintiffs must do so under their real names.” 599 F.2d at 713. Such is the case here. The social stigma to appellant is no greater than that which C.S. must bear.
Therefore, we hold that the district court did not abuse its discretion when it found that appellant failed to demonstrate a privacy interest of the magnitude warranting anonymity, and in finding that appellant’s petition had been improperly filed in violation of K.S.A. 60-210(a).
Appellant also asserts that the trial court erred by dismissing the petition instead of allowing him leave to amend.
Ordinarily, a court should give a plaintiff an opportunity to amend and that opportunity should be freely given. Johnson v. Board of Pratt County Comm’rs, 259 Kan. 305, Syl. ¶ 15, 913 P.2d 119 (1996). However, the court has a certain amount of discretion in these matters, and in this particular case, the plaintiff did not request permission to amend the petition to substitute his name for “unwitting victim’ until after the case had been dismissed. Under the circumstances, we cannot say the trial judge abused his discretion.
Affirmed.
Lockett, J., not participating.
Knudson, J., assigned. | [
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against respondent Matthew B. Works, of Topeka, an attorney admitted to the practice of law in the State of Kansas. Respondent stipulated to the facts and to the violations of the Kansas Rules of Professional Conduct as set out in the formal complaint.
In Case No. DA7792, respondent stipulated to violations of Kansas Rules of Professional Conduct (KRPC) 1.3 (2001 Kan. Ct. R. Annot. 323), diligence and promptness; KRPC 1.4(a) (2001 Kan. Ct. R. Annot. 334), communication; and KRPC 3.4(d) (2001 Kan. Ct. R. Annot. 406), fairness to opposing party and counsel. In Cas'e No. DA8078, respondent stipulated to violations of KRPC 1.1 (2001 Kan. Ct. R. Annot. 312), competence; and KRPC 1.3 (2001 Kan. Ct. R. Annot. 323), diligence and promptness.
The hearing panel of the Kansas Board for Discipline of Attorneys agreed with respondent and concluded that respondent violated KRPC 1.1, 1.3, 1.4(a), and 3.4(d). The panel recommended that respondent be suspended from the practice of law for a 1-year period, but that the imposition of the discipline be suspended and respondent be placed on supervised probation for a period of 18 months. In making the recommendation, the panel applied the ABA Standards for Imposing Lawyer Sanctions (1991) and specifically considered Standard 3:
“Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duty to his clients to provide diligent representation and to provide adequate communication.
“Mental State. The Respondent negligently violated his duty.
“Injury. Because of the Respondent’s misconduct, Ms. Byler and Ms. Stauffer lost their causes of action. Accordingly, the Hearing Panel concludes that the complainants suffered actual injury. Certainly, however, the injury suffered by Ms. Byler and Ms. Stauffer was mitigated by the settlement made by the Respondent’s professional liability carrier.”
The panel found the following aggravated factors:
“Prior Disciplinary Offenses. The Respondent has previously been informally admonished in three cases: on November 23, 1993, the Respondent was admonished for violating MRPC 1.4 and MRPC 1.5; on September 22, 1998, the Respondent was admonished for violating MRPC 1.4; and on April 7, 2000, the Respondent was admonished for violating KRPC 1.3. (Footnote: At the time the Respondent was disciplined in 1993 and 1998, the disciplinary rules in the state of Kansas were known as the Model Rules of Professional Conduct rather than the Kansas Rules of Professional Conduct.)”
The panel found the following mitigating circumstances:
“Absence of Dishonest or Selfish Motive. The Respondent did not have a dishonest or selfish motive in committing the misconduct.
“Timely Good Faith Effort to Malee Restitution. The Respondent informed Ms. Byler regarding his professional liability insurance carrier. Ms. Stauffer filed suit against the Respondent. Both Ms. Byler and Ms. Stauffer received settlements from the Respondent’s professional liability insurance carrier. Finally, the Respondent paid the deductible on each claim.
“Present and Past Attitude of Cooperation. The Respondent cooperated fully in the disciplinary investigation and prosecution.
“Previous Good Character and Reputation. The Respondent is an active and productive member of the bar in Topeka, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel.
“Mental Disability. Mental disability is a mitigating factor in this case because there was evidence that (1) the Respondent was affected by a mental disability, (2) the mental disability caused the misconduct, (3) the Respondent’s recovery from the mental disability was demonstrated by a meaningful and sustained period of successful rehabilitation, (4) the recovery arrested the misconduct, and (5) recurrence of that misconduct is unlikely.
“Imposition of Other Penalties or Sanctions. Ms. Byler and Ms. Stauffer received settlements from the Respondent’s professional liability insurance carrier. Pursuant to the policy, the Respondent paid a deductible on each claim. '
“Remorse. At the hearing on this matter, the Respondent expressed genuine remorse for engaging in the misconduct.
“Remoteness of Prior Offense. The informal admonition administered in 1993 is remote.”
The stipulated facts show that respondent failed to diligently handle two personal injury cases and failed to respond to reasonable requests for discovery and motions to dismiss, failed to take any action after he filed the petitions, and failed to keep his clients informed regarding the status of their cases.
We agree with the stipulation and conclusions of the panel that respondent has violated KRPC 1.3 in both cases, and in addition has violated KRPC 1.1,1.4(a), and 3.4(d).
It Is Therefore Ordered that imposition of discipline against respondent Matthew B. Works be suspended and that he be placed on supervised probation for a period of 18 months from the date of this order.
It Is Further Ordered:
(1) The respondent will continue his treatment for depression with Dr. George I. Athey, Jr., throughout the period of supervised probation unless, in Dr. Athey’s opinion, continued treatment is no longer necessary. Dr. Athey shall notify the Disciplinary Administrator in the event that the Respondent discontinues treatment against the recommendation of Dr. Athey during the probationary period. The respondent shall provide Dr. Athey with an appropriate release of information to allow Dr. Athey to provide such information to the Disciplinary Administrator.
(2) The respondent is currentiy taking Celexa. The respondent shall have regular contact with a qualified medical professional regarding his medication. The respondent shall follow the qualified medical professional’s recommendation regarding any medications prescribed.
(3) The respondent’s practice shall consist of criminal defense cases. Additionally, the respondent may accept cases related to criminal defense, i.e. driver’s license suspension cases, drug tax cases, etc. The respondent shall not engage in the representation of clients in civil matters, including domestic relations cases.
(4) The respondent’s practice will be supervised by attorney John J. Ambrosio, of Topeka. The respondent shall allow Mr. Ambrosio access to his client files, calendar, and trust account records. The respondent shall comply with any requests made by Mr. Ambrosio. During the first year of the period of probation, the respondent shall meet with Mr. Ambrosio weekly. During the final 6 months of the period of probation, the respondent shall meet with Mr. Ambrosio as directed by Mr. Ambrosio. Mr. Ambrosio shall prepare a monthly report to the Disciplinary Administrator regarding the Respondent’s status on probation.
(5) Within 30 days of the date of this report, Mr. Ambrosio shall conduct an initial audit of the respondent’s files. Six months after the completion of the first audit, Mr. Ambrosio shall conduct a second audit. At the completion of the supervised probation, Mr. Ambrosio shall conduct a third audit. After each audit, Mr. Ambrosio shall make a report regarding the audit. If Mr. Ambrosio discovers any violations of the Kansas Rules of Professional Conduct, Mr. Ambrosio shall include such information in his report. Mr. Ambrosio shall provide the Disciplinary Administrator and the respondent with a copy of each audit report. The respondent shall follow all recommendations and correct all deficiencies noted in Mr. Ambrosio’s periodic audit reports.
(6) Attorney John J. Ambrosio shall be acting as an officer and as an agent of the court while supervising the probation and monitoring the legal practice of the respondent. Mr. Ambrosio shall be afforded all immunities granted by Supreme Court Rule 223 (2001 Kan. Ct. R. Annot. 294) during the course of his activities as directed by this order.
(7) Within 10 days of this report, the respondent shall file with the Disciplinary Administrator written office procedures designed to monitor the status, deadlines, and court appearances of all matters in which he has undertaken representation. The respondent shall modify that procedure if directed to do so by the Disciplinary Administrator. The respondent shall follow the written office procedures.
(8) The respondent shall continue to cooperate with the Disciplinary Administrator. If the Disciplinary Administrator requests any additional information, the respondent shall timely provide such information.
(9) The respondent shall continue to maintain professional liability insurance.
(10) The respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the respondent shall immediately report such violation to the Disciplinary Administrator.
It Is Further Ordered that in the event respondent fails to abide by the conditions set out herein, a show cause order shall issue to respondent, and this court shall take whatever disciplinary actions it deems just and proper, without further formal proceedings.
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of the proceedings be assessed to respondent. | [
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Per Curiam:
The judgment of the district court will be reversed, and the case remanded with instructions to render judgment upon the findings for costs in favor of the plaintiff in error, defendant below. This decision is made on the authority of A. T. & S. F. Rld. Co. v. Yates, ante, p. 613. | [
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The opinion of the court was delivered by
Horton, C. J.:
The first and most important inquiry in this case is, whether upon the allegations of the amended petition the contract made by Len. T. Smith, in the name of the Missouri River railroad company, with A. Caldwell, for the construction of the railroad of that company from Wyandotte to Leavenworth, was fraudulent and void? If fraud- . ulent and void, the next inquiry is, are the plaintiffs, who are stockholders in the Leavenworth, Atchison & Northwestern railroad company, in a position to maintain this suit? In answering and passing upon these inquiries, and matters incident thereto, we will consider whether the petition states facts sufficient to authorize the plaintiffs to maintain their action, and, also, all the material points presented in the arguments of counsel.
The allegations of the petition in relation to the alleged fraudulent contract for the construction of the railroad of the Missouri River railroad company, are substantially as follows: The capital stock of the company was originally only $200,000. On May 13th, 1865, the stock was increased to $1,000,000. To the original capital stock there was subscribed on or about April 6th, 1865, the sum of $48,500. Of this sum, $970 was paid at the time, and nothing has ever been paid thereon since. In May, 1865, the city of Leavenworth, under authority of law, subscribed $250,000 to the stock of the company, and, in June following, issued $250,000 in bonds, paid its subscription, and received its certificate of stock. In July, 1865, the county of Leavenworth, under like authority, subscribed $250,000 more to the stock of the company, issued $250,000 of its bonds, paid the subscription, and received its stock certificates. After the city and county had paid for their stock, an association, composed of Thomas A. Scott and fourteen other persons, agreed among themselves, if they could complete the arrangements, to build the road on- the following terms, viz.: For the bonds issued by the county and city of Leavenworth in payment of their stock, being $500,000 in all, if $300,000 of these were cashed at par by citizens of Leavenworth, for $700,000 in stock of the railroad company and $500,000 in bonds of the company. The road when completed was to be leased to the Missouri Pacific company, most of whose officers and directors, with other officers of prominent railroads, were engaged in this association or copartnership. In pursuance of this agreement with each other, Thomas A. Scott and A. Caldwell appeared before the board? of directors, two of whom were members of the said association; and offered on behalf of themselves and their associates, whose names were concealed, to build the road on the terms above stated, and as agreed upon among the copartners. At the meeting only a bare quorum was present, and two of the quorum, Smith and Gruber, were president and treasurer of the company, and at the same time members of the partnership seeking to obtain a contract to build the road, and among the concealed associates for whom Scott and Caldwell made the proposal. The board of directors, at said meeting referred the matter to Smith, the president and a member of the partnership, and authorized him to make a contract for building the road. To conceal the nature of the transaction, it was agreed among the partners that the contract should be in the name of A. Caldwell, but that the others should be secret partners with him, and their interest concealed from public knowledge. The name “A. Caldwell” was used' for the firm, and in that name the contract as originaíly talked over among the partners, and as agreed upon by them, was executed on the part of the partners with Smith, also one of the partners, but acting as president and agent of the railroad company. To conceal the character of the transaction, Caldwell transferred the contract to D. R. Gar- ' rison & Co., and under the latter name the work was done. This transfer was merely colorable; the work was performed, expenses paid and profits divided by Caldwell and his partners. D. R. Garrison & Co. represented Caldwell and his associates. Before anything had been done in per- . formance of the contract on the part of the partner’s, $700,-000 in stock of the company was issued to Caldwell and his associates without other consideration than said contract. Of this stock, $200,000 was in excess of the capital stock of the company, as $500,000 of stock had been issued previously to Leavenworth county .and city, and the capital stock was only $1,000,000. This stock was issued prior to the Janu ary election of 1866, and at that election was voted on. Afc this election Thomas A. Scott, Alexander Caldwell, Len. T. Smith, E. H. Gruber, Daniel R. Garrison, Charles H. Peck, Oliver A. Hart and Thomas L. Price, members of said co-partnership, and all interested in said contract, together with Charles N. Palmer, Alexander McDonald and M. S. Grant, were elected directors of the corporation, L. T. Smith was reelected president., and E. H. Gruber elected secretary. About January 1st, 1866, before the work of construction had been commenced, the bonds of the company to the amount of $500,000 were issued to Caldwell and his partners, secured by a first mortgage on the road and .all the property of the. company, on hand or to be acquired, Caldwell being the trustee in the mortgage. After the copartnership had thus obtained control .of the corporation, and had within its members a majority of the directors, the construction of the railroad between Wyandotte and Leavenworth was commenced, and a road about nineteen miles in length built, at a cost not exceeding $500,000: Not includ- ' ing the value of $700,000 of the stock of the corporation issued to the partners, the members of this copartnership, without the use of any means of their own other than that gathered by their arts from the city and county of Leavenworth and the corporation, realized over $400,000 in their construction of the road. With' $250,000 of this money they paid for 92,598-j^- acres of land, worth $14 per acre, known as the Delaware Diminished Reserve, which lands, under a treaty ratified August 10th, 1866, the said railroad corporation had the precedent right to purchase at $2.50 per acre. The president of the corporation, with intent to deprive'his company of the benefits to accrue from completing the purchase of said lands, and fraudulently to obtain the same for the partnership, made a conveyance of these lands to Caldwell, in the name of his corporation, without consideration, and. as such president induced the secretary of the interior to issue the patent for them to Caldwell. The sum of $165,000, arising from the sale of some 8,000 acres of these lands, was divided among the original partners, and the balance of the land disposed of among the same persons.
It is further alleged in the petition, that after the said partnership was formed, and before the execution of the contract for the construction of 'the road, certain persons, who were responsible, and able to give good security for the performance of their contract, made an offer in writing to the president and treasurer of the corporation to do the clearing, grubbing, grading, masonry and track-laying of the entire road, and furnish materials therefor, for $300,000; (had'this been done, the whole cost of the road would not have exceeded $18,000 per mile;) .that the said partnership was formed and the construction contract made with the intent, of the members of the firm, who were officers and directors of the corporation, and of such as. immediately afterward became directors and officers of the corporation, and of those jointly interested with them in the contract, to depreciate and render valueless the stock owned by Leavenworth county and city, .to defraud said stockholders of their property, and to acquire for the partners so associated together the. control of the corporation and all its effects; that the more favorable proposals from other parties were rejected, and the terms of the contract so unfavorable to the corporation, agreed upon to defraud the latter, and carry out the purposes and plans of the conspirators.
In view of these statements, we can arrive at no other rational conclusion, than that the said contract, executed by Smith, on the part of the Missouri River railroad company, and A. Caldwell, for himself and -his partners, was a gross fraud upon that corporation, and upon its stockholders who were not interested in the contract. This- contract was secured through the votes and influence of members of the directory, who were directly interested in the procurement of such contract; and the president of the corporation, in executing the same, while nominally representing the corporation, Was really acting adverse to its interests and the interests of its stockholders, and in the promotion of gain to himself and his copartners. • The elementary text-books' of authority on the subject of corporations lay down the rule, that the fiduciary character of directors is such, that the law will not permit them to manage the affairs of the corporation for their personal and private advantage, when their duty would require thém to work for and use reasonable efforts for the general interests of the corporation and its stockholders and creditors. The directors are the primary agents of the corPora^oni and this relation requires of them the highest and most scrupulous good faith in their transactions tor the corporation; and the general _ 1 r5 rule> that n0 trustee can derive any benefit from dealing with these funds of which he is a trustee, applies, with still greater force to the state of things in which the interest of the trustee deprives the corporation of the benefit of his advice and assistance. Courts of equity always regard with great jealousy the contracts made, between directors and the corporation, and, as a general rule, such contracts are voidable at the instance o’f the corporation or stockholders. This doctrine applies, whether the directors are a party to the. contract in its inception, or whether they subsequently acquire an 'interest in it. As directors cannot acquire an interest, directly or indirectly, adverse to the corporation, if they, taking advantage of their knowledge and position, make even an advantageous bargain in the purchase of claims against the corporation, the profits thus made will be treated as held in trust for the company. (Field on Cor., §174, 175, 396, 397; Hale v. The Bridge Co., 8 Kas. 466.) In conclusion upon this point, applying to the allegations of the petition the law as above stated, holding the contract void, we may very appropriately adopt the language of Mr. Justice Miller, in the case of Warded v. Union Pacific Railroad Company, et al., C. L. J., vol. 5, 527
“The corporation was represented by an agent who controlled both sides of the contract, and whose interest was in every way against his principal and in his own favor. While? the glaring evil of this thing may be obscured by using the name of the corporation as one party and that of individuals-having no connection with the corporation as the other party, the danger that selfish greed will make for the agents of the-corporation a contract of which they will reap the advantage, and in which the corporation will suffer all the losses, is only -increased by the fact that the names of the parties really interested do not appear in the transaction.”
In this connection we may properly remark, that if persons other than directors and officers of the corporation participated with them in their fraudulent and illegal transactions, with full knowledge of all the facts, as is alleged, they are equally liable with the faithless agents and officers. “In the discovery of frauds and in furnishing remedies to parties defrauded, equity holds all # *• parties to their just responsibility, following trust property into the hands of remote grantees- , . . . . . , . and purchasers, who have taken it with notice of a trust, in order to subject it to the trust.” (Peabody v. Flint, 6 Allen, 52.)
We come next to the inquiry, whether the plaintiffs are in-position to maintain this suit? Counsel contend that the Leavenworth, Atchison & Northwestern railroad company was not competent or authorized to purchase and become the holder of the stock of the county and city of Leavenworth, and that the county and city are still the owners of the stock . originally issued by the Missouri River railroad company for the bonds of said county and city. The amended petition shows that the Leavenworth, Atchison & Northwestern railroad company was incorporated in 1868 to build a railroad from Leavenworth to Atchison, and thence northwest. The capital stock was first fixed at $500,000, and afterward increased to $600,000. On December 26th, 1868, Leaven- ‘ worth county, pursuant to a vote authorizing the transfer, sold and transferred its $250,000 of stock' in the Missouri River railroad company to the Leavenworth, Atchison- & Northwestern railroad company, and on the same day, and by like authority, the -city of Leavenworth made a similar disposition of its $250,000 in the Missouri River railroad company. There had been an act passed by the legislature of the state, in the previous March, authorizing the sale or disposition of this stock. The statute under which the Leavenworth, Atchison A Northwestern railroad company organized, authorized the corporation to hold and purchase . . . such real and personal estate as the purposes of the company required. (Ch. 23, Gen. Stat.) And section 47, subdivision 2 of the same chapter, further empowered the corporation to take and hold such voluntary grants of real estate and other personal property as should be made to it to aid the construction, maintenance and accommodation of its railway.
In view of these powers so conferred by law, the act of purchasing said stock by the Leavenworth, Atchison & Northwestern railroad company of the county and .city of Leavenworth, was not ultra vires. While it is not shown by the petition that the purchase of this stock was necessary for the purposes of the corporation, in the absence of any statement to the contrary, we are to presume the company was acting within the -.terms of its authority and power. The statute permitted the corporation, under some circumstances, to purchase and obtain various kinds of property, and in the absence of any motion to make the petition more definite and certain, we must assume the purchase was legitimate and proper; but we do not by any means intimate that the corporation had the right to buy the stock as an investment, or for purposes not connected directly with the use of the road. The attempt to construe the language of subdivision 2 of said. sec. 47, as authorizing the corporation to take and hold any such real and other property as the company might obtain without consideration, is an effort to give a forced and strained construction to the words of the statute, contrary to the well-defined meaning of “ voluntary grants.” Nor is the argument tenable, that the Leavenworth, Atchison A Northwestern railroad company could not lawfully become a stockholder in the Missouri River railroad company, as such an" act would be contrary to public policy. The Missouri River railroad runs from Wyandotte to Leavenworth, and the Leavenworth, Atchison & Northwestern railroad from Leavenworth to Atchison — the two roads connecting at Leavenworth. Neither the interests of the public nor the interests of the companies would be sacrificed or prejudiced necessarily, if the roads were operated under one management, or if the two companies were consolidated upon equitable terms, so as to have a continuous line of railroad from Atchison to Wyandotte.' That the law-makers of the state apprehended no such danger to the public as claimed by counsel from such an act, is apparent from the legislation of 1870 and 1873, permitting the consolidation of railroad companies, and empowering such companies to purchase and hold stock in connecting corporations. (Laws 1870, ch. 92, § 1; Laws 1873, ch. 105, § 1.)
Another objection is made to the right of the plaintiffs to . maintain this suit, on the ground that although they are stockholders in the Leavenworth, .Atchison & Northwestern railroad, company, that company is not a stockholder in the Missouri River railroad company, because after the Leavenworth, Atchison & Northwestern railroad company had purchased the stock of' Leavenworth county and city in the Missouri River railroad company, the certificates thereof were canceled, and new certificates issued in their place to Lucien Scott for $250,000, and H. L. Newman for the other $250,000, as trustees; and it is urged that the action should be against Scott and Newman for a division of the. stock, or a transfer of the same back to the Leavenworth,. Atchison & Northwestern railroad company. Now, as the allegations charge that- the stock was fraudulently surrendered to the president and directors of the Missouri River railroad company by Caldwell and his associates, and new certificates issued to said Scott and Newman, as trustees, without consideration, the said Leavenworth, Atchison & Northwestern railroad company are still the equitable owners of this stock, and the legal title is held by said Scott and Newman, simply as trustees for the company. The fraudulent transfer of this stock to Scott and Newman gives us another exhibition of the trail of the serpent, winding its sinuous course over and around the unlawful proceedings of the manipulators of these corporations, but cannot deprive the Leavenworth, Atchison & Northwestern railroad company of its rights, nor despoil innocent stockholders of their property. Both of these trustees refuse to protect the interests of the Leavenworth, Atchison & Northwestern railroad company, and of its stockholders, and as said trustees are before the court in this , case> W1^ other parties, we see no good rea-, son, or any rule of equity, which requires two suits, instead of one, to obtain the same results. Equity does not suffer technicalities to stand in .¡ts way, but seizes upon the substance of the case. Virtually, the Leavenworth, Atchison & Northwestern railroad company are the owners of the stock in the name of Scott and Newman. The plaintiffs are stockholders of that company, and are interested in protecting and augmenting the value of such stock, and Scott and Newman being only trustees for the company, no separate suit is required against them for a division or transfer of the shares. All the questions involved can be completely determined and settled in this action. Notwithstanding the decision in Heath v. Railway Company, 8 Blatch. 347, we more readily adopt this conclusion, in view of the liberal provisions of our code relating to parties and practice.
Again, it is urged that there is nothing in the petition showing a transfer from the county or city of any cause of action against any of the defendants to the Leavenworth, Atchison & Northwestern railroad company, or the plaintiffs, and that therefore the plaintiffs cannot maintain the suit. This objection is also untenable. The Leavenworth, Atchison & Northwestern railroad company purchased the stock of the county and city, and thereby received the stock with all its incidents, and among these is the right to receive all dividénds after the date of such purchase and transfer — that is, its proportional share of all profits not then divided; and it is immaterial at what times or from what sources these profits have been earned. It is wholly immaterial whether they have accrued from rents, ^he profits of the construction of the road, or from the-sales of lands equitably belonging to the company: they are all incidents to the shares to which the Leavenworth, Atchison & Northwestern railroad company, as a purchaser, became at once entitled, provided it remains a member of the corporation until a dividend is made. The charge is, that no dividend has been declared by said Missouri River railroad company, nor any profit divided, although large sums have been realized, because all of said sums have been seized and converted by the directors unlawfully. The purpose of this suit is to restore to the latter company its funds, moneys and property in the possession of wrong-doers, so that after the creditors of the company (if there are any) are paid, dividends may be divided and distributed to the stockholders. If the $700,000 of stock issued to the conspirators is fraudulent, the Leavenworth, Atchison & Northwestern railroad company owns about all of the valid stock in the Missouri River railroad company. As it is the right of the former ' company to share in the profits of the latter company in the proportion which the stock it owns bears to the whole capital -stock used in the enterprise for which the latter corporation was organized, so said former company, by its purchase of the stock of the county and city of Leavenworth, and as incident to the ownership thereof, had the right (upon the refusal of the Missouri River railroad company) to institute and maintain an action, as a stockholder, for the benefit of the latter corporation. If both corporations are under the . control of tbe defendants, and refuse to bring the suit, on request, then the plaintiffs, as stockholders in the Leavenworth, Atchison & Northwestern railroad company, have this right; and as both of these corporations are necessary parties to the suit, and an excuse is given for the bringing of the suit by tho-plaintiffs, which is equivalent to a refusal by the directors of' the Missouri River railroad company, on request, to bring the suit, and as the Leavenworth, Atchison & Northwestern railroad company has refused, on request, to bring suit, the plaintiffs,- as stockholders in the latter company, have this right. The rights of the county and city were transferred with their stock, and as an incident thereof. If any other rule were adopted, the plaintiffs would be denied all relief, and the wrongs of which they complain would go unredressed. Even if the directors and officers of these corporations were willing to prosecute, it would be«a mockery to permit a suit against themselves to be brought and prosecuted under their management to obtain the relief sought in this action. (Heath v. Railway Company, supra; Peabody v. Flint, supra; March v. Eastern R. R. Co., 40 N. H. 548; Dodge v. Woolsey, 18 How. 341; Robinson v. Smith, 3 Paige, 222.)
On the part of the resident defendants, it is insisted that the action is barred by the two-year clauses in section 18 of the code, and was so barred before the transfer by the county and city of their stock. Assuming that the action comes within the provision of the third subdivision of said section 18, still the statute excepts the plaintiffs from the limitation until a discovery of the fraud. It is alleged that this discovery was not made on the part of the county and city of Leavenworth, or on the part of the plaintiffs, until 1872. The circumstances under which the fraud was discovered do not constitute any part of the cause of action and need not be stated,' even where a discovery must be alleged to avoid the apparent bar of the statute of limitations. (K. P. Rly. Co. v. McCormick, 20 Kas. 107.) It was not necessary to allege that the Missouri River railroad company and the Leavenworth, Atchison & Northwestern railroad company, or either of them, did not discover the frauds of the defendants until within two years next before the suit was commenced, as the allegations of the petition show satisfactorily that these" companies were and continue to be under the actual potential control of the wrong-doers, who are necessary defendants; and knowledge on the part of the guilty officers and agents of the corporations of the ° * fraudulent acts and conduct of themselves and gUjp;y associates, isnot notice to the corporation or its stockholders, so as to give the advantage of this notice to such agents and associates. (City of Oakland v. Carpentier, et al., 13 Cal. 540.) Upon this point, the counsel of plaintiffs well say: “The defendants are estopped from setting up their own laches in failing to sue themselves. Nor, can they be heard to claim that the corporation had notice, on the ground that when they committed the wrongs it had full notice of what they were doing. They were the eyes, the ears and the hands of the corporation, through which alone it could see, hear of act.” As the action was commenced on March 11th, 1873, and the discovery had in 1872, the action was brought in time. Counsel for said resident defendants here again intervene, and claim that this suit was only commenced on June 14th,-1875, as the plaintiffs on that day •withdrew their original petition and filed the amended petition. The original petition was withdrawn and the amended petition filed by leave of the court and with consent of the defendants, and the demurrers filed to the original petition were re-filed to such amended petition. The action is prosecuted by the same parties against the same defendants named in the original petition, and the record states the original petition was filed in this action, not some other. We construe the amended petition to relate back to the time of the filing of the original petition, and that it speaks as of that date.
The allegations of the amended petition were admitted by the demurrers interposed, and clearly presented to the court below a case calling for the exercise of its remedial powers in behalf of the plaintiffs and of the Leavenworth, Atchison & Northwestern railroad company. If the conspirators are compelled to return to the Missouri River railroad company the moneys and property which belong to it, its treasury may be filled to overflowing; its stock may appreciate to great value; and the Leavenworth, Atchison & Northwestern railroad company, as the owner of a large amount of its stock, may be greatly benefited. The plaintiffs, as stockholders in the latter corporation, will be the ^ *• 7 direct recipients of these benefits, and hence have a personal interest in an accounting be-A . mi t tween the Missouri River railroad company and its 0fgcers> Ample facts are stated in the petition to authorize the plaintiffs to maintain their action. In view of the prayer to the petition, we add that the claims of the plaintiffs, as stockholders in the Leavenworth, Atchison & Northwestern railroad it , company, are subordinate to the claims oi the creditors (if there are any) of that company; and likewise the claims of said corporation, as a stockholder in the Missouri River railroad company, are also inferior to the claims of the creditors (if there are any) of the latter company.- Hence, if upon an accounting with the copartners, any moneys or other property be obtained for the Missouri River railroad company, the Leavenworth, Atchison & Northwestern railroad company will not be entitled as a stockholder to a division until all the debts (if there are any) of the Missouri River railroad company are paid, and if any dividends or profits are decreed to the Leavenworth, Atchison & Northwestern railroad company from the assets of the Missouri River railroad company, the plaintiffs, as stockholders in the Leavenworth, Atchison & Northwestern railroad company, will not be entitled to share therein until the debts (if there are any) of the latter company are paid. Of course, we know nothing of the facts in this case except as they are stated in the amended petition; but for the purposes of the case we are compelled to take such statements as true, and have commented accordingly.
The order and judgment of the district court sustaining the several demurrers will be reversed, and the cause remanded with direction to the court below to overrule the said demurrers, and each of them.
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The opinion of the court was delivered by
Brewer, J.:
This is a petition for a writ of habeas corpus. The petition alleges that the plaintiff is restrained of his liberty by the sheriff of Ford county, under a warrant of commitment issued by the district court of Ford county, in default of bail in the sum of one thousand dollars, required by said court of plaintiff, to secure his attendance at the next term of said court, to answer to the charge of grand larceny; and avers that such restraint is illegal, because the offense was committed in Foote county, and that Foote county has never been legally attached to Ford county for judicial purposes, so-as to give the district court of said last-mentioned county jurisdiction of the offense. The said sheriff produces the body of plaintiff in court-, and makes return in due form of law, setting forth that he restrains said plaintiff under an information and order of court, both of which are attached to said return. Neither the facts stated in the return nor its formal sufficiency is controverted, but a motion is made to discharge the prisoner, notwithstanding the return, on the same grounds made in the petition.
By an act approved March 4, 1873, (Laws of 1873, ch. 79, §1,) the ninth judicial district was made to embrace certain specified counties, “and all that portion of the state lying south of the fourth standard parallel and west of the counties of Hodgeman, Ford and Clark.” This territory was not at that time divided up into counties, either organized or unorganized. By an act approved March 6, 1873, (Laws of 1873, ch. 72, §13,) the unorganized county of Foote was created. The information shows that the offense for which the prisoner is held was committed in the unorganized county of Foote, and that this county was created out of territory placed in the ninth judicial district by the act of March 4, 1873.
The constitution provides (a.rt. 3, §14) that “judicial dis tricts shall be formed of compact territory and bounded by county lines.” Doubtless the purpose of this was to prevent the division of a county, and the placing of a portion in one district and the remainder in another; so that argument may fairly be made that in the undivided territory beyond the limits of county lines the section is without force, and the legislature at liberty to divide that territory into judicial districts in any manner it may choose. Of course, that would end any question; but it may also be said, and we think it the better construction, that the effect of that provision is to limit the power of the legislature in the formation of judicial districts to the territory actually divided into counties. Shall be bounded by county lines, is the language. And it can hardly be that the existence of'judicial districts and district courts was contemplated in the outside undivided territory. In other words, the district as a district is to be created and composed of existing counties. What effect does such construction have upon the first section of said ch. 79, that defining the boundaries of the ninth judicial district? Does it vitiate the entire organization of the district? We think not. The section reads that the district shall consist of certain named counties and the undivided territory. If the latter may not be included in ány district, then the latter portion of the section may be dropped as nugatory and as surplusage, and the district will stand as composed solely of the counties named. We turn then to § 6 of the same act, which in terms attaches this undivided territory to the county of Ford for judicial purposes, and if this section is valid the jurisdiction of the district court of Ford county must be conceded. It is contended that the constitution does not authorize the attaching of undivided territory, but only of new or unorganized counties to judicial districts. (Art. 3, §19.) It is true the constitution nowhere in terms authorizes the attaching of such territory, but it is also true that it nowhere directly or indirectly prohibits such attaching; and if there be no prohibition directly or by implication, then the act is within the general grant of legislative power. A large por tion of the state at the time of the framing of our constitution, consisted of undivided territory, and that the convention contemplated , the existence of such territory without any power in the legislature to provide, through the machinery of courts and the processes of law, for the punishment of crime or the protection of life and property in such territory, is an imputation not to be tolerated. The continuance of such territory was believed to be temporary, and while provision was necessary in the organic instrument for all that was permanent and enduring, it was doubtless thought that the general grant of legislative power was sufficient for all the temporary necessities of the undivided and • unoccupied territory. The grant of power to attach existing though unorganized counties to judicial districts, carries no implication of a denial of power to so attach undivided territory. There is nothing exclusive in such grant, i. e., nothing excluding the exercise of similar-power upon different objects, and under different conditions. It is not like the annexing of certain conditions to the exercise of a right, as in the qualifications of a voter, which by implication prohibits the legislature from attaching other and more burdensome conditions. As was said in the case of Prouty v. Stover, 11 Kas. 256: “To sustain an implied inhibition, the express provision must apply to the exact subject-matter, and the inhibition will not be extended further than is necessary to give full force to that provision.” And surely the attaching of undivided territory to a judicial district in no manner interferes with, trenches upon, or affects the so attaching divided territory. Each may be done, and neither affects the other. But it is said that by § 10 of the bill of rights, an accused is entitled to a trial by a jury of the county or district in which the offense is alleged to have been committed, and that this guaranty is trespassed upon by sustaining the power to so attach. Attaching a county or territory to a district does not make it a part of the district. They are still separate and distinct, though united for certain pur poses. The guaranty of a trial by a jury of the county is not sustained by a mere legislative declaration that the county in which the offense was committed is attached to the county in which the prosecution is sought. If it were, then this valuable guaranty of personal right is at the mercy of any legislature, and a party committing an offense in Ford county may be prosecuted in Doniphan county, by simply enacting that the former is attached to the latter for judicial purposes. Waiving any inquiry into the effect upon such an act of the words, “the most convenient judicial district,” in said §19, we remark that the constitution must be so construed as to harmonize its various provisions. Section 19 authorizes the attaching of new or unorganized counties to a judicial district. Said § 10 guarantees a trial by a jury of the county or district. Now to attach a county for judicial purposes, to a district without any power in the district court, to try for an offense committed in such county, would be mere trifling. The power to attach for judicial purposes, carries with it by necessary implication full jurisdiction over the county or territory attached; and the guaranty in §10 must be construed as limited by the power to attach, and the attached territory as a. part of the district within the scope of said § 10.
Again, it is objected that the section is invalid by reason of that provision of §16, art. 11, that “no bill shall contain more than one subject, which shall be clearly expressed in its title.” But we think the matter of said section is not so foreign to the subject expressed in the title — which is “to define the boundaries of the ninth judicial district, and to fix the terms of court in the several counties thereof” — as h> render that constitutional provision applicable. The section is one we might naturally expect to find under such a title. Its provisions are germane to and connected with the subject of the title; and whatever stress may be laid upon the words, “of the title,” as referring strictly to only territorial boundaries and terms of court in existing counties, the subject-matter of this section is not so foreign to it as will justify us In holding it invalid. Whatever question may arise as to any other county, the county of Foote is wholly within the territory named in said §6.
A final objection is, that Ford county was not legally organized at the time of the passage of this act, the pretended organization having been by this court decided to be illegal and void, (State v. Comm’rs of Ford Co., 12 Kas. 441,) and that therefore there was no district court in such county, and it was impossible for the legislature to attach any other county or territory to it for judicial purposes. To. this it may be replied that there was an existing, though as decided an illegal and fraudulent organization, which was in 1874 legalized and made valid by act of the legislature. (Laws 1874, p. 8.) And further, that though the act establishing a district court in Ford county and attaching other territory to it for judi■cial purposes might not have been operative at once for lack of a valid county organization, yet it would become so whenever there was such an organization. There is no inherent vice in such legislation, but only suspended animation. The law is good, even though it amounts to nothing until the actual organization of the county.
We think therefore the petitioner is not entitled to his discharge, and must be remanded to the custody of the sheriff of Ford county; and it is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 4th of February, 1879, this court, upon the application of Hon. Willard Davis, the attorney genera], allowed an alternative writ of mandamus to John P. St. John, governor of the state, requiring him to appoint some competent person within the county, of Stafford "to take the census and ascertain the number of inhabitants in that county, in order that it might be organized under the provisions of chapter 63, laws of 1876.
The governor refused to make the appointment, on the ground that the act of the legislature defining the boundaaries of Barton and Pratt counties (ch. 61, Laws 1875) had reduced the area of Stafford county to less than four hundred and thirty-two square miles, and therefore the county was not entitled to be organized. The question whether this court has jurisdiction to compel the governor of the state to perform any official act, has been expressly waived by counsel at the direction of the governor, who is particularly desirous to obtain, by this proceeding, a judicial construction of chapter 61 of the laws of 1875, to determine his duty in the premises. Hence, we express no opinion as to our power to enforce action by the chief executive. The question presented to us is, ought the governor to organize the county of Stafford ? Involved in this, is the effect upon the county, of the act of the legislature approved March 5t'h, 1875, entitled “An act defining the boundaries of Barton and Pratt counties.” If this act is valid, it is conceded that it is such an impediment to the organization of the county that the governor is fully justified in refusing to appoint any person to take the census. A reference to the counties of Barton, Pratt and Stafford is necessary to fully understand the present status of the latter county. ■ These counties were created and christened by the legislature in 1867; (ch. 33, Laws of 1867, p. 51.) Their boundaries were again defined, but not changed, in 1868; (Gen. Stat. 1868, ch. 24.) With slight exceptions? their limits remained in this condition till 1875, when the legislature, by the act of March 5th, 1875, attempted to take from Stafford for Barton county, townships 21-23 of ranges 11-14, and for Pratt county, townships 24 and 25 in said ranges, leaving only townships 24 and 25, of range 15, to constitute Stafford county — an area of 72 square miles. At the passage of this act Barton contained an area of 900 square miles, Pratt 720, and .Stafford 792. If this act is a valid law, Barton has 1,332 square miles, Pratt 1,008, and Stafford 72.
On the one hand, it is contended that the said act of March 5, 1875, is void, as being in conflict with § 1, art. 9 of the state constitution. On the other, it is insisted that this provision has no application to unorganized counties; and that over them the legislature has full control, without any constitutional limitation or restriction. Section 1, art. 9, reads as follows:
“ The legislature shall provide for organizing new counties, locating county seats, and changing county lines; and no county seat shall be changed without the consent of a majority of the electors of the county, nor any county organized, or the lines of any county changed so as to include an area of less than four hundred and thirty-two square miles.”
It is manifest from an examination of this section, that if the portion thereof relating to changing county lines applies to Stafford, the claim of counsel for the state must prevail. The concluding clause contains the words “any county.” These words are broad in their signification, and primarily comprehend all counties, whether organized or unorganized. No other construction can be adopted without wresting words from their ordinary meaning. Now, at the passage of the act of March 5,1875, Stafford county was known and recognized as a county. True, it was unorganized, but it had been named, and its boundaries afterward defined by four several acts of the legislature. The express constitutional prohibition against reducing its limits below the minimum size extended to it, as much as if it had been organized. We are fortified in this opinion from the history of this section in the constitutional convention and a-perusal of the debates of the framers of that instrument. Mr. Burris, a member of the convention, who was substantially the author of this limitation on the power of the legislature over counties, used the following language in regard to it:
“I do not understand that my amendment proposes to legislate. It is merely a restriction upon the legislature, just as we have incorporated in other articles of the constitution. . . . The substance of my amendment is the same as that incorporated in the constitution of the state of Iowa, with which I am more familiar than with any other state constitution. I think there will be no necessity in any part of the territory to organize a county of less area than four hundred and thirty-two square miles.” (Kas. Const. Proceedings, 136, 137.)
Afterward, Mr. Greer offered the following substitute for the whole section: “No new county shall be laid off hereafter, nor old oownty r-educed to less contents than four hundred and thirty-two square miles,- leaving the power to change county lines and seats with the county boards.” Mr. Burris opposed such substitute, and favored the original section as amended by him, and said: “Itseems to me that the section as amended, is now extending to the legislature all the power that is proper to protect the rights and interests of the people. It is saying . . . that there shall be no new county of a less-area than four hundred and thirty-two square miles.” (Kas. Const. Proc., 138.)
Further, in the closing days of the convention, when that body was having under consideration the verification of the instrument, Mr. Preston offered an amendment to withdraw a portion of the restrictions upon the legislature, whereupon Mr. Burris replied: “The design of this amendment seems to be to strike out that part of the section which prohibits the legislature from creating a new county with less than four hundred and thirty-two square miles, or from reducing any county below that. I hope it will not prevail. That provision has been considered by the convention. I am opposed to reconsideration, unless there is a palpable necessity for amendment.” The amendment of Mr. Preston was then-ruled out of order. (Kas. Const. Proc., 419.)
At the time these proceedings were had in our constitutional convention, the constitution of Iowa expressly prohibited the creation of any new county with less than four hundred and thirty-two square miles, or the reduction of any organized county below that area, and thus by implication no new' or unorganized county could be cut down to less-than the same area. By the constitutional inhibition of our state, no county is to be organized w'ith an area of less than four hundred and thirty-two square miles, nor the lines of any county changed so as to include a less area, and thus by implication no new county is to be created with less than four hundred and thirty-two square miles. Although the wording of the two constitutional provisions is somewhat different, both effectuate substantially the same object.
Without further references or more extended argument, we-conclude that at the date of the passage of the act of March 5th, 1875, Stafford was an existing county of the state; that §1, art. 9, of the state constitution, protected it from being reduced to an area of less than four hundred and thirty-two-square miles, and we must regard said act, therefore, as void, because in conflict with the constitution. (Buncombe v. Prindie, 12 Iowa, 1; Garfield v. Bray ton, 33 Iowa, 16.)
Under these views, Stafford county still exists, with the-area and boundaries it possessed immediately prior to March 5th, 1875, and the attempt to carve it up has wholly failed from a violation, by the legislature, of the paramount law of the state.
Let a peremptory writ of mandamus issue, as prayed for, commanding the governor to appoint at once an inhabitant of Stafford county to take the census.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
October 25th, 1875, one Forseman sold certain cattle to P. S. Roberts, and, to secure the payment, took a chattel mortgage on the cattle. This mortgage was filed for record in the office of the register of deeds of Morris county, November 2,1875. The stipulation in the mortgage wfis: *
“That if default shall be made in the payment of said sum of money, or any part thereof, or of the interest due thereon at the time or times when by the condition of said obligation the same shall become payable, or if the said party of the second part shall at any time deem himself insecure, then and thenceforth it shall be lawful for the said party of the second part, his executors, administrators or assigns, or any authorized agent, to enter upon the premises of the said party of the first part, or any other place or places where 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 at private sale, to the person or persons who shall offer the highest price for the same. After satisfying the aforesaid debt and interest thereon, and all the necessary and reasonable costs, charges and expenses incurred, including reasonable attorneys’ fees, out of the proceeds of said sale, he shall return the surplus to the said party of the first part, or his legal representatives; 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; 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 shall continue in the 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 are, and taken care of at his proper cost and expense.”
Roberts, during November (the exact time in the month not appearing), turned the cattle over to defendant in error to winter, at an agreed price of five dollars per head. Defendant in error was a farmer, and engaged in the business of pasturing and feeding cattle. He kept the cattle until spring, under such contract. In the spring, Forseman, the mortgagee, indorsed the notes and assigned the mortgage securing them, to the intestate of plaintiff in error, who immediately took possession of the cattle without paying for their wintering. Defendant in error thereupon commenced this action. Upon the trial the district court instructed the jury that—
“If they found from all the evidence that said Roberts, after making said chattel mortgage, turned over to said Allen said cattle to winter, and agreed to pay him- for such winter- 3ng the sum of five dollars per head, and that said Allen did take possession of said cattle and winter the same in accordance with his contract, then he would be entitled to a lien upon said cattle for the amount due him for the wintering and keeping the same, and would be entitled to the possession Of the same until such lien was satisfied; and if they so found, and further found, that Allen has never been paid the amount due for such wintering and keeping, and that he did not willingly give up the possession of the same, but that the same were forcibly taken from his possession without his consent by the said R. Case, he would be entitled to recover in this action — unless, however, they found that Allen looked to Roberts alone for his pay, and not to the cattle. But any agreement between Roberts and Forseman, that Roberts should keep said cattle without expense to him (Forseman), would not be binding upon Allen unless he knew of such agreement, and assented thereto.”
This instruction presents the substantial question in the case. By it the lien of the mortgagee was subordinated to the lien of the agister. Was this error?
All parties were residents of Morris county, and chargeable with notice of the chattel mortgage from the time of filing, to wit, November 2, 1875. The lien of the mortgagee was prior in time, was created by contract, while that of the agister, later in time, arises out of the statute. Though the amount in controversy is small, yet the question is of some importance. It affects a great many.of the smaller transactions of business. A buggy is taken to a shop for repairs; a horse is driven to a livery stable and left over night; a traveler brings his- trunk and stops at a hotel: in all these cases a lien is given by statute. Suppose a prior chattel mortgage exists: must the statutory lien give way to the prior contract lien ? Must a mechanic, a livery stable or hotel keeper always examine the register’s office to see whether there be a chattel mortgage upon the property before receiving it for repairs or keeping? But the question is not free from difficulty: for can the value of a contract lien be diminished by any act of the promisor? Can he who has promised that the property shall to the extent of its value be security to the mortgagee for a certain debt, subsequently cast upon it a lien which shall take precedence of his prior contract, and to that extent diminish the value of the mortgagee’s security? It will be conceded that no subsequent contract lien can be placed upon the property to take precedence of the prior chattel mortgage, and to that effect is the case of Bissell v. Pearce, 28 N. Y. 252. But we think the district court rightly held that the agister’s lien was paramount to the mortgage. The express stipulation in the mortgage, that . . . 007 the ^eePing °* the mortgaged property should be at the expense of the mortgagor, is no more than the law would imply in the absence of any express agreement. The mortgagor retaining possession, must of course pay the expenses of the keeping. He is not simply an agent of the mortgagee. He can make no contract on behalf of, or which will create any liability against, the mortgagee: he acts on his own behalf. He is the owner, with the duties of owner and the powers of owner, except as limited by the restrictions of the mortgage. Unless the mortgagee, by express contract, assumes the expense of the keeping of the property, it rests upon him.-
Now the lien of the agister is not the mere creature of contract: it is created by statute from the fact of the keeping of the cattle. The possession of the agister was rightful, and the possession being rightful, the keeping gave rise to the lien; and such keeping was as much for the interest of the mortgagee as the mortgagor. The cattle were kept alive thereby; and the principle seems to be, that where the mortgagee does not take the possession, but leaves it with the mortgagor, he thereby assents to the creation of a statutory lien for any expenditure reasonably necessary for the preservation or ordinary repair of the thing mortgaged. Such indebtedness really inures to his benefit. The entire value of his mortgage may rest upon the creation of s.uch indebtedness and lien, as in the case at bar, where the thing mortgaged is live stock, and the lien for food.
And while it seems essential that this should be the rule, to protect the mechanic or other person given by statute a lien upon chattels for labor or material, the rule, on the other hand, will seldom work any substantial wrong to the mortgagee. The amount due under such liens is generally small —a mere trifle compared with the value of the thing upon which the lien is claimed. The work or material enhances or continues the value of that upon which the work is done or to which the material is furnished; and the mortgagee can always protect himself against such liens, or, at least, any accumulation of debt thereon, by taking possession of the chattel mortgaged.
Authorities directly in point are perhaps few, yet the following seem to bear more, or less directly on the question: In Johnson v. Hill, 3 Starkie, 172, it appeared that one who had obtained wrongful possession of a horse took it to a livery stable keeper, and left it, and it was held that a lien existed in favor of the latter against the owner. In Williams v. Allsup, 100 Eng. C. L., p. 416, a shipwright who had done repairs on a vessel at the instance of the mortgagor, was given a lien paramount to that of the prior mortgage; and the same conclusion was reached in the case of Scott, et al., v. Delahunt, 5 Lansing, 372, in which the court, referring to arid distinguishing the case of Bissell v. Pearce, supra, uses this language:
“The decision in that case is no authority against the rights of the plaintiffs to enforce their lien which the law gives, and which does not rest in contract with the mortgagor. I am cleai'ly of the opinion, in a case like this, where the repairs are necessary for the preservation of the property, and the law gives the lien, the mechanic may lawfully retain possession and enforce his lien by action if the charges for repairs are not paid, even against a mortgagee claiming under a prior mortgage.”
In the late work of Herman on Chattel Mortgages, p. 308, the author says: ,
“Where the owner of a mortgaged chattel places it in the hands of a mechanic for repairs which are necessary to put it in condition for use, and the mechanic retains possession until his charges are paid, his lien is prior to and can be enforced against the mortgage, if the mortgage becomes due before the repairs are made and possession retained by the mechanic, where the mortgagee has never taken possession under his mortgage.”
And in Brown’s Admiralty, p. 204, in the case of The St. Joseph, Mr. Justice Withey thus states the law in reference to maritime liens:
“Strictly maritime liens have always held priority over mortgages, without reference to the period of time when they accrued, on the ground that it is as much for the interest of the mortgagee as for the owner that the ship should be kept in repair and supplied, to enable her to keep afloat and be in receipt of earnings; thus adding to the value of the mortgage security, as well as to the ability of the mortgagor or owner to pay the mortgage.”
See also, Brown v. Holmes, 13 Kas. 492; Colquitt, et al., v. Kirkman, 47 Ga. 555.
It is probable that the amount of the agister’s lien, as against the mortgagee, would be fixed, not by the contract with the mortgagor, but by the reasonable value of the services. Still, we think this presents no ground for disturbing the judgment, for the plaintiff testified that he considered the services worth the contract price, and there was no testimony to the contrary, and the attention of the court was not called to the matter, and the exception is to the charge of the court as a whole, and not to any specific portion of it. A similar answer is good to the objection that plaintiff was not engaged in the business of feeding and taking care of cattle, within the scope of the statute giving to such parties a lien.
The testimony does not leave it clear in our minds how many cattle were in fact wintered; but still there was testimony from which the jury might find the amount they did in fact find, and we cannot say that they erred. Upon the whole record, we see no error.
The judgment will be affirmed.
All the Justices concurring. | [
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• The .opinion of the court was delivered by
Valentine, J.:
The judgment of the court below in this case will be affirmed for the following, among other reasons, and upon the following, among other authorities:
First: Error, is never presumed, but must always be affirmatively shown. (Hall v. Jenness, 6 Kas. 357; Winsor v. Cole, 10 Kas. 620; Bartlett v. Feeney, 11 Kas. 594; Kelley v. Davis, 19 Kas. 510; Kupfer v. Sponhorst, 1 Kas. 75; Bainter v. Fults, 15 Kas. 323.) Therefore, where it is shown by the record that the court below on the fifth day after rendering the judgment in the case, overruled a motion for a new trial made on the ground that the decision of the court below Avas against the law and the evidence, and it is not shown by the record that said -motion was ever reduced to writing or filed in the court as it should have been, (Gen. Stat. 688, §309; Clayton v. School District, 20 Kas. 256,) or that it was made within three days after the judgment was , rendered, as it should have been, (Gen. Stat. 687, §308, and cases hereafter cited,) or that it Avas made at any time before it was presented to the court below for hearing, it will be presumed by the supreme court, for the purpose of upholding the judgment of the court below, that said motion was not. made in time, and therefore that the court below did not err in overruling it. (Odell v. Sargent, 3 Kas. 80; Mitchell v. Milhoan, 11 Kas. 617; Nesbit v. Hines, 17 Kas. 316; Fowler v. Young, 19 Kas. 150.) And because said motion was not made in time, it will be deemed that all errors occurring -during the progress of the trial were waived. (See the two cases last cited, and Clay v. School District, 20 Kas. 262.) Counsel for defendant in error say, in their brief, that no motion for a new trial was ever in fact filed in the case, and counsel for plaintiff in error, Avho filed a brief in reply, does not say that there was.
Second: Upon the evidence in this case we think the court below settled conclusively by its general finding all the questions now raised in this- court, and settled them in favor of the defendant and against the plaintiff. (Winstead v. Standeford, 21 Kas. 270, first point decided, and cases there cited.)
Third: The question on the mortgage we also think is settled. (Vickroy v. Pratt, 7 Kas. 238; Brewster v. Madden, 15 Kas. 249.) And it really makes no difference whether the land in controversy, at the time it was mortgaged, belonged absolutely to the Indians, or was held in trust by the government of the United States for the Indians. In either case the mortgagor had no interest in the land at the time he mortgaged it, and therefore the mortgage was void.
Fourth: As to any remaining questions, see Rettman v. Richardson, 17 Kas. 413.
Judgment below affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus, brought originally in this court by R. E. Allen and others, to compel S. L. Houston, probate judge of Cloud county, to perform what they claim to be an official duty imposed upon him by §4 of the act of the legislature entitled “An act relating to town sites.” (Gen. Stat. 1074.) The alternative writ recites, and the evidence shows, that prior to the 19th of September, 1877, certain lands then belonging to the United States were duly entered under an act of congress entitled “An act for the relief of the inhabitants of cities and towns upon the public lands,” (14 U. S. Stat. at Large, 541,) by the corporate authorities of the then incorporated town of Concordia, for the benefit of the occupants of the town site of said town, and that a patent was duly issued for said lands September 19th, 1877; that the plaintiffs were original occupants and still continue to be occupants of said lands, and they claim to have the right to have said lands divided, and set off and conveyed to them, under said-acts of congress and of the legislature, according to their respective interests; that on March 1st, 1878, the plaintiffs presented to the defendant, as probate judge of said county, a petition and demand that he proceed under said act of the legislature, and appoint three commissioners to divide and set off said land, as aforesaid; that the defendant heard said petition and demand, and then denied the same, solely on the ground that he had no power or jurisdiction- to act in the premises. Now, whether the defendant, as probate judge, had sufficient power or jurisdiction to act in the premises, and to appoint commissioners for such a purpose, is the only question that demands our consideration. The probate judge was willing to act in the. premises, provided he had the power or jurisdiction to do so; but, as he construed the law, he did not .believe that he had any such power or jurisdiction, and for that reason only refused to act. Does the law authorize the probate judge to act in such a case? That other jurisdiction and power than that specially conferred upon probate courts and probate judges by the constitution may be conferred upon probate courts and probate judges by statute, has already been determined in this court. (In re Johnson, 12 Kas. 102, 103, 104, and cases there cited; especially Sherry v. Sampson, 11 Kas. 611; Winfield Town Co. v. Maris, 11 Kas. 128; McTaggart v. Harrison, 12 Kas. 62.) And there is nothing in the constitution or in any act of congress that would prohibit the legislature from conferring upon probate judges just such power as the probate judge refused to exercise in this case. The only question, then, in the case is: Has the legislature.conferred upon probate judges the power and jurisdiction in question?
Section 1 of the said act of the legislature relating to town sites, provides that, for incorporated towns, the corporate authorities shall enter the town site; and for unincorporated towns, the probate judge shall enter the same. Section 2 provides that where the corporate authorities make the entry, the mayor or other chief officer of such town shall make the deeds. Section 3 provides that where the probate judge makes the entry, he shall make the deeds “in the manner hereinafter prescribed.” Section 4 provides as follows:
“At any time after the entry of any such town site, the probate judge of the county in which such town may be situated may appoint three commissioners, who shall not be residents of such town, or the owners of any interest therein; and it shall be the duty of such commissioners to cause an actual survey of such site to be made, conforming, as near as may be, to the original survey of such town, designating on such plat the lots or squares on which improvements are standing, with the name of the owner or owners thereof, together with the value of the same.”
Sections 5 and 6 provide that said commissioners shall give notice to all persons interested, and shall then proceed to set off to the- persons entitled to the same, according to their respective interests,-the lots, squares or grounds to which each of the occupants thereof shall be entitled. Section 7 provides that the commissioners shall levy taxes on said lots, &c., to pay expenses. Section 8 provides that “such commissioners shall make due return of their proceedings to the probate judge,” and file therewith “all the papers, plats, valuations and assessments connected with such proceedings.” Section 9 provides as follows:
“The said probate judge shall then proceed to collect the taxes levied as aforesaid, and he shall make deeds to the lots so set apart to the various parties entitled to the same; but no deed shall be made to any person until such person shall have first fully paid all the tax or assessment so levied against him; and in case jmy person shall refuse or neglect to pay such tax or assessment so made against him, the probate judge may proceed to offer such lots and improvements for sale to the highest bidder, first giving such public notice as may be required in case of execution against the lands and tenements of a debtor in the district court.”
Section 10 provides that the prohate judge shall reimburse all persons for “necessary expenses incurred.” The other two sections (ll and 12) of this act have no application to this case.
Difficulties"'arise in this case in whatever light we may view the principal question involved therein. If we adopt the view of the plaintiffs, .that the probate judge has the jurisdiction contended for by them, then it may be answered that all the authority given to the probate judge to appoint commissioners seems to be given to him merely for the purpose of enabling him to ascertain to whom he himself, and not any other- person, should make deeds for lots in cases where he himself has made the entry of the town site. Section 3 authorizes him to make deeds where he has entered the town site, but says that he shall do it “in the manner hereinafter prescribed;” and then follow §§4 to 11 inclusive, seemingly for the purpose principally, if not entirely, of “prescribing” when and in what manner the probate judge, and the probate judge only, shall make deeds. Section 4 immediately follows' the said words, “in the manner hereinafter prescribed;” that is, it follows those words seemingly for the purpose of prescribing in what manner the probate judge, and the probate judge only, shall make deeds. It prescribes that the probate judge shall appoint commissioners. These commissioners are required to ascertain to whom deeds should be made; to levy taxes to pay expenses, and to report their proceedings to the probate judge. The probate judge then collects said taxes, pays said expenses, and makes all the deeds which the commissioners report are to be made. The commissioners do not report to any other officer or person except, the probate judge. No other person is authorized to collect said taxes; no other person is required to pay said expenses. No other person is authorized to make any of the deeds which the commissioners report should be made; and there is no provision of law requiring or even authorizing any of the proceedings of the probate judge or of said commissioners to be given to the mayor or other chief officer, or, indeed, to any officer of a town or city. Then how is the mayor or other chief officer to know what the probate judge or his commissioners have done? How is the mayor or other chief officer to know to whom the commissioners have reported that deeds should be made? No one claims thát the probate judge has any.right or authority to make deeds where the corporate authorities have entered the town site. Where the corporate authorities have entered the town site, it is agreed by all parties, that, under section 2 of said act, it devolves upon the mayor or other chief officer of the town or city to make the deeds. The probate judge makes the deeds only when he himself has entered the town site. Now, if the appointment of said commissioners was intended in any case to be for the benefit of the mayor or other chief officer; if the action or report of said commissioners was intended in any case to be a guide to the mayor or other chief officer, or to inform them to whom deeds should be made, would there not have been some provision of law prescribing some mode by which the mayor or other chief officer could know what the commissioners had done in any particular case? And why should § 9 provide as it does, that the probate judge in all cases “shall make deeds to the lots set apart [by the commissioners] to the various parties entitled to the same,” who have paid their assessments, if the mayor or other chief officer should in any case make any of the deeds which thfe commissioners report should be made? And how is the mayor or other chief officer to know in any case who have paid their assessments, and who are therefore entitled to receive their deeds? To say that the mayor or other'chief officer should make any deed which the commissioners have reported should be made, would be to nullify and destroy a portion of said § 9. Must that be done? But why should it be necessary for the probate judge or his commissioners to instruct the “corporate authorities” of an incorporated town or city, to whom their mayor or other chief officer should make deeds? . Are not the corporate authorities, the mayor and common council, as competent to determine to whom deeds should be made, as the probate judge and his commissioners are? Cannot the mayor and common council of a town or city be trusted in such a case? Of course they might make mistakes, but so might the probate judge and his commissioners; and they would be no more likely to make mistakes than he or his commissioners would. But mistakes would not be fatal, by whomsoever they might be made. Mistakes could not destroy the rights of the occupants. Mistakes could not abrogate the right of an occupant to his property. But such mistakes might be corrected in any proper court of justice. Even if the deed should be made and delivered to the wrong person, such a mistake would not be final or conclusive; but it could be corrected in the proper courts.
If, however, we adopt the view of the defendant, then it may be answered, that §4 provides in express terms that the probate'judge shall, in every case, appoint commissioners, etc.; and there is no express provision to the contrary. “At any time,” the statute reads, “after the entry of such town site, the probate judge of the county in which such town may be situated, may appoint three commissioners,” etc. And there is no express provision anywhere to be found in the statutes limiting these general and comprehensive terms. Besides, if § 4 does not apply when the town site has been entered by the corporate authorities, then there is no provision prescribing to whom or in what manner the mayor or other chief officer shall make the deeds. Section 2 provides that whenever the town site shall be entered by the corporate au •thorities, the mayor or other chief officer shall make the deeds; but neither that section nor any other section specifies in terms to whom he shall make the deeds, whether to residents or non-residents, to speculators or to some other class or kind of persons. If § 4 and the following sections do not apply where the corporate authorities have entered the town site, then how is the mayor or other chief officer to' know to whom to make the deeds? And how are all the expenses to be paid ? May the mayor or other chief officer determine arbitrarily to whom the deeds shall be made? The commissioners to be appointed under §4, are to be appointed by the probate judge, who may himself be a nonresident of the town, and entirely disinterested as to the property therein, and the commissioners must be, under the statute, non-residents of the town and entirely disinterested therein. Then may the mayor or other chief officer, who is necessarily a resident of the town, and who may be greatly interested therein, execute deeds arbitrarily to whomsoever he may fancy are entitled to them? If §4 and subsequent sections are no guide to him, then he has no guide, or at least none provided for in express terms. It is true that, under the act of congress, thedand must be entered “in trust for the use and benefit of the several occupants thereof.” But still, if said § 4 and the following sections have no application where the land is entered by the corporate authorities, then the mayor or other chief officer has no way prescribed by statute, by which he can ascertain who are the occupants, and who are entitled to deeds. We would think, however, that whatever the law may be, if any mistake should occur in making deeds, the mistake could be rectified by proper action in the proper court. No mistake of the mayor or of any other officer could defeat the right of an occupant to procure a good title to his land. But the law should not be so construed as to place arbitrary power in the hands of an interested person, and thereby encourage mistakes if the law can reasonably be construed in any other way.
It will be seen from the foregoing that at least a plausible argument may be made on either side of the question. We have endeavored to give the arguments on both sides, and we are inclined to think that the argument of the defendant is the stronger, and therefore we are inclined to think that-the probate judge has no power to appoint commissioners where the town site has been entered by the corporate authorities. He can appoint commissioners only where he himself has made the entry. Whether, when the corporate authorities have entered the town site, there is a casus omissus in the law with respect to the mode of division of the town site among the several occupants, or whether the “corporate authorities,” the mayor and council, the legislative branch of the town or city -government, may, by ordinance or otherwise, provide some proper mode for a proper division of the town site, it is entirely unnecessary for us to determine. When the “corporate authorities” have entered the town site, the legal title is, of course, in them. Now can they not-under their general power to .pass ordinances, etc., prescribe some fair and equitable mode by which their “mayor or other chief officer” can transfer the legal title vested in them (the corporate authorities) to the various equitable owners of the several portions of the town site? It would seem that the “corporate authorities” ought to be able under their general powers to dispose of this property according to law, the same as they would be to dispose of any other property that might be vested in them for any particular purpose.
We are not aware that any probate judge has ever appointed commissioners to divide a town site, or to determine to whom deeds should be made, where the corporate authorities have entered the town site. It would seem from the record in the case of Emmert v. DeLong, reported in 12 Kas. 67, that the mgyor himself, in that case, made the division and determined to whom the deeds should be made. And in the case of Clayton v. School District, 20 Kas. 256, it would seem from the record that the mayor appointed commissioners to make such division, etc., just as the probate judge would where the probate ju^ge has entered the town site.
Judgment in this case will be rendered in favor of the •defendant, and against the plaintiffs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Only a single assignment of error need be considered. This relates to the want of jurisdiction of the subject-matter of the action by the district court. Section 2 of the act of 1867 provides that justices of the peace, within their respective counties, shall have exclusive jurisdiction of all cases arising under the act. (Gen. Stat. 1014.)
An examination of the provisions of the constitution of the state, clearly establishes the fact that this authorization of jurisdiction is not in contravention of that instrument. Sec. 9, art. 3, declares that two justices of the peace shall be elected in each township, whose term of office shall be two years, and whose powers and duties shall be prescribed by law. Sec. 6 of the same article provides that the district courts shall have such jurisdiction in their respective districts as provided by law; and sec. 1 of the act “concerning district courts,” empowers such courts with original jurisdiction of all matters, both civil aud criminal, not otherwise provided by law. (Gen. Stat. 304; Henderson v. Kennedy, 9 Kas. 165.) The conclusion is necessarily reached, that justices of the peace have the exclusive jurisdiction of cases arising under the said act of 1867, and are the sole officers or tribunals to try the same.
To avoid this deduction, counsel for defendant in error insists: First, As that portion of the act providing for the recovery of damages from the owner of the diseased stock, where such disease has been communicated to other cattle, was merely enacting in the form of a statute a remedy already existing under the common law, the provision of the act conferring exclusive jurisdiction on justices of the peace does not apply in civil actions. Second, That if the exclusive jurisdiction of justices reached so far as to include actions for damages under the original act of 1867, it would not include causes of action founded upon the supplemental act of 1872, as amended by the act of 1876.
In answer to the first objection, it is sufficient to say that the legislature, within the limits of the constitution, has the authority to determine the forum which shall try and decide cases, and when that forum has exclusive jurisdiction, suitors cannot seek other tribunals to obtain remedies for their wrongs. But further, in this case, independent of the act of 1867, as amended, the defendant in error had no standing in court under his petition. The cause was tried under this law; the court referred to its sections as establishing the rule of evidence to be followed, and all the instructions were based on its provisions. The petition contained no allegation of negligence against plaintiffs in error; no statement that they knew their cattle were diseased, or even that they ought to have had such knowledge.
In reply to the second objection against the exclusive jurisdiction of the justices, we must hold that the acts of 1872 (ch. 195, Laws 1872) and 1876 (ch. 133, Laws of 1876) are simply a portion of the original act of 1867, and not independent statutes. (Burgess v. Railroad Company, 18 Kas. 53.)
The title of the act of 1872 is “An act to amend an act entitled ‘An act for the protection of stock from disease,’ approved February 26, 1867,” and the title of the act of 1876 is “An act to amend section 2 of chapter 195 of Laws of 1872.” So, if these acts are to be construed as separate and independent statutes, instead of being taken as simply a portion of the amended act, and the whole as a single statute, then the acts of 1872 and 1876 are unconstitutional and void, as the subject-matter therein contained is not expressed in the titles to the acts. (Sec. 16, art. 2, State Const.; Swayze v. Britton, 17 Kas. 625; Commissioners of Sedgwick County v. Bailey, 13 Kas. 600.
Resorting to the rule, that the acts amending sections of a prior act are to be treated as a single statute, the provision of exclusive jurisdiction in section 2 of the act of 1867 is not only applicable to all cases arising under that act, but to the acts amendatory thereof, passed in 1872 and 1876. This result disposes of the case here, and will cause its dismissal in the inferior court, and we decline now to pass upon the other questions presented by counsel in their briefs.
The judgment of the district court must be reversed, and that court directed to dismiss the case for want of jurisdiction of the subject-matter in controversy.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
After the petition had been filed in this case in the court below, the plaintiff in error demurred thereto for several reasons, among others: That there was a defect of parties defendant, and that . Julia A. Burgess, Cornelius M. Burgess, John J. Burgess, Floyd S. Burgess, Luella V. Burgess and John Mower, mentioned in the original action of partition, should be made defendants. The demurrer was overruled, and exceptions taken.
Afterward, the said L. B. Wheat filed a written motion to make the same persons defendants, and have them duly summoned to reply to the,counter-claim of said defendant. This motion was overruled separately as to each of these persons. Exceptions were taken. Thereafter, in the amended answer of said Wheat, it was alleged that said persons were necessary parties to a complete determination and settlement of the questions involved in the action. This allegation seems to have been disregarded by the court below in its findings of fact and law, and also in the judgment rendered. This action of the court was error, and, in view of the judgment rendered, fatal error, demanding a reversal of the same. The action of Mrs. Burgess was instituted to modify a judgment in a partition action in which all the said persons were interested parties, on the ground that it was void from want of jurisdiction in the court of her person.' If Mrs. Burgess and her husband had a homestead interest in the undivided half of the north half of the land partitioned, then she was .a necessary party in that action, and any judgment adverse to her rights in the absence of jurisdiction of her person was void. Upon proper proceedings she could have the same annulled; but she cannot set aside so much of that judgment as she does not like, and retain the benefit of that portion which is satisfactory to her. If she asks to have the lien of the Shannon judgment released and withdrawn from her homestead interests, she at the same time must consent to have the persons interested therein placed in the position they occupied prior to the rendition of the void judgment. It would not be fair to remove from her all the burdens of the judgment because it was void, and permit her to possess all its benefits because she wished to enjoy them. In the partition suit, the Shannon judgment was made a lien on all of the west 160 acres set off to Geo. W. Burgess, and was thus withdrawn from the east 160 acres. This was satisfactory to Shannon, as it increased his security from a lien on a small number of acres to a lien on 160 acres, and under such a decree, it was really immaterial to Shannon whether the division was equitable or not, as he was amply secured. In the present action all of this was changed, with no opportunity to the judgment-creditor to show that the original allotments were unequal, and that of the west 160 was not an equivalent to the interest- levied on in the whole half-section, as no change could be made in said partition as the parties to that suit were not parties to this action. The findings, however, convey the impression that the original allotments were unequal in value, as the other tenants in common with Burgess paid him $300, and also satisfied certain taxes to have him accept the west quarter as his share.
A lien-holder, who is a party in an action of partition, has an interest in a fair and just division of the property, and the right to object to an unequal allotment to his prejudice, and especially is this the case, when the interest of such lien-holder is removed by “the court from the undivided moiety of the whole and attached to an interest in the property assigned to the tenant in common against whose moiety the lien is a charge.
We suppose it will be conceded that, before the court could have set aside the entire judgment in the partition action, all the original parties thereto except the Shannons, whose place Mr. Wheat has taken, should have been parties to the new action. So we think, if there was to be a readjustment of the lien of a .judgment-creditor on the ground that the original judgment was void, this demanded the opening of the case to place the lien of the judgment-creditor in the same condition it was, prior to the rendition of such void judgment. If the judgment was void, it would be paradoxical to call the judgment good for some purposes, and invalid for others, and if there was to be a re-trial of the lien of the Shannon judgment, the other persons named should have been parties. In this way a full and final determination of all the matters involved could have been settled. All of this was denied the plaintiff in error.
Under these views, the judgment of the district court must be reversed, and the court below directed to sustain the demurrer of plaintiffs in error and allow the plaintiff in that court, on proper application being made, to amend her petition by making the persons therein named parties defendant in the action, upon payment by her of all costs made in the district court from the date of the ruling of said court upon the demurrer.
All the Justices concurring. | [
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Marquardt, J.:
Tanya D. Carrington appeals the district court’s ruling that the court never had personal jurisdiction over Robert C. Unseld, Sr.
In January 1990, Carrington visited Kentucky. While there, Carrington had sexual intercourse with Unseld, conceiving L.C.C.U.
On July 28, 1993, Carrington filed a petition requesting a determination that Unseld was the father of L.C.C.U. Carrington also requested orders for support, custody, and payment of past medical bills. The petition was served on Unseld by certified mail at his home in Prospect, Kentucky, on August 16, 1993. Unseld did not file an answer; however, he was represented by counsel from Kentucky and had notice of the impending default judgment.
On October 28, 1993, the district court entered default judgment against Unseld, finding that the court had personal jurisdiction over him and that he was the natural father of L.C.C.U. The district court also entered custody and support orders.
On November 17,1993, L. D. McDonald, Jr., a Kansas attorney, filed an entry of appearance as counsel for Unseld and a motion for reconsideration of the district court’s orders. On December 7, 1993, the district court denied Unseld’s motion for reconsideration; however, the district court delayed execution on the judgment to allow Unseld additional time to provide justification for a modification of the child support.
On December 23, 1993, McDonald filed a motion seeking visitation as well as modification and reconsideration of the child support order. This motion did not challenge jurisdiction, venue, or insufficiency of process. The district court ordered Unseld to file a child support worksheet and to provide proof that he was making child support payments in Kentucky for another child as he had alleged in his motion.
On May 16, 1994, the district court reduced Unseld’s child support payment from $673 per month to $649 per month; however, the journal entry was not filed until January 4, 1995.
On February 22, 1995, Albert J. Lopes filed an entry of appearance on behalf of Unseld “for the limited purpose of determining jurisdiction” and a motion to dismiss, challenging personal and subject matter jurisdiction, venue, and service of process. The motion argued that the initial petition failed to state a claim upon which relief could be granted pursuant to K.S.A. 60-212. Alternatively, the motion requested that the default judgment be set aside.
On November 2, 1995, the district court held: “[Tjhis Court never obtained personal jurisdiction over defendant, whose mini mal ties to the state of Kansas were only peripheral. Even though he subsequently entered the case to attempt modification of the judgment, that entiy could not be said to validate a void judgment.”
Carrington argues that the district court erred in holding that it did not have personal jurisdiction over Unseld. Carrington also argues that Unseld waived his right to contest jurisdiction by filing motions for reconsideration that did not challenge jurisdiction, which resulted in the reduction of his child support obligation. Carrington requests that this court reverse the district court’s decision and order the reinstatement of the district court’s prior orders.
“Whether the district court has jurisdiction is a question of law over which this court has unlimited review.” Grindsted Products, Inc. v. Kansas City Power & Light Co., 21 Kan. App. 2d 435, 437, 901 P.2d 20 (1995); see In re Adoption of Baby Girl B., 19 Kan. App. 2d 283, 288, 867 P.2d 1074, rev. denied 255 Kan. 1001 (1994).
For a court to act upon a claim for relief, the court must have both subject matter and personal jurisdiction over the parties. State ex rel. Secretary of SRS v. Stephens, 13 Kan. App. 2d 715, 716, 782 P.2d 68 (1989).
“Subject matter jurisdiction is the power of the court to hear and decide a particular type of action.” State v. Matzke, 236 Kan. 833, 835, 696 P.2d 396 (1985). Subject matter jurisdiction is the power to decide and not the exercise of that power. Behee v. Beem, 156 Kan. 115, 117-18, 131 P.2d 675 (1942).
Personal jurisdiction is defined as the “[p]ower which a court has over the defendant’s person and which is required before a court can enter a personal or in personam judgment.” Black’s Law Dictionary 854 (6th ed. 1990). “[A] state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist ‘minimum contacts’ between the defendant and the forum State.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 62 L. Ed. 2d 490, 100 S. Ct. 559 (1980); see In re Hesston Corp., 254 Kan. 941, Syl. ¶ 3, 870 P.2d 17 (1994); Source Direct, Inc. v. Mantell, 19 Kan. App. 2d 399, 404-05, 870 P.2d 686 (1994).
On appeal, Unseld argues that the district court had neither subject matter nor personal jurisdiction. Unseld argues that be cause the sexual act took place in Kentucky, the district court did not acquire subject matter jurisdiction. This argument confuses personal jurisdiction with subject matter jurisdiction. While this fact would be relevant as to whether Unseld could be effectively served outside the state of Kansas in order to establish personal jurisdiction under the Kansas long arm statute, K.S.A. 60-308(b)(10), it is not dispositive on the issue of subject matter jurisdiction.
Carrington’s petition states that this action was brought under the Kansas Parentage Act, K.S.A. 38-1110 et seq. K.S.A. 38-1116, which governs jurisdiction and venue under the Act, provides:
“(a) The district court has jurisdiction of an action brought under this act. The action may be joined with an action for divorce, annulment, separate maintenance, support or adoption.
“(b) The action may be brought in the county in which the child, the mother or the presumed or alleged father resides or is found.”
Carrington had requested a custody order. The limitations on subject matter jurisdiction contained in the Uniform Child Custody Jurisdiction Act (UCCJA), K.S.A. 38-1301 et seq., are relevant. See In re Marriage of Mosier, 251 Kan. 490, 493, 836 P.2d 1158 (1992). Generally speaking, a court has jurisdiction under the UCCJA if the child lived with a parent in the forum state for at least 6 consecutive months prior to the commencement of the proceeding. See K.S.A. 38-1302(e); K.S.A. 38-1303.
Carrington’s petition indicates that she and L.C.C.U. had resided in Kansas for approximately 3 years when the petition was filed. Unseld raises no valid challenge to the subject matter jurisdiction of the district court.
K.S.A. 60-212(h) provides:
“(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subsection (g) or (B) if it is neither made by motion under this section nor included in a responsive pleading or an amendment thereof permitted by subsection (a) of K.S.A. 60-215 and amendments thereto to be made as a matter of course.”
“^jurisdiction over the person of the defendant can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance.” (Emphasis added.) Haley v. Hershberger, 207 Kan. 459, 463, 485 P.2d 1321 (1971); Warwick v. Gluck, 12 Kan. App. 2d 563, 568, 751 P.2d 1042 (1988).
In Haley, 207 Kan. at 465, the court stated:
“K.S.A. 60-212 has abolished the old distinction between general and special appearances. A defendant need no longer appear specially to attack the court’s jurisdiction over him. The defense of lack of jurisdiction of the person is waived only when it is not raised by motion or in the answer itself. This is clearly stated by the express terms of K.S.A. 60-212(h). The defense is then waived not because of defendant’s voluntary appearance, but because of the failure to assert the defense within the time prescribed by the rules.
“Preliminary motions which do not constitute a defense or go to the merits of the action do not constitute, a waiver.”
Unseld never filed an answer to the petition. The objective of K.S.A. 60-212 “is to eliminate unnecessary delay at the pleading stage by requiring the presentation of an omnibus pre-answer motion in which defendant advances every available Rule 12 defense.” (Emphasis added.) Marcial Ucin, S.A. v. SS Galicia, 723 F.2d 994, 997 (1st Cir. 1983). The post-judgment motions to reconsider filed by Unseld are not “responsive pleadings” within the typical contemplation of K.S.A. 60-212(h).
Notwithstanding that Unseld’s .motions to reconsidér do not fall within the express terms of K.S.A. 60-212(h), “[t]here are limits in the extent to which a defendant can actively litigate a case without waiving defenses of personal jurisdiction and improper venue.” Reliable Tire v. Kelly Springfield Tire Co,, 623 F. Supp. 153, 155-56 (E.D. Pa. 1985).
In Lomaglio Associates Inc. v. LBK Marketing Corp., 876 F. Supp. 41, 43-44 (S.D.N.Y. 1995), the court held that the defendant’s motion for removal to federal court constituted an appearance that submitted the defendant to the personal jurisdiction of the court. The court noted:
“[A] defendant’s 12(b)(2) objection for lack of personal jurisdiction is waivable. Fed. R. Civ. P. 12(h). If a party requests that the court exercise its power on that party’s behalf, and the request is not preceded ór accompanied by an objection to personal jurisdiction, that party is deemed to have waived its defense of lack of personal jurisdiction. Grammenos v. Lentos, 457 F.2d 1067, 1070 (2d Cir. 1972).”Lomaglio, 876 F. Supp. at 43.
“If a party enters a case, makes no objection to jurisdiction, and asks the court to act on its behalf in some substantive way, it will be held to have waived further objection.” Grammenos, 457 F.2d at 1070; see In re Schwinn Bicycle Co., 182 Bankr. 526, 530 (Bankr. N.D. Illl. 1995).
Unseld asked the district court to exercise its power to modify the court’s previous motion. Unseld also asked the district court to grant him affirmative relief as to visitation with his child. The district court granted Unseld relief by reducing the original child support order. Fourteen months after Unseld requested that the district court exercise its power on his behalf, Unseld filed a motion challenging the district court’s jurisdiction over him.
“A party is not permitted to invoke the jurisdiction and power of a court for the purpose of securing important rights from an adversary through its judgment, and then, after obtaining the benefits sought, to repudiate or question the validity of that adjudication on the ground the court was without jurisdiction.” Aguilera v. Corkill, 201 Kan. 33, 38, 439 P.2d 93 (1968).
“Courts simply cannot be used in that manner.” Wible v. Wible, 153 Kan. 428, 434, 110 P.2d 761 (1941); see Kirby v. Kirby, 143 Kan. 430, 437, 55 P.2d 356 (1936).
Unseld submitted himself to the personal jurisdiction of the district court by filing his motions.
We reverse and remand with instructions that the district court reinstate the orders that were in effect prior to its ruling that it did not have personal jurisdiction. | [
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Prager, C.J.:
This is a workers compensation case. A special administrative law judge awarded Nancy Lawrence workers compensation benefits for a work-related back injury. Lawrence’s employer, Walter Cobler, CPA, Chartered (Cobler firm), and its insurance carrier, Trinity Universal Insurance Company (Trinity), appealed the decision to the Workers Compensation Board (Board). The Board reversed the decision, finding that Lawrence’s claim for compensation was not timely filed as required by K.S.A. 44-520a and K.S.A. 44-557(c). Lawrence appealed to this court.
The facts in this case are not greatly in dispute and are as follows: In Januaiy 1990, Lawrence was working as a bookkeeper at the Cobler firm. Lawrence injured her back on January 10,1990, while pulling a box out from under an office work station. Lawrence testified that she notified Linda Hauschild, the chief administrative officer, or Toni Cook, the office manager, about the accident and went home to take some pain medication. Hauschild denied that Lawrence informed her of the accident. It is undisputed that no one from the Cobler firm ever filed an accident report with the Workers Compensation Director.
Lawrence returned to work the following day, and the next day she went to see her regular physician, Dr. William Lentz, who prescribed medication. Lentz was not the company doctor. Lentz later recommended that Lawrence be hospitalized. She refused. Lawrence claims that Hauschild came to her in March and asked her whether she wanted to file a workers compensation claim. Lawrence said no because she did not want it on her record. On April 19, 1990, Lawrence quit her job.
Lawrence’s condition deteriorated, and she was hospitalized in July 1990. Upon her release, she underwent medication treatment as well as physical therapy. In September 1990, Lawrence sent Toni Cook a Globe Life Insurance Company (Globe Life) credit disability claim form and requested Cook to sign it. Although the claim form stated that Lawrence had been injured in January 1990 while pulling a box out from under a work bench, it did not indicate where the accident occurred and it did not say that Lawrence was making any type of claim against the Cobler firm. The “Credit Disability Claim Form” names Globe Life as the insurance company and Ford Credit Company as the lending institution and states that claim payments are to be made “directly to the lending institution.” At no place does the claim request workers compensation from the Cobler firm or its insurance carrier, Trinity.
On May 29, 1991, Lawrence’s attorney, Paul D. Post, sent the Cobler firm a letter containing a written claim signed by Lawrence for workers compensation for the injury which occurred on January 10, 1990. The claim was heard by a special administrative law judge, who awarded Lawrence workers compensation in the amount of $25,931.34. The Cobler firm and Trinity filed a petition for review with the Board.
In their petition for review, the Cobler firm and Trinity raised a number of issues, including whether Lawrence suffered personal injury by accident arising out of the scope of her employment, whether Lawrence gave timely notice of the accident, whether Lawrence served a timely notice of claim, and whether the Kansas Workers Compensation Fund should bear a portion of the liability for the claim. They also challenged the amount of temporary total disability and medical expenses and the nature and extent of Lawrence’s disability
The Board decided the appeal on the single issue of whether the claim was timely filed, holding that all other issues were rendered moot as a result of its decision. Thus, the sole issue before this court on appeal is whether the Board erred in holding that Lawrence was barred from recovery because she failed to file her claim for workers compensation in a timely fashion pursuant to K.S.A. 44-520a and K.S.A. 44-557(c).
In this case, we will assume that Lawrence was injured in the course of her employment on January 10, 1990; that she reported her injury to Linda Hauschild, the Cobler firm’s administrative officer, or to Toni Cook, its office manager; and that the Cobler firm did not file an accident report. We accept the undisputed fact that Lawrence did not sign a claim for compensation prior to August 25, 1990, when she mailed to Cook a Globe Life credit disability claim form and requested Cook to sign it. This form was sent by Hauschild to the Cobler firm’s insurer, Trinity, shortly thereafter.
The evidence is undisputed that in October 1990, Lawrence applied for social security benefits, which were refused on May 4, 1991. Lawrence then applied to the Cobler firm for workers compensation by a written claim prepared by her attorney, signed May 29,1991, and received by the Cobler firm about June 4,1991. The Form E-l was filed with the office of the Director on June 3,1991, almost 17 months after the accident occurred.
The basic issue is whether the Globe Life credit disability claim form delivered in September 1990 to Toni Cook constituted a written claim for workers compensation as required by K.S.A. 44-520a and K.S.A. 44-557(c).
K.S.A. 44-520a(a) requires a workers compensation claimant to serve a written claim for compensation upon the employer within 200 days after the accident, “or in cases where compensation payments have been suspended within two hundred (200) days after the date of the last payment of compensation.” That limitation period is extended by K.S.A. 44-557(c) to 1 year in cases where the employer fails to file a report of a known accident.
It is well settled that a written claim for compensation under K.S.A. 44-520a(a) “need not take on any particular form, so long as it is in fact a claim.” Bahr v. Iowa Beef Processors, Inc., 8 Kan. App. 2d 627, 633, 663 P.2d 1144, rev. dented 233 Kan. 1091 (1983). Whether an instrument propounded as a written claim for compensation in a workers compensation case or whether a claim for compensation has been filed in time is primarily a question of fact. As to questions of fact, the appellate court reviews the record only to determine whether it contains substantial evidence to support the trial court’s finding, and in doing so all the evidence is reviewed in the light most favorable to the prevailing party below. Only in the event the evidence is undisputed is the question one of law for appellate review. Ours v. Lackey, 213 Kan. 72, 78, 515 P.2d 1071 (1973).
A written claim for compensation prescribed by K.S.A. 44-520a need not take any particular form so long as it is, in fact, a claim. In determining whether a written claim for compensation was served on the respondent, the trial court should examine the various writings and all the surrounding facts and circumstances and, after considering all these things, place a reasonable interpretation upon them to determine what the parties had in mind. 213 Kan. at 79.
In this case, the Board found that the language of the Globe Life credit disability claim form did not claim any sort of compensation from the Cobler firm. There is no demand in the form for workers compensation payments or payment of medical expenses or any language that could be interpreted as a claim for compensation. Likewise, Lawrence did not testify that she intended the claim form to constitute a claim for compensation from the Cobler firm.
Lawrence’s argument is that the Globe Life claim form notified the Cobler firm that she had suffered a work-related injury. Clearly, a notice of an injury does not constitute a claim for compensation. There is more than substantial evidence to support the Board’s finding that the Globe Life credit disability claim did not constitute a claim for compensation. The record in this case contains substantial evidence to support the finding of the Board that Lawrence’s claim for workers compensation was not timely filed as required by K.S.A. 44-520a and K.S.A. 44-557(c).
Lawrence also contends that since the Cobler firm failed to provide her with medical treatment, her treatment with Dr. Lentz should be deemed authorized, thus tolling the statute under the provisions of K.S.A. 1989 Supp. 44-510(b), which provides that “[i]f the employer has knowledge of the injury and refuses or neglects to reasonably provide the benefits required by this section, the employee may provide the same for such employee, and the employer shall be liable for such expenses subject to the regulations adopted by the director.” This issue was decided by the Supreme Court in Solorio v. Wilson & Co., 161 Kan. 518, 523, 169 P.2d 822 (1946), which held that an employee’s procurement of his or her own medical treatment is not the equivalent of compensation payments and the statute of limitations for the purpose of a written claim will not be tolled. We hold that the Solorio case is directly on point and supports the holding of the Board in this case.
Lawrence’s reliance on Johnson v. Skelly Oil Co., 180 Kan. 275, 303 P.2d 172 (1956), is misplaced. Unlike Johnson, there is no evidence that the Cobler firm ever directed, suggested, or otherwise authorized Lawrence to seek medical attention from Dr. Lentz for her alleged injury. Lawrence bases her argument on the fact that the firm “failed to provide medical treatment” and never “directed” her to see any physician. An employee’s procurement of medical treatment from his or her own physician will not toll the statute of limitations for the purpose of filing a written claim for compensation unless there is evidence that the employer directed, suggested, or otherwise authorized the employee to seek medical attention from his or her own physician.
Lawrence’s claim for compensation was not timely filed.
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Gernon, J.:
Darlene Riggs, the county election officer of Graham County, Fred W. Pratt, and Joseph Smith appeal a district court’s ruling that affidavits supporting a petition to recall Pratt and Smith, city councilmen of the City of Hill City, were statutorily sufficient.
Riggs rejected certain petitions as insufficient because a number of the petitions had attached an affidavit attesting, among other things, that “[t]he statements of grounds for recall contained in the recall petition are true to the best of my knowledge and ability.” Riggs contends the attestation should have required that such grounds for recall “are true” as required by K.S.A. 25-4325. The district court found that the affidavits satisfied the requirements of 25-4325. We agree with Riggs and reverse.
This is an issue of statutory interpretation, which is a question of law, and this court’s review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
K.S.A. 25-4325 provides, in pertinent part:
“Before being filed, each petition [for recall] shall be certified by an affidavit by the sponsor who personally circulated the petition. The affidavit shall state in substance that. . . (f) the person signing the affidavit, being duly sworn, on oath states that the statements of grounds for recall contained in the recall petition are true.”
In Lewis v. Wanamaker Baptist Church, 10 Kan. App. 2d 99, 692 P.2d 397 (1984), this court cites a number of other cases in which courts have held that a qualified verification that facts are true to the best of one’s knowledge and belief does not satisfy the requirements for an unqualified verification of facts contained in a lien statement.
In a recall case, Sheehy v. Ferda, 235 Mont. 63, 67, 765 P.2d 722 (1988), the Montana Supreme Court relied on a lien case and held that an affidavit based on the best of the affiant’s knowledge was deficient under the recall statute that required an affidavit to support the truth of the purported facts in a recall petition.
The appellees contend that the substantial compliance doctrine should govern and cite Cline v. Meis, 21 Kan. App. 2d 622, 905 P.2d 1072 (1995), rev. denied 259 Kan. 927 (1996). In Cline, this court held that the recall statute should not be construed so stricdy as to require that signatures on a recall petition be stricken because of minor discrepancies in the addresses accompanying the signatures on the petition and the address of the signers listed on the voter registration books. 21 Kan. App. 2d at 629-30.
We conclude that Sheehy is factually closer to the situation before us. In Sheehy, the court explained that the purpose of the statutory requirement for attaching affidavits to recall petitions is to hold the affiant, under possible penalty of perjury, “to strict accountability for the truth and accuracy of the contents of his affidavit.” 235 Mont, at 67. The court held that an affidavit attesting that the facts alleged in a recall petition are true to the best of the affiant’s knowledge, rather than swearing without qualification to the truth of the alleged facts, did not satisfy the statutory purpose of placing the affiant at risk of perjury charges regarding the material allegations in the petition.
In Lewis v. Wanamaker Baptist Church, 10 Kan. App. 2d at 100-01, this court stated that the purpose of the statutory oath requirements of the Kansas mechanic’s hen statute were to put the signer at risk of perjury charges with regard to the absolute truth of the facts in the Hen statement and a qualified oath as to the signer’s best knowledge of such facts did not satisfy that statutory purpose.
Here, the affidavits attached to the recall petition did not satisfy the essential purpose of 25-4325. The affidavits here did not place the sponsor/affiants under the possible penalty of perjury with regard to the absolute truth of the allegations in the recall petition. Accordingly, we conclude that it was error for the trial court to find that the affidavits presented substantially complied with 25-4325.
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Marquardt, J:
Clarence Ernest Beardslee appeals from the journal entry of the district court which reformed the divorce decree. Clarence argues that (1) the district court did not have the power to reform or modify the divorce decree under K.S.A. 60-260(b)(6); (2) the district court’s order requiring Clarence to sell his residence to pay the mortgages and the joint marital debts violates the homestead exemption to the Kansas Constitution, Art. 15, § 9; and (3) the district court’s order requiring Clarence to pay the joint marital debts is void because these debts were discharged by the bankruptcy court.
Margery A. Beardslee filed a petition for divorce on January 19, 1993. Clarence filed a proposed division of assets and liabilities wherein he would assume all joint debts “contingent upon [his] being awarded the marital residence.” If the real estate was set aside to Margery, Clarence proposed to “equally divide the joint liability.”
On August 16, 1993, the divorce decree was filed. The decree states in part:
“[T]he parties’ property and debts are divided and assigned as reflected in the respondent’s proposed Division of Assets and Liabilities (attached hereto as Exhibit ‘A’), at the values and sums there shown .... All debts shown as joint liabilities’ on page 2 of said proposal are assigned to the respondent.”
Margery filed a motion for reconsideration of the division of assets and assignment of debts. In response, Clarence filed a motion to restore possession of the marital residence and to deny Margery’s motion for reconsideration. The district court held a hearing on August 27, 1993, and Clarence was given possession of the marital residence; however, he was ordered “to refinance the subject real estate on or before January 1, 1994, or in the alternative, to arrange for the release of all obligations of the petitioner on said first and second mortgages on or before said date.”
Clarence filed a petition for bankruptcy on August 15, 1994, 1 day short of a year from the filing of the divorce decree. Margery filed a motion to lift the automatic stay, which was granted by the bankruptcy court.
On December 15, 1994, Margery filed a motion to reform the decree of divorce, requesting that the district court revise the division of property and indebtedness. In her motion, Margery alleged that the division of property had become inequitable since she remained obligated on all of fhe joint indebtedness that Clarence had discharged in bankruptcy. In her brief, Margery also con tends that she remained liable on the first and second mortgages, on the marital residence.
A hearing was held on the motion, and the district court found “[t]hat the Respondent was discharged from all individual indebtedness and all joint marital indebtedness on February 27, 1995.” However, there is nothing in the record to identify the individual debts that were discharged.
In its April 19, 1995, journal entry, the district court characterized the property division of the divorce decree as follows:
“1) The Decree of Divorce filed on August 16, 1993 awarded the marital residence and the equity therein solely to the Respondent in consideration for the Respondent assuming all joint indebtedness of the marriage.
“2) That the joint indebtedness assumed by the Respondent was the second mortgage to Household Finance, a signature ioan to Household Finance, Commercial National Bank Mastercard and Commercial National Bank Visa (now United Missouri Bank Mastercard and Visa) and MBNA indebtedness in the approximate total sum of $22,385.51.
“3) That Respondent, although he was awarded the marital residence contingent upon his assuming all of the joint indebtedness of the parties, did file on August 15, 1994 a Petition in Bankruptcy under Chapter 7 of Title 11 of the Bankruptcy Code as Bankruptcy Case No. 94-21490.” (Emphasis added.)
Based upon these findings, the district court ordered that the marital residence be sold and:
“14) That the proceeds from the sale of the marital residence shall first be applied to pay the first and second mortgage in full, and then to pay all costs of sale including but not limited to realtor’s fees, title insurance and recording fees, etc. . . .
“15) That the remaining net proceeds after paying off the first and second mortgage and paying all costs of sale, shall be placed in an escrow trust account with the firm of Evans & Mullinix, P.A. to be utilized to pay off all joint marital indebtedness of the parties.
“16) That the Respondent shall retain counsel of his own choice who will use their best efforts to negotiate the best pay off possible of the joint marital indebtedness and any remaining net proceeds from the sale of the residence after paying off all joint marital indebtedness of the parties, shall be paid over to the Respondent to be his property.”
Margery’s motion to reform the divorce decree was filed “pursuant to K.S.A. 60-260(b)(6).” In ordering the reformation of the divorce decree, the district court reasoned that it was being done “because the facts existing now, if known by the Court at the time of the entry of the Decree of Divorce, would have created a different result and therefore Petitioner is entitled to the relief requested.”
“As a general rule, a ruling on a motion for relief from a final judgment filed pursuant to K.S.A. 60-260(b) rests within the sound discretion of the trial court and will not be reversed absent a showing of abuse of discretion.” Bethany Medical Center v. Niyazi, 18 Kan. App. 2d 80, 81, 847 P.2d 1341 (1993). “The burden of showing abuse of discretion lies with the party alleging abuse.” In re Marriage of Larson, 257 Kan. 456, 463-64, 894 P.2d 809 (1995).
Clarence fails to state the standard of review for any of the issues, which is in violation of Supreme Court Rule 6.02(e) (1995 Kan. Ct. R. Annot. 29).
Clarence points to Flannery v. Flannery, 203 Kan. 239,243-245, 452 P.2d 846 (1969), where die court applied the general rule that the district court does not retain statutory authority to modify a division of property once it is part of a divorce decree. Flannery, however, does not address K.S.A. 60-260(b). It should also be noted that the facts in Flannery are very different from the instant case.
K.S.A. 60-260(b) provides:
“On motion and upon such terms as are just, the court may reheve a party . . . from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S .A. 60-259(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.” (Emphasis added.)
Although the district court referred to K.S.A. 60-260(b)(6) in its journal entry reforming the divorce decree, Clarence does not discuss that statute or argue that it was inappropriately applied. Ciar ence does not cite any cases interpreting K.S.A. 60-260(b)(6) or similar laws of other jurisdictions. Clarence has not met his burden of showing an abuse of discretion.
“A motion under 60-260(b) must be filed within a ‘reasonable time.’ The reasonable time frame is measured by determining when the movant came into possession of facts justifying the relief as compared to the time when he filed the motion seeking the relief.” Wilson v. Wilson, 16 Kan. App. 2d 651, 659, 827 P.2d 788, rev. denied 250 Kan. 808 (1992).
Clarence filed his bankruptcy petition on August 15, 1994. On October 18, 1994, the bankruptcy court entered an order granting Margery relief from the automatic stay. On December 15, 1994, Margery filed her motion to reform the decree of divorce.
A motion brought under K.S.A. 60-260(b)(l), (2), or (3) must be filed within a reasonable time and not more than 1 year from the date the order or final judgment was entered. See Larson, 257 Kan. at 464. The automatic stay of 11 U.S.C. § 362 (1994) tolls the 1-year time limitation. See K.S.A. 60-519; Turner & Boisseau, Chtd. v. Lowrance, 18 Kan. App. 2d 332, 335-37, 852 P.2d 517 (1993). We hold that the filing of the motion for reformation was within a reasonable time for the reasons that (1) Clarence filed for bankruptcy 1 day before the 1-year anniversary date of the filing of the divorce decree, and (2) contrary to the district court’s order, Clarence had not made arrangements for Margery to be relieved of the first and second mortgage obligations by January 1, 1994.
Clarence argues that the district court’s order requiring him to sell his residence to pay the mortgages and the joint marital debts violates the homestead exemption of the Kansas Constitution, Art. 15, § 9. Margery notes that district courts “routinely order the sale of the marital residence pursuant to an equitable division of property and liabilities.”
This issue requires the court to interpret the Kansas homestead exemption and Kansas statutes governing divorce. Interpretation of a statute is a question of law over which this court has unlimited review. In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, 140, 913 P.2d 213 (1996).
K.S.A. 60-1610(b) states that the “decree shall divide the real and personal property of the parties” and gives the court the authority to order “a sale of the property, under conditions prescribed by the court.” There is no distinction between real and personal property.
Homesteads have been exempt “from forced sale under any process of law” since the ratification of the Kansas Constitution in 1859. See In re Marriage of Johnson, 19 Kan. App. 2d 487, 488, 872 P.2d 308 (1994). The purpose of the homestead exemption is to ensure that a debtor possesses the means to avoid absolute destitution. Bohl v. Bohl, 234 Kan. 227, 230, 670 P.2d 1344 (1983).
A judgment lien does not attach to a homestead unless it is based on one of the exceptions set out in the homestead exemption. Jones v. St. Francis Hosp. & School of Nursing, 225 Kan. 649, 653, 594 P.2d 162 (1979); Johnson, 19 Kan. App. 2d at 489.
Nevertheless, it has long been established that the district court has the power to authorize the sale of a homestead to enforce a lien that is based on a claim for alimony, even in the face of a homestead exemption defense. See Johnson v. Johnson, 66 Kan. 546, 547-48, 72 Pac. 267 (1903); Blankenship v. Blankenship, 19 Kan. 159, 161 (1877). In Blankenship, 19 Kan. at 161, the court recognized that the power to disregard the homestead exemption to enforce the award of alimony is derived from the power of the district court to award the entire homestead.
In Bohl, 234 Kan. at 230-31, the court held that a similar approach should be applied to a property division in a divorce decree. The Bohl court reasoned that because the property division was designed to allocate the marital property equally between the parties, the cases concerning imposition of a lien on the homestead to enforce an alimony award were relevant. 234 Kan. at 231.
The district court’s order that Clarence pay the joint marital debts from the proceeds of the sale of the marital residence presents a different question. We hold that in a divorce action, the district court has die authority to order that the homestead be sold and that any debts owed by the parties be paid from the proceeds.
Clarence argues that the district court’s order requiring him to pay debts previously discharged by the bankruptcy court is void pursuant to the bankruptcy code and the Supremacy Clause of the United States Constitution.
A decision by a federal bankruptcy court as to whether a debt was discharged takes precedence over a decision of a state trial court on that issue. In re Marriage of Ray, 21 Kan. App. 2d 615, 617, 905 P.2d 692 (1995). The Ray court noted: “In general, bankruptcy courts have exclusive jurisdiction in determining the dischargeability of debt. 28 U.S.C. §§ 1334(a) and (c) (1988). Dischargeability of a debt is controlled by the bankruptcy code. See 11 U.S.C. §§ 524 and 1328 (1988).” 21 Kan. App. 2d at 617.
In the journal entry reforming the divorce decree, the district court stated that Clarence “was discharged [by the bankruptcy court] from all individual indebtedness and all joint marital indebtedness on February 27, 1995.” Thus, the district court recognized that Clarence’s portion of the joint debts had been discharged; however, Margeiy was then made liable on those debts, notwithstanding the provisions of the original divorce decree and Clarence’s assurances that he would assume and pay the joint debts of the parties.
Because the bankruptcy court lifted the automatic stay, the district court had the right to make orders dealing with the homestead since it was not a part of the bankruptcy estate. 11 U.S.C. §§ 522(b)(2)(A) (1994), 541 (1994); K.S.A. 60-2301; K.S.A. 60-2312.
Although the district court’s journal entry states that the bankruptcy court discharged Clarence from all joint marital debts, the district court ordered Clarence to pay them, recognizing them as Margery’s debts.
We hold that where one of the joint debtors in a divorce action has been discharged from a marital debt in bankruptcy, the district court has the authority to order that debt to be paid from the marital assets.
Affirmed. | [
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Rulon, J.:
Ernest Dean Lakey, defendant, appeals the sentencing court’s ruling concerning his criminal history and further appeals the court’s refusal to grant his motion for both a durational and dispositional departure. We affirm in part and dismiss in part.
As we understand, defendant entered a plea of guilty to two counts of attempted criminal threat under K.S.A. 21-3419 and K.S.A. 21-3301, both level 10 person felonies. Prior to sentencing, defendant filed an objection to his criminal history as listed in the presentence investigation (PSI) report and additionally filed a motion for durational and dispositional departures from the presumptive sentence.
A review of defendant’s PSI report shows he has multiple prior convictions from California. Defendant concedes that the State produced proof of at least three prior person felonies. The sentencing court found that sufficient proof had been presented on at least five of the person felonies. Defendant argues the court should have ordered that the remaining entries on his PSI report be stricken because the State failed to prove those convictions. De fendant argues that under K.S.A. 21-4714(f), in a subsequent felony sentencing proceeding a court is permitted to take judicial notice of an earlier presentence criminal history worksheet and, thus, the unproven crimes in this criminal history worksheet may prejudice him in the future.
We agree that upon a subsequent felony conviction, a sentencing court can take judicial notice of an earlier presentence criminal history worksheet prepared for crimes committed after July 1, 1993. K.S.A. 21-4714(f). We further agree that the better practice is for a sentencing court to make a finding specifying precisely which prior convictions have been adequately proven and stating that the other crimes listed in the worksheet have not been proven and are not being considered as part of the defendant’s criminal history score. In this way, a subsequent sentencing court can determine exactly which prior crimes were sufficiently proven to justify taking judicial notice.
Here, the sentencing court specifically stated that the State had proven the convictions listed as entries 2, 3, 4, 5, and 6 in the PSI report. Necessarily, the court was finding that the remaining convictions had not been proven. The court then found that it was not necessary to further consider the remaining convictions because defendant was already properly categorized as having a criminal history score of A. Therefore, in any subsequent felony sentencing proceeding, if the State wanted to use the remaining convictions, it would be required to provide proof of those convictions by a preponderance of the evidence upon a defendant’s challenge.
“The sentencing guidelines are based on two controlling factors.crime severity and criminal history of the defendant.” State v. Fifer, 20 Kan. App. 2d 12, 15, 881 P.2d 589, rev. denied 256 Kan. 996 (1994). Consequently, if either the crime severity level or the criminal history score are in error, a defendant could challenge his or her sentence as being an illegal sentence under K.S.A. 22-3504. See State v. McCollum, 21 Kan. App. 2d 40, 46, 895 P.2d 1258, rev. denied 258 Kan. 862 (1995). While it was appropriate for defendant to challenge his criminal history as outlined in the PSI report, the court’s refusal to strike the unproven convictions did not have any effect or prejudice as far as the current sentence is concerned. “Errors which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining do not require reversal when substantial justice has been done.” State v. Bell, 239 Kan. 229, Syl. ¶ 2, 718 P.2d 628 (1986).
Next, defendant argues the sentencing court erred in denying his motion for both a dispositional and a durational departure. Specifically, he claims that because his prior convictions occurred anywhere from 21 to 37 years earlier and because he was a good candidate for probation, the court should have granted his motion. Defendant contends the court erred in denying his motion and finding there was no provision in K.S.A. 21-4716 for considering the age of prior convictions as a reason for a departure.
This record shows that defendant was sentenced to 12 months for each count, both sentences to be served concurrently. This sentence is within the presumptive sentencing grid box for defendant’s crime and criminal history score. As such, under K.S.A. 21-4721(c)(1) and this court’s decision in State v. Myers, 20 Kan. App. 2d 401, 888 P.2d 866 (1995), we have no jurisdiction to review such a sentence. Under K.S.A. 21-4721, this court can only review the facts and reasons used in support of a departure, not the decision whether to depart. See State v. Wilson, 111 Or. App. 147, 149, 826 P.2d 1010 (1992), quoted in State v. Richardson, 20 Kan. App. 2d 932, 938, 901 P.2d 1 (1995).
Finally, defendant argues the Kansas sentencing guidelines are unconstitutional because they deny him equal protection and due process of law. We note this argument was not raised in the district court and therefore cannot now be raised on appeal for the first time. See State v, Gideon, 257 Kan. 591, Syl. ¶ 4, 894 P.2d 850 (1995).
Affirmed in part and dismissed in part. | [
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|
Lewis, J.:
This is a quiet title action in which the relevant facts occurred from 1937 to 1941. The plaintiff is the owner of the following described real estate located in Russell County: “[t]he Northwest Quarter (NW/4) of Section Sixteen (16), Township Fourteen (14) South, Range Twelve (12) West, Russell County, Kansas.”
There has been production of oil and gas from this property since 1981. The plaintiff filed this action to quiet his title to the royalty interests in the subject property. The defendants maintain that they own royalty interests in the production described above, which vested in 1943. The trial court granted summary judgment to the plaintiff on the theory that any royalty interests claimed by the defendants are void because they violated the rule against perpetuities.
In 1937, Robert E. Kaps (decedent) died testate. At the time of his death, he owned not only the real estate involved in this action but several other quarter sections of real estate in Russell County and one quarter in Ness County.
The will of the decedent, in Paragraphs Second through Eleventh, devised and bequeathed to each of his children an “undivided one-sixty-fourth of all the Oil, Gas and other Minerals produced and saved from the following described land prior to May 26, 1951.”
Paragraph Second of the will of the decedent described four quarters of real estate in Russell County and one in Ness County. Included in the real estate described in Paragraph Second of the will is the real estate which is the subject of this action. Also included is the southwest quarter of 32-14-12, which is vital in the determination of issues raised in this action. The will went on to devise the fee simple interest in each quarter section to a separate child subject to the joint royalty interests bequeathed to each child in all the real estate in Paragraphs Second through Eleventh of the will.
The devisees and legatees of the decedent all entered into two agreements relative to the joint royalty interests created by the will. The first agreement was entered into in 1938 and the second in 1941. These agreements recite that the parties “desire to forever setde any possibility of a dispute or misunderstanding as to the intention of the testator, Robert E. Kaps, deceased, in willing and bequeathing an undivided one-sixty-fourth (V<h) interest in all of the oil, gas and other minerals.” This lawsuit appears to be proof that despite their efforts, the parties were not entirely successful in eliminating “all misunderstandings” concerning the joint royalty interests created.
As we have pointed out, there were two agreements entered into on this subject. Since the 1941 agreement basically replaced the earlier contract between the parties, it is on that agreement which we must focus.
The 1941 agreement reads in pertinent part as follows:
“AND WHEREAS, under Paragraphs SECOND to ELEVENTH, inclusive, the said decedent, Robert E. Kaps, willed and bequeathed to certain parties to this agreement certain interests in the fee title and certain interests in the oil, gas and other mineral rights in and to the following described premises situated in Russell County, Kansas, to-wit:
North East Quarter of Section Seventeen, in Township Fourteen South, in Range Twelve West of the Sixth P. M., North West Quarter of Section Seventeen in Township Thirteen South, in Range Thirteen West of the 6th P. M., North West Quarter of Section Sixteen, in Township Fourteen South, in Range Twelve West of the 6th P. M., South West Quarter of Section Thirty Two, in Township Fourteen South, in Range Twelve West of the 6th P. M.,
together with the following described real estate situated in Ness County, Kansas, to-wit:
South East Quarter of Section Fifteen, in Township Seventeen South, in Range Twenty Two West of the 6th P. M.
“AND WHEREAS, under the above numbered paragraphs of said Will are set forth bequests to each of the following persons: Carl W. Kaps, William F. Kaps, Della L. Fritschen, Elsie Prediger and Freda Marie Major, an undivided one-sixty-fourth (y64) of all of the oil, gas and other minerals produced and saved prior to May 26, 1951, from all of the above described real estate, said interest in oil, gas and other minerals to pass to the remaining devisees not given the fee simple title to the respective tracts hereinbefore referred to.
“AND WHEREAS, the recitation in said will of an undivided one-sixty-fourth (Yet) of all the oil, gas and other minerals has led to a dispute and misunderstanding as to the exact fractional interest the testator desired to will and bequeath, that is, whether the testator desired to convey a one-sixty-fourfh (y64) of all his royalty interest or a one-sixty-fourth (Yet) of all of the oil and gas including both the royalty interest and leasehold working interest itself.
“AND WHEREAS, the parties to this agreement desire to forever settle any possibility of a dispute or misunderstanding as to the intention of the testator, Robert E. Kaps, deceased, in willing and bequeathing an undivided one-sixty-fourth (V64) interest in all of the oil, gas and other minerals and for the purpose of clarifying these bequests, said parties have agreed that the interpretation of said will and the intention of the testator at the time of the making of said will was to convey an undivided one-eighth (%) of the royalty interest or twenty (20) royalty acres on each Quarter (Yt) Section of One hundred-sixty (160) acres, wherever the bequest of‘an undivided one-sixty-fourth (Ym) of all the oil, gas and other minerals produced and saved’ is used.
“AND WHEREAS, the parties to this agreement further desire to expand and enlarge the oil and gas royalty rights hereinbefore referred to beyond the time designated in the Will of Robert E. Kaps, deceased, to continue and be in full force and effect until April 1,1956, and as long thereafter as oil or gas is contin uously produced from these premises or any portion thereof or said property is being continuously developed and operated.
“AND WHEREAS, the parties to this agreement further desire that in the participation of oil and gas royalty rights, none of the parties interested except the owner of the fee simple title to each respective tract shall have any interest in or right to any of the oil and gas lease bonuses, rentals or delayed rental payments.
“NOW THEREFORE, for and in consideration of the covenants hereinbefore and hereinafter stipulated and set forth, the parties to this agreement mutually contract and agree that:
“1. Under the Will, of Robert E. Kaps, deceased, wherever the bequest or statement ‘an undivided one-sixty-fourth (Vk) of all of the oil and gas or other minerals produced or saved prior to May 1, 1951’ is used, it is understood that such a statement shall bequeath and devise an undivided one-eighth (Vs) royalty interest or twenty (20) royalty acres, undivided, under each Quarter (Vi) Section to such lands as are described, set forth and referred to under paragraphs SECOND to ELEVENTH, inclusive, and the same shall be enlarged and expanded to provide for such bequest or bequests to continue and be effective until April 1, 1956, and as long thereafter as oil or gas is continuously produced from these premises or any portion thereof or said property is being continuously developed and operated.
“2. That the interest in the oil, gas and other minerals provided for set forth and referred to under Paragraphs SECOND to ELEVENTH, inclusive, of the Will of Robert E. Kaps, deceased, shall convey only the royalty interest in the oil, gas or other minerals actually produced and shall not include any interest in the oil and gas lease bonuses, rentals or delayed rentals which may now or hereafter accrue but the same shall be the exclusive property and interest of the fee simple title owner of each of the respective tracts.” (Emphasis added.)
The resolution of the issues presented on this appeal rests on our interpretation of the language quoted above.
We begin by noting that all die parties agree that the interest created by the decedent’s will and by the parties’ agreement in 1941 were “royalty” interests and not “mineral” interests. Generally, this is of some significance insofar as the rule against perpetuities is concerned. Royalty interests aré personal property that ordinarily come into being upon the execution of an oil and gas lease, whereas mineral interests are interests in real estate which are vested immediately when created and which remain vested for whatever term is stipulated. The rule against perpetuities is a rule which works to void interests which do not “vest” within a certain time. It is, therefore, more likely to apply to something like a royalty interest than it is to a mineral interest because of the vesting of two interests. In this case, however, there is no significance between a “royalty interest” and a “mineral interest” in the application of the rule against perpetuities, despite the contrary argument of the plaintiff.
The parties submitted the decision in this case to the trial court on stipulated facts. “When a case is submitted to the trial court on stipulated facts ... we are afforded the same opportunity as the trial court to consider the evidence and to determine de novo what the facts establish.” Shade v. Wheatcraft Industries, Inc., 248 Kan. 531, 536, 809 P.2d 538 (1991).
In addition, we note that this decision rests on the construction of a written agreement. “Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect.” Federal Land Bank of Wichita v. Krug, 253 Kan. 307, Syl. ¶ 2, 856 P.2d 111 (1993).
As a result of our standard of review in cases of this nature, we are able to resolve this matter by giving our own construction to the written agreement of the parties.
The trial court resolved this action in favor of the plaintiff by stating:
“The Court, from a study of this case finds that there is a royalty interest involved instead of a mineral interest on the land in question. The term royalty interest was to extend until April 1,1956, and as long or [sic] after as oil and gas is continually produced from the premises or any part thereof. On April 1,1956, there was no production on subject property nor was subject property under oil and gas lease and as a result thereof the Court believes and finds that since there was no production and no lease that there was an end to all interest by the Defendants herein to this matter and finds that the Plaintiff is entitled to quieting his title and [sic] the subject property because of [sic] the purported interest of the Defendants and their issue became void as a violation of the rule against perpetuity [sic] on April 1,1956, and because there was no oil and gas production on the subject property.”
While most of what the trial court said is factually accurate, it failed to deal with the principal argument of the defendants, which we find compelling.
At the time of the 1941 agreement, there was apparently no production of oil and gas on any of the six quarters of real estate described, and it is unknown whether any of these quarter sections were governed by an oil and gas lease. However, since December 3, 1943, there has been continuous production of oil and gas from the southwest quarter of 32-14-12. As we construe the 1941 agreement of the parties, the defendants’ royalty interests in all of the real estate described vested in 1943, when production was obtained from the southwest quarter of 32-14-12, and it has remained vested as a result of that production since that time. Accordingly, we reverse the decision of the trial court in favor of the plaintiff and remand with directions that judgment be entered in favor of the defendants.
The will of the decedent left each devisee and legatee a royalty interest in all six quarters described in the will. Paragraph Second of the will bequeathed to Carl W. Kaps an undivided %4 interest in all of the “oil, gas and other minerals produced and saved” from all six quarters described, including the southwest quarter of 32-14-12 as well as the real estate which is the subject of this action.
Paragraphs Third through Eleventh make essentially the same bequests to the other devisees and legatees.
The agreement of 1941 relates to the same real estate described in Paragraph Second of the decedent’s will. In that agreement, all of the decedent’s devisees and legatees agreed that the royalty interests each received under the will of the decedent should be construed to be “an undivided one-eighth (%) of the royalty interest or twenty (20) royalty acres on each Quarter Section of One hundred-sixty (160) acres.” The parties stipulated that the royalty interest was to last until April 1, 1956, (well within the period of the rule against perpetuities) and “as long thereafter as oil and gas is continuously produced from these premises or any portion thereof or said property is being continuously developed and operated.” (Emphasis added.) It is readily apparent, and we hold, that both the southwest quarter of 32-14-12 and the real estate which is the subject of this action are part of the “premises” described above and that production on the southwest quarter of 32-14-12 is production from “these premises” or “any portion thereof.” We hold that production on the southwest quarter of 32-14-12 vested the royalty interests of the defendants in all of the real estate described in the 1941 agreement, including the real estate which is the subject matter of this action. Those royalty interests will remain vested for so long as there is production from any of the six quarters described in the agreement of 1941.
The rule against perpetuities has no application in this lawsuit. That rule bears little relation to modem business practices, and we are told that we should strive to interpret a document in a manner which will avoid its application:
“ ‘The rule against perpetuities precludes the creation of any future interest in property which does not necessarily vest within twenty-one years after a life or lives presently in being, plus the period of gestation, where gestation is in fact taking place.’ [Citations omitted.] ‘In ruling upon whether a future interest violates the rule against perpetuities, speculation concerning the probabilities of various subsequent developments is not indulged in by the courts, but it is a sufficient violation of the rule if an interest might possibly vest beyond the period permitted.’ [Citation omitted.]
“. . . The rule was first developed ‘to prevent the practice of tying up family property for generations and thereby creating unreasonable restraints upon the alienation of property.’ [Citation omitted.]
“... However, modem courts have recognized that the rule bears little relation to modem business practices and thus have limited application of the rule where possible____[Citation omitted.] ‘A document should be interpreted where feasible to avoid the conclusion that it violates the rule against perpetuities.’ [Citations omitted.]’’ Gore v. Beren, 254 Kan. 418, 428-29, 867 P.2d 330 (1994).
Our interpretation of the parties’ 1941 agreement is in harmony with the mies stated above.
We note that the language used by the parties in the 1941 agreement is identical to the language found in numerous oil and gas leases. That language was designed to hold all of the real estate described in a lease by virtue of production on any portion of that real estate. In Baker v. Hugoton Production Co., 182 Kan. 210, 212-13, 320 P.2d 772 (1958), our Supreme Court, in reference to very similar language, said:
“The instrument grants a base or determinable fee in the oil, gas and other minerals in place in the 3,630 acres described therein. The grant is for a term of twenty years and as long thereafter as oil, gas, or either of them, are being pro duced from said land. The words ‘said land’ refer to the 3,630 acres described in the granting clause. Production on any part of that acreage was production from said land, the legal effect of which was that the mineral interest was perpetuated and extended as to the entire acreage. (Cowman v. Phillips Petroleum Co., 142 Kan. 762, 51 P.2d 988, and Wilson v. Holm, [164 Kan. 229, 237, 188 P.2d 899].)
“It follows that plaintiff Baker’s interest as to the 680 acres, upon which there was no production during the primary term, was continued and perpetuated by virtue of production had upon the 2,950 acres during the primary term, and he is entitled to receive one-fourth of the gas royalties from the 680 acres.”
We recognize that the court in Baker was apparently dealing with a mineral interest other than a royalty interest. That, however, appears irrelevant. Our decision in this case is in harmony with the court’s reasoning in Baker. The plaintiff s quarter section in this case was part of “the premises” described in the 1941 agreement, and production on any part of those premises vested the royalty interests of all of the parties in all of the acreage described. The fact is that production was obtained on the premises in 1943 and that the royalty interests of the defendants have been vested since that time and will remain vested so long as there is any production “from the premises or any portion thereof.”
The plaintiff argues that since the quarter section which is the subject of this action was not covered by an oil and gas lease prior to April 1,1956, the royalty interests of the parties to the agreement never vested in this quarter section. We disagree. It was not necessary that an oil and gas lease be executed on all of the real estate involved in this action for the royalty interests to vest. Those royalty interests vested at the time production was obtained on any portion of the premises. As we have pointed out above, production was obtained on the premises in 1943, and the royalty interests vested at that time.
Since the royalty interests in this case vested in 1943 with production on the southwest quarter of 32-14-12, it follows that the rule against perpetuities was not violated by the 1941 agreement. We reverse the judgment entered in favor of the plaintiff and remand with directions to the trial court to enter judgment on behalf of the defendants.
Reversed and remanded with directions. | [
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Green, J.:
This litigation involves a paternity and child support action brought by the Kansas Department of Social and Rehabilitation Services (SRS) against Edward L. Huffman. On appeal, SRS challenges the child support order established by the trial court. We affirm.
SRS filed a paternity and child support action against Huffman. When the petition was filed, the child was.9 years old. The trial court found that Huffman was the child’s father. The trial court later issued an order requiring Huffman to begin paying child support. SRS appeals from that order.
In reviewing a trial court’s decision on child support, we may reverse only when the trial court has abused its discretion. A child support order entered without compliance with the child support guidelines is an abuse of discretion. See In re Marriage of Emerson, 18 Kan. App. 2d 277, 278, 850 P.2d 942 (1993). “Judicial discretion is abused when action is arbitrary, fanciful, or unreasonable, which is another way of saying discretion is abused when no reasonable person would take the view adopted by the trial court.” In re Marriage of McPheter, 15 Kan. App. 2d 47, 48, 803 P.2d 207 (1990).
SRS first argues that the trial court erred in applying the multiple family adjustment when it calculated the amount of child support Huffman must pay. Section ILL. of the 1994 Kansas Child Support Guidelines, Supreme Court Administrative Order No. 90 (1995 Kan. Ct. R. Annot. 86), provides: “The Multiple-Family Adjustment is used to adjust the noncustodial parent’s child support obligation when the noncustodial parent has legal financial responsibility for the support of other children who reside with the noncustodial parent in addition to the children shared with the custodial parent.”
Section IV.F. (1995 Kan. Ct. R. Annot. 89) provides:
“The Multiple Family Adjustment may only be used by a noncustodial parent when an increase in support is sought by the custodial parent. . . .
“For the Multiple Family Adjustment, if the noncustodial parent has children by another relationship who reside with him/her, the Child Support Schedule representing the total number of children that the noncustodial parent legally is obligated to support shall be used in determining the basic support obligation.”
Because Huffman had two other children living in his home, the trial court used the multiple family adjustment, applying the three-child chart to calculate the amount of support due. SRS argues that this was error because the adjustment is appropriate only “when an increase in support is sought” by the custodial parent. Because no support order previously existed, SRS argues that this is an establishment case, not an increase case.
The trial judge, after noting that the guidelines provide that this adjustment should be used only in increase cases, reasoned:
“I think in a divorce action it’s different than in a paternity action. . . .
“I think the way the guidelines indicate that the additional children in the home cannot be used as a reason to decrease child support unless there’s a request for an increase. So in my vernacular it appears that you can use extra children as a defense but not as an offense, not as a sword, and since this is a new order I think I probably need to take into consideration the other children since it’s a new request for support . . . .”
At the hearing on SRS’s motion for reconsideration, the trial court stated:
“I am viewing this case as I would any other case establishing support after such a long period of time as to be an increase from zero support to the support that I have ordered. I find that the multiple family adjustment is in fact appropriate in this case. This man had this child for some number of years before request for support was asked for and this case filed and this Court will find that the fact that he had other children since that child was bom should not be used against him. That there has been no request for an increase in support prior to this time and so I am viewing this as a request to increase his support. And as noncustodial parent I believe the guidelines give him the right to assert the multiple family adjustment.”
Although we will reverse a trial court’s ruling on child support only when the trial court abused its discretion, this issue involves interpretation of the child support guidelines, which gives us un limited review. See Scruggs v. Chandlee, 20 Kan. App. 2d 956, 957, 894 P.2d 239 (1995).
Section IV.F. (1995 Kan. Ct. R. Annot. 89) provides: “In the instance of shared custody or divided custody, the Multiple Family Adjustment is available to either party in defense of a requested child support increase.” This supports the trial court’s conclusion that the effect of the multiple family adjustment is that a party may use extra children as a defense but not as an offense.
The examples provided in section V.D.3. (1995 Kan. Ct. R. An-not. 92-93) of the guidelines are not helpful. Only two of those examples refer to children from separate relationships and both speak in terms of the noncustodial parent “remarrying,” thus implying that a support order must be entered before other children became a factor. In such cases, the only time the multiple family adjustment would apply is when support modification is at issue, not when support is initially established.
These examples not only fail to address the present situation, where support is not established until the noncustodial parent has other children in his care, but they also do not address situations where a second marriage ends in divorce and the noncustodial parent has custody of children from a previous marriage.
If the multiple family adjustment may be used only when increasing an existing support order, and not when initially establishing a support order, then a noncustodial parent’s legal financial responsibility for supporting other children who reside with that parent would never be a factor when establishing support. Such an application would be inequitable to the noncustodial parent.
In a case that we determined fell outside the guidelines, we stated:
“The guidelines are, after all, only guidelines. They do not purport to cover every conceivable situation and do not provide an answer to every conceivable question. The Supreme Court, in enacting these guidelines, did not intend to supersede K.S.A. 1990 Supp. 60-1610, nor can these guidelines be held to render a trial judge powerless to make awards based on ‘all relevant factors.’ The case at bar may not fit the guidelines with preciseness and exactness. [Petitioner] is simply not employed as that term is generally used. Yet, without some help with child care costs, her future employment may be tied to the minimum wage.
“We are persuaded that, where a case falls factually outside the child support guidelines, those guidelines do not limit the authority of the court. Under such circumstances, our review is strictly one of abuse of discretion. Insofar as the guidelines are designed to deal with the question of child care costs, we hold that this case falls outside of those guidelines. The generally accepted definition of the term used in the guidelines do not fit the facts here. That does not mean that child care costs may not be awarded in any event. It simply means that the definition used in the guidelines is irrelevant to a determination of whether the court abused its discretion.” In re Marriage of McNeely, 15 Kan. App. 2d 762, 769, 815 P.2d 1125, rev. denied 249 Kan. 776 (1991).
Here, the present case is not controlled by the child support guidelines. The provision that the multiple family adjustment is to be used only “when an increase in support is sought” does not fit these facts. Consequently, the trial court did not abuse its discretion in using the multiple family adjustment in determining the amount of support owed by Huffman.
SRS next complains that the trial court erred in applying an adjustment for income tax considerations to Huffman’s child support obligation. It argues that “there is a presumption in the child support guidelines that the parties agree to alternate the income tax exemption unless evidence is presented indicating otherwise.” It further argues that there was no evidence at all regarding income tax considerations.
SRS is correct that there was no evidence regarding income tax considerations. It is not correct, however, that the guidelines provide a presumption on this issue. Section V.E.3. (1995 Kan. Ct. R. Annot. 98) of the guidelines provides:
“If the parties agree to share the economic benefits of the income tax exemption for a minor child, this section shall not be used. If the parties are unable to agree to share or alternate the exemption or, after agreeing the custodial parent refuses to execute IRS Form 8332, the court shall consider the economic effect to both parties and may adjust the child support. The court may also consider any other tax impacts.”
Nothing in this section indicates that there is a presumption that the parties agree to alternate the income tax exemption unless the evidence indicates otherwise.
At the hearing on SRS’s motion for reconsideration, the trial court asked if there was a proffer of testimony that the mother would alternate the tax exemption. SRS’s counsel responded in the negative. The trial judge then stated, “Well, if there’s no testimony then that will stand in terms of me giving the defendant the appropriate tax credit that would be available to him if he were allowed to claim the child every other year.”
Because there was no evidence of an agreement to share or alternate the tax exemption, the trial court was required to consider the economic effect to both parties and could adjust the child support accordingly. Therefore, the trial court did not abuse its discretion in allowing Huffman a credit for tax considerations.
SRS next argues that the trial court abused its discretion by not deducting from the mother’s income a preexisting child support obligation paid to children not in her custody. Section V.C.2. (1995 Kan. Ct. R. Annot. 91) of the guidelines provides: “Preexisting child support obligations in other cases shall be deducted to the extent that these support obligations are actually paid.”
The only citation supporting SRS’s assertion that the mother pays a preexisting child support obligation is to the mother’s domestic relations affidavit, which is appended to SRS’s brief, but which is not in the record on appeal. This information cannot be considered by this court. Kansas Supreme Court Rule 6.02(f) (1995 Kan. Ct. R. Annot. 29); see Cline v. Tittel, 20 Kan. App. 2d 695, 702, 891 P.2d 1137, rev. denied 257 Kan. 1091 (1995).
Although there was testimony given at the hearing regarding Huffman’s preexisting child support obligation, no testimony was given regarding the mother having such an obligation. Thus, there is nothing in the record to support the assertion that she pays a preexisting child support obligation. As a result, the trial court did not abuse its discretion in not deducting from the mother’s income an amount for a preexisting child support obligation.
Finally, SRS argues that the trial court abused its discretion in determining Huffman’s gross income. The trial court determined his income to be $767 monthly. SRS argues that this is in error because Huffman testified that his monthly gross income was $825, that the child support worksheet showed that he grossed $825 monthly, and that some 2 years before the hearing he stated on a loan application that he earned $12,000 to $15,000 annually. SRS also asserts that the value of Huffman’s assets should be used in determining his gross income.
Huffman’s domestic relations affidavit is not in the record on appeal, and there is no testimony regarding its content in the record; therefore, any assertion regarding its contents is irrelevant. As for Huffman’s testimony, at one point he testified that he currently grossed $800 a month, and at another point he testified that he currently grossed $825.
Huffman also testified that he is self-employed and submitted tax returns for the years 1989 through 1993. These retums are not in the record, but there is some testimony about them. Huffman’s testimony was that his gross income ranged from a high in 1992 of $24,959, to a low in 1989 of $9,125.
As for Huffman’s assets, his testimony was that he owns a house free and clear, which he built himself and which has a tax appraisal of $50,000. He also is purchasing 10 acres of land, on which he pays $150 a month and owes $6,000.
SRS argues that the value of Huffman’s assets together with "his testimony and affidavits unequivocally require a reasonable person to find that Huffman earns at least $825 per month. Section II.F. (1995 Kan. Ct. R. Annot. 85) of the guidelines provides: “The Self-Employment Gross Income is income from self-employment and all other sources.” Section II.H. (1995 Kan. Ct. R. Annot. 86) provides: “Domestic Gross Income for self-employed persons is self-employment gross income less Reasonable Business Expenses.” Section II. G. (1995 Kan. Ct. R. Annot. 86) defines reasonable business expenses, in pertinent part, as “those actual expenditures reasonably necessary for the production of income.”
The trial court indicated at the close of the hearing that it was going to review all of Huffman’s tax returns “to attempt to discover reasonable business expenses.” The only reported case that discusses computing self-employment income under the child support guidelines is In re Marriage of Lewallen, 21 Kan. App. 2d 73, 895 P.2d 1265 (1995). There, the issue was whether the trial court abused its discretion in excluding depreciation as a necessary business expense. The Lewallen court pointed out that it was in the discretion of the trial court “to determine whether depreciation is reasonably necessary for production of income.” 21 Kan. App. 2d at 74. Similarly, a trial court also has discretion to determine the domestic gross income for self-employed persons, including the amount of reasonable business expenses to be deducted from self-employment gross income.
SRS complains that because Huffman testified that he currently earns $825 a month, that should be his domestic gross income, not $767 based on his 1993 tax return. Section II.D. (1995 Kan. Ct. R. Annot. 85) of the guidelines provides in pertinent part: “In determining Domestic Gross Income, it may be necessary for the Court to consider historical information and the seasonal nature of employment.” (Emphasis added.) Although the emphasized provision is not included in the guidelines’ definition of self-employment gross income, the trial court has discretion to determine a party’s self-employment gross income. That discretion must include consideration of historical information of a party’s income, when that income varies from year to year. Consequently, the trial did not abuse its discretion in determining Huffman’s income to be $767 per month.
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The opinion of the court was delivered by
PoeteR, J.:
Ace Moreland became a member of the defendant, a fraternal beneficiary association, on February 12, 1919, and died April 24, 1920. He held a benefit certificate payable to his wife. In this action she recovered judgment for the face of the certificate, and defendant appeals.
The answer alleged that the contract contained a condition that if the answers in the application for membership and medical examination should not be true in each and every part, the certificate should be void, and that the certificate was issued in consideration of the warranties and agreements made by the assured. It was alleged that the applicant was asked this question: “Have you been under the care of or consulted a physician or surgeon concerning yourself within five years? If so, what ailment, name and address of each physician and surgéo'n and give dates. Ans. No.” It was alleged that the answer was false; that the assured consulted and was under the care of two physicians during the months of October and November, 1918. The application contained the following:
“I further declare and agree, that I have verified each of the foregoing answers and statements from 1 to 36, inclusive, and that I know and understand the contents thereof and that the answers and statements as written herein are as given by me.”
And the further stipulation—
“That the application for .membership by the said Ace Moreland together with the report of the medical examiner were true in all respects, and each and every part thereof held to be a strict warranty and to form the only basis of the liability of the order to said member, or to said member’s beneficiaries, the same as if fully set forth in the certificate issued thereunder.”
The reply alleged that Ace Moreland never directly or indirectly gave the answers, statements or representations and warranties alleged to have been made by him, an4 did not authorize anyone to give or make such answers; but that W. T. Walker, district manager of defendant, and Dr. W. M. Dolan filled out the application blank and wrote the answers to the questions and directed Ace Moreland to sign; that the application was not read to him after being filled out, and he had no opportunity to read it, and that the answers to the questions were unknown to him.
That the deceased had two physicians in attendance when he was “recovering from the flu” was testified to by his wife and by the physicians. It appears that there was a special drive for membership in the defendant association in January, 1919, and that on a certain Sunday several applicants were being examined at the drug store in the town of Hockerville, just over the line in Oklahoma. Eighteen or twenty applications were filled out that same day. W. T. Walker wás district deputy of the order, and Dr-. Dolan was the physician who made the medical examinations. The plaintiff took the deposition of one Ed Endicott, who testified that he was one of the applicants. He was asked to state whether at the time the application of Ace Moreland was being written, Moreland was asked the question: “Have you been under the care of or consulted any physician or surgeon concerning yourself within five years?” Over defendant’s objections, the witness answered, “Well, I don’t remember his saying anything like that to Ace.” The same witness testified, “I overheard quite a few of the questions that were asked Mr. Moreland by Mr. Walker, but I don’t remember now just exactly what he did ask; quite a few of them.”
Plaintiff called as a witness Martha Kelly, who testified: “he was working on-Mr. Moreland’s application when I arrived. I took a seat near Mr. Moreland. Mr. Walker was questioning him. I didn’t listen to all the questions. I was just sitting there; I was listening too, but not to every bit of it. I didn’t pay any attention to all of it; not able to remember all the questions that were asked.” After being asked whether or not she heard certain other questions (not important in this appeal) asked of Mr. Moreland, which she answered in the negative, she further testified:
“Q. I will ask you whether or not you heard the following question read over, and whether or not you heard any answer to it. ‘Have you now or have you ever had any disease of the following named organs; or any of the following named diseases? If yes, then give name of disease, date, duration, re covery complete or incomplete, name and address of physician in blanks below.’ Did you hear that question read to Mr. Moreland? A. No, sir.
“Q. I will ask you whether or not you heard this language read over to Mr. Moreland, by anyone: ‘I further declare and agree that I have verified each of the foregoing answers and statements from 1 to 36, inclusive, and that I know and understand the contents thereof, and the answers and statements as written herein are as given by me.’ Did you hear that read over by anybody to him?
“A. No, sir. I did not see Mr. Moreland sign the application or what was done after the answers were written, to the time for signing. I do not know whether Mr..Moreland took it and read it over; my back was to him. I do not think' the questions propounded to which answers were given were again read over to Mr. Moreland. After the writing was done, it was not reread. I did not overhear other examinations made by the same men there. I made application there that day; my application was made out.”
Over the objections of the defendant both these witnesses were asked whether Walker read over to them “all of these questions I have read to you here when making out your application.” The witnesses answered, “No.”
Miss Kelly said she did not remember that the clause at the end of the blank declaring that she agreed and verified each of the foregoing answers and statements was read to her. She said: “He just handed me the paper and pen and I signed my name and left the drug store. Mr. Walker showed me where to sign my name.”
The testimony of these witnesses was opposed to the positive testimony of Walker who prepared Moreland’s application. The contention is that all this testimony was incompetent and that none of it should have been admitted. It has been held, however, that oral testimony as. to the manner' of making out applications for insurance may be admitted. (Continental Ins. Co. v. Pearce, 39 Kan. 396, 18 Pac. 291; Broady v. Fire Association, 94 Kan. 245, 248, 146 Pac. 343.)
The court instructed the jury that this testimony was admitted for the purpose of throwing whatever light it might cast upon the manner in which Moreland’s application was written out and signed, and for no other purpose, and that the weight, if any, was for the jury to determine.
In respect to representations as to past sickness, it has been said that “The truthfulness of the answers to material questions," being a, part of the warranty, was essential to the- validity of the contract” (Glasgow v. Woodmen of the World, 107 Kan. 354, 357, 191, Pac. 470), and in the same-case that “The jury had no right tq disregard credible testimony merely because the plaintiff testified that she had no knowledge of such consultation and treatment. Negative testimony of that character is entitled to little, if any, weight.” (p. 359.)
In Hiatt v. Woodmen of the World, 107 Kan. 359, 191 Pac. 472, a witness who was present at the medical' examination of the assured, testified that no more than 10 minutes was occupied in the examination ; and in artswer to a direct question said that the doctor did not explain to the assured the meaning of the terms used; and in> substance, testified that he did not hear assured asked a certain question. It was held that the testimony was negative in character and not sufficient to overcome the written application and the positive testimony of the physician who made the examination. It was further held that the false answers in the application annulled the certificate.
We think it cannot be held that this testimony as to the manner in which Ace Moreland signed the application and what was said to him was not admissible. The court properly instructed the jury as to the purpose for which it was admitted.
■ It is contended, however, that it wras error to admit testimony of the other applicants as to the manner in which their medical ex-. amination and applications were taken. The witness. Endicott testified that not more than 25 or 30 minutes was required to take the applications and the medical examinations of Moreland and himself. The fact that there were a large number of applicant’s being examined during the period from about noon until 3 o’clock in the afternoon was a circumstance which the jury would have a right to consider; and for the same reason we think, that, in view of the circumstances under which Mr. Moreland’s application and exami- ' nation was taken, it was not error to permit the witnesses to testify to what occurred when they were examined. It is true that some of their testimony was purely negative in character, but Miss Kelly testified with some positiveness that she did not hear and did not believe that this particular question upon which the defense is based was asked of Moreland or read over to him before he signed the application.
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The opinion of the court was delivered by
JohNstoN, C. J.:
This was an action to recover an amount alleged to be due G. E. Minor on an oil and gas transaction and out of a fund that had been deposited in escrow with the bank. It appears that Mott & Kohler, and Steiert & Missimore, owned oil and gas leases covering 4,080 acres while Minor, the plaintiff, was a broker dealing in such leases. The owners made an oral contract with Minor to find a purchaser for the leases, the terms of which are in dispute. Minor claimed that the owners were to have $10 per acre for the acreage, $35,000 was to be used for drilling a well on the property, $2,500 for drilling purposes, and $5,000 was to be deducted for the cost of a rig and other equipment, and that he was to have any amount over those sums for which he could sell the acreage. The owners of the leases claimed that they were to have $50,000 from the sale of the acreage, $35,000 was to be provided for the cost of the derrick and other equipment as well as the expenses in connection with, drilling the well, and the plaintiff could have any amount over and above these sums that he was able to procure for the property. He procured a purchaser for the property for the price of $125,000, but by reason of a defect in the title of part of the acreage, the amount received was $115,195.20, which was placed in escrow in the bank. A part of the fund was expended in furnishing the equipment, drilling a well and other expenses, and it was agreed among them that the distribution of the balance should be made on December 22, 1919. The parties arrived at the bank on that day in Herington, except Minor, who was delayed by reason of a late train. In his absence the other parties proceeded to make a division, and drafts were issued by the bank to the several parties and Steiert & Missimore took the share of Minor for delivery to him. After the parties had left Herington, Minor arrived, called on the bánk president and learned that the division had been made. He inquired of the bank officer as to the plan of the division and of the portion that had been allotted to him, and learned that his share was determined to be $24,116.80. The bank officer told Minor that he could not tell him exactly the amounts as he did not have the papers with him, but that if Minor desired he would cancel the credit issued to the other parties and stop payment on the drafts which were issued in the settlement in the division of the money. Minor did not require this, but upon learning that his drafts were in the possession of Steiert & Missimore, of Wichita, he went there. There is a conflict in the testimony as to what transpired between that firm and Minor, but the result was that the drafts were delivered to him and he afterwards cashed them. On one side it is contended that the drafts were accepted in settlement of the controversy and on the other that they were accepted to apply on the account, the balance due to be determined by a subsequent accounting and settlement. The jury found in favor of Minor against all the parties, including the bank. The bank, as well as the other defendants, appeal.
As to the bank, the findings were that it received nothing for its services in handling the fund and that it was free from any fraud or wrong in the matter or of any attempt to cheat or wrong the plaintiff. There was a further finding that the plaintiff was informed on the evening of the day the settlement was made that the drafts had been issued by the bank to plaintiff for his share of the proceeds as computed by the defendants at the time of the settlement, and that such drafts were in the hands of defendants, Steiert & Missimore, for delivery to him, but they also found that the bank was guilty of a want of ordinary care in paying out this money as it did, although the plaintiff had accepted the checks that had been issued.
As to the other four parties there is a specific finding that the drafts were accepted to apply on account but that the plaintiff knew that the drafts had been set aside as his share of the fund and accepted them knowing of such apportionment.
The bank contends that when the plaintiff learned that a settlement had been made and a division of the proceeds were on deposit, and that the bank had issued drafts to him for his share as the same was computed, and that when he complained of the division, the bank informed him that if he so desired the bank would stop payment on drafts that had been issued and cancel the credit, he did not require this to be done, but instead went at once to Wichita and obtained the drafts and cashed them.
On the facts found, the plaintiff is not entitled to recover damages from the bank, whether or not there was accord and satisfaction as between him and the other defendants, and notwithstanding the bank was in fault in issuing, the drafts upon the adjustment made by the other defendants. The plaintiff’s action precludes him from' holding the bank responsible for any loss sustained by an improper division of the fund. The jury acquitted the bank, as we have seen, of any fraud or of conniving with the defendants to wrong the plaintiff in any manner. It was not paid anything nor was it promised any payment for handling the fund placed in the bank. When the plaintiff learned that a settlement and division had been made in his absence and drafts had been issued, those for his share having been turned over to Steiert & Missimore for delivery to him, and he had raised a question about the amount allotted to him, the bank president, as already shown, offered to cancel the credits issued to the defendants and to stop payment on all the drafts issued in the distribution of the fund. This step would have restored the fund and remitted the parties to the situation they occupied before the settlement and division was made. The plaintiff chose not to accept the offer and did not desire a recall of the fund, but rather, he chose to follow the defendants to Wichita, where he opened up negotiations for a settlement and division with the parties who held the drafts that had been issued. His action in rejecting the offer to obtain a return of the funds and his subsequent acceptance of the drafts that had been issued effectually waived any right he had against the bank for the premature delivery of the drafts that were issued. The bank was entitled to judgment upon the findings that were returned.
The controversy between the plaintiff and the other defendants has assumed a different aspect. The division of the proceeds of the venture had been made in the absence of the plaintiff, and there was a dispute between them as to the terms of their agreement, and of the payment of expenses incurred in carrying it out. According to the testimony and findings, as soon as the plaintiff learned of the division that had been made in his absence, he at once called on the defendants and complained of the apportionment. They said they would later fix the division and make it all right with him, stating that they would prepare a statement and furnish him all the bills of expense. Subsequently a meeting to effect a settlement was held in Kansas City but an agreement was not reached. At the previous meeting in Wichita, when plaintiff was protesting against the holding of the meeting in his absence, he accepted the drafts that had been made out as his share of the proceeds, and the question is, whether such acceptance was made as payment in full of his share or only a payment on account, leaving any balance due to be fixed in future negotiations and settlement. This question was submitted to the jury, and it found that he accepted the draft to apply on account. The division made in plaintiff’s absence, of course, was not binding on him. However, if the amount had been tendered as full payment of his claim, and had been accepted in satisfaction of it, it would be an accord and satisfaction, although a much greater amount may have been due on his claim, and although he may have protested that more was due. (Neely v. Thompson, 68 Kan. 193, 75 Pac. 117.) It is equally well settled that accord must precede satisfaction of a disputed claim. Was there an accord between the parties that the payment was made and accepted in full satisfaction of the claim? If there was no express agreement, were the acts and declarations of the parties in the tender and acceptance of payment such as to imply an agreement that the payment was received in full discharge of the demand? One who accepts a tender on that condition is estopped to ask for further payment. However, it takes the concurrence of both parties to make a payment ah accord and satisfaction. In Matheney v. El Dorado, 82 Kan. 720, 109 Pac. 166, syl. ¶ 1, it was held:
“To constitute an. accord and satisfaction, the agreement that a smaller sum shall be accepted in discharge of a larger one originally claimed must have been entered into by the parties understanding^ and with unity of purpose.”
The same view was expressed in Harrison v. Henderson, 67 Kan. 194, 72 Pac. 875, as follows:
“An accord and satisfaction is the result of an agreement between the parties, and, like all other agreements, must be consummated by a meeting of. the minds of the parties, accompanied by a sufficient consideration. If the creditor is to be held to abate his claim against the debtor, it must be shown that he understood that he was doing so when he received the claimed consideration therefor.” (p. 200.)
In Brigham v. Dana, 29 Vt. 1, it was said that:
“A sum of money paid and received will not operate as a full settlement although the payer so intended it, and would not have paid it if he'had net understood that such would be its effect, but in reference to which he made no such express condition, if the payee did not so understand it, and would not have received it upon such an understanding.”
While the defendants had set aside the money represented by the drafts as the defendant’s share, and that later these drafts were delivered to and accepted by him, it does not appear that the tender was so made that the plaintiff had no alternative but to accept them in full payment of his share. It does not appear that payment was made and received with that understanding. On the other hand there is evidence that it was received on the understanding that an accounting would be had upon which the defendants would fix or make it right with the plaintiff. There could be no extinguishment of the claim if the matter was left open for further arrangement or settlement. (1 C. J. 527.) Here it was tendered and accepted as a payment on account; the balance, if any due, was to be determined by a full accounting thereafter to be made, and therefore it did not constitute an accord and satisfaction.
Complaint is made of an instruction as to accord and satisfaction. It is conceded that it contained a correct statement of the law on the subject except that it added a proviso that the plaintiff “was fully informed as to all the items which constituted the settlement.” The settlement and the acceptance of the drafts had to be understandingly made in order that the payment should operate as a discharge of the claim. As was said in Matheney v. El Dorado, supra; “There is no accord as to a settlement unless the parties act understandingly and each has complete knowledge of the essential facts involved.” (p. 723.)
We do not think the clause criticized operated to mislead the jury and was not material error.
From what has been said it is clear that there is no inconsistency between the findings and the general verdict as to the defendants other than the bank, and as to them the judgment is affirmed. The judgment as to the bank is reversed and judgment in its favor directed. | [
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The opinion of the court was delivered by
Marshall, J.:
The action is one in replevin to recover possession of personal property, consisting of household goods. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
A verdict was returned in favor of the plaintiff for the return of the goods or for the recovery of $462.25. Special questions were answered as follows:
“1. Are the goods in question a part of the household and kitchen .furniture kept by the plaintiff and her husband on the O. G. Markley farm at or near Lone Star, Kansas, on May 15, 1920? Answer. Yes.
“2. About August 7th, 1920, was there a balance due on the chattel mortgage given by the plaintiff and her husband to Lone Star State Bank and if so how much? Answer. Yes. 2. S125.00, plus the interest.
“3. Was the balance of such mortgage paid to the said bank by. the defendant after he came into possession of the goods in question? Answer. Yes.
“4. When the plaintiff and her husband signed the bill of sale to E. Morton at Kansas City on August 7th, 1920, was it complete or was it a blank bill of sale? Answer. Blank bill of sale.
“6. From whom'did the defendant get the goods in question? Answer. E. Morton.
“7. At the time the defendant obtained possession of the goods were they' in the Markley house at Lone Star and did E. Morton have the key? Answer. Yes.
“8. From whom did E. Morton get the key to the Marldey house where the _goods were kept? Answer. Mrs. 0. Failey.
“9. When the defendant took possession of the goods in question did he have any notice that E. Morton was not the owner of the goods? Answer. No.
“11. Before bringing this action did the plaintiff make demand on the defendant for the"goods in question? Answer. No.
“12. Before signing the bill of sale to E. Morton did the goods in question belong to the plaintiff or to her husband? Or both? Answer. Plaintiff.”
Judgment was rendered on the answers to the special questions. A motion for new trial was filed but was withdrawn. The plaintiff argues that because the motion for new trial was not ruled on, the sufficiency of the evidence to support the verdict cannot be considered. The plaintiff in her brief states—
“The all important question, it seems to us, for decision on this case, is as to who owned the property and who was entitled to the same at the beginning of the action.”
It is not necessary to consider the sufficiency of the evidence.
The question that disposes of this case is: Did the court commit, error in rendering.judgment in favor of the defendant on the answers to the special questions? This question must be answered in the negative because the' defendant purchased the property from one who appeared to be the owner thereof and who was in possession under a bill of sale signed by the plaintiff, and- at the time of the purchase the defendant did not know that the person from whom he purchased was not the owner of the goods (Sparks v. Bank, 68 Kan. 148, 74 Pac. 619; Finance Corporation v. McCowan, 108 Kan. 622, 629, 196 Pac. 614); and because at the time the defendant purchased the goods, there was an unpaid chattel mortgage thereon that had been given by the plaintiff, which chattel mortgage the defendant paid after he bought the property (Sinning v. Sumpter, 86 Kan. 454, 121 Pac. 332).
The judgment is affirmed. | [
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The opinion of the court was delivered by
BuRch, J.:
The action was one by a bank to recover on its cashier’s surety bond. The plaintiff prevailed, and the defendant appeals.
The bond obligated the defendant to reimburse the bank for loss of money sustained by any dishonest act committed by the cashier in performance of the duties of his office. The bond obligated the bank to give notice to the insurer of any act of the cashier which might be made the basis of a claim, immediately on becoming"aware thereof; provided that the bond should be void if the bank, without consent of the insurer, continued the cashier'in office after becoming aware of any act which might be made the basis of a claim; and provided the bank should make no settlement with the cashier for loss, or do any act whereby the cashier’s liability to the bank, in case of loss, should be changed. The petition alleged: “That by reason of the dishonest acts of said William W. Honomickl while employed as cashier as aforesaid, plaintiff sustained losses as follows:” Then followed three specifications of loss. The answer stated, with definiteness and precision, the defenses to the action. It charged: First, that if the cashier committed.the dishonest acts alleged in the petition, the officers of the bank became aware of those acts, and failed to notify the defendant of those acts; second, that the bank continued the cashier in office, without consent of the defendant, after becoming aware of those acts; and third, that if -the cashier committed any dishonest act, the bank made a settlement of loss, and altered the liability of the cashier to the bank. The court found the particular dishonest acts alleged in the petition were committed; the bank discovered them on January 28; on that day the bank notified the defendant of them, and on the next day discharged the cashier. The court further found the settlement pleaded by the defendant was not made by the bank, did not relate to items of loss sued for, and did not change liability of the cashier to the bank. These findings were strictly within the issues made by the pleadings, were supported by abundant evidence, and necessitated a conclusion of law favorable to the plaintiff, and judgment accordingly.
On cross-examination of directors of the bank, the defendant elicited, without objection, the fact that the cashier had frequently made large overdrafts upon his account with the bank, and the fact that he had frequently made loans to himself and to a partnership of which he was a member, in excess of the amount permitted by the national banking law. Evidence to the same effect was introduced on behalf of the defendant. It is contended these transactions were dishonest acts, of which the defendant should have been notified. The contention is made for the first time in this court.
'The trial was before the court, without a jury, and there is nothing to indicate that counsel for plaintiff or the court understood the testimony referred to was introduced by way of enlargement of the issues. The defendant requested the court to make findings of fact. The requested findings were limited to dishonest acts of the cashier alleged in the petition, and no request was made for findings that the cashier had been guilty of dishonest acts other than those alleged in the petition. It is true that, after requesting findings covering the issues made by the pleadings, the defendant made the following request:
“That if the evidence shows that the plaintiff suffered any pecuniary loss by reason of any dishonest acts of said William W. Honomickl as alleged in its petition, it does not show that the plaintiff ever gave any written notice to the defendant of any dishonest acts shown by the evidence. ...”
If by the words, “any dishonest acts shown by the evidence/' the defendant meant dishonest acts not alleged in the petition, the meaning was too faintly manifested. Until the court’s attention was directed to the subject, and it made or refused findings of dishonest acts outside the issues, a finding relating to notice of such acts could be of no consequence; and it so happens that, when the defendant was inquiring about the cashier’s overdrafts and excessive loans, notice to the defendant of those delinquencies was not inquired about. The result is, the defendant presents to this court a new case, involving issues of fact and of law on which the judgment of the district court was not taken. To consider that case would be to exercise other than appellate jurisdiction.
The defendant contends this court should regard the answer as amended to include the defense now relied on, and the cases are cited in which amendments have been approved or considered as made. In the case of Custer v. Royse, 104 Kan. 339, 179 Pac. 353, cited by the defendant, the judgment of the district court was not reversed for failure tó treat issues as enlarged by consent, but' for other reasons, and in no case cited has an amendment substantially changing the claim or defense, and not suggested to the trial court, been treated by this court as if made, in order to overthrow a judgment. To do so would be unfair to the district court.
Other errors assigned are not deemed to be of sufficient gravity to require special mention and discussion, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was a second action on four negotiable promissory notes.
In the first action the plaintiff claimed to own them by endorsement before maturity as a holder in due course. The answer was a verified general denial and that the plaintiff held them merely for collection, and a further defense was pleaded which might have been good against the original payee or a subsequent holder bound by the same infirmities. The jury was asked; “Is the plaintiff the owner and holder of the notes sued on in this action?” The jury answered: “No.” Plaintiff was defeated, and appealed. This court, in affirming the judgment said:
“Inasmuch, however, as the verdict is clearly based on the plaintiff’s want of title, the judgment obviously does not constitute an adjudication that the defendants are not liable on the notes, and will not operate as a bar to another action thereon whether brought in the name of the bank or of the original payee. It does, however, finally determine that the bank has none of the rights peculiar to the innocent purchaser of negotiable paper. . . .
“The judgment is based wholly on the theory of nonownership and not on the absence of liability.” (Bank v. Amend, 107 Kan. 25, 27, 30, 190 Pac. 739.)
In this action the same facts of ownership which were adversely determined by the jury’s finding and the prior judgment are again asserted, as the sole basis for the plaintiff’s cause of action, although of course the plaintiff does not seek to rely on the rights of a holder in due course without notice.of defenses. But plaintiff’s petition contains no allegation that it had acquired an interest in the notes since the adverse determination of the question of ownership, nor was its petition susceptible of an interpretation that it held the notes merely for collection.
The defendants set up the former adjudication, and particularly the special finding of the jury upon which the former judgment rested.
Plaintiff demurred to this defense and moved to Strike it from the answer. This demurrer and motion were overruled, and plaintiff appeals.
In his brief and argument, the plaintiff says:
“That this appeal is for the purpose of obtaining a more decisive statement of the force and effect of the former decision, recorded in 107 Kan. 25 to 30. . . .
“We believe if the Supreme Court had reversed the case, with instructions to grant a new trial, in which the bank should not be allowed any of the rights peculiar to the innocent purchaser of negotiable paper, the meaning of the court would be clear, and would be in accord with the intent and purpose of the opinion. We believe this court still has the power to explain or modify the opinion in that case, so as to le.ave no doubt as to the intent of the court, and so as to protect the rights of appellant, and allow the bank an opportunity to obtain justice in the matter.”
This being an independent lawsuit, nothing can now be said or done to alter or modify the judgment in the earlier case. (Headley v. Challis, 15 Kan. 602.) All the issues necessarily involved therein are res judicata. (Hays v. Insurance Co., 104 Kan. 230, 232, 178 Pac. 432.) If, as our earlier opinion indicated, a suit were sought to be maintained by the bank under some alleged claim of right to collect on these notes for some lawful owner, and a showing of such right were made, the former judgment would not be a bar. But here plaintiff sues in its former alleged quality of ownership. Its claim to be the owner is founded on precisely the same basic facts alleged the first time, and that claim has been adversely determined. It cannot be relitigated. The jury said the bank did not own the notes, and it is useless for the bank to persist that it does own them; and plaintiff’s demurrer and motion to strike, which were lodged against the defense of res judicata, were properly overruled.
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The opinion of the court was delivered by
Kaul, J.:
This is a second appeal by the defendant, Larry J. Dearman, from a conviction for first degree robbery in violation of G. S. 1949 [now K. S. A.] 21-527. Defendant’s first conviction was set aside and a new trial directed in State v. Dearman, 198 Kan. 44, 422 P. 2d 573.
In this appeal defendant specifies various trial errors relating to the admission of evidence, an instruction, prejudice resulting from a juror’s recognition of a state witness; and he also specifies the conviction was not supported by the evidence and error in the overruling of his motion for a new trial.
The evidence indicates that about 1 a. m., the morning of January 3, 1965, defendant (Dearman), Harvey D. Loyd and Jack Ashley drove Ashley’s 1956 Chevrolet automobile to the rear of Griff’s Burger Bar. They parked the car and entered through the back door of the Burger Bar. Loyd had a gun in his hand and told the three employees of the Burger Bar to lie down on the floor. After identifying the night manager, defendant directed him to open the safe. Then all of the employees were tied and made to lie down on the floor. About $900 was taken from the safe.
Later in the day, the three victims of the robbery viewed photographs at the Wichita Police Station. All three identified the photograph of Loyd and at least one identified the photograph of defendant. Detectives Charles Stewart and Floyd Williamson were present during the viewing of the photographs.
The police dispatcher issued a radio pick up order for Loyd, defendant and a blue 1956 Chevrolet automobile.
Police Officer William Dando was listening to the dispatch when he saw a car answering the description. Dando pursued and stopped the car within a few blocks. Loyd was driving and defendant occupied the front passenger seat. Dando checked Loyd’s driver’s license and made a radio report. Detectives Stewart and Williamson arrived on the scene in a few minutes and Loyd and defendant were arrested.
Ashley, a participant in the robbery, testified for the state giving all the details of the robbery. The evidence, about which defendant complains, was offered by the state to corroborate Ashley’s testimony.
The victims of the robbery and all of the police officers involved also testified for the state.
Defendant first claims error in the admission of a prior conviction in 1956 of defendant in Oklahoma for robbery with a dangerous weapon. He argues that without a showing of similarity of conditions between the Oklahoma conviction and the instant robbery it was improper and prejudicial to allow the jury to consider the conviction for any purpose whatsoever. Defendant further claims the trial court erred in instructing the jury that it could consider such evidence in determining defendant’s intent, motive, plan or system of operation. He claims that the purposes for which such evidence may be considered, as instructed by the court, are not applicable to the facts of this case. Neither contention of defendant has merit. Under K. S. A. 60-455, as well as under many decisions of this court, the evidence was admissible for the purpose of showing identity, intent, motive, plan and inclination. (State v. Davis, 202 Kan. 61, 446 P. 2d 831, cert. den. [March 11, 1969], 394 U. S. 910, 22 L. Ed. 2d 222, 89 S. Ct. 1024; 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, and State v. Wright, 194 Kan. 271, 398 P. 2d 339.)
In State v. Taylor, 198 Kan. 290, 424 P. 2d 612, we held that, where evidence of similar offenses is admitted under the provisions of 60-455, supra, the trial court should submit an instruction limiting the jury’s consideration to the purposes set out in the statute or to purposes analogous thereto. In that opinion it was noted that the rule of this court on the admission of evidence of similar offenses has been incorporated into the body of our statutory law by 60-455. Under the circumstances, the trial court was required to submit the instruction in question and the benefit inures to the defendant rather than against him.
Defendant complains that a coat with a gun and photograph in the pocket thereof were erroneously admitted into evidence. His contention here is twofold.
Defendant first argues the items mentioned were not shown to have been legally seized and, secondly, he asserts that they were not shown to have been the property of defendant. His position in this regard appears to be anomalous, inasmuch as that if he had no interest in the property he would have no standing to object to its seizure. We believe the defendant misconstrued the law applicable to the points raised in this regard. As we have noted, Officer Dando stopped the 1956 blue Chevrolet, because of the radio dispatch which he had just received. According to Dando’s testimony, after the car was stopped, Loyd followed Dando to the patrol car where Dando examined Loyd’s driver’s license. Defendant remained in the passenger front seat of the blue Chevrolet. This was the situation when Williamson and Stewart arrived on the scene. Because of previous identification of Loyd and defendant by witnesses of the robbery, defendant and Loyd were put under arrest by Williamson and Stewart upon their arrival. Defendant and Loyd were fully advised of their rights, following which the search took place. According to Stewart’s testimony, when the coat was found, he inquired of Loyd whether it was his coat — Loyd replied “no, it belonged to Dearman.”
Stewart further testified:
“I asked Dearman — I said, ‘Is this your coat?’ He said, ‘Yes, it is.’ I held it up so they could see it. Of course, the gun was in the inside coat pocket.”
There is no evidence that defendant was detained or restrained by Dando. Defendant remained in the blue Chevrolet. Dando examined Loyd’s driver’s license in the patrol car. Defendant was not under restraint until arrested on the arrival of Williamson and Stewart. Under these circumstances, we believe the arrest was lawful, the search was incidental thereto, and the items in question lawfully seized.
Justification for a police officer’s on-the-spot, warrantless invasion of a person’s personal security, with respect to the protection of the Fourth Amendment to the Constitution of the United States, was discussed in the recent case of Terry v. Ohio, (June 10, 1968), 392 U. S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868, where it was stated:
“. . . But we deal here with an entire rubric of police conduct — necessarily swift action predicated upon the on-the-spot observations of the officer on the beat — which historically has not been, and as a practical matter could not be, subjected to warrant procedure. . . .” (p. 20.)
In the instant case, as a practical matter, Officer Dando had to stop the car and investigate or his alert observation would have been fruitless. It is such practical necessities that are recognized in Terry.
The identification of Loyd and defendant by victims of the robbery and the pick up order dispatched, as a consequence, certainly constituted probable cause for Williamson and Stewart to make the arrest on their arrival. The ensuing search was incidental to such an arrest. (State v. Hart, 200 Kan. 153, 434 P. 2d 999; State v. Jerrel, 200 Kan. 415, 436 P. 2d 973, and State v. Brown, 198 Kan. 473, 426 P. 2d 129.)
The matters of positive identification of the pistol and ownership of the coat go to the weight or credibility to be given such evidence, rather than to admissibility. The pistol, though not positively identified as the gun used in the robbery, nevertheless supported the descriptions given by the witnesses. Under such circumstances, it was properly admitted into evidence. (State v. Myers, 154 Kan. 648, 121 P. 2d 286, and State v. Schneck, 85 Kan. 334, 116 Pac. 823.)
On the second day of the trial it was brought to the court’s attention that one of the jurors’ faces was familiar to the witness Ashley. Defendant moved for a mistrial on this ground. In the absence of the jury the trial court heard the testimony of Ashley on the point. Ashley had never talked to the juror, did not know his name, nor could he remember where he had seen him. After the jury returned its verdict, the trial court questioned the juror. The juror did not know Ashley by name but thought he had seen him a few times, possibly at the TI-KI Lounge. Defendant was unable to make any showing of prejudice.
Under the circumstances, we find no merit in defendant’s conten tion. A trial court’s decision as to the qualification of a juror will not be disturbed on appeal, unless disqualification appears as a matter of law or there has been an abuse of discretion. (State v. Hooper, 140 Kan. 481, 37 P. 2d 52.)
Defendant makes a point of a discrepancy in the technical corporate identity and ownership of Griff’s Burger Bar. Defendant makes a specious argument as to this matter and the point is entirely without merit.
The conviction is supported by ample competent evidence and the trial court correctly overruled defendant’s motion for a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from the judgments in two consolidated cases (Nos. 45,210 and 45,292) in which the district court approved two ordinances changing zoning in the city of Kansas City, Kansas.
As the cases are to be decided on the procedural sufficiency to vest the city with jurisdiction to make the zoning change in each case the general facts may be abbreviated.
On December 14, 1965, the city annexed most of the territory east of the eastern boundary of the Canterbury additions. The annexed territory automatically assumed a single family zoning. The territory included the two tracts in controversy.
Following the filing of two separate petitions for a change of zoning the City Planning Commission first published on December 21, 1965, notices separately covering the two tracts in controversy. The notices, which were the same, except for the descriptions, read:
“Notice is hereby given that the Planning Commission of Kansas City, Kansas will hold a public hearing on the 10th day of January, 1966, at 7:30 p. m., in the City Hall Auditorium of Kansas City, Kansas, upon the petitioned change of zone from “C” single family District to “E-l” office & professional District on the following described property: [tract described]
“Tentative recommendation of the City Planning Commission — Approve. All persons interested in said premises and all persons owning property in said neighborhood who desire to be heard, either for or against such rezoning, are invited to appear at the time and place above mentioned.”
It will be noted that the first publication was on December 21, 1965, and the hearing was held on January 10, 1966. There were but nineteen “clear days” between the first publication and the day of hearing. The case before us involves a proposed change in zone. K. S. A. 1965 Supp. 12-708 provided for zoning and change of zoning. It also provides for publication notice in the following language:
“. . . The secretary of the planning commission shall cause a notice of such public hearing [on original zoning recommendations] to be published once in the official city newspaper and at least twenty (20) days shall elapse between the date of such publication and the date set for hearing. . . . The governing body may from time to time amend, supplement or change the boundaries or regulations contained in such zoning ordinance. ... All such proposed changes shall first be submitted to the city planning commission for recommendation and report. Upon the development of tentative recommendations, the planning commission shall hold a public hearing thereon and shall cause an accurate written summary to be made of the proceedings, and shall give notice in like manner as that required for the original zoning recommendations. Such notice shall fix the time and place for such hearing . . .”
(Emphasis supplied.)
The appellant contends that (he provision “at least twenty (20) days shall elapse between the date of such publication and the date set for hearing” means twenty clear days, and since the notices provided for only nineteen clear days the appellees were without jurisdiction rendering the zoning ordinances null and void.
We are forced to agree with appellant’s contention.
Where a statute requires that a thing be done “at least” or “not less than” so many given days before a fixed time, it means that the given number of “clear days” must elapse between the two terminal days.
Here we have even more than “at least”; we have the additional provision that the twenty days “shall elpase” between the date of publication and the date set for hearing. However, we do not consider the use of the phrase “shall elapse” as necessarily controlling our decision in this case.
Our decisions at one time may have left some confusion as to the computation of time where the words “at least” or “not less than” were used. (City of Wichita v. Robb, 163 Kan. 121, 179 P. 2d 937; State, ex rel., v. Miami County Comm’rs, 168 Kan. 723, 215 P. 2d 631; State, ex rel., v. Schmidt, 182 Kan. 593, 322 P. 2d 772.) However, any confusion which arose from the conflicting opinions was completely dispelled by Baugh v. Rural High School District, 185 Kan. 123, 340 P. 2d 891, dealing with statutory notice of school bond elections and it was held:
“The provisions of the foregoing statute requiring the first publication to be not less than twenty-one days prior to such election, are construed and held to mean that twenty-one clear days must intervene between the date of first publication in the newspaper and the date of the bond election. In computing the time both the first day of publication and the day of the election are to be excluded. The statutory rule of computation prescribed in G. S. 1949, 60-3819 and 3819a, which directs the exclusion of the first day and the inclusion of the last in computing the time within which an action is to be done, does not apply.” (Syl. 2.)
In the Baugh case we dealt with the words “at least” and “not less than” stating at page 133 of the opinion:
“It could not be successfully argued that the legislature intended different meanings to attach to the terms “at least” and “not less than” when it used each of these expressions in both sections of the statute presently the subject of discussion.
“We therefore hold the provisions of G. S. 1957 Supp., 72-2018, which require notice of a bond election in a school district to be by publication in a newspaper, the first publication to be not less than twenty-one days prior to such election, mean twenty-one clear days must intervene between the date of first publication in the newspaper and the date of the bond election. In computing the time both the first day of publication and the day of the election are to be excluded. . . .”
The cases from other jurisdictions are somewhat divided on computation of time when the words “at least” or “not less than” are used (98 A. L. R. 2d 1364, et seq.) but when applied to notice of a zoning proposal, the words are generally construed by other jurisdictions to require “clear days” between the two terminal days. (96 A. L. R. 2d 513.)
Although the question is not briefed, the appellees suggested on oral argument that the issue is controlled by K. S. A. 60-206 (a) which provides that in computing time, the day of the act or event from which the period of time begins to run shall not be included but the last day of the period so computed is to be included if “the method for computing such time is not otherwise specifically provided.”
The answer to that argument is that the method for computing such time was otherwise provided when the legislature placed in K. S. A. 1965 Supp. 12-708 the provision that “at least twenty (20) days shall elapse between the date of such publication and the date set for hearing.”
Statutes similar to K. S. A. 60-206 (a) were in existence when the issues in Baugh, v. Rural High School District, supra, were framed and the opinion written. At page 130 of the opinion we stated:
“The statutes, G. S. 1949 [now K. S. A.], 60-3819 and 60-3819a, provide a method of computing time where the statute prescribes a time within which an act is to be done. These statutes have been held to have no application where a minimum time is required and the words at least’ or hot less than’ are employed.”
Appellees most seriously contend that absent any claim or showing of prejudice the appellant cannot complain of the defective notice. They further suggest that there was no claim made that appellant was deprived of any right to be heard or that he was unaware when the proceeding was to take place.
It should be noted that the notice, required by the statute, was addressed to, and for the benefit of, the general public in the area. It was not for the special benefit of the appellee. This issue presents the single question — is the statute merely directory or is it mandatory and jurisdictional? We conclude that it is mandatory and must be complied with in order to give the planning commission power to officially recommend a change in zoning and the city commission jurisdiction to pass the ordinance.
In Ford v. City of Hutchinson, 140 Kan. 307, 37 P. 2d 39, we stated at page 311 of the opinion:
“The power of the city government to change the zoning of property can only be exercised in conformity with the statute, . . .
“The potency of the statute and of a city ordinance passed in conformity therewith has been repeatedly emphasized by the court. Without the statutory notice for thirty days of a hearing before the planning board, it has no power to give its official recommendation of a proposed change in zoning, and the city government is without power to pass an ordinance making such change. (Armourdale State Bank v. Kansas City, 131 Kan. 419, 292 Pac. 745; 43 C. J. 333, 344, 345.)”
In Carp v. Board of County Commissioners, 190 Kan. 177, 373 P. 2d 153, it is stated at page 179 of the opinion:
“It is elementary law that powers granted to municipal corporations are strictly construed, and this has been applied to the area of zoning. . . .”
What we have said appears to be in harmony with the general rule which is stated in 96 A. L. R. 2d 469, as follows:
“Most statutes requiring notice as a prerequisite to the adoption or amendment of a zoning ordinance specify the manner and form in which the notice is to be given. Such statutes are generally construed strictly in these respects so that under the rule that proper notice is mandatory and jurisdictional, a .zoning ordinance enacted on defective notice is generally held invalid.”
The provision for notice not having been complied with the city ■commission was without jurisdiction to pass the zoning ordinance .and it is therefore void.
The judgment is reversed.
APPROVED BY THE COURT. | [
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|
The opinion o£ the court was delivered by
Fatzer, J.:
This was an action for damages arising out of a collision between two automobiles. Ruby A. Bott sued Arthur Wendler, case No. 4365, for the wrongful death of her huband Henry ’W. Bott, the driver of one of the automobiles. Arthur Wendler, the driver of the other automobile, sued the estate of Henry W. Bott, ■case No. 4366, for the severe injuries he received in the collision. Artilea Wendler, the fifteen-year-old daughter of Arthur Wendler was also killed in the collision, and Mrs. Arthur Wendler sued the -estate of Henry W. Bott, case No. 4367, for the wrongful death of their daughter.
Following a trial to a jury on all the issues designated in the pretrial order, which commenced on May 22, 1967, and ended on May .26, 1967, judgment was entered in favor of Arthur Wendler for his injuries and for Mrs. Wendler for the wrongful death of Artilea Wendler. Ruby A. Bott, individually and as administratrix of the -estate of Henry W. Bott, has appealed. As they were designated in ■ the district court, the Wendlers are here referred to as the plaintiffs .and the Botts as the defendants.
The district court’s order following a pretrial conference was comprehensive. It found there were common questions of law and fact in each of the three cases and ordered the cases consolidated for trial pursuant to K. S. A. 60-242. The order provided that the trial be limited to the issues contained in the order, and the charges of negligence and contributory negligence made by the parties in ffheir pleadings were stated as issues to be determined, as follows:
Ruby A. Bott’s grounds of negligence or contributory negligence against Wendler were that he failed: to drive his vehicle upon the right half of the roadway; to keep a proper lookout at all times; to take proper action to avoid an accident; to properly control his vehicle, and to yield the right-of-way to an oncoming vehicle in its proper lane of travel. Her grounds of contributory negligence against Artilea Wendler were that she failed: to keep a proper lookout; to warn Wendler to drive upon the right half of the roadway, and permitted herself to be transported down the middle of the roadway without objection.
Arthur Wendler and Mrs. Wendler’s grounds of negligence, and Wendler’s grounds of contributory negligence, against Henry Bott were that he failed: to drive his vehicle upon the right half of the roadway; to keep a proper lookout at all times; to take proper action to avoid an accident; to properly control his vehicle, and to yield the right-of-way to an oncoming vehicle in its proper lane of traffic.
The order further directed that all pictures taken by the parties be submitted to counsel for opposing parties for identification, and they were admitted into' evidence subject to objection only to materiality or relevance. It further directed that copies of all statements given by or taken on behalf of Wendler other than those taken by his counsel should be furnished forthwith to counsel for Ruby Bott. The parties announced that all known witnesses had been set forth in their answers to interrogatories, and it was ordered that any witnesses other than those named should be furnished to counsel for opposing parties twenty days prior to1 trial, and those not so furnished would not be permitted to testify except on rebuttal or for impeachment purposes. It was further ordered that all requested instructions should be submitted at least ten days prior to the trial; that each plaintiff and defendant had the right to exercise three pre-emptory challenges in each case and that there would be eighteen pre-emptory challenges permitted. It was stipulated that $1,819.50 damage was done to the Wendler automobile and $1,500 damage was done to the Bott automobile.
The collision of the two automobiles occurred at about 9:00 or 9:15 a. m., on November 11, 1965, on a north-south gravel county road approximately two miles east and one and a quarter miles south of Alexander, Rush County, Kansas. It was a damp and misty morning. Bott was alone in his 1964 Chevrolet automobile driving in a northerly direction. Wendler was driving his 1965 Ford in a southerly direction; his fifteen-year-old daughter, Artilea, was riding in the back seat. The automobiles collided nearly head on at the crest of a hill in front of the farm home of Clarence Scheuerman at a point where his driveway goes into his yard. The Scheuerman house is located 50 feet west of the county road. As ■a result of the collision, Bott and Artilea Wendler were killed and Arthur Wendler suffered physical injuries.
Wendler farms, drives a school bus, and maintains roads for the Rush County highway department. He was driving upon a road he last serviced a couple of weeks before the accident. Where the ■collision occurred, the highway was 27 feet wide from shoulder to shoulder. However, the traveled portion of the road was narrowed to 23 feet by a low windrow of loose gravel pushed there by the .grader blade, which was approximately four feet wide and reached to the edge of the grass on the east side of the road.
Scheuerman was a near eyewitness to the accident. He testified Tie saw the two automobiles approaching each other; that as they neared the point of collision, Wendler was driving on his proper .■side of the road, or in the southbound lane of traffic, at approximately 50 to 55 miles per hour, and Bott was driving down the •center of the road at approximately 35 to 40 miles per hour.
Wendler testified that as he approached the point of collision, he was driving in his lane of traffic about two feet from the west edge ■of the road; that he noticed a car approaching at approximately the .same speed he was driving, when he thought he was about 120 feet north of the impact point; that the car had just come up over a knoll; that he set his brakes and the car kept coming toward him; -that it was Bott and he was on Wendler’s side of the road; that Bott •farmed the land to his right, or east of the highway, and that Bott was looking at the wheat on the land he farmed. The next thing 'Wendler could remember was his birthday two weeks later.
The evidence was that Wendler’s car laid down skid marks, ■described by various witnesses from 40 to 60 feet, which tended to veer to the right in his lane of traffic; that the skid marks of his right tires were approximately three feet from the edge of grass on the west side of the road; that the skid marks from his left tires were west of the center line of the highway; that the traveled portion of the southbound traffic lane of a roadway 23 feet wide would be eleven feet six inches, and that the left side of Wendler’s car would Tbe two and a half feet, or thereabouts, west of the center line; that Rott’s car made no skid marks; that when Wendler’s car was moved, the bottom of the tires were cut from rocks and gravel where they had been sliding; that skid marks were under the tires where the rubber was worn off and there was black rubber on the roadway.
At the close of all the evidence, the court fully instructed the jury on all issues of law involved, and, at the defendants request, submitted a special verdict pursuant to K. S. A. 60-249 (a). The written questions submitted for the jury to answer were in the form requested by the defendants. Those questions and the jury’s answers read:
“1. If you find that Henry W. Bott was negligent in any manner which directly caused the collision, then please state his act or acts of negligence.
“Answer: Failing to keep a proper lookout at all times.
“2. If you find that Arthur Wendler was negligent in any manner which directly caused the collision, then please state his act or acts of negligence.
“Answer: None.
“3. Was Artilea Wendler negligent in any manner which directly contributed to the cause of her death?
“Answer: Yes — ( ); No — (X).
“3a. If your answer is ‘Yes’ then please state her act or acts of negligence.
“Answer: . . .
“4. If you find that Arthur Wendler is entitled to recover from the estate of Henry W. Bott, deceased, how much do you allow him for his personal injuries?
“Answer: $100,000.00.
“5. If you allow Arthur Wendler damages for his personal injuries, do you also allow him in addition thereto the sum of $1819.50, the agreed and stipulated value of the Wendler automobile?
“Answer: Yes— (x) •
“No — ( ).
“6. If you find that the next of kin of Henry W. Bott, deceased, are entitled to recover from Arthur Wendler, how much do you allow them for their damages?
“Answer: None.
“7. If you allow the next of kin of Henry W. Bott, deceased, to recover for their damages, do you allow Ruby A. Bott, as administratrix of the estate of Henry W. Bott, deceased, to recover the sum of $1500.00, the agreed and stipulated value of the Henry W. Bott automobile?
“Answer: No.
“8. If you find the next of kin of Artilea Wendler, deceased, are entitled to recover from the estate of Henry W. Bott, deceased, how much do you allow them for their damages?
“Answer: $27,213.84.”
On June 15, 1967, pursuant to K. S. A. 60-258 and in accordance with the jury’s special verdict, the district court entered judgment in favor of the plaintiffs and against the defendants in each of the cases.
The defendants filed motions to set aside the judgment, to set aside the jury’s answers, and for judgment on the special verdict. The motions were considered by the district court and overruled. Thereafter, the defendants filed a motion for a new trial based primarily on surprise and newly discovered evidence and affidavits of the defendants and counter affidavits of the plaintiffs were filed in support thereof. Reference is hereafter made to the affidavits and counter affidavits and it is sufficient to say they were fully considered by the district court, and the motion for a new trial was denied.
It is first argued the district court erred in refusing to sustain the defendants’ motion for judgment on the special verdict. The contention rests upon the assumption that since the jury exonerated Bott on the charges of being on the wrong side of the road, failing to take proper action to avoid an accident, failing to keep his car under control, and failing to yield the right-of-way, the failure to keep a proper lookout of which Bott was guilty, could not, as a matter of law, have been the proximate cause of the head on collision at the crest of the hill. Our attention is directed to the rule that where several acts of negligence are pleaded as the basis for an action for damages and the jury makes a special finding of the particular act or acts of negligence of which the defendant was guilty, such special finding amounts to an acquittal of any other charges of negligence made against him, and we are referred to Uhl v. Phillips Petroleum Co., 164 Kan. 401, 410, 190 P. 2d 349; Jilka v. National Mutual Cas. Co., 162 Kan. 537, 106 P. 2d 665, and Rasing v. Healzer, 157 Kan. 516, 142 P. 2d 832. In making the contention, the defendants state they accept as true Wendler’s evidence that just before the collision Bott was looking to his right.
The petition and pretrial order contained one charge to the effect that Bott negligently failed to keep a proper lookout at all times. Thus the jury did not find a ground of liability against Bott which the plaintiffs did not claim. Questions Nos. 1 and 2 were dual in nature and the form in which they were submitted required the jury to determine negligence and proximate cause, that is, to determine causation — the act or acts which “directly caused the collision,” and to state whether such act or acts constituted an issue of negligence. The jury’s answers to those questions did not absolve both parties of negligence. It did absolve Wendler. He was charged with exactly the same acts of negligence as was Bott, and the jury found that Wendler was not negligent in any manner which directly caused the collision. In other words, it affirmatively exonerated Wendler from being on the wrong side of the road, and of all the other acts of negligence charged against him.
Special findings are to be liberally construed on appeal and interpreted in the light of the testimony with the view of ascertaining their intended meaning. (Lee v. Gas Service Company, 166 Kan. 285, 201 P. 2d 1023; Sheeley Baking Co. v. Suddarth, 172 Kan. 533, 241 P. 2d 496.) If the principle urged by the defendants would go no further than to exonerate Bott of other acts of negligence, that is, other than failure to keep a proper lookout, its application would have no effect in determining whether Bott was on the wrong side of the road unless there were some factual inconsistency between that and the facts necessarily supporting the act of negligence the jury did find. If straying onto the wrong side of the road is one of the consequences that can flow from failure to keep a proper lookout, as it clearly is, and if there was credible evidence in the record from which the jury could have found that fact, as there clearly was, then the jury could well have found that Bott was on the wrong side of the road, not as an element of a separate act of negligence but as one of the links in the chain of cause and effect tying the basic act of negligence — failure to keep a proper lookout — with the resultant collision. There is no factual inconsistency between failure to keep a proper lookout and in being on the wrong side of the road, nor is there any legal inconsistency.
In considering the totality of the facts and circumstances, the jury may well have concluded that the main or overriding act directly causing the collision was Bott’s complete inattentiveness on the highway — his failure to keep a proper lookout — which act was the unbroken sequence of “happenings which follow one from another” as stated in instruction No. 13, defining causation. In any event, the jury’s finding that Bott’s negligence in failing to keep a proper lookout at all times was the direct cause of the collision, was entirely proper and supported the judgment entered for the plaintiffs. The district court did not err in overruling the defendants’ motion for judgment on the special verdict.
It is next contended the district court erred in not submitting three special fact questions requested by the defendants. As indicated, prior to the commencement of the trial, the defendants timely filed their motion for a special verdict (K. S. A. 60-249 [a]), and requested that ten issues of fact be submitted to the jury. With the exception of question No. 5 which was not requested, the court submitted all of the defendants’ requested issues of fact in the form submitted except three. The three issues of fact not submitted read:
“1. How wide do you find the roadway to have been?
“2. At the time of the collision was any part of the Wendler automobile to his left of the center of the roadway?
“3. At the time of the collision was any part of the Bott automobile to his left of the center of the roadway?”
K. S. A. 60-249 (a) reads:
“The judge may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The judge shall give to the jury such explanation and instruction concerning the matter thus submitted without commenting on the evidence, as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accordance with the judgment on the special verdict.” (Emphasis supplied.)
The statute is substantially the same as Federal Rule No. 49 (a) and decisions applying and interpreting the federal rule are persuasive. The statute identifies a special verdict as “a special written finding upon each issue of fact.” Its provisions are permissive, not mandatory and where the court determines to use a special verdict, it has discretion as to the nature, scope, and form of the questions to be put to the jury. (McDonnell v. Timmerman, 269 F. 2d 54.) Where a case is submitted for special verdict, the issues of fact submitted to the jury should cover all issues raised by the pleadings, the pretrial order, and the evidence. Generally speaking, only ultimate fact questions so raised which are important to the final determination of the controversy should be submitted. (3 Vernon’s Kansas Statutes Annotated [Fowks, Harvey, Thomas], § 60-249a, p. 205.) The authors of 2R Rarron and Holtzoff, Federal Practice and Procedure (Rules Edition), § 1055, p. 341, state the rule with respect to the nature and scope of issues to be submitted to the jury, as follows:
“Some courts have said that only ultimate fact questions should be submitted to the jury for determination by special verdict, and that evidentiary issues should not be submitted. Obviously it is undesirable to submit numerous evidentiary issues which merely restate, elaborate, or confirm the jury’s-decision of the controlling issues, but it must be recognized that the distinction between ultimate issues and evidentiary issues is one of degree only, and that little is gained by seeking to make fine discriminations between one kind of issue and the other.”
While Kansas case precedents may not be directly in point in the-application of 60-249 (a) which dispenses with the need for a general verdict (Gard, Kansas Code of Civil Procedure Annotated,. § 60-249 [a], p. 230), some are applicable to the point at issue. In Doit v. Crystal Ice & Fuel Co., 122 Kan. 653, 253 Pac. 611, it was-held:
“The trial court has discretionary supervision of the form and nature of special questions which may be submitted to a jury, and may properly refuse to submit questions which are highly technical, or which are not focused on the ultimate facts of the matter in issue, or which are designed merely to recapitulate the evidence rather than to determine the facts proven by the evidence.”
(Syl. HT.)
See, also, Sluss v. Brown-Crummer Inv. Co., 143 Kan. 14, 53 P. 2d 900, Syl. ¶ 5; Albin v. Munsell, 189 Kan. 304, 369 P. 2d 323, and Folkerts v. Kansas Power & Light Co., 190 Kan. 159, 163, 372 P. 2d 997.
It is not proper to submit questions involving minor evidentiary facts, and evidentiary facts should not be confused with fact issues. The better practice is to simplify the questions by combining each to a single issue. In attempting to reach a controlling fact issue, a question of law may be so intermingled that it cannot be separated, and it is proper to submit a question which combines both fact and law. (3 Vernons, op. cit., supra, § 60-249a, pp. 205, 206.)
In the instant case, only ultimate issues of fact were submitted to the jury under full and complete instructions as to the law applicable, and to which the defendants did not object. The issues of fact submitted to the jury called for conclusions to be drawn from the evidence by applying rules of laws as given in the instructions. Those were formed by the pleadings, the pretrial order, and the evidence, and the requested fact isues were embodied in the more general questions submitted to the jury. We are of the opinion the width of the road and the question whether either automobile encroached on the other s lane of traffic were, to the extent those fact questions were relevant, subsumed in the ultimate issues of fact of negligence and causation submitted to and determined by the jury in accordance with the court’s instructions.
Moreover, there is nothing in the record to indicate the defendants made any objection to the failure of the district court to submit the three issues of fact in question. K. S. A. 60-249 (a) provides that if the court requires a special verdict and neglects to include an issue of fact raised by the pleadings or evidence, a party waives his right to a jury trial of the issue unless he demands its submission before the jury retires. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accordance with the judgment on the special verdict. (60-249 [ a].)
Normally where a party has once made his position known to the court, it is not necessary that he repeat it or take a formal exception when the court takes contrary action. However, in view of the emphasized portion of the statute previously quoted, its language makes an exception to that principle. The rule is stated in 2B Barron and Holtzoff, op. cit., supra, Section 1053, p. 334, as follows:
“. . . Even where a party has requested submission of a particular issue, he will be held to have waived his right to trial by jury as to it unless he objects to the failure to submit it before the jury has retired. Though this may seem harsh, it has the salutary purpose of giving the judge an opportunity to correct any inadvertent failure to submit the issue.”
Judge Gard, in his work, Kansas Code of Civil Procedure Annotated, Section 60-249 (a), states the following on the point:
“Under this subsection the value of special verdicts is retained and the dangers from overlooking material issues of fact are eliminated. This elimination of danger is brought about by the provision that if the judge does not cover all the issues in the submission to the jury the parties must demand the submission of such issues before the jury retires. Otherwise the objection to failure to submit an issue is waived and the judge many resolve the issue himself; or if he fails to do so by making a specific finding he is presumed to have resolved the issue in accordance with the judgment which the court renders.”
The defendants complain the district court failed to give their re quested instructions which would have advised the jury that a roadway is that portion of a highway used for travel, and that the center of a roadway is the middle of that part thereof which has been worked, prepared and made fit for public travel. The point is not well taken. K. S. A. 60-251 (a) provides in substance that at the close of the evidence or at such earlier time during the trial as the judge directs, any party may file written requested instructions. Subsection (b) reads:
“No party may assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury."
There is nothing in the record to indicate the defendants ever made any objection of the district court’s refusal to submit the requested instructions as required by 60-251 (b). A party may not complain of error on the part of the district court in failing to give a requested instruction unless after the request is denied but before the jury retires to consider its verdict, he states “distinctly the matter to which he objects and the grounds of his objection,” unless the instruction is clearly erroneous. (Marshall v. Nugent, 222 F. 2d 604.) The purpose of the statute is to afford the district court an opportunity upon second thought, and before it is too late, to correct an inadvertent or erroneous failure to instruct the jury on the law applicable to the issues. The statute also serves to lessen the burden of an appellate court by diminishing the number of rulings at the trial which it may be called upon to review. (3 Vernon’s, op. cit., supra, § 60-251.2, p. 250; Gard, op. cit., supra, § 251, pp. 237-239.) This has been the undeviated practice prevailing under Federal Rule No. 51. (2B Barron and Holtzoff, op. cit., supra, §§ 1101-1106, pp. 439-477; Marshall v. Nugent, supra, p. 615; McDonnell v. Timmerman, supra; Crossland v. Continental Casualty Company, 374 F. 2d 586; Trent v. Atlantic City Electric Co., 334 F. 2d 847, 857.) In Dunn v. St. Louis-San Francisco Railway Company, 370 F. 2d 681, the Tenth Circuit Court of Appeals recently said:
“. . . we warn parties that there is a heavy burden upon them in such event to show that it was done with sufficient specificity and distinctness, and we caution district courts to be slow in tolerating such procedure . . ,” (p. 684.)
In construing the purpose and effect of 60-251 (b), this court has given a similar construction to its provisions as have the federal courts given Federal Rule No. 51. In Sanford v. Smith, 196 Kan. 538, 413 P. 2d 95, it was held:
“A party may not assign as error the giving or failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection, unless the instruction is clearly erroneous.” (Syl. f 1.)
See, also, Williams v. Benefit Trust Life Ins. Co., 200 Kan. 51, 59, 434 P. 2d 765.
In short, it takes more than a request for an instruction before a party may have appellate review of its propriety. He must raise objection to the failure of the district court to give the instruction when the court entertains objections to its instructions to the jury and before the jury retires to consider its verdict. (60-251 [&]; 2R Barron and Holtzoff, op. cit., supra, 1968 Pocket Part, § 1103, pp. 155-157; Crossland v. Continental Casualty Company, supra; Trent v. Atlantic City Electric Co., supra.)
Following the third day of trial, the defendants had three photographs which had previously been admitted into evidence, enlarged. They offered the enlargements in evidence while their expert witness Razak was testifying, as exhibits Nos. 76, 77 and 78. They contend the district court erred in refusing to admit the exhibits. Two of plaintiffs’ witnesses had identified skid marks made by Wendler’s car on the photographs previously admitted into evidence. The defendants claimed they were surprised by the testimony of plaintiffs’ witnesses identifying the skid marks, and contended the marks were made in the road when the drawbar of the service truck which moved Wendler’s car was lowered to the ground. Prior to the trial, the defendants were furnished copies of statements of plaintiffs’ witnesses, which indicated they would identify the skid marks. The enlargements showed nothing that was not shown on the photographs previously admitted into evidence. Their effect would have been merely cumulative if admitted, and their exclusion was not prejudicial. Moreover, the enlargements were not included in the pretrial order. If a pretrial order is to be effective, the court must be able to enforce it. The district court did not err in excluding the photographs.
We turn now to the question which gives this court its greatest concern. It is claimed that by a designed and persistent effort on the part of counsel for the plaintiffs, the probability and fact that the defendants were covered by liability insurance was injected into the case which materially prejudiced the defendants. As pre liminary to discussing the contention, it should be noted the defendants made no complaint in the court below, nor here, that the amount of the verdict was excessive, or that it was not supported by the medical evidence.
The record shows that during the jury’s deliberation, the following was received by the district court:
“Question by Jury to the Court:
“1. Amount of liability Ins. of Mrs. Bott and Mr. Wendler. — There is a lot of money involved here and we do not want to leave either party penniless.
This we need to know — Please.
“Answer by the Court:
“In answer to your inquiry you are advised that you should carefully read and consider the Court’s instructions. Also consider the evidence you have heard in Court. The instructions are complete and they cover the law in this case. Further answer cannot be made by the Court.”
The basis of the defendant’s argument is that during the cross-examination of two of their witnesses, the name of Dean Langhofer was spoken, and reference was once made to an individual present in the courtroom whose name was not mentioned. Those two men were representatives of the defendants’ insurance carrier and assisted counsel in investigating the case, but the district court did not allow that fact to be brought out. In addition, and in support of their motion for a new trial, the defendants filed the affidavit of the vice president of their insurance carrier wherein it was stated that Langhofer was in charge of its Hays, Kansas, office and adjusted claims that occurred in Rush County; that three members of the jury had directly or indirectly dealt with Langhofer concerning losses sustained to their automobiles during the past year or two and which were paid by the insurance company as a result of policies issued to them. The affidavit further stated that plaintiffs’ counsel had been employed by the insurance company during the past five years to handle various types of claims serviced by Langhofer; that he was aware Langhofer was employed by the company and settled claims in Rush County, and that counsel was presently employed by the company on a matter not yet concluded.
Plaintiffs’ counsel filed a counter affidavit in which he stated he had no knowledge concerning Langhofer’s alleged settlement of claims of members of the jury except he was aware Langhofer was a field adjuster for the company working in Hays, but his territory was unknown to counsel. He stated he had not made a count of the number of cases he had defended for the company and neither affirmed nor denied he was presently employed by the company; that he recalled only one claim in which he had personal conferences with Langhofer and stated he had no other direct dealings with him. He further denied he had intimate knowledge of the business of the company or that he knew it wrote a large volume of insurance in Rush County, or that Langhofer regularly worked for the company in Rush County.
During the cross-examination of Wendler, and at the request of plaintiffs’ counsel, a conference was had by court and counsel in chambers. Counsel stated:
“. . . Now, I am asking for a protective order, if there is the use of any statements made, as to who took them, when they were taken and why he took them, unless there is good cause shown, first.”
Counsel for the defendants stated he had no objection, and the order was accordingly made.
As indicated, during the cross-examination of the defendants’ expert witness, who prepared a scale drawing of the roadway from the Sheriff’s accident report and drew thereon the position of the vehicles, he was asked who employed him. After looking at his notes, he stated “Dean Langhofer.” Counsel for defendants asked for a recess in chambers. Counsel stated that plaintiffs’ counsel knew Langhofer had been an adjuster for the insurance company; that he knew the inference of his question to the expert witness and it was an attempt to inject insurance into the case in violation of the protective order. Following a colloquy between court and counsel, counsel for the plaintiffs stated he was entitled to show who employed the witness to prepare the drawing, and who the agent represented. The court stated it was not going to permit insurance to be injected into the case and directed the trial to proceed.
On another occasion, one of the plaintiffs’ witnesses, called as a witness for the defendants, testified he gave a statement to the defendants’ representative when he was in the field baling hay, and that a court reporter was present. On cross-examination he was asked if Langhofer was the representative’s name and he replied he did not remember. When asked if he remembered who the man was representing, the court stated, “I am going to deny you the right to go further in this regard.”
Later, during the trial, the sheriff of Rush County was testifying on behalf of the defendants concerning his accident report. On cross-examination he was asked whether he had talked to a number of people, "for instance, that gentleman . . . right back there with the glasses? Did you ever talk to him?” Again the court admonished counsel for the plaintiffs and the witness was not allowed to answer. The "gentleman” was never identified further for the jury, and no indication of his association with any insurance company was made.
Thereafter, and out of the presence of the jury, counsel for the defendants moved the court to declare a mistrial for the reason “the plaintiffs have consistently attempted to inject insurance into the case . . . particularly by referring to Dean Langhofer.” In ruling on the motion, the court stated:
“I am in a position ... to make a finding on this matter ... I don’t think Mr. Turner has attempted to violate the prohibitive order we had, willingly. I don’t think it is a plan on his part. I think if he violated it he did it because of his make-up — his character — his enthusiasm — his intenseness —sometimes it is excusable and sometimes it isn’t, and it’s come into this thing a couple of times, Mr. Turner, when I had to stop you and you knew when you started that — not when you started, but after you said it you realized where you were and you stopped, and I appreciate it very much, and then I stopped you and I personally think that that is evidence of a man being a good attorney and trying to do everything for his client, and you are to be complimented for it and we have to use a little discretion and the Court has to use its discretion, and one of them is not to do those things even though your training and your tenseness makes you do it. Now, I am going to deny your motion . . . for a mistrial, and I want you both to be officers of the court as well as advocates, and remember not to bring any more of the possibility of insurance into this thing.”
This court frowns on the practice of using one means or another to suggest to the jury that the defendant is covered by liability insurance. (Cannon v. Brown, 142 Kan. 700, 704, 51 P. 2d 1007.) Evidence tending to show that the defendant is covered by liability insurance is generally inadmissible because (1) it is usually irrelevant to any of the issues in the case, and (2) it may tend to1 influence jurors to find against defendants or to bring in excessive verdicts. (1961, Goldstein, Lawyer’s Trial Guide, Mention of Insurance During Trial [Phillips], p. 247.) See, also, K. S. A. 60-454. The ruling, however, is qualified by a number of exceptions. Where the fact of insurance is relevant to issues in the case, it can, of course, be shown. (Dirks v. Gates, 182 Kan. 581, 322 P. 2d 750.) In the instant case, at no place does it appear the jury was allowed to hear from the testimony of any witness or from statements of counsel, the word “insurance” or the word “adjuster.” It is argued, however, that the mention of Langhofer’s name was the equivalent to “injection of insurance” since some of the jurors had had dealings with him and might remember him, and might assume he was acting for the insurance company at the time in question. It seems unlikely in the extreme that under the circumstances any of the jurors would have recognized Langhofer’s name since he was not a resident of Rush County. The best indication of just how much impact the mention of Langhofer’s name might have had on the jury is found in the district court’s comments denying the defendants’ motion for a mistrial, which read:
“The other thing, I didn’t know that — whatever this person was in Hays you were talking about — I had never heard of him and when his name was mentioned I didn’t know he was a claims agent and I think that the knowledge I have is knowledge in this area of men in common, with men in general, so I don’t believe your jury knows about it. If they do, it is an exception of the rule.”
Moreover, the record indicates that Langhofer was present throughout the trial and it would seem unlikely he would fail to advise counsel when the jury was being impanelled that he had made prior settlements with three proposed members. It cannot be argued that counsel for either side, in any kind of a lawsuit, would knowingly attempt to select jurors not favorable to their position. (Thompson v. Barnette, 170 Kan. 384, 389, 227 P. 2d 120.) Since the three jurors in question were allowed to remain on the jury, it is reasonable to assume the defendants anticipated they were happy with and loyal to their insurance carrier. But those facts were unknown to the plaintiffs. The defendants cannot now be heard to complain that because Langhofer’s name was twice mentioned during the trial, the three jurors were prejudiced thereby when the defendants had nine peremptory challenges to exercise but, instead, permitted the three jurors to remain on the panel. On this point the court stated there had been no intentional misconduct by counsel with respect to Langhofer. While not factually analogous, we refer to Thompson v. Barnette, supra, where the same principle was involved, and it was said:
“. . . Indeed, the trial court in denying the motion for a mistrial and to discharge the jury commented that he was well satisfied there had been no intentional misconduct by counsel and that the mention of insurance was purely inadvertent . . .” (1. c. 389.)
Under the circumstances which attend, it has not been made to appear that prejudice resulted from what manifestly appears to have been an inadvertent action on the part of counsel for the plaintiffs in cross-examining the witnesses referred to. This corn! is of the opinion there was no persistent effort on the part of counsel or lack of good faith, and that reference to Langhofer was not prejudicial to the defendants. (Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan. 210, 368 P. 2d 281.)
Furthermore, there is nothing in the record to suggest that the jury’s question to the court concerning liability insurance was motivated by any reference to insurance at the trial, nor does such fact suggest insurance was improperly injected into the case. It is general knowledge that most drivers today have liability insurance, and neither party to a lawsuit should be prejudiced by a question which may be prompted by the jury’s own experience and common knowledge of the affairs of mankind. As indicated, the district court and counsel did not consider the award excessive, and the defendants have never contended the verdict was not supported by the medical evidence. Against this background, the argument that the jury’s award was accelerated by the alleged insurance factor is not persuasive.
The foregoing disposes of the basic questions presented in this appeal. However, we briefly comment upon one of two other points raised by the defendants. It is contended the court erred in permitting counsel to cross-examine the defendants’ expert witness Razak, who gave an opinion as to how the automobiles came together and how they were traveling so as to cause the resulting damage. Whether he considered skid marks was an important element in reconstructing the accident. The latitude permitted in the cross-examination of an expert witness is even wider than in the case of an ordinary opinion witness. No rule can be laid down that would determine the extent and limitation of cross-examination allowable in every case. Generally speaking, the matter must rest in the sound discretion of the judge trying the case. This court has stated the general rules in Bourgeois v. State Highway Commission, 179 Kan. 30, 292 P. 2d 683, and Regnier Builders, Inc., v. Lindwood School District No. 1, 189 Kan. 360, 369 P. 2d 316. Cross-examination of Razak on skid marks was not improper; there was no abuse of discretion by the district court in permitting it, and no reversible error c' n be predicated thereon.
It is also contended the plaintiffs deliberately withheld their expert witness, Weiland, and had him testify in rebuttal what the plaintiffs should have presented in their case in chief. An examination of the record indicates that Weiland’s testimony was rebuttal testimony of Razak’s testimony. Razak gave an expert opinion on accident reconstruction and Weiland simply rebutted his testimony. The order of proof is within the sound discretion of the district court. (Van Welden v. Ramsay’s Inc., 199 Kan. 417, 430 P. 2d 298.) Assuming, arguendo, Weiland’s testimony was not strictly rebuttal, there was no showing of abuse of discretion so as to constitute reversible error. In In re Estate of Cox, 184 Kan. 450, 337 P. 2d 632, it was said:
". • . We are committed to the rule that it is discretionary as to whether a trial court shall permit a party to reopen a case to introduce additional evidence in support of his case in chief and our decisions approve that practice where the record fails to disclose conduct amounting to abuse of discretion. (In re Estate of Wittman, 161 Kan. 398, 402, 168 P. 2d 541.)” (1. c. 452.)
See, also, 53 Am. Jur., Trial, §§ 120, 121, pp. 106, 107.
It is further contended the district court erred in overruling the defendants’ motion for a new trial on the grounds of surprise and newly discovered evidence. The record in this case contained over 300 pages of printed matter. A very large portion of it consisted of post-trial affidavits obtained months after the trial of witnesses who testified, of persons who were considered as witnesses but who were not actually used, and of persons who were residents of the area but were allegedly not interviewed before the trial. Shortly after receipt of the motion for new trial and the affidavits in support thereof, the plaintiffs contacted the affiants and counter affidavits were obtained. To take up and discuss in detail each of the factual situations of the various affidavits would extend this opinion beyond all reason and certainly would contribute nothing to the body of the law.
Against this background, we turn to the applicable law. K. S. A. 60-259 is couched in discretionary language, and the overriding rule is that the granting of a new trial on the grounds of surprise or newly discovered evidence is discretionary on the part of the district court, and it will not be reversed unless a clear abuse of discretion is shown. In Perry v. Schoonover Motors, 189 Kan. 608, 371 P. 2d 152, this court held:
“The granting of a motion for a new trial upon the ground of newly dis covered evidence lies within the discretion of the trial court, and where the facts indicate a lack of diligence on the part of the complaining party, the trial court does not abuse the exercise of its power of discretion by refusing to grant a motion for a new trial.” (Syl. f 5.)
We have carefully examined all the affidavits and in none of the defendants’ affidavits is there any affirmative showing why the evidence could not have been produced at the trial under reasonable diligence. The defendants’ main ground of surprise is that some of the witnesses did not subscribe to their version of the accident. No clear abuse of discretion has been shown on the part of the district court in overruling the motion for a new trial.
Other points raised have been carefully examined and we think it is unnecessary to further extend this opinion by discussing them. It is sufficient to say this was a hotly contested lawsuit involving a lengthy trial by a jury. The evidence and theories of the collision were seriously disputed, but the district court conscientiously protected the interests of the parties. Both parties had their day in court, each diligently presented their side, and the jury made its decision. Its answer to question No. 2 was consistent with its answer to question No. 1, and was in keeping and consistent with instruction No. 15, and there was substantial evidence to support all the answers of the jury. The defendants have not affirmatively made it appear the district court committed prejudicial error which would warrant the granting of a new trial. See K. S. A. 60-2105; 3 Vernon’s, op. cit., supra, § 261.1, p. 531, and Gard, op. cit., supra, § 261, p. 279.
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|
The opinion of the court was delivered by
Hatcher, C.:
This controversy stems from written defenses filed against the executors petition for final settlement disputing the executor’s interpretation of the language of a will.
Laura M. Graves died testate, a resident of Kiowa County, Kansas, November 9, 1965. Her last will and testament was dated July 11, 1955. Due to the specific nature of the controversy we find it necessary to present most of the terms of the will in full. It reads:
“First. I direct that all my just debts, funeral and testamentary expenses, and all transfer, inheritance, legacy, estate or succession taxes, dues or charges, which may be payable on or in respect of any legacy, devise or bequest in this will contained, under any law of the United States of the State or Kansas, which shall be in force at the time of my death, shall be paid by my executor hereinafter named.
“Second. I will and devise to my son, Harlan L. Graves, the following described real property situate in the county of Kiowa, and State of Kansas, to wit:
“The North half (N/2) of Section Six (6) in Township Twenty-Nine (29)
South, of Range Eighteen (18) West of the 6th P. M. together with my interest in the farm machinery and equipment belonging to said farm. To Have and To Hold, forever.
“Third. I will and devise to my daughter, Mary Faye Holland, the following described real property situate in the county of Kiowa and State of Kansas, to wit:
“The South half (S/2) of Section Six (6) in Township Twenty-nine (29)
South, of Range Eighteen (18) West of the 6th P. M.
To Have and To Hold, forever.
“Fourth. For the express purpose of this will, I direct that the probate court of Kiowa County, Kansas, shall appoint three commissioners, disinterested persons, to make personal view and to appraise at its true value in money, the real property hereinbefore devised in the second and third paragraphs of this will, . . . and when such appraisement has been made by said commissioners that it be reduced to writing and returned to the probate court of Kiowa County, Kansas.
“Fifth. From my personal estate I will and bequeath to my daughter, Gena M. Hildinger, property or money equal to one-half (la) of the appraised value of the land hereinbefore described, and this bequest shall be satisfied in the following manner: I have heretofore sold to Clay M. Hildinger and J. D. Baer my interest in the partnership of Graves Lumber and Hardware Company; if at the time of my death the notes evidencing the purchase price and secured by said contract have not been fully paid then I direct that my executor shall transfer and set over to my daughter, Gena M. Hildinger, such a portion of the unpaid notes as shall equal one-half of the appraised value of the section of land above described, and if the unpaid balance of the notes shall not be sufficient to equal one-half of the appraised value of said land then the remainder of value shall be paid in cash to the said Gena M. Hildinger, by my executor.
“Sixth. In the event that the appraisement hereinbefore provided for shall establish a difference in the valuation of the lands devised to my son Harlan L. Graves, and to my daughter Mary Faye Holland, then I direct that my executor shall equalize, in cash, the difference in the values of the land as so determined by said appraisement.
“Seventh. [The residue was left equally to the three beneficiaries.]
“Eighth. [Harlan L. Graves was appointed executor.]
“Ninth. It is my will and I direct that my executor shall have full power and authority to sell any part or portion of my estate not expressly devised or bequeathed by this will, as he may deem necessary, and he is authorized to make and deliver good and sufficient deeds or instruments of transfer therefor.”
The will was duly admitted to probate on December 6, 1965, and Harlan L. Graves was granted letters testamentary. On January 27, 1966, the three appraisers appointed by the probate court returned the inventory and appraisal, valuing the two half sections of land at $44,800.00 each. The balance due on the Hildinger note was shown as $36,600.00.
Gena M. Hildinger filed a petition to appoint three commissioners to appraise the two half sections of land as provided by the will. These commissioners were appointed and on May 23, 1967, they made their return valuing the two half sections at $72,000.00 each.
The petition for final settlement was filed in due time setting forth the above facts and alleged that after the payment of debts, taxes and expenses of administration the money and property remaining was insufficient to equalize the difference between the unpaid balance of the note and one-half the value of the land. The petition prayed that the two half sections of land be assigned to Harlan L. Graves and Mary Faye Holland, free and clear of any claim of Gena M. Hildinger, and that whatever cash and personal property remained after payment of court costs and expenses of administration be set over to Gena M. Hildinger toward the balance due on her legacy.
At the time of the filing of the petition for final settlement it definitely appeared that after the payment of expenses, inheritance and succession taxes there would be no cash from personal property to add to the Hildinger note and so raise Gena M. Hildinger s bequest to equal one-half of the value of the land.
Gena M. Hildinger and Mary Faye Holland filed written defenses to the petition for final settlement. Their contention, stated generally, would require the executor to apply all cash from personal property to Gena’s bequest to make it equal to one-half the value of the real estate and charge the debts, expenses and taxes against the three bequests.
The controversy was transferred to the district court for determination and it concluded:
“That applying the rules of construction, the Court concludes from the reading of the entire Will, that it was the intent of Laura M. Graves that each of her three children should receive property from her estate of equal value, with the exception of the farm machinery and equipment bequeathed to Harlan L. Graves.
“That Harlan L. Graves should receive the North Half of Section 6, Township 29 South, Range 18 West and the farm machinery and equipment; that Mary Faye Holland should receive the South Half of Section 6, Township 29 South, Range 18 West.
“That Gena M. Hildinger should receive the note of Clay M. Hildinger having a value of $36,600.00 and in addition should receive cash to equalize the value of property received by Harlan L. Graves and Mary Faye Holland.
“That there was property other than the two half sections sufficient to equalize the values in accordance with the intention of the testatrix but not sufficient property remaining after such equalization to pay the debts, taxes, administration expenses and any other just charges against said estate.
“That in order to carry out the intention of the testatrix for equalization, and to apply the deficiency required to pay the debts, taxes, administration expenses and other charges, one-third of such deficiency should be deducted from the money which would otherwise be paid to the said Gena M. Hildinger and one-third should be a charge against the real property devised to Harlan L. Graves and one-third should be a charge against the real property devised to Mary Faye HoEand, and such charges should be declared liens on such property.
“That the said Harlan L. Graves and Mary Faye HoEand should pay into said estate a sufficient amount to satisfy the charges against their respective property and, upon failure to make such contribution, the executor of said estate should be required to take whatever action is necessary to enforce the equalization of the amount due from the said Harlan L. Graves and Mary Faye HoEand.”
The executor has appealed. The basis of his contention is that the intention of the testatrix being clearly and unequivocally expressed in the will the trial court erred in applying the rules of judicial construction and in holding that the bequest to Gena M. Hildinger was a charge against the real property devised to Harlan L. Graves and Mary Faye Holland.
With the preliminary drudgery out of the way we may proceed to discuss the controlling features of this controversy.
We should first give attention to the trial court’s attempt to equalize the bequest to Gena M. Hildinger with the bequest of land to her brother and sister by charging the specific bequests with the payment of debts, succession taxes and administration expenses, leaving the balance of cash to be applied on the bequest to Gena.
We find nothing in either the will or the statutes which supports the action of the court in charging such items against the specific bequests.
Paragraph First of the will directed that all just debts, funeral and testamentary expenses, and all transfer, inheritance or succession taxes shall be paid by the executor. There is no mention of the source of funds from which they shall be paid. The statute controlling the question (K. S. A. 59-1405) provides:
“The property of a decedent, except as provided in sections 19 [59-401] and 21 [59-403], shall be liable for the payment of his debts and other lawful demands against his estate. When a will designates the property to be appropriated for the payment of debts or other items, it shall be applied to such purpose. Unless the will provides otherwise for the payment thereof, the property of the testator, subject to the payment of debts and other items, shall be applied to that purpose in the following order:
“(1) Personal property not disposed of by will;
“(2) real estate not disposed of by will;
“(3) personal property bequeathed to the residuary legatee;
“(4) real estate devised to the residuary devisee;
“(5) property not specifically bequeathed or devised;
“(6) property specifically bequeathed or devised.
“Demonstrative legacies shall be classed as specific legacies to the extent of the payment thereof from the fund or property out of which payment is to be made, and as general legacies upon failure or insufficiency of the fund or property out of which payment was to be made to the extent of such insufficiency. The property of each class shall be exhausted before resorting to that of the next class; and all of one class shall contribute ratably if all the property of that class is not required for the payment of such debts or other items.”
As there was no property falling under the first four orders of payment we look to the fifth order — “property not specifically bequeathed or devised.” When we consider Gena’s bequest we find a “demonstrative legacy” as defined by the statute.
The notes evidencing the purchase price of the lumber yard in the amount of $36,600.00 bequeathed to Gena was a “specific legacy” while any balance necessary to equal one-half the value of the land was to be paid in cash and constituted a “general legacy.”
It necessarily follows that in the absence of sufficient cash left in the estate to satisfy all debts, taxes and demands and to pay cash to Gena to make up the difference between the unpaid notes and one-half the appraised value of the land, the cash which would make up the difference must be appropriated first to the payment of the demands against the estate. The only exception is state inheritance taxes which by other statutes, in the absence of anything in the will to the contrary, are apportioned among the legatees. (In re Estate of West, 203 Kan. 404, 454 P. 2d 462.) It is only to the extent that the cash is insufficient that such other demands are prorated and charged against the specific legacies.
We must conclude that the trial court erred in charging the demands against the estate for debts, expense of administration and federal estate taxes to the specific beneficiaries before exhausting property not specifically bequeathed.
We now come to the chief controversy in this litigation — did the testatrix intend to equalize the legacies of the three children by making the bequest to Gena from the personal property a charge against the two one-half sections of land devised to Harlan and Mary, if necessary?
The north half of a section of land was devised to Harlan by Paragraph Second. We ignore the farm machinery as there is no contention that its value was to be equalized.
The south half of the section of land was devised to Mary by Paragraph Third.
Both devises contained the provision “To Have and To Hold, forever.”
Paragraph Fourth of the will provided for the appointment of three commissioners to appraise the land devised at its true value in money. It must be conceded that this was for the purpose of equalizing the legacies in accordance with Paragraphs Fifth and Sixth of the will, if possible, from the personal property.
Paragraph Fifth of the will designates Gena’s legacy. She is to have “from my personal estate” property or money equal to one-half of the appraised value of the land devised to Harlan and Mary. The notes evidencing the purchase price of the lumber yard were to be set aside for this legacy and if not sufficient, the remainder was to be paid in cash.
Paragraph Sixth provided for cash equalization if the value of the two half sections were not the same.
After a careful examination of all the language of the will we find it to be clear, certain and free of ambiguity. There is nothing to indicate that the testatrix did not use the words she intended to use. Neither is there anything to indicate she did not understand the meaning of the words used. It is clear that the testatrix wanted the legacies of her three children equalized, provided it could be done from her “personal estate.”
The language of the will being clear, definite and unambiguous, we need not, and should not, consider rules of judicial construction to determine the intention of the testatrix. In Johnston v. Gibson, 184 Kan. 109, 334 P. 2d 348, we held:
“Where a court, either trial or appellate, is called upon to determine the force and effect to be given the terms of a will, its first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction to determine its force and effect; and where from an analysis of the entire instrument no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions.” (Syl. 3.)
Our earlier decisions will be found in In re Estate of Reynolds, 173 Kan. 102, 244 P. 2d 234, where we stated:
“This court has long been committed to the rule that there is no necessity for construction of a will and that it is to be enforced in accordance with its terms where, from an analysis of the entire instrument, no ambiguity or uncertainty is to be found in its language. See, e. g., the earlier case of Martin v. Martin, 93 Kan. 714, 145 Pac. 565, which holds:
“‘When there is no ambiguity or uncertainty in the language used in the making of a will, a construction of the will is unnecessary, and it will be enforced in accordance with the provisions thereof.’ (Syl. |2.)
“For other and more recent decisions without attempting to cite all of them, wherein the rule is differently stated but nevertheless adhered to, see Morse v. Henlon, 97 Kan. 399, 155 Pac. 800; National Life Ins. Co. v. Watson, 141 Kan. 903, 44 P. 2d 269; Johnson v. Muller, 149 Kan. 128, 131, 86 P. 2d 569; Zabel v. Stewart, 153 Kan. 272, 276, 109 P. 2d 177; In re Estate of Ellertson, 157 Kan. 492, 496, 142 P. 2d 724; In re Estate of Works, 168 Kan. 539, 541, 213 P. 2d 998.” (p. 104.)
For later decisions see In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689; In re Estate of Jones, 189 Kan. 34, 366 P. 2d 792; Parsons v. Smith, Trustee, 190 Kan. 569, 376 P. 2d 899; In re Estate of Anderson, 203 Kan. 900, 457 P. 2d 67.
Those wishing to research cases from other states on the subject may see 95 C. J. S., Wills, § 586, p. 716, and 57 Am. Jur., Wills, § 1124, p. 719.
It has been suggested that at the time the will was made, 1955, one-half the value of the land would not have exceeded $36,600.00 and at that time there was ample personal property to equalize the legacies to the three children. It is further suggested that the testatrix did not anticipate the appreciation of land values and therefore the court should equalize the legacies regardless of the plain and unambiguous language of the will. A court could not equalize the legacies without indulging in the most doubtful conjecture such as:
Would the testatrix have left the will the way it was written had she realized the increase in the value of the land? She did not change her will, yet she must have known the value of lands was increasing.
Would the testatrix have given the three children equal shares in the land had she known there would not be sufficient personal property to equalize the legacies? The fact must have been known before her death.
Would the testatrix have made a charge against the land to equalize the legacies had she known the personal property would not be sufficient? Would she have risked the forced sale of the land to strangers in order to equalize the legacies?
These are mere conjectures. There is nothing in the clear and unambiguous language of the will to indicate any such desire on the part of the testatrix.
We would not encourage the suggestion that a court may wander from the actual words of a will into the region of conjecture as to what it is reasonable to suppose the testatrix would have done had she contemplated a certain event happening. A court is not free to roam such unfenced fields of speculation. We refute the notion that any canon of construction entitles a court to indulge in its imagination and go into what the testatrix would have said had she anticipated a changed condition.
A court cannot correct a mistake made by a testatrix unless the mistake appears on the face of the instrument, and it also appears what would have been the will if the mistake had not occurred. The duty of the court is to construe not to construct the will. It is without power to modify the instrument for the purpose of making it conform to the opinion of the individual judge as to what consti tutes an equitable distribution of the testator’s property. Neither can it make a conjecture as to what a testatrix would have done had she foreseen the future and then build up a scheme for the purpose of carrying out what it thought would have conformed to the desire of the testatrix.
In Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25, the court had before it a situation somewhat similar to what we have in the present case. We quote from page 600 of the opinion:
“. . . Mrs. Shaw had capacity to make her will; she believed the specific bequests practically exhausted her property and it was only because of such belief that she allowed the provision to stand giving the residue to the college; if she had known its real value she would have left it to her heirs. The provision can not be stricken from the will, however, merely because it was the result of a mistake of fact on her parí. This would be in effect to reform the will, and the court possesses no such power.
“ ‘Neither the will nor any part of it is affected by any mistake of law or fact which induced the testator to make it, and the courts can not amend or modify it so as to conform to what they imagine the testator would have done but for such mistake. For example, the will can not be denied probate nor any of its provisions limited or enlarged in effect because the testator did not understand their legal effect nor truly appreciate the proportions in which his property would be thereby distributed; nor because he would or might have made a different will.’ (Rood on Wills, § 165.)” (Emphasis supplied.)
The cases from other states follow the rule as here stated.
In In re Gilmour's Estate, 238 N. Y. S. 2d 624, at page 627, it is said:
“In the interpretation of a Will, the intention of the testator, as gathered from the language of the Will, is, of course, controlling. (Bigelow v. Percival, 162 App. Div. 831, 148 N. Y. S. 242). The fact that events happened subsequent to the probate of a Will which were not foreseen by the testator cannot change the meaning of the language used. ‘When the purpose of a testator is reasonably clear by reading his words in their natural and common sense, the courts have not the right to annul or pervert that purpose upon the ground that a consequence of it might not have been thought of or intended by him.’ (Matter of Tamargo, 220 N. Y. 225, 228, 115 N. E. 462, 463) ‘[W]e cannot make a new will, or build up a scheme, for the purpose of carrying out what might be thought was or would be in accordance with his wishes.’ (Tilden v. Green, 130 N. Y. 29, 51, 28 N. E. 880, 884, 14 L. R. A. 33.)” (Emphasis supplied.)
In Hoffman v. McGinnes, 277 F. 2d 598, 602, the federal court, in considering the law of Pennsylvania, stated:
“The rule was recently re-stated in Saunders Estate, 1958, 393 Pa. 527, at page 529, 143 A. 2d 367, at page 368, as follows:
“The testator’s intention is the pole star in the construction of every will and that intention must be ascertained from the language and scheme of his will; it is not what the Court thinks he might or would or should have said in the existing circumstances, or even what the Court thinks he meant to say, but what is the meaning of his words (citing cases).’ (Emphasis supplied.)”
Perhaps rather than attempt a compilation of the various cases supporting the rule it would serve better to cite a publication where the cases are compiled. In Volume 4 of the Bowe-Parker Revision of Page on Wills, § 30.7, pp. 40 to 51, we find the following statement:
“In construing a will, it will be presumed that the testator understood and intended the provisions thereof. As the courts are careful to discover and enforce testator’s intention, but not to make a new will for testator, it follows that they constantly refuse to ascertain testator’s intention except from the words which he used in his will, together with such extrinsic evidence as is admissible. The question always before the mind of the court is not what should testator have meant to do or what words would have been better for testator to use, but what is the reasonable meaning of the words which he has actually used.
“It has been suggested that this principle applies where the will is unambiguous. While the courts may have to go beyond the words of the will if the instrument is ambiguous and invoke other principles of construction, it would seem that the courts must always start with the language of the will.
“In construing a will the court has no power to make a will for the testator or to attempt to improve upon the will which testator actually made. The court cannot begin by inferring testator’s intention and then construe the will so as to give effect to this intention, however probable it may be; nor can it rewrite the will, in whole or in part, to conform to such presumed intention. If testator has omitted to provide for the state of affairs which actually has come to pass, the court cannot make the assumption that testator would probably have had a given intention if he had thought of the state of facts which actually existed, and give effect to such probable intention.
‘. . . The court cannot resort to conjecture as to testator’s intention if no intention can be extracted from the words of the will when construed in accordance with the recognized rules of construction and in the light of the surrounding circumstances, . . .” (Emphasis supplied.)
The numerous cases supporting the above statements will be found noted in the text. The more recent cases will be found in the pocket supplement.
We are forced to conclude that the trial court erroneously applied rules of judicial construction to a will although the language used was clear and unambiguous; speculated as to what the testatrix would have done had she considered the state of affairs that actually came to pass, and construed the will to give effect to such speculation. In doing so the trial court erroneously charged the specific legacies with the payment of debts, administration expenses and other lawful demands, except state inheritance taxes, for the purpose of leaving funds available to apply on the general legacy.
The judgment is reversed with instructions to the trial court to enter judgment in harmony with what is stated in the opinion.
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|
The opinion of the court was delivered by
O’Connor, J.:
This is an original proceeding in mandamus wherein the plaintiff seeks to have set aside the district judge’s order staying further proceedings in a personal injury and wrongful death action that was transferred to his court from the probate court of Barber county. The issue to be determined is the propriety of the stay order in light of a separate action, involving the same unliquidated claims, pending against the plaintiff in the United States District Court for the District of Kansas.
The claimant in both actions is Gerald L. Frase, administrator of the estates of Lacey E. Teer and Julia M. Teer, decedents, but he is not a party to this mandamus proceeding.
Plaintiff W. F. Henry is administrator of the estates of Paul L. Findley and Lenna A. Findley, residents of Barber county who were killed in an automobile collision occurring in Phillips county on September 4, 1967. Also alleged to have suffered injuries and died as a result of the accident were the Teers, who were residents of Colorado. On June 18, 1968, Frase, as administrator of the Teers’ estates, filed a wrongul death and survival action in federal district court against plaintiff in his capacity as administrator of the Findleys’ estates. On June 24, Frase also filed a petition in the probate court of Barber county for allowance of demand, involving the same identical issues, against the estates of the Findleys. After plaintiff filed written defenses to the petition, the matter was transferred upon his request to the district court, pursuant to K. S. A. 59-2402a. Thereupon, the defendant district judge set the case for trial on October 29, 1968. In the meantime, plaintiff, on behalf of the Findleys’ estates, filed an answer to Frase’s complaint in federal district court.
The separate actions were thus pending concurrently in both courts when, on October 4, 1968, Frase filed a motion in the district court of Barber county requesting that the state court proceedings be stayed until the action in federal court could be heard. The reasons advanced in support of the stay motion were: the action in federal court was filed prior to the “notice” filed in the probate court; a trial in federal court would be determinative of all issues in the state court; that Frase (plaintiff in the federal court action) elected to have the matter tried in the federal court, his only reason for filing the claim in the probate court being to give “formal notice” that an action had been filed in federal court; and that citizens of a foreign state have the right to choose their forum in cases of this nature. Thereafter, the defendant district judge notified counsel for both parties by letter he was inclined to grant the motion. Plaintiff’s attorneys expressed the desire to be heard on the matter, and after hearing arguments of counsel, the district judge entered an order on November 11, 1968, stating, “the case in the Barber County District Court shall be stayed at this time.”
From the judge’s letter to counsel, as well as his statements from the bench, his action appears to have been on the bases that the question of granting a stay order was a discretionary act, that ordinarily a plaintiff should be able to choose the forum in which he desires to try his case, and that to compel Frase to go to> trial in Barber county against his will would be unfair.
In his petition before us plaintiff alleges that the defendant district judge, in entering the stay order, abused his discretion so as to amount to a clear avoidance of duty, and that because of the arbitrary, unreasonable and unjust action of the defendant, plaintiff has been deprived of his opportunity to have the action in Barber county tried upon the merits in a speedy and adequate manner in the ordinary course of law. The same attorneys who represent Frase in both cases against the plaintiff have filed an answer in this court on behalf of the defendant district judge generally denying that he abused his discretion in granting the stay order.
The state court’s jurisdiction over a claim of this nature is not subject to dispute. We have held that the probate court has exclusive original jurisdiction of an action for wrongful death against the estate of the deceased wrongdoer being administered in this state. (Shively v. Burr, 157 Kan. 336, 139 P. 2d 401. Also, see cases cited in In re Estate of Thompson, 164 Kan. 518, 190 P. 2d 879.) The district court in this case acquired jurisdiction under the provisions of K. S. A. 59-2402a, authorizing transfer from the probate court of any claim exceeding $500 in value.
Plaintiff urges that since the defendant district judge had jurisdiction, he had a clear and positive duty to determine the claims against the Findleys’ estates promptly and without delay, citing Schaefer v. Milner, 156 Kan. 768, 137 P. 2d 156, which states:
“The general rule is well established that when a court of competent jurisdiction acquires jurisdiction of the subject matter its authority continues until the matter is finally disposed of, and that no court of coordinate authority should interfere with its action. . . .” (p. 775.)
Plaintiff points to several provisions of the probate code which he argues were designed to carry out its purpose — to promote the orderly and expeditious settlement and distribution of estates. For example, upon transfer of the case from the probate court, the district court must hear and determine the issues “without unnecessary delay” (K. S. A. 59-2402b, 59-2408); creditors are given only nine months in which to exhibit their demands (K. S. A. 59-2239); and provision is made for the filing of contingent claims, which shall be heard and determined “in such manner as not to delay the closing of the estate, if that can be done with justice to the parties” (K. S. A. 59-2241). In light of these provisions, plaintiff contends there were n'o compelling reasons to justify the district judge’s staying further proceedings “at this time.”
There is no question but that a state court has the power to stay procedings therein until determination of an action pending in a federal court sitting in the same state. (Lanova Corp. v. Atlas Imperial Diesel Engine Co., 44 Del. 593, 64 A. 2d 419, and numerous cases collected in the annotation in 56 A. L. R. 2d 335, § 3.) In Landis v. North American Co., 299 U. S. 248, 81 L. Ed. 153, 57 S. Ct. 163, it was stated:
“. . . [T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its own docket with economy of time and effort for itself, for counsel, and for litigants.” (p. 254.)
Plaintiff candidly concedes that the fact the probate court has exclusive original jurisdiction over wrongful death claims against decedents’ estates has not deterred the federal courts from hearing and determining such claims in diversity of citizenship cases. The federal court, in Prater v. Poirier, 134 F. Supp. 499 (D. C. Kan. 1955), refused to dismiss an action against the estate of the deceased wrongdoer, notwithstanding the identical claim was also filed and pending in the probate court. Ordinarily, federal courts do not have jurisdiction to entertain a proceeding purely of a probate character relating to the administration of decedents’ estates (Rice v. Sayers, 198 F. 2d 724 [10th Cir. 1952], cert. denied 344 U. S. 877, 97 L. Ed. 680, 73 S. Ct. 172), but where diversity of citizenship exists and the requisite amount is in controversy, the federal courts have recognized then jurisdiction to determine questions which may be adjudicated without interfering with probate or assuming general probate jurisdiction (Holt v. King, 250 F. 2d 671 [10th Cir. 1957]; Rosenberg v. Baum, 153 F. 2d 10 [10th Cir. 1946]; Miami County Nat. Bank of Paola, Kan, v. Bancroft, 121 F. 2d 921 [10th Cir. 1941]; McElroy v. Security National Bank of Kansas City, Kansas, 215 F. Supp. 775 [D. C. Kan. 1963]).
Federal and state courts that have concurrent jurisdiction over civil actions are considered as courts of separate jurisdictional sovereignties, and the pendency of a personal action in either a state or federal court involving the same parties and the same controversy does not entitle a litigant to abatement of the action in the other court. If the action brought in a federal and in a state court of concurrent jurisdiction is strictly in personam for recovery of a personal judgment, both courts may proceed with the litigation, at least until judgment is obtained in one court, which may be set up as res judicata in the other. (Farmers Union Cooperative Elevator v. Grain Dealers Mut. Ins. Co., 194 Kan. 181, 398 P. 2d 571, and authorities cited therein.)
The staying of proceedings in a state court pending determination of an action in a federal court is not a matter of right, but rests on the rule of comity and involves the exercise of discretion, which will not be interfered with unless clearly abused. (Farmers Union Cooperative Elevator v. Grain Dealers Mut. Ins. Co., supra; 1 Am. Jur. 2d, Actions §97; 1 C. J. S., Actions §133 (c) (7); Anno. 56 A. L. R. 2d 335.) A stay order does not terminate the action, but merely postpones its disposition, and the order may be modified or vacated by the court whenever deemed necessary or proper. Like a continuance, the question of staying an action is largely discretionary with the court and is governed by the same law applicable to continuances. (See, Dalton v. Hill, 169 Kan. 388, 219 P. 2d 710.)
The rule of comity between courts of concurrent jurisdiction is most beneficial and is bottomed upon the principle of wisdom and justice to prevent vexation, oppression and harassment, and eliminate unnecessary litigation in a multiplicity of suits. (Farmers Union Cooperative Elevator v. Grain Dealers Mut. Ins. Co., supra.) As between state and federal courts of concurrent jurisdiction, the rule is predicated on the proposition that subject matter drawn into and remaining within the cognizance of one court should not be drawn into controversy or litigated in another court of concurrent jurisdiction. (Johnson v. American Surety Co., 292 Mo. 521, 238 S. W. 500.)
The grounds on which a stay will be granted vary according to the requirements of the particular case in which a stay is sought. The textwriter in 1 Am. Jur. 2d, Actions § 97, summarizes the determinative factors as follows:
“State courts in the exercise of their discretion to grant a stay until the determination of an action pending in federal court have taken into consideration whether the action in the federal court was commenced prior to the state court proceeding; whether the federal adjudication affects the outcome of the state court action; whether the parties, causes of action, and issues in the two actions are the same; whether it is more convenient for the parties to conduct the litigation in one forum rather than in the other; whether the question was one of federal law, as to which the federal courts have special knowledge and expertise; whether the federal court was likely to entertain the action; and whether the federal action was brought in good faith.”
(Also, see, 1 C. J. S., Actions §133 (c) (7); Anno. 56 A. L. R. 2d 335.)
The stay of state court proceedings pending a decision in an action filed in the federal court sitting in the same state is frequently granted where the action in federal court has been commenced prior to the state court proceeding, and the decision in the federal case will be determinative of all or some of the issues in the state court action. (See, e. g., Conrad v. West, 98 Cal. App. 2d 116, 219 P. 2d 477; Wade v. Clower, 94 Fla. 817, 114 So. 548; Consumers Power Co. v. Michigan Public Utilities Com., 270 Mich. 213, 258 N. W. 250; Sparrow v. Nerzig, 228 S. C. 277, 89 S. E. 2d 718, 56 A. L. R. 2d 328.) Most of the cases upholding an order staying a state court proceeding pending determination of the federal court action have been in situations where one party has initiated an action in federal court and the other party thereafter filed an action involving substantially the same issues in the state court. The significance of the federal court action being commenced first is somewhat lessened in a situation where, as here, the same party institutes identical actions in both the federal and state courts. Frase’s avowed reason for initiating proceedings in the probate court, notwithstanding his intention to have the matter determined in federal court, appears plausible and sound. The claims on behalf of the Teers’ estates arose from the alleged tortious acts of the Findleys. Consequently, Frase was required under our law to exhibit his demands against the alleged wrongdoers’ estates by filing his claims in the probate court (K. S. A. 59-2237; Shively v. Burr, supra) and thus avoid the possible bar of the nonclaim statute (K. S. A. 59-2239).
A traditional explanation for permitting a nonresident plaintiff the right to bring an action in the federal court under the diversity of citizenship provision of the judicial code (28 U. S. C. A. § 1332) is that state courts may in some way be prejudiced against out-of-state litigants. (Wright — Federal Courts [1963] §23.) While the record does not suggest that Frase would suffer any prejudice by having his claims determined in the local state court, neither does it support plaintiff’s argument that he should be compelled to go to trial there because he invoiced the state court’s jurisdiction. The filing of the claims in probate court in no way deprived the district court from exercising its discretion in granting a stay of the proceedings until the action in federal court could be heard and determined. In his motion for a stay of the state court proceedings, Frase states the only reason the claims were filed in probate court was to give “formal notice” of the pending federal action. He further states that he instructed his attorneys to file the case in federal court and his Kansas counsel were retained for the sole purpose of having the matter heard in that court. Absent is any hint that the action in federal court was instituted for the purpose of harassment or delay, or that it was brought other than in good faith. The defendant judge obviously was of the opinion that Frase should have some choice as to which court was to hear and determine the issues of liability and damages, and concluded from all the circumstances it would be unfair to force him to go to trial over his objection in the state court. Inherent in the judges conclusion is the finding that plaintiff’s position would not be adversely affected by having the issues adjudicated in the federal court. The parties and the issues in each of the actions are identical, and the trial in federal court will be determinative of the issues in the state court action. Contrary to plaintiff’s argument, there is no showing that he would be subjected to unwarranted delay if the matter is determined in the federal court instead of the state court. From the uncontradicted statements in defendant’s brief, discovery has been completed, a pretrial conference held, and the case is ready for trial in the federal tribunal. Further, we are not impressed with plaintiff’s argument that he will be prejudiced by any erroneous rulings of the federal court regarding state law, since the federal court’s determination thereof cannot be reviewed by this court. In our view, there is nothing about the nature of this case that presents unique or unusual questions of state law requiring that the case be heard in the state court rather than the federal court.
Under all the facts and circumstances, we have concluded the district court did not abuse its discretion in ordering a stay of its proceedings.
Judgment is entered for the defendant. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal by the defendant, Leonard W. Young, from a conviction by a jury of second degree forgery (K. S. A. 21-608) and uttering a forged instrument (K. S. A. 21-609) and the resultant concurrent sentences, imposed under the habitual criminal act, of not less than two nor more than twenty years in the state penitentiary.
The primary questions presented relate to: (1) alleged trial errors which defendant contends denied him a fair trial; (2) the sufficiency of evidence to sustain the convictions; and (3) the adequacy of notice of the state’s intention to invoke the provisions-of the habitual criminal act.
The charges stemmed from a check dated September 12, 1966,. purportedly drawn by “Bradly Jordan” of 1707 N. Glendale, Wichita, on The Farmers & Merchants State Bank in Derby, payable to Leonard Young, in the sum of $20, which defendant admitted endorsing and cashing at Mr. D’s, Inc. Seneca, a grocery store in Wichita. The check, bearing a label marked “unable to locate,” was returned by the bank to the store, and defendant was subsequently charged with the stated offenses.
Defendant was brought before the district court on January 24, 1967, found to be indigent, and counsel was appointed. On March 2 defendant filed a motion requesting the court for an order to furnish him with the necessary funds to employ a handwriting expert in order to prove he did not forge the check. The motion was overruled March 10. On April 19 defendant filed a motion-requesting a pretrial conference at which the state be required to disclose all information known to it that was favorable to the defendant. Hearing on the motion was set for May 12, but, at the request of defendants counsel, was continued for argument until May 15, the date of trial. The trial court denied the motion.
Immediately before the commencement of trial the state gave defendant and his counsel notice that in the event of conviction it intended to invoke the provisions of the habitual criminal act, based on a prior felony conviction in 1964. Defendant objected to the time and manner in which the notice was given, and the court overruled the objection.
Thereafter, the state introduced evidence which showed that the purported drawer of the check in favor of this 29-year-old defendant was a 12-year-old lad named “Bradley Jordan” who had a savings account, but did not have, and never had, a checking account in the above-named bank. Bradley denied he was the drawer of the check, and upon examining it, testified the signature thereon was not his — the first name being misspelled. He further testified he did not know the defendant; that he was the only Bradley Jordan at the North Glendale address, where he lived with his parents; and that he had not given anyone permission or authority to sign his name on a check. Bradley’s testimony was corroborated by his father, Athen Jordan, who also testified that the signature on the •check in question was not that of Bradley. Bradley’s testimony ■concerning his savings account was substantiated by the cashier at the bank, Donald Murphy, who testified that a thorough check of the bank’s records revealed a savings account in the name of “Bradley Jordan,” a 12-year-old boy living at 1707 North Glendale, but no record of a checking account in that name.
At the close of the state’s evidence the defendant again asked for the appointment, at the state’s expense, of a handwriting analyst, ■and the court denied the request.
Although defendant admitted endorsing and passing the check in question, he denied writing the check, or that any of the handwriting on it was his, other than the endorsement. Defendant testified that he obtained the check, and other checks, from his 14-year-old brother, Terry Gene Young, and Donald Jordan, Bradley’s older brother, who had been to the defendant’s home on September 12. According to defendant, the boys told him they got the checks from Donald’s brother, and defendant thought Donald’s "brother was writing the checks for money for the boys. Defendant said he did not know who wrote the check in question — it was written when it was given to him — and he did not have any knowl edge that the boys did not have authority from Bradley to give the check to him. Defendant admitted that it did strike him a little odd that two 14-year-old boys had given him several $20 checks to cash, yet he never noticed the variation in the spelling of Bradley’s name or the different addresses on the checks; he just took them and cashed them at different places, giving a different home address than where he actually lived, and keeping only a small part of the money for himself as reimbursement for having gone to the trouble of cashing the checks for the two boys.
The state presented evidence, on rebuttal, by Donald Jordan, who testified he knew nothing about the check and had not received any money from it or any other checks.
Defendant first specifies as error the trial court’s denial of his request for funds to employ a handwriting expert. His principal argument is that the trial court’s action resulted in discrimination against him because of his indigency and was violative of his constitutional rights under the due process clause, citing Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891, 76 S. Ct. 585. We are unable to agree.
The granting or denying of a motion to provide supporting services’ to counsel for an indigent defendant is a matter within the discretion of the trial court, whose ruling will not be disturbed in the absence of a showing that such discretion was abused to the extent that the defendant’s substantial rights were prejudiced. (State v. Taylor, 202 Kan. 202, 447 P. 2d 806.) Since we have no statute authorizing and providing for such services, a request therefor must depend on the facts and circumstances of each case.
Here, when defendant made his separate requests, both before trial and during the presentation of the state’s evidence, there was no showing that the services of a handwriting expert were reasonably available and necessary to prepare an adequate defense. In fact, absent is any indication that defendant or his counsel had contacted or made any effort to secure the services of an analyst if funds were made available.
Unlike in Taylor, the state did not rely on expert testimony in proving its case. There was the testimony of Bradley Jordan, corroborated by his father, denying the genuineness of the drawer’s signature appearing on the check. In a forgery prosecution where the charge includes the false making and forging of a signature of another person to a written instrument, proof that such signature is not in the handwriting of the person whose signature it purports to be is prima facie evidence that the signing of such name was unauthorized and is a forgery. (K. S. A. 62-1418.) The testimony of experts is not required where there is other evidence of forgery. (See, K. S. A. 62-1427; State v. Rowland, 172 Kan. 224, 239 P. 2d 949; State v. Parsons, 140 Kan. 157, 33 P. 2d 1096; State v. Leatherwood, 129 Kan. 686, 284 Pac. 402.) Defendant admitted the endorsement on the check was in his own handwriting. In addition, handwriting exemplars of Bradley, his brother Donald, and the defendant were obtained during the trial and admitted into evidence without objection for consideration by the jury. It was within the province of the jury to compare these handwriting specimens and to exercise its judgment concerning the genuineness of the drawer’s signature and determine whether or not defendant forged the instrument. (State v. Maxwell, 151 Kan. 951, 102 P. 2d 109, 128 A. L. R. 1315; 29 Am. Jur. 2d, Evidence § 806; Anno. 80 A. L. R. 2d 272.)
Under all the facts and circumstances, the trial court did not abuse its discretion in denying defendant’s request.
There is no merit in defendant’s next contention that his right to a fair trial was prejudiced by the court’s denying his motion for a pretrial conference and disclosure by the state of all information favorable to him. The motion specifically referred to information of any inconsistencies made in writing, or orally, by any persons known to the state, whether or not such persons were intended to be used as witnesses at the trial. Defendant neither cites any authority to support his position, nor does he allege the state suppressed evidence favorable to him. (See, Brady v. Maryland, 373 U. S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194.) We view the motion similar to that in State v. Jones, 202 Kan. 31, 446 P. 2d 851, where the defendant requested the county attorney to produce statements taken By police officers during their investigation, and further, to produce the statements of any witness not called at the preliminary hearing. There, we said the statements were not official documents nor a part of any court record, and the court did not err in denying the request, citing and quoting with approval from State v. Badders, 141 Kan. 683, 42 P. 2d 943. For other decisions of like import see State v. Lemon, 203 Kan. 464, 454 P. 2d 718; State v. Metcalf, 203 Kan. 63, 452 P. 2d 842; State v. Oswald, 197 Kan. 251, 417 P. 2d 261; State v. Hill, 193 Kan. 512, 394 P. 2d 106. The motion here was filed nearly a month prior to trial, but at defendant’s request was not heard until the day trial commenced. The names of all state witnesses had been endorsed on the information and the witnesses were available for pretrial interviews had defendant or his counsel so deshed. An examination of the record of trial fails to disclose any reference to prior inconsistent statements, either oral or written, by any of the witnesses. Defendant has completely failed to show he was prejudiced in any way by the trial court’s ruling.
Defendant next complains that the trial court erroneously admitted into evidence state’s Exhibits 3, 5 and 6, which were other checks endorsed and cashed by the defendant during the same period of time as the one on which he was prosecuted. The three checks were admitted over objection during cross-examination of the defendant by the assistant county attorney. The specific objection interposed was that the “stickers” or labels attached to each check were hearsay and that “no proper foundation” had been laid for their admission into evidence.
The checks and attached “stickers” were essentially identical to the check which defendant was charged with forging and uttering. Each check was purportedly drawn by Bradley Jordan, made payable to Leonard Young, in the amount of $20; two were dated September 13, and the other September 11. Defendant admitted receiving the checks from his brother and Donald Jordan, endorsing them, and cashing them at different places. Attached to each of the four checks introduced by the prosecution were identical “stickers” stating, “Returned by The Farmers & Merchants State Bank, Derby, Kansas” — “Returned Unpaid For Reason Indicated:” — “unable to locate.” The cashier of The Farmers & Merchants State Bank testified only as to the one check upon which prosecution was based, stating, “The check was received by our bank. We could not find any account and we returned the check with the label on it, ‘unable to locate.’ ” Since all the labels or “stickers” were identical in form and content, we believe the court did not err in admitting the three exhibits without further foundation. The purported stamp or writing of a drawee bank on a check or accompanying it stating that acceptance or payment has been refused because there is “no account” is admissible in evidence and creates a presumption of dishonor. (K. S. A. 84-3-510.) There was sufficient evidence to infer the writings were made in the regular course of the bank’s business; hence, they were admissible as exceptions to the hearsay rule. (K.S.A. 60-460 [m].)
Defendant further challenges his convictions on the basis they were not supported by the evidence. He urges there was no proof that the check allegedly forged was drawn on an incorporated bank, as required by K. S. A. 21-608. Defendant apparently overlooks the fact that under the statutes of this state every state bank using the word “state” as part of its name must be an incorporated bank. (K.S.A. 9-701, 9-801; State v. Parsons, supra.) The trial court properly took judicial notice of the statutes (K.S.A. 60-409), and there was no deficiency in the evidence as to this element of the offense.
Defendant’s additional argument that there was no evidence he actually forged the instrument or that he knew the check was forged when he uttered it is likewise untenable. Proof of the manual execution of the false signature by the defendant is unnecessary to sustain a charge of forgery. The principle is well established that possession of a forged instrument by one who utters or seeks to utter it, or otherwise to realize on it or profit by it, without a reasonable explanation of how he acquired it, warrants an inference that the possessor himself committed the forgery or was a guilty accessory to its commission. (State v. Mader, 196 Kan. 469, 412 P. 2d 1001; State v. Gates, 196 Kan. 216, 410 P. 2d 264; State v. Johnson, 189 Kan. 571, 370 P. 2d 107; State v. Earley, 119 Kan. 446, 239 Pac. 981.) In the instant case there was direct evidence that the check was a forged instrument. Defendant, although denying he forged the check or knew anything about its being forged, admitted he. had possession of the check and cashed it. The jury, obviously, did not accept defendant’s explanation about how he acquired possession of the instrument and, consequently, was justified in finding defendant himself was the forger. Likewise, from the same circumstances, the jury was warranted in finding defendant knew the check was a forgery at the time he cashed it. (State v. Satterfield, 202 Kan. 395, 449 P. 2d 566, State v. Murphy, 145 Kan. 242, 65 P. 2d 342.)
The specifications of error already discussed dispose of defendant’s additional contention the trial court erred in overruling his motion for new trial.
As a final point, defendant attacks his sentence under the habitual criminal act with the rather ingenious argument that constitutional standards of due process were not met because the state failed to show he had been informed of the provisions of the act prior to the commission of the offenses for which he was convicted. He urges that the act is disciplinary in nature and its purpose cannot be effectuated unless the felon is first notified that enhanced punishment will result if he commits another felony. Acceptance of defendant’s suggestion would add a new dimension to the law. The argument could well be answered by the oft repeated cliché, “Ignorance of the law is no excuse.”
While it is true the purpose of the act is to provide for increased punishment as a disciplinary measure for those whom previous conviction and punishment have failed to reform (State v. Ricks, 173 Kan. 660, 250 P. 2d 773), due process of law has never been extended beyond the requirement that defendant have reasonable notice that the act will be imposed, so that he may be heard upon the issue of his prior conviction. In Brown v. State, 196 Kan. 236, 409 P. 2d 772, we said:
“Fundamental fairness in judicial procedure requires that the court may impose an enhanced penalty under the habitual criminal act only upon the basis of a supporting judicial determination of the essential facts made after the defendant in the criminal case has been notified and heard upon the issue of his prior convictions. The failure to comply with such procedure is a denial of due process of law and makes the enhanced penalty a legal nullity. . . .
“. . . The fundamental requisites of due process, when the statute is to be invoked, are reasonable notice and an opportunity for a full and [complete] hearing, with the right to the aid of competent counsel.” (pp. 239, 240.)
(Also, see Mann v. State, 200 Kan. 422, 436 P. 2d 358; Goodwin v. State, 195 Kan. 414, 407 P. 2d 528; Browning v. Hand, 284 F. 2d 346 [10th Cir. 1960], cert. denied 369 U. S. 821, 7 L. Ed. 2d 786, 82 S. Ct. 833.) The reason for such notice is to provide the convicted felon the opportunity to refute the evidence of former convictions or the evidence adduced which might be in a form inadmissible if challenged by proper objections. (State v. Messmore, 175 Kan. 354, 264 P. 2d 911.) There is nothing in this record to indicate defendant did not have reasonable notice of the state’s intention to invoke the act. He was informed at the commencement of trial of such intention in the event of conviction, and, thus, had ample time to prepare his defense, if any. (State v. Gates, supra.)
No error appearing, the judgment is affirmed. | [
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|
The opinion of the court was delivered by
O’Connor, J.:
This 60-1507 appeal was previously before us (White v. State, 201 Kan. 801, 443 P. 2d 182) and we reversed and remanded the case to the district court with directions to make findings of fact and conclusions of law in accordance with Rule No. 121 (/) and to enter a judgment in conformity therewith.
The disposition of the case deals with the over-all question of the voluntariness of petitioner’s plea of guilty and the related point whether or not the district court abused its discretion in denying a motion to withdraw the plea and a motion to modify sentence.
The facts were amply set forth in the earlier opinion and need not be repeated other than to state that petitioner, charged with murder in the first degree for killing his wife, entered a plea of guilty on September 19, 1966, to the reduced charge of second degree murder, and was sentenced to confinement at hard labor in the state penitentiary for the term of his natural life. In his K. S. A. 60-1507 motion petitioner sought to set aside the judgment and sentence on the ground his plea was entered pursuant to a promise made to his retained counsel, Mr. Charles S. Scott, by the county attorney, Mr. William E. Stillings, outside the presence of the court, that if petitioner would plead guilty to murder in the second degree, the county attorney would recommend a sentence for a term of years, but the county attorney reneged on the agreement; consequently, petitioner’s plea of guilty was involuntarily made. After a full evidentiary hearing on June 19, 1967, at which petitioner, Scott, and Stillings testified, the court denied the motion.
In accordance with our mandate, the district court has made findings of fact and conclusions of law. Those pertinent to this appeal are as follows:
“V. That there were several discussions between Scott and Stillings at the request of Scott as to the possibility of a plea to murder in the second degree and what the attitude of the County Attorney would be relative to recommending a sentence to the Court at the time of sentencing. That Stillings stated that in such a case he would recommend a long term of years in the order of forty (40) years.
“VI. Earl White’s case was set for trial on September 19, 1966, at which time Mr. Scott announced to the Court that Earl White would enter a plea of guilty to second degree murder. That the Court inquired of Earl White ‘are you making this plea of guilty because you are guilty not because of any promises, threats or duress of any kind against you, in other words, is this a free and open plea of yourself?’ That Earl White answered ‘Yes, free and open.’
“VII. That the Court, prior to passing sentence, heard the plea and argument of Charles S. Scott, and the Court discussed with Earl White and his counsel, Mr. Scott, the instant offense and previous offenses. That the Court gave Earl White and his counsel every opportunity to present more to the Court for it’s consideration and further gave every indication that the Court was going to give a maximum sentence. That the Court then stated ‘The Court again inquires of you, Mr. White, is there any just cause or reasonable excuse to show why the judgment and sentence of this Court not be pronounced upon you?’ to which Mr. Scott replied, ‘There is none for the defendant.’ That the Court thereupon sentenced Earl White to confinement at hard labor in the Kansas State Penitentiary for the term of his natural life.
“VIII. That on September 20, 1966, Mr. Scott filed two (2) motions to-wit: Motion to Withdraw Plea of Guilty and Permission to Enter his Plea of Not Guilty and Motion to Modify Sentence. Said motions were heard by the Court on October 27, 1966, at which time Earl White, his counsel Charles S. Scott and the County Attorney, William E. Stillings, were present. Both Charles S. Scott and William E. Stillings fully advised the Court as to their conversations and agreement and Mr. Stillings made his recommendation to the Court that Earl White be given ‘a sentence to a long term of years’. That both attorneys stated that at no time was the Court a party to any of their discussions or agreements. That the Court considered the arguments and statements of the County Attorney, William E. Stillings, and counsel of Earl White, and made the finding that ‘the sentence was warranted’ and the motions were overruled.
“X. That the agreement between Charles S. Scott and William E. Stillings was to the effect that upon a plea of guilty by Earl White to murder in the second degree, that Stillings would not recommend a life sentence but would recommend a sentence of a long term of years, in the order of forty (40) years. That it was understood by Stillings and Charles S. Scott that the Court had the final responsibility and they could not bind the Court.
“XI. That White’s plea of guilty on September 19, 1966, was made with the full knowledge that it was up to the Court to determine what sentence would be imposed. That although opportunity was given no request was made by White or Mr. Scott that the Court ask Stillings for his recommendation prior to imposing sentence.
“XII. That White’s plea of guilty on September 19, 1966, was not made in reliance upon any promise of the County Attorney, Stillings, or his own attorney, Charles S. Scott, that he would receive a punishment for a term of ten to fifteen years. At the very most, White was told by Scott that Stillings would not be asking for a life sentence but would recommend a long term of years.”
The court concluded that petitioner’s plea was freely and voluntarily entered with full knowledge of the probable consequences thereof; that there was no fraud perpetrated upon petitioner by either the county attorney or his own attorney in respect to his entering a plea of guilty; and that the motion should be denied.
It is a fundamental principle of law in this state that a plea of guilty, in order to be valid, must be freely, knowingly and understandingly made. If such plea is induced by promises or threats which deprive it of its voluntary character, it is void, and a conviction based thereon is open to collateral attack. (Mann v. State, 200 Kan. 422, 436 P. 2d 358; State v. Richardson, 194 Kan. 471, 399 P. 2d 799; Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147.) In a 60-1507 proceeding the question of whether a plea of guilty was voluntarily entered is a question of fact, and the burden of proving the involuntariness of such plea is upon the movant. (Mann v. State, supra; Rule No. 121 (g), Rules of the Supreme Court, 201 Kan. xxxm.)
At the 60-1507 hearing petitioner testified that it was his understanding from Scott that if he pleaded guilty he would receive a sentence of ten to fifteen to twenty years. A proffer of corroborating testimony by other witnesses which tended to substantiate petitioner’s understanding, was rejected by the trial court. Even if we assume the court erred in excluding this testimony, petitioner is in no position to attack the court’s finding No. X as to the contents of the agreement — namely, the county attorney would not recommend a life sentence but would recommend a sentence of a long term of years, which recommendation would not be binding upon the trial court. The nature and substance of the alleged plea agreement was a controverted issue, and the finding, being supported by substantial evidence, cannot be disturbed. (Lloyd v. State, 197 Kan. 389, 416 P. 2d 766; Tipton v. State, 194 Kan. 705, 402 P. 2d 310.) Moreover, petitioner’s testimony pertaining to his version of the agreement would imply, contrary to the court’s finding and the record supporting that finding, that the agreement was binding on the court. The court specifically found petitioner’s plea was not made in reliance upon any promise from either the county attorney or his own attorney that he would receive a sentence for a term of ten to fifteen years; and at the very most, Scott told him the county attorney would not be asking for a life sentence but would recommend a term of years.
The propriety of plea discussions and plea agreements in criminal cases was discussed in depth and specifically approved in our recent decision of State v. Byrd, 203 Kan. 45, 453 P. 2d 22. There, we said the county attorney may, in proper instances, engage in plea discussions for the purpose of reaching a plea agreement. Ordinarily, he should engage in such discussion only through defense counsel, and the trial judge should have no part in such negotiations. The prosecutor may agree to make, or not to oppose, favorable recommendations as to the sentence which should be imposed upon the defendant entering a plea of guilty, but he should avoid any action which might reasonably appear to make justice and liberty subjects of bargaining and barter. By way of admonishment we cautioned that all discussions and agreements should be based upon an understanding that such agreements are not binding upon the trial judge, and that even though a guilty plea was received as a result of a prior agreement, nevertheless, the judge was free to reach his own independent decision on whether to approve any concession upon which the agreement was premised.
In determining whether or not the plea of guilty should be vitiated because involuntarily made, we shall first consider the effect, if any, upon the trial judge of not having before him the county attorney’s recommendation at the time of sentencing. The transcript of proceedings reveals the court was in no way apprised of the plea agreement by either defense counsel or the prosecutor. In fact, the court did not ask the county attorney for his recommendation in respect to an appropriate sentence. Prior to acceptance of his plea, petitioner was fully informed of the consequences thereof and the fact that his sentence could be from ten years to life. He further told the judge his plea of guilty was being made because he was guilty and was not the result of any promises. Defense counsel was given full opportunity to make known the county attorney was not requesting a life sentence and did make a statement of a mitigating nature prior to allocution. Actually, there were two allocutions; but at no time during the ensuing colloquy was the plea agreement mentioned. Before pronouncing sentence, the court reviewed in detail petitioner’s previous record of criminal activity— a felony conviction in the state of Washington, and a shooting inci dent in Atchison of which he was acquitted but found guilty of possession of a firearm after commission of a felony. The latter events stemmed from marital difficulty with his wife. Petitioner had been placed on probation for the firearm conviction and was so serving at the time the present offense was committed. A careful reading of the transcript discloses the court was thoroughly familiar with petitioner’s discordant marital life and previous unlawful acts. From the trial judge’s remarks we are satisfied that he exercised his own independent judgment in imposing what in his mind was an appropriate sentence for the reduced charge. Whether or not the county attorney’s recommendations would have affected the court’s judgment seems more a matter of speculation and afterthought than a sound legal basis for vitiating the plea. At any rate, we are of the opinion that any shadow of infirmity which may have been cast upon the voluntariness of petitioner’s guilty plea because of the court’s lack of knowledge of the county attorney’s recommendation was ameliorated by the subsequent proceedings, initiated the day after sentencing, at which the county attorney’s recommendation was made known and the court was given the opportunity to modify the sentence or permit the withdrawal of the plea.
At the hearing on petitioner’s motion to modify the sentence and his motion to withdraw his plea of guilty, the corut was fully apprised of the plea agreement, and the county attorney, pursuant to that agreement, specifically recommended “a sentence to a long term of years.” The judge, in overruling the motions, commented that despite the agreement to which he was not a party, he was of the opinion the life sentence was warranted. In these subsequent proceedings the court was given full opportunity to reconsider the sentence and the effect, if any, of the county attorney’s recommendation. In our opinion the posture of the case at that point was the same as it was had the petitioner first entered his plea of guilty to the reduced charge and the county attorney made known his recommendation in accordance with the terms of the plea agreement.
At the time the agreement was made, and later when the plea was entered, the attorneys, as well as petitioner, knew the court was not in any way bound by the terms of the agreement. In spite of petitioner’s assertions now that he clearly understood he was to receive a sentence of a term of years, there was evidence to the contrary and the court found his plea was not made in reliance upon such a promise, and that he was merely told by his own attorney the prosecutor would not ask for a life sentence but would recommend a long term of years. (See finding No. XII, supra.) As a part of the plea concession the charge was lowered to that of second degree murder with the consent of the county attorney, which alleviated the death penalty as a possible sentence. The transcript discloses petitioner was fully aware at the time he pleaded guilty that he could be sentenced from ten years to life. He is hardly in a position to complain now that the court did not go along with the prosecutor’s recommendation, since he had no assurance of that fact before he entered the plea.
A well-settled rule in this state is that once a plea of guilty has been entered and sentence pronounced whether or not the plea can later be withdrawn is a matter within the sound discretion of the trial court, whose judgment will not be disturbed unless there has been an abuse of that discretion. (State v. Byrd, supra; Addington v. State, 198 Kan. 228, 424 P. 2d 871; State v. Downs, 185 Kan. 168, 341 P. 2d 957; State v. Walker, 177 Kan. 752, 281 P. 2d 1070; State v. Nichols, 167 Kan. 565, 207 P. 2d 469.) Permission to withdraw a plea depends on the facts and circumstances of each case. If the ends of justice will be served by permitting the withdrawal, and manifest injustice to the defendant would result from refusal, permission to withdraw the plea should be granted. (State v. Byrd, supra.)
In State v. Nichols, supra, this court pointed out that among other things, a motion to withdraw a plea of guilty should allege a defendant is not guilty of the crime charged, and at the hearing on the motion evidence may be adduced in favor of or opposed to the motion. True, in the present case the motion to withdraw the plea alleged petitioner had a meritorious defense to the charge. Nothing was presented in support of the motion on this ground other than the argument of defense counsel that petitioner and his wife lived in constant turmoil marked with acts of infidelity on her part, plus the fact the actual killing had taken place in the presence of three police officers, and hence petitioner acted in the “heat of passion.” These factors may have played some part in the county attorney’s willingness to reduce the charge from first degree to second degree murder. They, however, even if supported by evidence, would not, in the event of trial, justify a manslaughter instruction to the effect that the killing was committed in the “heat of passion” without á design to effect death, all as more fully explained in State v. McDer molt, 202 Kan. 399, 449 P. 2d 545. The record indicates that when the guilty plea was accepted and sentence was imposed the judge-was familiar with the previous marital discord and the circumstances leading up to the killing. At the time of his plea, petitioner and his attorney were aware of any defense to the murder charge,, and further, that there was no commitment from the court as to what the sentence would be. Petitioner took his chances just as any other accused where the court has a range of discretion in imposing an appropriate sentence. As previously indicated, the sentence pronounced was unaffected by the lack of the prosecutor’s recommendation pursuant to the plea agreement. The claim of a meritorious defense was insufficient to warrant our saying the court abused its discretion in denying the motion to withdraw the plea.
Under the facts and circumstances disclosed by the record we are unable to see that the ends of justice would be served or manifest injustice result from refusal by the trial judge to permit the withdrawal of the guilty plea or to modify the sentence. The numerous cases cited and relied on by petitioner to sustain his position have been examined; however, because of the peculiar factual situation presented here, we find none of them persuasive. Any question of the involuntariness of petitioner’s plea is completely dispelled by the import of the subsequent proceedings had at the hearing of his post-sentence motions.
In concluding that the trial court properly determined petitioner’s plea should not be set aside and his sentence vacated, we hasten to add that our conclusion is not to be understood as placing a stamp of approval on the failure of a prosecutor to carry out the terms of a plea agreement. In fact, were it not for the unique circumstances here, we would have grave doubt of the propriety of the trial court’s, action.
One other point deserves mention. Petitioner urges that since-the journal entry and transcript of proceedings disclose the court specifically imposed sentence under the provisions of K. S. A. 21-403, which authorizes only a sentence of not less than ten years, a life sentence could not be imposed. The contention is answered by our decision in Dunn v. Crouse, 192 Kan. 180, 386 P. 2d 228, where we said that G. S. 1949 (now K. S. A.) 21-403 and 21-109, are to be construed together in imposing sentence for the offense of murder-in the second degree, and the district court may order any sentence to be imposed not less than the minimum prescribed. The fore going statutes authorize imposition of a life sentence within the trial court’s discretion. (State v. Akins, 194 Kan. 514, 399 P. 2d 848.) The failure of the journal entry to show that sentence was imposed under K. S. A. 21-109 as well as 21-403 is, at most, an irregularity which does not affect the validity of petitioner’s sentence, and provides him with no ground for relief in this proceeding. Upon proper motion, or the court’s own initiative, the journal entry of sentence may be corrected by an order nunc pro tunc. (Kiser v. State, 196 Kan. 736, 413 P. 2d 1002; Dun v. Crouse, supra.)
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|
The opinion of the court was delivered by
Fatzer, J.:
This is a workmen’s compensation case. The point at
issue is whether all compensation awarded the claimant was properly ordered paid from the Second Injury Fund (K. S. A. 44-566,. et seq.) as directed by the district court.
The claimant, Robert L. Leiker, commenced a proceeding before-the workmen’s compensation director to recover compensation as a result of an injury he sustained to his low back and left knee on August 19, 1966, while employed by Manor House, Inc., Wichita, Kansas. The claimant was warehouse foreman, delivery man, and ran the warehouse.
Previously, and in July 1965, and while employed by Manor House, the claimant sustained an injury to his low back and his-left knee when he stepped off a dock backwards. He was treated by C. P. Huey, a chiropractor, and he saw Dr. Rombold at the Wichita Clinic. Dr. Rombold took x-rays of the back and the left knee in 1965, and recommended the claimant have surgery on his. left knee. The claimant received no compensation for this injury..
At the hearing before an examiner which commenced March 24, 1967, the parties stipulated they were covered by the Workmen’s Compensation Act; that the claim for compensation was timely filed; that the respondent’s insurance carrier was the American Employers Insurance Company, and that on April 3, 1966, the respondent and its insurance carrier filed notice with the workmen’s compensation director (Form 88, Notice of Handicapped Employees, prescribed by the Director of Workmen’s Compensation) that the claimant was a “handicapped employee” and was employed January 19, 1958, and listed the nature of his impairment as:
“Osteochondritis of the left knee. Narrow intervertebral disc at L/4-L/5 interspace, congenital abnormality lumbo sacral level, arthritic changes of lumbar spine.”
On October 23, 1967, the examiner made findings of fact that on August 19, 1966, the claimant sustained personal injury by accident arising out of and in the course of his employment with respondent, and further found:
“. . . that except for a preexisting physical condition which this examiner determines to be a physical deformity within the meaning of The Second Injury Fund, both in his back and knee, together with some arthritic condition, which is within the meaning of The Second Injury Fund provisions of the Workmen’s Compensation Act, said claimant would not have suffered the disability which resulted from his injury.” (Emphasis supplied.)
“It is further found that . . . the claimant has suffered a 40 percent permanent partial general disability as a result of the accident, and inasmuch as the claimant was hired under the handicapped employees provision of the Workmen’s Compensation Act, benefits to the claimant should be paid from The Second Injury Fund.”
“It is further found that the Form 88 filed with the Director on April 3, 1966, as a handicapped employee, was sufficient under the law.”
In accordance with his findings, the examiner entered an award of compensation in favor of the claimant and against the Second Injury Fund for 33 weeks of temporary total disability at the rate of $42 per week, and for 379 weeks at the rate of $32.13 per week for a 40 percent permanent partial general disability, and ordered payment in a lump sum of temporary and permanent partial disability, then due and owing, of $1,559.25. Medical and hospital expenses were allowed the claimant and charged against the Second Injury Fund.
On October 24, 1967, the Second Injury Fund made written request to the director to review the examiner’s award pursuant to K. S. A. 44-551. Upon review, and on March 29, 1968, the director made findings of fact and modified the examiner’s award. His findings read, in part:
“. . . The director finds that the filing of the Form 88 by the respondent, Manor House, Inc., with the director on April 3, 1966, was sufficient. Although the said filing does not specifically state which of the sixteen types of handicaps listed in K. S. A. 44-566 the claimant had at the time of the filing, it does describe in sufficient detail said handicaps to meet the general requirements of the statute. The director finds that the claimant’s knee problems were only temporarily aggravated by the accident he sustained on August 19, 1966; that the operation on said knee was not caused by said accident but that the operation was needed and recommended prior to said accident and that claimant has suffered no further disability to his knee as the result of said accident.
“The director further finds that the permanent partial disability of the claimant, in view of the above findings in the regard to claimant’s knee and in view of the medical testimony, is 30% of the body as a whole.
“The director further finds that the accidental injuries incurred by the claimant to his back on August 19, 1966, aggravated an existing condition but that the claimant’s back would have been injured regardless of said preexisting condition and that therefore compensation for claimant’s disability should be apportioned between the (Second Injury Fund and Manor House) . . . on a 50-50 basis, that is to say claimant’s preexisting handicap has contributed 50% of his present disability and therefore the . . . Second Injury Fund should assume one-half of the reponsibility for said disability.
It Is Therefore Ordered, Decreed and Adjudged That the award entered herein by Examiner Lee R. Meader on October 23, 1967, be and the same is hereby modified as follows: An award of compensation is hereby made in favor of the claimant, Robert L. Leiker, and against the . . . Second Injury Fund and against the respondent Manor House, Inc. and its insurance carrier, American Employers Insurance Company, as the result of an accidental injury occuring on August 19, 1966, for 413 weeks of compensation, after deducting the two weeks claimant worked following the accident. Claimant is awarded temporary total compensation at the rate of $42 per week from September 8, 1966 through April 25, 1967, a total of 33 weeks or the sum of $1,386.00, $630.00 of which has been paid, leaving a balance due and owing to be $756.00. Further award is made in favor of the claimant and against the (Second Injury Fund and Manor House) . . . and the insurance carrier for 380 weeks permanent partial disability based upon a 30% disability of the body as a whole at the rate of $24.10 per week. As of March 27, 1968, there is due and owing the claimant 48 weeks of permanent partial disability compensation at the rate of $24.10 per week, or the sum of $1,156.80, making the total amount presently due and owing the claimant to be $1,912.80, which amount is ordered paid in a lump sum. The balance of said award, 332 weeks, is ordered paid at the rate of $24.10 per week until paid in full or until further order of the director. An award of medical treatment for claimant’s knee operation is denied.
“It is further ordered that one-half of all compensation and all medical expenses awarded herein shall be paid by the . . . Second Injury Fund and one-half by the respondent Manor House, Inc. and its insurance carrier . . . It is further ordered that . . . Second Injury Fund reimburse the respondent Manor House, Inc., and its insurance carrier . . . for one-half of all compensation and all medical payments which have heretofore been paid by said Manor House, Inc. and American Employers Insurance Company upon proper evidence thereof being presented to . . . Second Injury Fund. In all other respects said award of October 23, 1967, is hereby affirmed.
On April 16, 1968, Manor House and its insurance carrier perfected an appeal from the director’s award to the district court.
On June 26, 1968, the district court heard the appeal, and sustained the director’s award with respect to his finding the claimant sustained personal injury by accident on August 19, 1966; that the amount of the claimant’s average weekly wage was $133.87; that the parties were governed by the Workmen’s Compensation Act; that written claim and notice were filed within the statutory period, and further:
“6. Claimant was properly listed as a handicapped employee, on Form 88, and same was filed with the Workmen’s Compensation Director on April 3, 1966, as provided by law.
“7. Except for the preexisting physical condition which is determined to be a physical deformity within tire meaning of the law, the claimant would not have suffered the disability which resulted from the injury.
“8. The claimant sustained a 30 percent permanent partial general disability and compensation therefore is assessed against the Kansas Second Injury Fund.”
The court further found that the medical and hospital expenses incurred in connection with the claimant’s injury on August 19, 1966, should be assessed against the Second Injury Fund; that the medical and hospital expenses incurred by the claimant for the operation on his left knee, which were unrelated to his injury on August 19, 1966, should be paid by Manor House; that the Second Injury Fund should reimburse Manor House for claimant’s drugs of $5.15, and should also reimburse the insurance carrier in the sum of $1,448 for compensation theretofore paid the claimant. An appropriate judgment was entered for the allowance and payment of temporary total and permanent partial disability and for medical and hospital expenses in harmony with the district court’s findings.
Following the entry of judgment, the Second Injury Fund per fected this appeal. Thereafter, Manor House and its insurance carrier perfected their cross-appeal.
The Second Injury Fund first contends the district court erred in its finding No. 6 that Form 88 contained a proper listing and description of claimant’s pre-existing disabilities. It argues the form did not list any of the injuries or diseases specified in K. S. A. 44-566 to obtain the protection afforded. It states Manor House made no claim otherwise in the court below, but was content to try to elicit an opinion from medical witnesses that the x-rays revealed some disease which amounted to, in the opinion of the witnesses, physical deformity.
The Second Injury Fund statute was first enacted in 1945 and is supplementary to the Workmen’s Compensation Act. (Polston v. Ready Made Homes, 171 Kan. 336, 232 P. 2d 446.) Its purpose was to encourage the employment of persons with certain physical handicaps by relieving the employer in part from payment of compensation benefits in limited situations. The scope of the Second Injury Fund was greatly enlarged in 1961 by the Legislature. (L. 1961, Ch. 243, §§ 8, 9, now K. S. A. 44-566 and 44-567.) As amended, the declared purpose of the statute is to encourage the hiring of the handicapped. It expresses the idea of achieving this result in a manner that works a hardship on neither the employer nor the employee. Section 44-566 ( 4) defines a “handicapped employee,” and reads:
“A ‘handicapped employee’ means one afflicted with or subject to any physical or mental impairment, or both, whether congenital or due to an injury or disease of such character the impairment constitutes a handicap in obtaining employment or would constitute a handicap in obtaining reemployment if the employee should become unemployed and his handicap is due to any of the following diseases or conditions:
“1. Epilepsy;
“2. Diabetes;
“3. Cardiac disease;
“4. Arthritis;
“5. Amputated foot, leg, arm or hand;
“6. Loss of sight of one or both eyes or a partial loss of vision of more than seventy-five percent bilaterally;
“7. Residual disability from poliomyelitis;
“8. Cerebral Palsy;
“9. Multiple Sclerosis;
“10. Parkinson’s disease;
“11. Cerebral Vascular accident;
“12. Tuberculosis;
“13. Silicosis;
“14. Psycho-neurotic disability following treatment in a recognized medical or mental institution;
“15. Loss of or partial loss of the use of any member of the body;
“16. Physical deformity.”
Previously, the Act included only a loss or partial loss of use of member of the body, such as an eye, arm, hand, leg or foot. (44-566[3].) As amended, it includes such loss of or the loss of use of a specific member of the body, and in addition it includes fifteen other specific categories of diseases or conditions which are in the general bodily disability area. The manifest purpose of the section is to remove completely from controversy the land and number of prior “physical or mental impairments” which, “whether congenital or due to an injury or disease” could qualify as prior impairments if they were of such seriousness as to constitute a hindrance or obstacle to retaining employment or to obtaining re-employment if the employee should become unemployed. (2 Larson, Workmen’s Compensation Law, § 59.32.)
K. S. A. 44-567 prescribes the conditions of liability of the Second Injury Fund, and reads:
“(a) An employer operating within the provisions of this act who employs a handicapped employee, as hereinabove defined, and who, prior to the occurrence of a compensable injury to a handicapped employee, files a notice thereof, together with a description of the handicap claimed with the workmen’s compensation director shall be relieved of liability for compensation awarded or be entitled to an apportionment of the costs thereof as follows:
“(1) Whenever a handicapped employee is injured or is disabled or dies as a result of a compensable injury and the workmen’s compensation director awards compensation therefor and when it appears to the satisfaction of the workmen’s compensation director that the injury or the death resulting therefrom would not have occurred but for the pre-existing physical or mental impairment of the handicapped employee all compensation and benefits payable because of the disability or death shall be paid from the second injury fund.
“(2) Subject to the provisions of this act, as amended, whenever a handicapped employee is injured or is disabled or dies as a result of a compensable injury and the workmen’s compensation director finds that the injury would have been sustained or suffered without regard to the employee’s pre-existing physical or mental impairment but the resulting disability or death was contributed to by the pre-existing impairment, the workmen’s compensation director shall determine in a manner which is equitable and reasonable and based upon medical evidence the amount of disability and proportion of the cost of award which is attributable to the employee’s pre-existing physical or mental impairment and the amount so found shall be paid from the second injury fund.
“(b) The provisions of this section shall apply only to cases where a handicapped employee, as defined in section 8 [44-566], subsection (4), or his dependents, claims compensation, as a result of an injury occurring after the effective date of this section, (c) The total amount of compensation due the workman shall be the amount for disability computed as provided in sections 44-510 and 44-511 of the General Statutes Supplement of 1959: Provided, That in no case shall the payments be less than seven dollars ($7) per week nor more than thirty-eight dollars ($38) per week.”
The procedural requirements of the Act requiring registration of the claimed handicap are mandatory. Before the Fund is obligated to assume a part or all of the compensation awarded a handicapped employee as the result of a compensable injury, the employer is required to file a written notice with the director naming the handicapped person and describing the handicap claimed. (44-567[a].) The notice must be filed prior to the occurrence of a compensable injury and should be given on Form 88, “Notice Of Handicapped Employees,” adopted by the director by Rule No. 51-l-19[e], and filed with the Revisor of Statutes pursuant to K. S. A. 77-415, et seq. The description of the handicap in the notice should conform to the impairments listed in 44-566 with detailed descriptions where possible, and the “nature of impairment” should be described in conformity with the director s footnote contained in Rule No. 51-l-19[e], It is not necessary to furnish medical evidence of the handicap when filing the notice with the director, but such medical evidence will be required if the employer subsequently claims a listed handicap caused or contributed to a compensable injury to such employee. (Rule No. 51-l-19[e].) The burden of proving the employee was handicapped as listed with the director, and that such employee suffered a compensable injury which was caused or contributed to by the listed handicap, is on the employer. (Rule No. 51-l-19[h]; 44-567 [a] [1] and [2].)
As indicated, the purpose of the Act is to encourage employers to hire the handicapped, and the Legislature intended this to be achieved by shifting the increased burden of compensation from the employer to a Second Injury Fund which is funded by payments from insurance carriers and from legislative appropriations. The statute is remedial in character, and is not to be interpreted in any narrow, technical or illiberal manner. A liberal construction of its provisions should be indulged, if necessary, to give effect to the purpose intended by the Legislature. (Chapman v. Victory Sand & Stone Co., 197 Kan. 377, 416 P. 2d 754.)
If burdensome and technical filing requirements make it uncertain whether the employer has described an employee’s handicap with sufficient specificity to obtain the protection of the Fund, he has a simple solution to the resulting problem. He may refuse to hire the handicapped and discharge those already employed. A technical construction of the Act would result in defeating the coverage the Legislature intended and might tend to make the Fund a “dead letter.” As indicated, the Legislature intended to remove completely from controversy the kind and number of prior physical or mental impairments, whether congenital or due to injury or disease, and to permit employers to secure the protection of the Act by listing with the director the names of such employees and describing their handicaps. All of the handicaps within the coverage of the Act are fairly specific and clear except for the one listed as “physical deformity” which is ambiguous. Legislative definition of the term is obviously needed.
In the instant case, the listing of the claimant’s pre-existing spinal impairment was that it was “congenital abnormality ... arthritic changes of lumbar spine.” Arthritis is a listed handicap within the coverage of the statute. (44-566 [4].) While the notice filed with the director on April 3, 1966, did not specifically state that osteochondritis of the left knee was listed as a physical deformity, the medical testimony was that such impairment constituted a physical deformity, and we are of the opinion the description of the claimant’s pre-existing physical condition was sufficient to comply with 44-566 and to afford Manor House the protection of the Second Injury Fund.
The Second Injury Fund next contends the decision of the director under 44-567 is not subject to review by the district court. It argues that since the complete administration of the Fund is vested in the director, including the determination of the preliminary “but for” causation under 44-567 (a) (1) which is left “to the satisfaction of the director,” with no provision for appeal to the district court from that “satisfaction,” the director’s determination that the claimant’s injury on August 19, 1966, would have occurred regardless of any pre-existing impairment must stand. The contention is not meritorious.
The statutes to be construed in this appeal were the subject of a concise and comprehensive article by Mr. Alvin D. Herrington, of the Wichita Bar, entitled “Workmens Compensation — The Second Injury Fund.” (Vol. 35, J. B. K., 167.) The author states that our statutes pertaining to review of an examiner’s decision by the director (44-551), and appeals of the director’s decision to the district court (44-556), are undoubtedly applicable even though the Second Injury Fund statutes do not expressly provide for an appeal to and review by the district court. In a footnote, the author states:
“An interesting point might be raised as to whether or not the district court, on appeal, could change the director’s decision under Kan. Stat. Ann. § 44-567 (a) (1) (1964). The statute provides that when it appears to the satisfaction of the director that the injury or death would not have occurred but for the preexisting impairment, all benefits are to be paid from the fund. Can the district court decide whether the director should or should not have been satisfied or is it a subjective decision which only the director can make? Probably review by the district court is available, but the legislature’s choice of words leaves some doubt.” (p. 197.)
Section 44-556 provides in substance that any party to a workmen’s compensation proceedings may appeal from any and all decisions, findings, awards, or rulings of the director to the district court of the county where the cause of action arose, upon questions of law and fact as presented and upon the transcript of the evidence and proceedings as presented, had and introduced before the director.
The statute was construed in Johnson v. General Motors Corporation, 199 Kan. 720, 433 P. 2d 585, and in a similar although not analogous situation, it was held the district court had authority on appeal to determine an application under 44-531 relating to lump sum redemption, which provides that the director “may, when he, in his sound discretion” determines that the employer shall redeem the award. In the opinion it was said:
“. . . We do not believe that by the use of the words ‘in his sound discretion’ the legislature intended thereby to establish a separate procedural scheme on this one question, nor that it intended by the enactment of 44-531 to override the plain language in 44-556. In Ross v. Lytle Co., 183 Kan. 825, 332 P. 2d 592, this court stated that 44-531 must be read together with other parts of the compensation act. We hold a district court has authority on appeal to determine an application under 44-531 for lump sum redemption of an award.” (1. c. 724.)
It is apparent to us that a finding within “the sound discretion” of the director does not differ substantially from a finding “to the satisfaction” of the director, or to a situation where “the workmen’s compensation director finds” the injury would have been sustained without regard to the pre-existing impairment. As indicated, the Second Injury Fund is supplemental to the Workmen’s Compensation Act, and we are of the opinion that all decisions of the director with respect to the administration of the Fund involve questions of law and fact, and are subject to review by the district court under the provisions of 44-556.
As previously noted, the 1961 amendment broadened the coverage of pre-existing impairments and did not limit second injuries to those causing total permanent disability. Section 44-567 provides for the liability and contribution of the fund and the apportionment of the costs of compensation. When an employer operating within the provisions of the Workmen’s Compensation Act employs a handicapped person, and who, prior to the occurrence of a compensable injury to such employee, files a notice with the director of such employment together with a description of the handicap claimed, 44-567 (a) (1) provides that whenever a handicapped employee is injured or is disabled or dies as a result of compensable injury, and the director is satisfied that the injury or death would not have occurred “but for” the pre-existing impairment, “all” compensation awarded such employee because of the disability or death shall be paid from the Second Injury Fund. The words “but for” are used in the sense that the accident causing the disability or death would not have occurred but for the pre-existing impairment. In other words, under subsection (1) of 44-567 (a) and the director’s Rule No. 51-1-19 (b), the burden of proving a causal relation between the handicap and the injury is on the employer. The accident must be the proximate cause of the disability or death and would not have occurred “but for” the pre-existing impairment. As Mr. Herrington states (supra, op. cit., p. 169), “[i]t would appear that if the accident would not have happened without the handicap the test is met.”
With respect to subsection (2) of 44-567 (a), if the director finds the injury would have been sustained without regard to the preexisting impairment, but the resulting disability or death was contributed to by the pre-existing impairment, the statute provides that the director shall determine in a manner which is equitable and reasonable and based upon medical evidence, the amount of disability and apportion the costs of the award which is attributable to the pre-existing impairment, and such amount shall be paid from the Second Injury Fund. Hence, where the previous impairment did not cause the subsequent injury, but the resulting disability was contributed to by the pre-existing impairment, the director shall apportion the cost of the award between the employer and the Second Injury Fund in a just and equitable manner, based upon the medical evidence. See, Kelly, Workmens Compensation, 10 Kan. L. Rev, 347.
As indicated above, the examiner found that, “except for” the pre-existing impairment, the claimant would not have suffered the disability which resulted from his fall on August 19, 1966, and entered an award in favor of the claimant and directed that all compensation be paid from the Second Injury Fund. Upon review, the director found the claimant’s knee problem was only temporarily aggravated by the accident; that the operation of the left knee was not caused by the accident but was needed and had been previously recommended, and that the claimant suffered no further disability to his knee as a result of the fall. The director further found that the injury to the claimant’s back on August 19, 1966, aggravated a pre-existing condition, but that his back would have been injured regardless of said pre-existing condition, and directed that compensation awarded the claimant be apportioned between the Fund and Manor House on a 50-50 basis pursuant to 44-567 (a) (2).
On appeal, the district court found, in almost identical language used by the examiner, that “except for” the pre-existing impairment, which was determined to be a “physical deformity,” the claimant would not have suffered the disability which resulted from the injury, and assessed all payments of compensation against the Second Injury Fund under 44-567 (a) (1). Thus, we are brought to the question whether the district court’s finding is sustained by substantial competent evidence.
The record has been carefully and thoroughly examined and it contains no evidence produced by the claimant or any of the medical witnesses that the prior impairment caused the claimant’s accident on August 19, 1966. On that date, the claimant and his helper were delivering furniture in Wichita. They were unloading a dresser which weighed approximately 350 pounds. The claimant had to step up onto the back of the truck because he could not reach the dresser from the ground. He lifted the dresser and had it on his right side, and when his helper stepped back, he started to step down, and lost his balance and fell. When he fell, he had the dresser in such an awkward position that he twisted his back and it immediately started hurting. He also felt pain in his left knee. Dr. Schlachter testified “there is no history of a sudden severe pain in his back causing him to fall,” and “there is no way that the back condition could have produced a condition that would have caused him to fall.” Likewise, there is no evidence the left knee gave way. On the contrary, the claimant was carrying his end of the dresser on his right side and it was his right leg which supported the weight. Dr. Baehr testified that the claimant’s pre-existing condition “did contribute to the fact that he did have this particular injury,” however, none of his testimony may reasonably be construed as stating, that the pervious impairment was the proximate cause of the claimant’s fall.
We conclude there is no evidence in the record to support the-district court’s finding that the claimant’s injury resulting from his. fall on August 19, 1966, would not have occurred “except for” the pre-existing impairment of the claimant, and it erred in ordering the-entire amount of compensation paid from the Second Injury Fund.
We now turn to Manor House and its insurance carrier’s cross-appeal. It is contended the district court erred in awarding medical expenses to the claimant and against these respondents for the-operation on his left knee. The record indicates the claimant’s left-knee was injured in July, 1965, in the course of his employment, and that Dr. Rombold took x-rays of the knee and recommended the claimant have surgery on it. No reason has been suggested why the medical expenses allowed the claimant for the operation were-improper. We conclude the respondents have failed to affirmatively make it appear the district court erred in this respect.
The judgment of the district court is reversed with directions to-apportion the payment of the award of compensation in a manner which is equitable and reasonable and based upon the medical' evidence, and in doing so, it should give consideration to the-apportionment heretofore made by the director.
It is so ordered.
Fromme, J., concurs in the result. | [
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The opinion of the court was delivered by
Kaul, J.:
Petitioner appeals from an order denying relief under K. S. A. 60-1507. In February 1966 petitioner was convicted by a jury on two counts of receiving stolen property in violation of K. S. A. 21-549. The conviction on Count I amounted to a felony. On Count II the jury valued the stolen property received by petitioner at less than $50, resulting in a misdemeanor conviction.
Petitioner filed a motion for a new trial which was heard by the court and overruled.
On March 4, 1966, petitioner filed in this court a notice of appeal from the judgment, sentence and order overruling his motion for a new trial.
Petitioner filed a bond in the amount of $12,000, and sentence was stayed by this court. Petitioner took no further steps to perfect his appeal. On April 15, 1967, the state filed a motion to dismiss the appeal on the grounds petitioner had failed to comply with the rules of this court by failing to file his brief and abstract on or before March 1, 1967, under the provisions of Rule No. 15 (Rules of the Supreme Court, 201 Kan. xxvxx). The state further pointed out that petitioner had not sought an extension of time. On April 24, 1967, the appeal was dismissed by this court. On May 11, 1967, petitioner was transported to the Kansas State Penitentiary.
During his trial and posttrial proceedings, including the initiating of his appeal, petitioner was represented by personally retained counsel.
In July 1967, while confined in the penitentiary, petitioner filed a motion in this court to reinstate his appeal. The state filed a response, objecting on the grounds that no meritorious explanation was made by petitioner for not abiding by the rules of this court in perfecting his appeal. After considering the matter this court denied petitioner’s motion to reinstate on August 31, 1967.
On November 15, 1967, petitioner filed his present motion on the form provided by our Rule No. 121 (Rules of the Supreme Court, 201 Kan. xxxn).
On March 25, 1968, the trial court, after examining the files in the present case and the transcript, files and records in the criminal action, made extensive findings of fact, conclusions of law and determined the files and records conclusively showed petitioner was not entitled to relief.
Thereafter present counsel was appointed and this appeal was perfected.
The points raised by petitioner in his motion and in this appeal consist mainly of trial errors which could have been raised on a direct appeal. Notwithstanding that a proceeding such as this is not to be used as a substitute for an appeal (Rule No. 121 [c] [3] of the Supreme Court, 201 Kan. xxxm), under the circumstances present, we shall consider issues raised on their merits.
Petitioner first attacks the sentence pronounced by the trial court as being excessive. The trial journal entry discloses petitioner was sentenced to the Kansas State Penitentiary for a period of fifteen years on Count I, receiving stolen property, a felony contrary to K. S. A. 21-549. On Count II, the misdemeanor conviction, petitioner was sentenced to the Sedgwick County jail for one year. The sentences were ordered to run concurrently. Although petitioner failed to specifically set out the point in his 60-1507 motion, he now claims that the failure of the trial journal entiy to reflect what is required by K. S. A. 62-1516 denied him a substantive right because he had not been adequately apprised of the trial court’s reasons for sentencing him under K. S. A. 21-107a.
Although the trial journal entry fails to recite the previous convictions relied on, as required by 62-1516, the trial court, in ruling on petitioner’s motion, made findings in this regard as follows:
“(c) The court further finds that the defendant took the stand during the trial and testified that he had been convicted on October 24, 1954 of burglary and larceny in tire State of Missouri, and that on March 20, 1956, in Sedgwick County, Kansas, he was convicted of possession of a pistol after conviction of a felony.”
The trial proceedings, included in the record before us, disclose that while on the witness stand petitioner admitted a Missouri conviction for burglary and larceny in 1953 and a 1956 Kansas conviction for possession of a pistol after conviction of a felony.
Further, the sentencing proceedings, following the hearing on petitioner’s motion for a new trial, disclose the state offered into evidence authenticated records disclosing petitioner’s Missouri conviction of burglary and larceny and also records of the Sedgwick County, Kansas, conviction in 1956.
Even though petitioner concedes in his brief that an irregular or incomplete journal entry may be corrected by a nunc pro tunc order of the court, he claims that since a nunc pro tunc journal entry has not been filed he has not been adequately apprised of the trial court’s reasons for sentencing him under 21-107a.
He further argues that even if a nunc pro tunc journal entry were filed, it would be too late for him to present to this court any questions that might arise.
By way of explanation, the state has appended to its brief a copy of a motion to correct the journal entry nunc pro tunc, filed June 2, 1967, and a journal entry thereon setting out the previous convictions and fully correcting the trial journal entry. The state’s attorney explains a nunc pro tunc journal entry was mailed to petitioner’s counsel but not returned and, therefore, has not been filed to this date.
The record conclusively shows that at the túne of sentencing defendant was well aware of the identity of the two previous convictions, referred to by the trial court, and used as a basis for imposing sentence under K. S. A. 21-107a.
While on the witness stand petitioner admitted and described the convictions. At the sentencing proceedings the state offered documentary evidence of the two convictions. Petitioner’s attorney objected to the state’s exhibits as not being properly certified or authenticated. The trial court considered this matter and ruled against petitioner. Petitioner could not possibly have been misled as to the identity of the two prior convictions.
This being the case, the sentence is not void; the journal entry is merely incomplete and subject to correction. (Kiser v. State, 196 Kan. 736, 413 P. 2d 1002; State v. Moses, 190 Kan. 485, 376 P. 2d 804, cert. den. 368 U. S. 863, 7 L. Ed. 2d 61, 82 S. Ct. 110; Converse v. Hand, 185 Kan. 112, 340 P. 2d 874, and Browning v. Hand, 184 Kan. 365, 336 P. 2d 409, cert. den. 361 U. S. 926, 4 L. Ed. 2d 240, 80 S. Ct. 295.)
The state admits the journal entry does not correctly reflect the judgment of the trial court and should be corrected nunc pro tunc; why the correction has not been completed we are at a loss to understand. We are compelled to remand the case with directions that the journal entry be corrected in accordance with what was said in Kiser v. State, supra, and Wilson v. Hudspeth, 165 Kan. 666, 198 P. 2d 165, cert. den. 335 U. S. 909, 93 L. Ed. 442, 69 S. Ct. 410, rehearing denied 336 U. S. 911, 93 L. Ed. 1075, 69 S. Ct. 511.
In connection with the matter just considered we feel called upon to point out mandatory directions of K. S. A. 62-1516 which read:
“It shall be the duty of the court personally to examine with care the entry prepared for the journal, or the journal when written up, and to sign the same and to certify to the correctness thereof.”
Petitioner claims his prior conviction for possession of a pistol after a felony conviction under K. S. A. 21-2611, cannot be considered as a prior felony conviction for the purpose of imposing sentence under K. S. A. 21-107a under our decisions in State v. Ware, 201 Kan. 563, 442 P. 2d 9, and State v. Porter, 201 Kan. 778, 443 P. 2d 360. Petitioner fails to recognize the factual distinctions which make those cases inapplicable here. In both Ware and Porter the thrust of our holdings was that a previous felony conviction relied on to establish a violation of the felony firearms statute (21-2611) may not in the same case also be used to invoke the provisions of the Habitual Criminal Act. In petitioner’s case the prior felony firearms conviction is a separate felony used only to invoke the Habitual Criminal Act. In State v. Ricks, 173 Kan. 660, 250 P. 2d 773, we held the Habitual Criminal Act is a law of general application and creates no exceptions as to any felony previously committed. Possession of a pistol in violation of 21-2611 was held sufficient to constitute any felony for the purpose of conviction under K. S. A. 21-401, defining first degree murder under the felony murder rule in State v. Moffitt, 199 Kan. 514, 431 P. 2d 879.
Petitioner next claims the 1954 Missouri conviction of burglary and larceny does not constitute a prior felony conviction because he was sentenced to the Missouri “Intermediate Reformatory for Young Men,” rather than to the penitentiary. Petitioner’s claim is without merit. In Missouri, as in Kansas, burglary and larceny are punishable by confinement in the penitentiary and constitute a felony even though an offender may have been administratively dealt with in a different manner. The punishment prescribed refers to the offense and not the sentence. (State v. Hacker [Mo. 1948], 214 S. W. 2d 413; State v. Nolan [Mo. 1958], 316 S. W. 2d 630; Fry v. Hudspeth, 165 Kan. 674, 197 P. 2d 945.) See, also, Martin v. Amrine, 156 Kan. 384, 133 P. 2d 582.
In his 60-1507 motion petitioner attacks Instruction No. 9, which was submitted in his criminal trial, after the jury had deliberated for some time but had failed to reach a verdict. We are not informed, nor does the record disclose, precisely at what point during the jury’s deliberation the instruction was submitted.
Instruction No. 9 is a so-called “Allen” instruction. (Allen v. United States, 164 U. S. 492, 41 L. Ed. 528, 17 S. Ct. 154.) As submitted by the trial court it follows the text of PIK 10.20. When submitted and on motion for a new trial, petitioner argued the instruction was barred by our holding in State v. Earsery, 199 Kan. 208, 428 P. 2d 794. The trial court simply ruled that State v. Earsery, supra, would not be applied retrospectively. It appears counsel and the trial court may have misconstrued our holding in Earsery. We pointed out in Earsery that the facts did not require a determination whether the PIK instruction, standing alone, would constitute prej'u dicial error. Our decision on the point there was based on oral remarks of the trial court which went far beyond the language of the instruction. The record here does not disclose any additional extemporaneous remarks by the trial court as in Earsery or in State v. Basker, 198 Kan. 242, 424 P. 2d 535.
Under the surrounding circumstances shown to exist in this case, the giving of the instruction does not amount to prejudicial error; however, we again call attention to the caveat issued in State v. Oswald, 197 Kan. 251, 417 P. 2d 261, and reiterated in Earsery.
Petitioner in his 60-1507 motion raises another alleged trial error concerning the trial court’s refusal to allow additional alibi witnesses to testify when they were not listed on the notice of alibi. Petitioner further claims he was denied due process of law in this regard.
Notice of plea of alibi is provided for in K. S. A. 62-1341 which reads in part:
“On due application, and for good cause shown, the court may permit defendant to endorse additional names of witnesses on such notice, using the discretion with respect thereto now applicable to allowing the county attorney to endorse names of additional witnesses on an information. . . .”
Whether additional names are to be endorsed on a defendant’s notice of the plea of alibi, as provided in the statute, rests in the discretion of the trial court. (State v. Berry, 170 Kan. 174, 223 P. 2d 726, and State v. Rafferty, 145 Kan. 795, 67 P. 2d 1111.)
Petitioner filed his notice of plea of alibi as to Count I on January 21, 1966; his trial did not commence until February 2, 1966. The information, filed January 17, 1966, unlike that in State v. Taylor, 198 Kan. 290, 424 P. 2d 612, specifically alleged the offense charged in Count I to have occurred on November 26, 1965. The time of the offense was fixed at the preliminary hearing on January 14, 1966. In his notice of alibi, petitioner alleged that he was at another place during the hours 8 to 10 p. m. on that date. Petitioner makes no complaint that he was misled as to the time of the offense, asserted by the state, he merely claims that he had not had an opportunity to obtain the names of the two witnesses he wished to add. Under the circumstances related, petitioner’s assertion cannot be said to amount to “good cause shown” so as to serve as a basis on appellate review of a finding of abuse of discretion on the part of the trial court.
Petitioner admits our notice of the plea of alibi statute, 62-1341, is constitutional under existing decisions (Rider v. Crouse, [10th Cir. 1966], 357 F. 2d 317), but maintains that under Washington v. Texas, 388 U. S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920, he was denied ‘ due process of law in his conviction. The case is not in point.
The decision in Washington struck down Texas statutes providing an across the board disqualification, as witnesses for an accused, all persons charged or convicted as coparticipants in the same crime. Our alibi statute bars no one as a witness for the accused but merely prescribes notice as a prerequisite.
Finally, petitioner insists the failure to appoint counsel and grant a full hearing on his motion amounts to a denial of constitutional due process of law.
The points raised by petitioner in his motion concern matters which were considered and determined by the trial court during the course of the criminal trial. As evidenced by the findings and conclusions made herein, the trial court had before it the complete record, including arguments of counsel on the points at issue during the trial and on motion for a new trial. Under the circumstances the appointment of counsel would have served no useful purpose. Petitioner s motion for relief presented no disputed facts, and there was nothing about the case to cause the court to hold an evidentiary hearing. (Davis v. State, 197 Kan. 576, 419 P. 2d 832, and Chappell v. State, 197 Kan. 407, 416 P. 2d 786.)
The trial court was fully justified in determining that the motion and files and records of the case conclusively showed that petitioner was entitled to no relief.
As heretofore indicated, the case must be remanded with directions to complete nunc pro tunc proceedings correcting the journal entry.
It is so ordered. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by B. F. Mudge against the board of regents of the Kansas State Agricultural College. The facts of the case are substantially as follows: On July 16, 1873, the board of regents adopted the following resolutions, to wit:
“Resolved, That Prof. Mudge be tendered the chair of geology and related sciences, at a salary of $1600 per annum.”
“Resolved, That Prof. Mudge be allowed house rent free, in consideration of the extra services which he renders the college.”
On September 4, 1873, said board adopted the following resolution, to wit:
“Resolved, That each professor shall give and receive three months’ notice of resignation or discharge, except in case of gross misconduct.”
At the beginning of the next school year, commencing in September, 1873, and in fact on the 11th day of said September, though the exact day is not very definitely shown, Prof. Mudge commenced to perform services as professor of geology and associated sciences for said Agricultural College. At this time, and prior thereto for moi’e than seven years, Prof. Mudge was and had been in the employment of the said Agricultural College, but in what capacity he was so employed is not shown. From this time until February 6th, 1874, he performed the duties of said professorship of geology and kindred sciences. February 6th, 1874, he was discharged by 'the board of regents from his said professorship, avowedly for gross misconduct, although in fact, as was substantially found by the court below, he was not guilty of any such misconduct. For three months after the discharge Prof. Mudge was out of employment, although he endeavored to obtain employment. No written contract was ever executed between said regents and Prof. Mudge, and no formal oral contract was ever entered into between them. After the regents tendered to Prof. Mudge “the chair of geology and related sciences,” he orally accepted the same, but when he accepted the same is not shown. It was not earlier, however, than August, 1873, and may have been later. The regents paid Prof. Mudge for his services up to the time when they discharged him, but did not pay him for any time afterward. Prof. Mudge then sued them for compensation for the three months next succeeding his dismissal. He recovered in the court below, and obtained a judgment for $493.33. The board of regents now, as plaintiff in error, seek to have this judgment reversed by petition in error in this court. They raise two principal questions in this court: 1st, They claim that their said resolution of September 4th, 1873, was and is void; 2d, But if it is not void, then they claim that it has no application to the employment or services of Prof Mudge. Some other questions are suggested by briefs of counsel, but they are not of sufficient importance to require any separate consideration. We think we must decide both of the principal questions against the plaintiff in error.
I. The act relating to the Agricultural College (Gen. Stat. 75) provides, among other things, as follows:
“Sec. 2. The government of such college is vested in a board of regents,” etc.
“Sec. 3. The board of regents shall' constitute a body corporate, with the right as such to sue and be sued, to use a common seal, and to alter the same at pleasure.”
“ Sec. 4. The regents shall have power to enact ordinances, by-laws and regulations for the government of said college; to elect a president; to fix, increase and diminish the regular number of professors and teachers; and to appoint the same, and to determine the amount of their salaries. They shall have power to remove the president and any professor or teacher, whenever the interest of the college shall require.”
“Sec. 12. The board of regents shall have the general supervision of the college, and the direction and control of all expenditures.”
It will be seen from the foregoing sections of the statute, that the power reposed in the board of regents is very extensive. They are a corporation having the entire control of all departments of the college — -educational, financial and administrative. They have the power to appoint and discharge the president and all the professors and teachers, and to fix and increase or diminish their several salaries. But with all these powers,-they are not supreme, nor irresponsible. They may “sue and be sued,” just as the managing officers of other public corporations, such as.cities, towns, counties, townships and school districts, may.
While their powers are extensive, still they may render their board liable by the wrongful exercise of such power. Thus they have the unquestioned and the continuing power of employing a president and professors and teachers whenever they may choose, and of discharging any of them whenever they may choose; but if they agree to employ a president or professor or teacher for a period of three months, and then wrongfully discharge him before the three months have elapsed, they will leave their board responsible for the whole amount of the salary for such three months, notwithstanding such discharge. While the legislature unquestionably intended to confer upon the board of regents extensive powers, yet it did not intend to confer upon them the irresponsible power of trifling with other men’s rights with impunity; and making the regents responsible for their acts, does not in the least abridge their powers. It only tends to make them more cautious and circumspect in the exercise of their powers. But the plaintiff in error claims in substance that the board has no legal power to make a contract to employ a president or a professor or a teacher for any particular period of time — not even for a day or an hour — and therefore, that an agreement to employ a president or a professor or a teacher for three months, or for any other definite period of time, would be an absolute nullity. Now we cannot think that this is correct. There is no express limitation upon the power of the board to make a contract to employ a president or a professor or a teacher for any period of time, and we know of no implied limitation that would prevent the board from employing, or agreeing to employ, a president or a professor or a teacher for three months, or for even a longer period of time, provided it were not unreasonably long. We would think that the board has the power to make a valid contract, in advance, to employ a president or a professor or teacher for some short but definite time — say .three months — and especially so, where the board reserves the right to discharge such president, professor or teacher at any time for misconduct. It would certainly be for the interest of the college that the board should have such power. No man of spirit, of self-respect, and of capability, would want to hold an office or position at the whim or caprice of a body of men with whom he might have but little if any personal acquaintance. No man of spirit, of self-respect, and of capability, would accept an office unless he'felt that he was reasonably certain to hold the same for some reasonable period of time. The shorter and more precarious the tenure of the office, the less attractive, important and valuable it would be; and generally, men of only inferior talent could be found to accept it or to perform its functions with such a precarious tenure, and even then a higher rate of compensation would be required than where the tenure is more stable and certain. In the present case, the contract may be considered as a continuing contract with each professor for his services for the next three succeeding months. That is, the services of each professor are continually contracted for, for three months in advance, until after he gives or receives notice that his services are to be terminated at the expiration of such three months; and his employment will still continue for three months after such notice is given. Now we know of no sufficient reason why-such a contract should not be valid. We think it is eminently reasonable, and for the best interests of the college.
II. But the plaintiff in error claims, that even if the board of regents had- the power to pass said resolution of September 4, 1873, still, that the facts of this case do not constitute a contract under the resolution. We think they do. The board passed a resolution tendering said professorship to Professor Mudge. The board passed another resolution, “that each professor shall give and receive three months’ notice of resignation or discharge, except in case of gross misconduct.” Prof. Mudge had knowledge of these resolutions, and having such knowledge, entered upon the discharge of the duties .of his professorship. Now, we think that these facts are sufficient to constitute a contract between the regents and Prof. Mudge, that he should receive three months’ notice before he should be discharged, except in case of gross misconduct; or rather, these facts (in the absence of any express contract) are sufficient to authorize a finding of an implied contract to that effect. The question was fairly submitted to the jury, under proper instructions. The court also instructed the jury, that if Prof. Mudge was guilty of gross misconduct, and was discharged for that reason, he could not recover, and the jury found in his favor.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion- of the court was delivered by
Brewer, J.:
Defendant was convicted in the district court of Greenwood county on a charge of selling liquor without a license, and from such judgment of conviction he appeals to this court. The prosecution was commenced by the city of Eureka, in the police court of that city, and was for a violation of the city ordinance. On the trial, the fact of the sale was conceded, and the defense was that defendant had a license. The validity of this license, and the right of the plaintiff to question its validity, are the questions in the case. That a petition signed by a number of citizens was presented to the city council, approved by the. council, and license ordered to be issued; that a license was issued, bond given, and payment for the license made to the city treasurer, and the mon.ey retained by him up to the time of the trial, were all proved. The city then offered in evidence the list of adults required to be made and filed by ch. 86, laws 1868, which list contained the names of 341 persons. The petition contained only 156 names.
Upon this, counsel for áppellant „contends that the city council is the tribunal to pass upon the sufficiency of t'he petition, and that having adjudged it sufficient, that matter is no longer open to inquiry; and secondly, that the city having received and retained the license money, is estopped from questioning the validity of the license or prosecuting the defendant for, doing what it had given him a license to do; and thirdly, that section 2 of said chapter 86, which prescribes that the. list of adults provided for in section 1 is conclusive as to the number thereof in certain cases, is unconstitutional, because the subject-matter thereof is not expressed in-the title to the act.
We cannot concur .with counsel in any of these matters, and are of the opinion that the ruling of the district court was correct, and that the judgment must be affirmed. In reference to the last question, the title to the act is, “An act providing for registration of all adult persons in each county in this state.” Section 1 declares who shall make the registration, and when, where the same shall be filed, and what it shall contain. Section 2 reads, “That whenever it is necessary to ascertain the number of adult persons . . . upon which to have any action of the county commissioners or ■other county officers, the list on file in the county clerk's •office shall be taken as conclusive on that subject.” In other words, §2 prescribes the use to be made and the effect to be given to the list. Is this outside the scope of the title, and foreign to it? We think not. It must be borne in mind ihat while the constitutional provision is mandatory, it must be applied in a fair and reasonable way; otherwise, it would become the source of more injury than the ills it was designed to remedy. We are not to expect in the title a synopsis or abstract of the entire act. It is enough if the title indicates clearly, though in general terms, the scope of the law.' As is said by Judge Cooley in his Constitutional Law; page 144:
“The general purpose of these provisions is accomplished when a law has but one general object, which is fairly indi•cated by its title. To require every end and means necessary ■or convehient for the accomplishment of this general object,' to be provided for by a separate act relating to that alone, would not only be unreasonable, but would actually render legislation impossible.”
• Now here is an act which by its title, we are informed, is ■concerning registration of adults. What more natural than .a statement in such a law of the effect of registration when made? As in a statute “regulating conveyances of real -estate,” we find a statement of the place where such conveyances are to be recorded, and the effect of such record.
Passing now to the other questions (and we shall consider ithem together), we remark that it is undoubtedly true that the ■council is the tribunal to which the petition must be presented and by which its sufficiency must in the first instance be determined .; but such determination is not, at least as to the mat ter in question in this case, conclusive. Here is not a matter of judicial discretion, but a matter of mathematical calculation. The law has made a certain list conclusive as to the number of adult persons. It has not left this matter open to inquiry by the council; and it has also declared that a majority of the adult persons shall sign the petition. Now when a petition is presented whose number of names is not half of the number on the list, no determination or finding of the council can make that a majority. That which a council may not do directly, it may not do indirectly. It may not by ordinance dispense with a petition of the majority; it may not accomplish the same result by finding that 156 isa majority of 341. And there is no bona fide purchaser of bonds before maturity in this case. The question arises between the original parties. No equities have intervened; nothing has transpired since the issue of the license to make it more binding as a contract, or to estop the- city from denying its validity. The city council is not the city, any more than the treasurer is the city. They are but officers, and in this respect the functions of the council are of no higher order than those of . the treasurer. And as said by Chief Justice Kingman, in Hartford Fire Insurance Company v. The State, “the limits of an officer’s authority are found in the law.” The council had authority to grant a license after a petition, signed by a majority of the adult residents, had been presented. It had no authority in the absence of such a petition. None such was presented, not even one prima facie sufficient. But, say-counsel, very earnestly, the city has received pay for this license and has issued it, and now can it-punish the defendant for doing what it has licensed him to do? The fallacy of this is in confounding the officer with the corporation, the-agent with the principal. The ordinancé specified the exact amount which each licensed liquor seller should pay. Now,, would it for a moment be contended that because the defendant had paid to the city treasurer the amount of such license fee, and said treasurer still retained it, the defendant had .the right to sell liquor and defy prosecution? Clearly not;. and why? Because, though an agent of the city had received this money, it was an unauthorized act, and he could •not by it bind his principal, nor evade or nullify the law. Suppose, further, the mayor and clerk had issued a license, they being the officers to execute the license, and the treasurer had received the money, would not the same result follow, and for the same reason? Does it make the defendant’s case any stronger that the council had, without any authority and in defiance of the law, directed the mayor and clerk to issue such license? This is not a case where discretion having been vested in an officer, hé has exercised that discretion, and the city seeks to repudiate his act. It is a ease where the officers of a city have assumed to disregard the law; and a party at whose instance they acted, and who being chargeable with knowledge of'.the law, inust be presumed 'to have known that they acted without authority, invokes their acts to protect him from the consequences of his own violation of the law. Nor is there any room for the application of the ■doctrine of estoppel. There is no estoppel when both parties act with full knowledge of the facts and the law. The ■dramshop act and the ordinance eaeh requires, as a condition precedent to the action of the council, a petition of a majority ' of the adult residents. Every one is presumed to know the ■law; and, in fact, probably no law in the statute book is better known than the dramshop act. The list of adults is a public document, on file in the county clerk’s office, and open to the inspection of every one. That list is by statute con■clusive as to the number of adults. May any officer or combination of officers disregard these provisions of statute to-day at the instance of a citizen, and to-morrow that citizen plead ■such disregard as“a protection to his own unlawful acts? The case of Hartford Fire Ins. Co. v. The State, 9 Kas. 210, is in point, and conclusive.- Counsel lays stress on the fact that ■this is a prosecution by the city for a violation of the ordinance, and not by the- state for a violation of the dramshop act; but in the case just cited, the state officers had issued the license, and the state treasurer had possession of 'the money, and the state prosecuted for the penalty. Again, we repeat that “ the limits of an officer’s authority are found in the law,” and they who deal with officers are chargeable with notice of the limits of such authority, and can receive no protection from acts done by such officers beyond the limits of their authority.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
In April, 1873, Milo E. Mather came to Sabetha, Nemaha county, Kansas, and engaged in banking, under the name and style of the “Sabetha Exchange Bank,” putting into his business a capital of about $11,000, and continued in business alone under that name until the first day of November, 1875, when he entered into "a copartnership with plaintiffs in error to continue, the same business at the same place and under the same name. Lemon and Hosea resided at St. Joseph, Missouri, and, by the terms of the co-partnership agreement, were not' required to give any personal attention' to the -business. Mather was the resident partner, and managed the affairs of the concern. Before the formation of the partnership, and up to a short time before the dissolution, Mather’s financial standing and credit in the community were good — as good as anybody’s there. While he lived at Sabetha, both before and during the existence of the copartnership, he was engaged in various other lines of business unconnected with this partnership, such as farming, buying, selling and raising cattle, buying and selling grain at an elevator, and dealing in lumber.
On the 26th of October, 1876, plaintiff Joseph Fox, who had been in the habit'of doing business with the bank through Mather as its cashier, went into the bank, and, in the usual way over the counter, deposited fifty dollars, receiving therefor from Mather the following certificate of deposit: [See. next page.]
CEBTIFICATE OF DEPOSIT.
No. 485. Sabetha Exchange' Bank, \
[Stamp.] Sabetha, Kas., Oct. 26,1876. J
Joseph Fox has this day deposited fifty dollars in cash, payable to himself or order in like funds, on return of this certificate properly indorsed, and to be 10 per cent, interest per annum, if left four months or longer.
$50.00. M. E. Mather.
Afterward, he drew a check on the Sabetha Exchange Bank for fifteen dollars’, which was paid, and again went into the bank and drew ten dollars, at which time the payment of both the ten and fifteen dollars was indorsed upon his certificate. This was all that was paid. January 3, 1877, the partnership ,of. Mather,-Lemon & Hosea .was dissolved, and thereafter, Lemon & Hosea refusing to recognize this certificate of deposit as binding on them, this action was brought. Mather was then in bankruptcy. 'The'action was tried before the court without a jury. Special findings of fact were made, upon which the court rendered judgment in favor of plaintiff, to reverse which judgment this proceeding in error was brought. The testimony was all preserved, and is in the record before us. This testimony is conflicting, and where so conflicting, the findings of the court must be accepted as conclusive. (Crane v. Chouteau, 20 Kas. 288.)
In addition to this general rule,' the court expressly finds that the testimony of Mather is not entitled to full credit — a finding we are not prepared to say was not fully justified by the testimony. From these findings, in addition to the facts above stated, appear these matters: The form of the certificate in this case is that used by Mather before the formation of the partnership. At the-time the partnership was entered into, a new book of forms for certificates of deposit was procured, which differed slightly in form from those previously used, and were printed in ink of a different color. The plaintiff' had, in addition to the certificate sued on, two of these new certificates, of which one was as follows:
CERTIFICATE OF DEPOSIT.
No. 1076. Sabetha Exchange Bank, \
Sabetha, Kas., May 13,1876. j
Joseph Fox has deposited in this bank thirty dollars, payable to the order of himself on return of this certificate, ---^ after date, with — per cent, .interest per annum, for the time specified.
$30.00. M. E. Mather, Cashier.
While alone, Mather issued between 450 and 500 of the former certificates, and during the partnership about 200 of the latter. After the partnership was formed, and before thereceipt of the new book, a few certificates were issued upon the old forms, of which there is no dispute but that they were firm liabilities; but the dispute .arises as to this and some others issued on the old form after the receipt of the new book, and the claim is, that such are the mere individual obligations of Mather. Mather borrowed the money received on this deposit for his private use, and intended to issue his individual-obligation, and the firm never received the money, nor was it entered on the books of the firm, and defendants had no knowledge of the receipt.of the money or the issue of the certificate, or indeed of any of those claimed to be individual, until after the dissolution. Mather was in fact authorized to bind the firm by signing his name with the addition of cashier, but not otherwise, though plaintiff had no knowledge of this agreement pr -limitation between the parties. The plaintiff at the time of making the deposit believed, and had good reason to believe, that he was making his deposit to the Sabetha Exchange Bank, and receiving the certificate therefor. He had no'information or notice that he was dealing with Mather as an individual, and not with the bank, in that transaction; nor was his attention called to the signature, nor did he notice that the word “cashier” was not affixed to it. And other individuals in dealing with the bank received like certificates of deposit, signed by Mather, without the addition of the word “cashier,” and the same were recognized by Mather in the bank as bank transactions, so far at least as those individuals were concerned or had knowledge.
Did the court err in rendering judgment against the defendants ujlon these findings? We think not. The cardinal facts are, that plaintiff went into the bank, and finding the person there in charge with whom he had been in the habit of dealing as the representative of the bank, in the usual manner over the counter made a deposit of fifty dollars, and received as evidence thereof this certificate. He supposed he was dealing with the bank, intended no transaction with Mather individually, purposed no loan to him personally, and received no intimation that anything was contemplated on the other side of the counter, save the ordinary obligation which arises when money is handed over the counter of a bank for deposit. Under those circumstances, it would seem that very strong facts must exist before it can be held that the bank is not liable. It is said that the bank did not receive the money, but that Mather individually appropriated it. But the depositor handed his money to the managing partner —the one attending to all the business of the bank. How could he know what such partner did with the money? Was it his duty to inform the other partners that he had given the money to their partner? If he had attempted to inquire into the disposition of the money or the manner in which the partners kept their books, would he not have been properly repelled? That was a matter private to the partners and not open to the depositors.
' It is said that Mather intended an individual and not a bank transaction.' But he expressed no such intention; he suggested no such transaction; and there were no surroundings to suggest such intention, or imply such transaction. While he was engaged in various business, in which it was natural to suppose money would be needed, yet it is. not pretended that he was carrying on two banks in the same place— one a personal and the other a partnership bank. There was but the one bank, that in which defendants were partners. Now it is generally true, that where transactions pertaining to certain kinds of business are had in a building devoted to that business, with one of the firm carrying on that business in the ordinary way in which such transactions are carried on, it will be presumed that such transactions are with the firm, and not with the individual partner alone. A farmer brings in a load of potatoes, and taking it to a grocery store, owned and managed by a partnership, sells it, having his conversation as to terms with one of the partners; it is not expressly stated that the firm purchases, nor is the farmer told that it is a personal transaction of the individual partner with whom he trades: is there any doubt but that the firm is responsible, and that, too, notwithstanding the individual partner intends them for his own use, and after the potatoes have been delivered in the store, carries the entire load to his own house, and in fact appropriates them to his own use? Just so is it with partners running and owning a bank. All are responsible for moneys received for deposit in the usual course of business over the counter, unless some notice to the contrary is given to the depositor, and that notwithstanding the fact that the partner actually receiving the money intends to appropriate it to his own use, and does in fact so appropriate it. Again, it is said that the form of the certificate indicated a personal transaction, and that the personal signature of the cashier, without the addition of the word “cashier,” does not bind the bank. But who determines the form of the certificate — the bank, or the depositor ? Is.there any magic in the color of the ink with which a blank certificate is printed, which settles the question, as to what party, is responsible thereon ? Is a depositor to know'that a certificate in black ink means the bank, while one in green issued by the same party in a like course of business means..simply the cashier? Is not the mere color of the ink and the form of the certificate a matter of private regulation by the bank, of which the depositor knows nothing, and which, without some express notice to him, in no manner affects his rights? How can he tell when one book of forms is exhausted and a new one resorted to? And while the addition of the word “cashier” may be significant or even essential to the signature of one who as a mere agent attempts to bind a corporate bank by an official act, yet no such rule obtains where the managing member of the firm engaged in the business of banking, receiving money on deposit in the usual course of the business of the firm, issues a certificate in the name of the firm with merely his individual signature. T.he omission of the word “cashier,” or “ managing partner,” or any other descriptive term, does not avoid the instrument or operate to release the firm from liability on a certificate issued in the regular course of business by the partner authorized to receive money on deposit and transact the business of the firm generally. The very most that can be said is, that such omission is a circumstance tending to indicate the character of the transaction, but not enough to overthrow the other evidence in this case of the actual transaction between the parties. We have given this case considerable examination, not so much because of the amount in controversy, or because it has seemed to us there was any serious doubt about the ruling of the district court, as because we are advised that other cases are depending upon it, and that it has been presented as a test case.
We think the judgment of the district court was right, and that it must be affirmed. As between the partners who have intrusted Mather with this power of managing the firm business, and the community who with knowledge of the existence of the firm and Mather’s powers have dealt with the bank, they must be held responsible for his actions.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
There are four assignments of error in this case, viz.: First, In granting leave to defendant to file his answer, January 22d, 1876; second, refusing leave to plaintiffs to verify reply; third, refusing to set aside the referee’s report; and, fourth, entering judgment for defendant in error, whereas, according to the law and the facts, it should have been for the plaintiffs.
I. The original petition was filed September 9th, 1874; to this petition a demurrer was filed, October 6th, 1874. On January 18th, 1875, an answer was filed, containing a general denial and an allegation of a defect of parties plaintiff. At the April term of 1875, and on April 17th, the death of Levi K. Moore was suggested, and the plaintiffs then filed an amended petition instanter, making the heirs of said Moore and one Mary Moore plaintiffs. At this term of court, the following stipulation was signed and filed in the case:
“It is agreed that if the Moore cases aré continued, all shall be tried on their merits next term, and that the stipulation signed before amended petitions were filed in Lacy v. Thacher et al. shall be read in evidence in all the cases on the trial, and that the new parties plaintiff in each of the cases are heirs-at-law of Levi K. Moore,- deceased. This applies to Nos. 3157, 3156, 3158, 3320, on trial docket of this court, May 18,1875. Thacher & Stephens.
L. W. Hover.”
On January 22d, 1876, and during the next term, the court permitted defendant to file an answer to the amended petition.
Plaintiffs contend that the filing of this answer was in violation of the written stipulation of May 18th. Such is not the fact. No answer had been filed to the amended petition of April 17th, 1875, at the date of the stipulation, and the action of the court in permitting an answer to be filed at the succeeding term was not an abuse of its discretion. It did not prejudice the rights of the plaintiffs, nor was it in conflict with the agreement. It does not seem to have-been the occasion of any delay or the reason of a continuance. While it is true that the plaintiffs wished to strike the answer from the files, yet, when the motion to that end was overruled they obtained leave to file a reply, and filed one on January 24th, 1876. .Then on January 27th, by the consent of counsel, the case was referred to R. J. Borgholthaus, Esq., to hear and determine the issues joined, and report the conclusions of fact and law to the court. The plaintiff participated in the trial before the' referee. In any view of the case, the first assignment of error must be overruled.
II. In the answer filed on January 22d, 1876, among other things, the defendant alleged, as a defense to the acts of trespass for which damages were claimed, that the same were done under and by the authority of Levi K. Moore, who was acting as the agent for all the plaintiffs, being duly authorized so to do. The reply filed in the case had never been verified, and, pending the hearing of motions to confirm and set aside the referee’s report, plaintiffs asked leave to verify their reply, which was denied. No error was here committed. The trial was over. It would not have aided the plaintiffs in any manner, if the leave had then been granted. The application came too late to be considered or to be of any benefit, even if it had been considered and allowed.
III. After the report of the referee had been filed, and the defendant had made a motion to confirm it, the plaintiff made a verbal motion to set it aside. On what ground, or for what reason, the court was asked to vacate this report, the record is silent. We cannot tell upon what question the court below was called to pass. As error is never presumed, and no error is shown, we are bound to suppose there was no error in this respect. A party cannot in this general way make his motions and predicate error on the refusal of the court to sustain them.
IY. As to the fourth assignment of error, even assuming that the allegation is sufficiently definite and sets forth the errors complained of, which is very doubtful, we are unáble to reverse the judgment for any reason there given. The record presented to us is in an unsatisfactory condition. It does not claim to present all the evidence, nor can we say therefrom that the cause was tried under such circumstances as to indicate 'that either the reply or its verification was waived. The only certificate is, that the foregoing is a complete exhibit of the record in this case, so far as desired by counsel, and contains all the evidence presented on the hearing of the cause on a verbal motion to set aside the referee’s report. All the presumptions being in favor of the judgment, and the pleadings in the case and the facts found by the referee being amply sufficient to sustain it, no error was committed in rendering the judgment for the defendant.
Many other questions are presented in the brief of the counsel for the plaintiif in error which must be passed unnoticed, because they are omitted from the assignments of error in the petition for review filed in this court, and, even if they had been referred to in such petition, would not now avail, because it does not appear from the record that the attention of the court below was ever called in any proper manner to said alleged errors.
The judgment of the district court must be affirmed.
Daniel K. Moore, et al, v. Fred. Bruñe.
Daniel K. Moore, et al, v. Henrt Leonard.
Opinion by
Horton, C. J.:
As it is agreed between the counsel in these cases that they are like the case of Moore v. Emmert, just decided, in everything except the amounts involved, and that what is said in one applies to all, we must, on the authority of Moore v. Emmert, supra, decide these adversely to the plaintiffs, and hold that the judgment in each case must bé affirmed, with costs.
All the Justices concurring. | [
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Per Curiam:
The above case is affirmed, on the authority of the following decisions: K. P. Rly. Co. v. Kunkel, 17 Kas. 145; Mo. R. Ft. Scott & Gulf Rld. Co. v. Shirley, 20 Kas. 660; Winter v. Sass, 19 Kas. 556; State v. Comstock, 20 Kas. 650; K. P. Rly. Co. v. Ball, 19 Kas. 535. | [
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The opinion of the court was delivered by
Yalentine, J.:
The only question presented for our consideration in this case is, whether or not the defendant in •error, Marcus Hardenbrook, is entitled to the benefit of any • of the provisions of the occupying-claimant law. We must .answer this question in the negative. The only portion of .said law under which the defendant claims any right, is that portion which extends the benefit thereof to any person “being in quiet possession of any lands or tenements for-which .such person can show a plain and connected title in law or ■equity, derived from the records of some public office.” (Code, •§ 601; Laws of 1873, p. 203.) The defendant fails to bring himself within the foregoing provision in certain important particulars. T. He not only fails to “show a plain and con■necled title in law or equity” to the land in controversy, but he fails to show any title, plain or otherwise. He does not ■even show an apparent title. Indeed, he does not claim, and has never claimed, to have any title to the land in controversy, but merely claims to have been a bona fide occupant of the land under the act of congress providing for homestead ■settlements. 2. But, whatever his right or interest in the land may be, it cannot be called “a plain and connected title,” •“ derived, from, the records of some public office; ” for, although the public records of the U. S. land office at Junction City ■show what his rights and interests in the land are and were, •yet they do not show that he has “-derived” any right or interest of any kind from such records. On the contrary, they ■show that he has not “ derived ” any right or interest from ■such records. They show that long before the defendant ■occupied the land, or made any claim thereto, it was withdrawn from sale, and from preemption, and from homestead settlement, and that it was set apart for the benefit of the .plaintiff, under the acts of congress of 1862 and 1864, giving lands to aid in the construction of its railroad and telegraph line. And the said records, showing this withdrawal and setting apart of said land, were and are clear, certain and unambiguous. There was no room for any mistake to be made with reference thereto. 3. The defendant does not show that he has the legal qualifications to make a homestead settlement; but from what is shown, probably it should be presumed that he has such qualifications.
Under the above-quoted provision of the occupying-claimant law, we think the whole of the records of any public office to which the occupying claimant himself appeals, as furnishing evidence of his title to the land in controversy, may be taken into consideration so far as such records can in any manner affect the title to such land; and that, to enable him to get the benefit of said provision of the occupying-claimant law, such records should show, prima facie at least, that at •the time he made the improvements on the land he had an interest therein, and that such interest was of that high char.acter which may properly and rightfully be denominated in law or equity a title. No interest less than an apparent title would be sufficient; and this apparent title must be manifest from a consideration of the whole of the'records of the public office to which the occupying claimant himself refers, so far as such récords apply to the case. Of course, if the rec ords should show an apparent title or a prima facie title, that would be sufficient, however defective and worthless the title might in fact be.
At the time the defendant made his said settlement, the title to the land in controversy was in the United States. The plaintiff had some conditional and inchoate equities therein, which were then ripening and afterward ripened into a complete and absolute title, and the defendant had nothing and got nothing by his settlement; and the records themselves upon which the defendant now relies clearly showed ' at all times this condition of affairs.
The judgment of the court below giving to the defendant in error, plaintiff below, the benefit of the occupying-claimant law will be reversed, and cause remanded with the order that judgment be rendered on the special findings in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The testimony of McDonald clearly shows that he did not make any new contract with the lessee prior to or after February 1st, 1877, nor can we say, upon the evidence as against the general finding of the court, that he did or said anything to induce the company to remain in possession of the premises after February 1st, 1877, upon the belief that he would make the property more suitable for their business, or that the company held over by reason of his acts and words, without reference to the original contract. The evidence is somewhat conflicting, but with us the finding of the court is conclusive upon all disputed and doubtful questions of fact.
Sec. 2, Gen. Stat., 539, provides that “when premises are let for one or more years, and the tenant, with the assent of the landlord, continues to occupy the premises after the expiration of the term, such tenant shall be deemed to be a tenant from year to year.” In this case, the premises were let for one year. Under the finding of the court, we must conclude that the tenant, with the assent of the landlord, continued to occupy the premises after the expiration of the term of the lease, and therefore, that such tenant was rightly deemed to be a tenant from year to year, and liable for the rent from February 1st, 1877, to February 1st, 1878, less what the lessor had received.
The judgment of the district court must be affirmed. '
•All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
A motion is.made by the defendant in error to dismiss this case from this court, on the ground that the case-made (upon which the case is brought to this court) shows upon its face that it was settled and signed by the judge of the court below before the time for so settling and signing the same had arrived, and without the same having been served upon the defendant in error, or any notice thereof having been given to him, and without any appearance or waiver by him. The case-made does show upon its face that it was settled and signed about five days earlier than it should have been settled and signed, unless the parties, by some words or acts, waived the full time allowed them by the court; but the case-made does not show, upon its face or otherwise, that it was never served upon the defendant in error, or that he had no notice thereof, or that he was not present when the case was settled and signed, or that he did not waive the five days yet to elapse before the case could properly be settled and signed without his consent. The case-made is entirely silent upon these matters. But it is satisfactorily shown by evidence (outside of the case-made) introduced in this court that soon after the case was made, and within the time given by the court, the case was served upon one of the attorneys of record for the defendant in error, who then and there said it was “all right;” and afterward, said case was settled and signed by the judge of the court below in the presence of said attorney, with his, knowledge, and without any objection from him. Under such circumstances, we think the five days’ time was waived, that counsel consented that the ease should then and 'there be settled and signed, and that the defendant in error cannot now be allowed to say that the case was settled and signed earlier than it should have been.' The statutes for making a case for the supreme court were substantially complied with in all particulars, and literally complied with, except as to the time when said case was settled and signed, and strict compliance as to the time was certainly waived by both parties. If the defendant in error had desired more time, the judge would unquestionably have given it to him. We receive .and consider the said evidence showing service of the case-made, showing appearance by the defendant, etc., and upon such evidence, shall overrule the defendant’s motion to dismiss.
We now come to the merits of the case; and, upon these, the.only question presented is whether, upon the pleadings and the evidence introduced by the plaintiff in the court below, a prima facie case was made out in favor of the plaintiff and against the defendant. Other questions, however, are involved in the case, but these other questions are all involved in this one principal and general question. This question was raised in the court below — first, by the defendant’s demurrer to the plaintiff’s evidence; and, second, by a motion of the' plaintiff for a new trial. The court below sustained said demurrer to the evidence, took the case from the jury, decided it itself, rendered judgment in favor of the defendant and against the plaintiff, and overruled the plaintiff’s motion for a new.trial.
The' following is a brief history of the case in the court below.
This was an action commenced in the district court for Leavenworth county to recover damages for libel. The petition alleged as follows:
Edward Russell, plaintiff in this cause, complains of Daniel R. Anthony, defendant, for that the said plaintiff hath heretofore been, and still is, a citizen of the county of Leavenworth, ’ of good name, fame and reputation among his neighbors and fellow-citizens as an upright, honest and honorable man, and hath hitherto been unsuspected of being guilty of either the crimes of embezzlement or perjury; and for that the said Daniel R. Anthony, being on the 20th day of September,. A. D. 1876, the editor and proprietor of a certain newspaper published in the city of Leavenworth, and state of Kansas, called the Leavenworth Daily Times, did then and there, in said newspaper, publish and cause to be published of and concerning the said plaintiff, Edward Russell, the following false, scandalous, defamatory and libelous article, to wit:
“Who is Ed. Bussell [meaning the said plaintiff], in whose eyes swindling is no crime? He is secretary of the bankrupt Kansas Insurance Company. Less than two years ago he [meaning said plaintiff] was state commissioner of insurance, and certified under his oath of office that this bankrupt concern was a sound and solvent insurance company, while he [meaning the plaintiff] knew that it was at that very time hopelessly bankrupt; he [meaning the plaintiff] was forced to leave the office of commissioner of insurance because the Leavenworth Times exposed his official ‘crookedness,’ and compelled him [meaning the plaintiff] to disgorge eight thousand dollars of the state’s money.”
Whereby and by means whereof, he, the said defendant Daniel R. Anthony then and there thereby intended to and did falsely and libelonsly charge the said plaintiff with the crimes of perjury, and embezzlement of the moneys belonging to the state of Kansas, in this, to wit, that the said plaintiff, while he was holding the office and performing the duties of superintendent of insurance of the state of Kansas, had violated his oath of office by falsely and fraudulently issuing a certificate to the said Kansas Insurance Company as a solvent company, when he, the said Edward'Russell, well knew said company to be hopelessly insolvent.
And also in this, that he, the said Edward Russell, while holding the office afoi’esaid, and in violation of the duties of said office and of his oath as such officer, had feloniously embezzled eight thousand dollars of the money belonging to the said state of Kansas which came to his said plaintiff’s hands by virtue of his said office; he, the said defendant, then and there well knowing said charge to be false, scandalous and libelous, but contriving then and'there and thereby to bring the good name, fame and reputation of the plaintiff into disgrace and contempt with his friends and neighbors.
■ Concluding with the’ usual allegation of damages, and prayer for judgment.
To the petition the defendant demurred, on the ground that it did not set forth a cause of action, which demurrer was overruled; whereupon the defendant filed an answer, denying all the" allegations of the plaintiff’s petition, except such as he admitted in and by his answer, and then admitting, in substance, that he was the editor and proprietor of the Leavenworth Daily Times; admitting that the article complained of was published- in the Leavenworth Daily Times, of and concerning the plaintiff; admitting and alleging that the plaintiff was superintendent of insurance for the insurance department of the state of Kansas, and that he held the office of superintendent of insurance for nearly two years, leaving the office in September, 1874; admitting and alleging that the person who' held the said office of superintendent of insurance was popularly known and styled “state commissioner of insurance;” admitting and alleging that when he (the defendant) used the words in said article, “statecommissioner of insurance,” he used them in their popular sense to indicate the superintendent of insurance, and averring that by the use of said words he intended them to apply to the officer occupying such position under said act of the legislature of Kansas creating such insurance department; admitting and alleging that he intended' that said words, “state commissioner of insurance,” should apply to the plaintiff as superintendent of insurance for the state of Kansas, and alleging that all of the supposed libelous matters contained in said article were true. To this answer the plaintiff filed a reply, denying generally the plea of the truth or justification of said alleged libelous matters.
On the 12th day of March, 1877, the cause came on for trial before the court and a jury.
The plaintiff, to maintain the action on his part, called as a witness John Coulter, who testified that at the time of the alleged publication he was in the employ of the defendant; that he knew of the publication of the article; and that said' paper was a paper of large circulation.
The plaintiff then, after haying produced a copy of the paper containing the alleged libelous matter, and after having offered and read the article complained of to the jury as evidence, rested his case.
The defendant then filed a demurrer to the evidence, on the ground that the evidence did not establish a cause of action against the defendant, which demurrer was by the court sustained, and to which ruling of the court the plaintiff excepted.
The plaintiff then moved the court for a new trial upon .various grounds, which motion the court overruled, and the plaintiff excepted. The court then rendered judgment in favor of the defendant and against the plaintiff for costs, and the plaintiff again excepted. The plaintiff then brought the case to this court for review.
Upon what ground the court below sustainéd said demurrer or rendered said judgment, we cannot tell. Upon the pleadings in the case, and without any evidence, the plaintiff was entitled to a judgment in his favor for at least nominal dam ages, and the evidence introduced by him certainly did not overturn his prima fade case which he already had upon the-pleadings. The only new material fact proved by the evidence was, that the Leavenworth Times was a newspaper of large circulation. This fact tended to enhance his damages instead of utterly destroying his right to recover. We suppose that the article published by the defendant did not charge the plaintiff with committing either perjury or embezzlement, at least for the purposes of this case we shall consider that it did not, but it did charge him with committing acts almost as bad. It substantially charged that, while he was acting under an official oath as superintendent of insurance, he knowingly made a false certificate as to the standing of an insurance company, and that he was forced to leave the office of-superintendent of insurance because of official “crookedness,” and was compelled to disgorge eight thousand dollars of the state’s money. Now, if these charges-were believed, they would certainly injure the private character of the plaintiff; they would bring his private character and the plaintiff himself into contempt and disgrace with all honest men. It was not shown or-claimed that said article was intended to injure the plaintiff as an officer, or to lessen his business as such, or to diminish the fees or emoluments of the office; nor was it claimed or shown that the publication of the article would have any such effect. Indeed, the publication of the article could not have had any such effect, for the plaintiff was not holding the office when the article was published. ' All that the plaintiff claimed was, that the publication of the article was intended to and did injure his private character, his good name, fame, and reputation; and tended to bring the same into contempt and disgrace among all his neighbors and friends. Such, we think, would be the necessary tendency of the publication of said article. The scope of the article was not to show that the plaintiff was an incompetent officer, or merely to show that he did not perform the duties of his office properly, but it was intended, above all’ things else, to show that the plaintiff was a. had man, “in whose eyes swindling is no crime.” The article was evidently intended to injure the plaintiff’s private character. It shows this upon its face, and undoubtedly it did injure the same. Therefore, unless it was true, it was unquestionably libelous, and the burden of proving that it was true rested upon the defendant. A false charge wrongfully imputing a want of integrity is always libelous, whether the object of the charge is in office or not. It is libelous without reference to whether he holds office or not. In the present case the plaintiff alleged in his petition that said article charged him with committing the crimes both of perjury and embezzlement. Now while we do not think that the article so charged, yet we do not think that these allegations of plaintiff’s petition rendered the article any the less harmful or any the less libelous. ' Expunge these allegations from the petition, and still the article would be.libelousíind the,petition sufficient. The petition alleged that the article was false and published without any sufficient excuse, and that it was intended to injure the plaintiff and did injure him, and therefore the petition sufficiently alleged and showed that the article was libelous, although the article may not have.charged either perjury or embezzlement. And alleging that the article was worse than what it in fact was, does not destroy its libelous character, or render it better than what it in fact was. The allegations stating that the article charged perjury and embezzlement may be treated as surplusage. If the article is in fact true, or if the defendant had a sufficient excuse for publishing it, it devolves upon him to show it. In the absence of. evidence,' it will be presumed that the article was false, and that the defendant did not have any sufficient excuse for publishing the same. The plaintiff is not bound in the first instance to introduce any evidence upon these subjects, hence it cannot be claimed that his evidence in the court below was insufficient because he' did not introduce any evidence upon these subjects. We .think the court below erred in sustaining the demurrer to the plaintiff’s evidence, and therefore the judgment of the court below rendered upon the sustaining of each demurrer, must be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Bkewer, J.:
Action to quiet title. Plaintiff was in possession, claiming the land under the homestead laws of the United States. Defendant claimed the land under the grants in aid of its road. The facts upon which the parties based their respective claims, were found by. the court and are set out in full in the record. Upon them counsel on each side have presented to our consideration extended and able arguments. We have examined. those arguments, and find the question as to which has the better right to the land one of no little doubt and difficulty. We have not decided the question — indeed, we may say, we have not come to any satisfactory and definite conclusion thereon in our own minds — for a decision thereof in favor of the plaintiff would not, as we regard the other matters in the case, entitle him to any relief, and the defendant prays nothing but a judgment for costs. Those other matters appear from the following findings :
18. That the plaintiff and the defendant had a controversy pertaining to their respective rights to the land in controversy, before the commissioner of the general land office, and the various departments, including the secretary of the interior, and that the said controversy was finally decided in favor of the defendant, and to whom was issued the patent for said land.
19. That at the time plaintiff made the contract hereinafter found to have been made, the defendant was then the holder of the legal title to the land in controversy, it being the grantee in the patent for the same.
20. That in February, 1873, the defendant advertised the land in controversy for sale.
21. That on June 9th, 1873, the plaintiff, in order to prevent the land from being sold, and being unable for want of means to prosecute his cause, went to the agent of the defendant and entered into a written contract with the defendant, whereby he agreed to purchase the land in controversy. A true copy of said contract is attached to the petition as a part thereof, and which is hereby referred to.
22. That the wife of' the plaintiff did not join in making said contract.
23. That the plaintiff made said contract with a full knowledge of all the proceedings had in the controversy between him and the defendant in the department of the interior, and with a full knowledge that the said land had been awarded to the defendant.
The contract referred to in the 21st finding, recited the sale, the receipt of part of the purchase money, and the times of the subsequent payments; contained a promise on the part of the purchaser to punctually make such deferred payments, an agreement on the part of the company to make a deed upon full compliance with all the conditions of the sale, and a stipulation that upon default by him, the title should revert to the company; that it should have the right to reenter and take possession, and that he should surrender to it the premises without delay, and that no court should relieve him from' a failure to comply strictly with the contract. It also provided for a reduction of payments in case of the cultivation of the land. This contract was signed by both parties.
Now, conceding all that plaintiff claims concerning his title and interest in the land, and it amounts to only this: That the land was public land, and'subject to homestead entry; that his homestead entry thereof was valid and regular, and that upon his compliance with the terms of the homestead law, he would become entitled to a patent; that the award of the land by the land department to the defendant was unauthorized by law and based upon an erroneous construction of the various provisions of the grants and other statutes of the United States, and that the patent based thereon was issued improperly and without warrant of law. In other words, he had an equitable interest which might be made to ripen into a full equitable title, while the company on the other hand held but the naked legal title. With full knowledge of these respective rights and titles, and of the further fact that in a controversy before the officers primarily authorized to examine and decide upon the conflicting claims of himself and the company to the land, they had decided against him and in favor of the company, he makes this contract of purchase. Without the means to carry on further litigation, he contracts to purchase the antagonistic title. He agrees with the owner of that title as to the price, pays a portion thereof and promises to pay the balance, invites such owner to unite with him in a contract which contains a full recognition of the validity of such title, and a covenant to surrender the land upon the non-performance of his promise to pay the balance of the stipulated price. May he now come into a court of equity and obtain a decree canceling and destroying the title which he has thus contracted to purchase? We think not. The contract was valid and binding upon both pai’ties. It was a compromise of contesting claims, the termination of litigation and the purchase of an outstanding and rival title. It will not do to say that the plaintiff ' had the better right: that it was the duty of the defendant, having only a naked legal title, and holding the same simply in trust for the owner of the full equitable title, to convey the same to such owner, and that therefore a conveyance, or promise to convey, was no consideration for a promise on the part of such owner, for the plaintiff was not in fact the owner of the full equitable title and might never become such, and*again and chiefly after a compromise, made with full knowledge and without fraud or deception, of a bona fide controversy, the courts will not inquire which of the two contestants had the better right. It is enough that they had a controversy and have settled it, and the fact of the dispute upholds the settlement and its various stipulations. Upon such a settlement the court does not inquire what the facts really are. It accepts the statements which the parties have made as conclusive upon them: “When it can be collected from the deed that the parties to it have agreed upon a certain admitted state of facts as the basis on which they contract, the statement of those facts, though only by way of recital, estops the parties from proving the contrary.” (Herman on Estoppel, p. 234.)
In Moore, et al., v. Fitzwater, 2 Randolph (Va.), 442, the parties had a controversy as to a tract of land, and in settlement thereof, one agreed to purchase from the other. After a partial payment of this purchase money, the purchaser brought his suit to enjoin the collection of the unpaid and recover the paid purchase money, on the ground that the vendor had in fact no title. Relief was refused, and in refusing it, the court say:
“ Whether the title at the time of the contract really was in the appellants or the appellee, we do not deem it material to inquire. It is sufficient that the parties themselves have settled the question; and as there was no fraud or undue advantage, we would not now disturb it even if assured that Moore and McClung had no title.” ■
'In the case of Penn v. Lord Baltimore, 1 Yesey, Sr., 444, Lord Hardwicke said:
“The settlement of boundaries, and peace and quiet, is a mutual consideration on each side, and in all cases make a good consideration to support a suit in this court for settling boundaries.”
In Cann v. Cann, 1 P. Wms. 727, Lord Macclesfield said:
“ Where two parties are contending before this court, and one releases his pretensions to the other, there can be no color to set aside this compromise because the man that made it had a right; for, by the same reason, there can be no such thing as compromising a suit, nor room for any accommodation. Every release supposes the party making it to have a right; but this can be no reason for its being set aside, for then every release might be avoided.”
In Stapilton v. Stapillon, 1 Atk. 1, Lord Hardwicke said:
“An agreement entered into upon the supposition of a right or of a doubtful right, though it after comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties, for the right must always be on one side or the other; and therefore the compromise of a doubtful right is a sufficient foundation for an agreement.”
In the case of Fitch, et al., v. Baldwin, 17 Johns. 161, it appeared that the parties claimed title to the same tract of land, under two patents, respectively. The defendant deeded to the plaintiff in settlement of the litigation, by deed with covenant of seisin. Plaintiff thereafter brought his action on such covenant to recover the consideration money expressed in the deed, and it was held .that he could not recover, the court saying, that “it never can be permitted to a person to accept a deed with covenants of seisin, and then turn around upon his grantor and allege that his covenant is broken, for that, at the time he accepted the deed, he himself was seized of the premises.” See also, Beebe v. Swartwout, 3 Gil. 162; Furness v. Williams, Adm’r, 11 Ill. 229. In the case of Jackson v. Ayers, 14 Johns. 224, the defendant, while in possession, entered into an agreement to purchase the land of plaintiff. Failing to comply with his agreement, the plaintiff brought ejectment, and upon the.trial, the defendant offered to prove an outstanding title purchased by himself, and the testimony ■was rejected. The court says:
“The agreement entered into- for the purchase between plaintiff and defendant, was dated in the year 1810. This agreement to purchase was an acknowledgment- of the title of plaintiff, and would estop the defendant from setting up an outstanding title. The defendant being in possession when the agreement was entered into, could make no difference. He was in as a mere naked possessor, and must be considered in the same light as if he had entered under the agreement.”
It may-be questioned whether this case does not carry the doctrine of estoppel farther .than it will, legitimately go, and also whether the decision in the case from 17 Johns., supra, would not rest more satisfactorily on the effect to be given to a compromise of disputed titles, than upon the acceptance of the deed. But they serve to show to what extent courts have gone in this direction. See further upon the effect of a compromise of disputed rights, Scott v. Warner, 2 Lansing, 49; Downer v. Church, 44 N. Y. 647; Pitkin v. Noyes, 48 N. H. 294; and upon the matter of estoppel, Lessee v. Rochester, 7 Wheat. 543; Ward v. McIntosh, 12 Ohio St. 237; Bigelow on Estoppel, p. 293, and notes. Upon the two propositions that a compromise of disputed rights is binding, no matter upon which-side the-right may in fact be, and that where in such a compromise the parties agree upon a certain statement of facts as the basis of their contract, the courts will accept such statement as conclu- . . sive between them, it seems to us that the plaintiff must be denied any relief. Counsel argue that the company’s title must be absolutely good, either by virtue of its patent or by estoppel on the real owner, or else it is subject to cancellation in this suit. They say:
“How, then, can it be said that the act of- Mr. Stark-weather-in recognizing the title of the railroad company to the tract of land in dispute, by purchasing it, can estop him from setting up his prior and existing title, derived under a law of congress, and expressly recognized and reserved in the law under which .the railroad company claims? It is true, that a title can be founded on an estoppel, but not a title from government by a mere estoppel upon a private citizen. The company must show a title to the land derived from government, and not one that we have sold or given to it. No title from the government can be created by the estoppel of an individual. No original inceptive title can be created by estoppel. The first conveyance from the original source of authority must be by grant from the sovereign. It cannot be created by prescription, for ‘no time runs against the stated It cannot he created by estoppel, because it must be by grant' from the' legislature. The position of the railroad company is, that we recognized its title by our purchase from it, and that we are now forbidden to say that it had no title; or in-other-words/that we surrendered to it whatever-title we had when we made the purchase. If the rights of no one save the parties were involved in this controversy, it would possibly be as it says, but we had no title to give to it. We had a title to ourselves; but it was that which by the spirit and policy of our public-land legislation we could neither convey nor incumber. The title to the land was in us for the purpose of a government homestead, and none other. Will it be contended that, having a valid homestead entry on the land, we could have sold to the railroad company -the full, absolute legal title ? By no means!
“ How, then, could we have surrendered the same legal title to it by renouncing our rights and agreeing that they were vested in it? We might have relinquished to another homestead party, but we could only surrender to him the possession, and he could only take possession because he possessed the qualifications of a homestead claimant, and because the land was legally subject to homestead entry; but we could not convey the legal title, nor any title at all, nor surrender the possession to the railroad company, because, being a corporation, it could not take a homestead, and because the land was not subject to the grant made for its benefit. A contrary argument would be saying, that while it is true that congress alone possesses the power to dispose of the public lands, yet a private citizen, by his deed, or by his act of estoppel, can ■convey full title to a party to lands which are not granted to such party, but which are expressly prohibited from him.”
We cannot concur in these views. The decree binds no one but the parties and privies. Neither the government nor ■any other claimant to this land is concluded by it. Whichever way the decision might be, it would not determine the absolute title to the land. If the plaintiff obtained a decree •canceling the defendant’s title, it would not establish against the government, or against any one but the defendant and those claiming under it, his right to homestead this land. If the government were a party asserting its rights, then the question might arise whether title as against it can be created by estoppel. There being only private parties to this suit, •estoppel has its full sweep as against either, and the contracts they make bihd and estop each. Neither can it be said that the contract may be’kept in force as a promise to pay money —leaving the question of title open and free for inquiry and cancellation, if found to be in fact worthless — for if the title be once decreed to be null and void, and be canceled, then the promise to pay is without consideration.
One other argument deserves notice, and that is, that this is the homestead of plaintiff and his family, and that as his wife did not sign the contract, it cannot affect the homestead, or estop him or her from asserting to the fullest extent the homestead right. Upon this, counsel say:
“There is another consideration which in our judgment disposes of this question of estoppel, and that is, that Stark-weather’s wife did not join in the alienation of the homestead by means of the act of estoppel. If the husband cannot by his own deed sell the homestead or incumber it, of course he can perform no action that can estop him and the wife from still claiming the land. All contracts by which the homestead is agreed to be sold or incumbered, unless it is the joint act of the husband and wife, are void. (Art. 15, sec. 9, Const. of Kansas; Morris v. Ward, 5 Kas. 239; Dollman v. Harris, 5 Kas. 597.)
“The fact that the land was claimed as a government homestead, does not make it any the less a homestead under the state constitution and laws. The legal title to land, or even the equitable title, is not required in order to constitute a homestead under a state law. A homestead may exist in a leasehold estate. (Pelan v. DeBevard, 13 Iowa, 53.)”
To this we reply that, conceding this to be his homestead, the contract is good, whether or not it can be used by the company to enforce a lien upon or to recover the possession of the homestead. The owner of a homestead can surely perfect his title by the purchase of an outstanding title, and his contract to purchase and pay for such outstanding title is good as against him, and he wdll not be permitted to come into court and repudiate such contract and obtain a decree canceling such title. What rights the company can enforce under such a contract, it is .unnecessary to determine. At present it asks nothing, only to be let alone. Perhaps it may never ask more. If so, any inquiry as to its rights is useless. It is evident some interesting questions may arise, as: Whether this be a homestead under our law; whether the company must establish its title, or may rest on the contract; whether this contract to purchase an outstanding title is an incumbrance upon the homestead, and if so, one beyond the power of the husband to contract for; whether the money agreed to be paid for it is to be considered as purchase money so as to render the homestead as to it not exempt; and perhaps others. But these questions may never come before this court for decision, and sufficient unto each case are the questions which are fairly presented by it.
The judgment of the district court will be reversed, and the case remanded with instructions to enter judgment upon the findings in favor of the company, the defendant below.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action instituted in the district court of Anderson county by Constance Bowen, as plaintiff, against the Citizens’ bank of Garnett, as defendant, to recover $1,161.64, and interest, which the petition alleged had been deposited by the plaintiff with the bank, as a banker, subject to call. The bank filed its answer, denying this .allegation, and many of the other averments of the petition, and alleged that the money sued for was the property of Preston Bowen, the husband of Constance Bowen; that he, being insolvent, had deposited it in the bank to the credit of his wife without any consideration; and that he was indebted to the bank upon a promissory note of $1,800, with interest from July. 1st, 1875, and then overdue, which was an amount greater than the deposit. This answer further alleged that before and at the time of making the deposit, Preston Bowen was, and had continued to be, indebted to the bank in the sum of $1,800, and interest; that the money sued for had been deposited in the bank under the following written agreement :
“This agreement, made between Doc. P. Bowen and his wife and the Citizens’ bank of Garnett, witnesseth: That whereas, Doe. P. Bowen is indebted to said Citizens’ bank of Garnett in the sum of $1,800, due the 1st day of July, 1876, now said P. Bowen and his wife agree to and with the said Citizens’ bank to procure a loan of $2,000 or more on their farm, a homestead in Anderson county, Kansas; and he and his wife shall invest the proceeds of said loan in yearlings and two-year-old cattle, and give to the said Citizens’ bank of Garnett, when bought, a chattel mortgage on all the cattle so bought, to secure the payment of said amount of $1,800, reserving to themselves, however, the right and amount of the cost price of said cattle to himself and wife.» The growth or increase in value of said cattle above cost price is the only interest to be secured by the said mortgage, and the cost price of said cattle shall be reinvested whenever taken or received by P. Bowen and wife in the class of cattle above mentioned, by P. Bowen and wife; and the same, when purchased, shall be mortgaged to the Citizens’ bank in like manner as above, until said amount of $1,800 and interest is fully satisfied by said P. Bowen and wife.
“Witness the hands of the parties hereto this 1st day of December, 1875. P. Bowen.
Constance Bowen.
Citizens’ Bank of Garnett,
By J. T. Lanter, Pres.”
And that the money was to bé kept, drawn out and used only in accordance with said agreement, and that said Preston and Constance Bowen had neglected and refused so to apply it. The answer asked that Preston Bowen be made a party to the suit, and that, upon the final hearing, the said sum of $1,161.64 should be applied as a credit and set-off against an equal sum of the note of Preston Bowen to the bank, and that judgment be rendered' in favor of the bank against him for the balance remaining due upon the note after the $1,161.64 had been credited thereon.
Preston Bowen entered his appearance, and filed his pleading admitting the allegations of the petition, and denying generally, and without verification, the allegations of the answer of the bank.
Constance Bowen replied, also denying, without verification, the allegations of the bank’s answer.
The following facts were admitted or proved on the trial. On December 1, 1875, Preston Bowen made his note to the bank for $1,800, payable July 1st, 1876,- with twelve per cent, interest'from maturity, and at the same time he and his wife executed with the bank the written agreement above set forth. At the time of the execution of this agreement, and for many years prior thereto, the plaintiff below and her husband, Preston Bowen, and their family, had lived on a certain 160-acre farm in Anderson county, which was their homestead, and was so referred to in the agreement.' The title to this land was in the husband. On February 1st, 1876, Preston Bowen executed his note to the Phoenix Mutual Life Insurance Company, of Hartford, Conn., for $1,650, payable in five years from date, and this note was secured by a mortgage of like date on the said homestead in Anderson county, which mortgage was duly signed by both Preston and Constance Bowen. The money on this note thus secured was obtained from the said life insurance company through Henry Bogen, a loan agent. On February 26th, 1876, he deposited $1,283.14 of the money so raised upon the note and mortgage with the bank, under the instructions of Mrs. Bowen, had that amount passed to her credit, and the usual pass-book of a depositor was then given her. From that time up to May 17th, 1876, the checks of Mrs. Bowen were duly honored, and her account debited therewith in the usual course of banking business. On the 6th of January, 1877, this passbook was returned to the bank, the various checks entered on the debit side, and the account stated therein by the cashier, showing a balance in favor of Mrs. Bowen of $1,161.64. On the 17th day of January, 1877, she demanded this amount of the bank, and payment was refused. On the 23d of January, 1877, this action was brought in the court below. It was admitted that the husband, Preston Bowen, was insolvent. After the introduction of the evidence, the counsel for the bank asked the following instructions:
1. That if the money sued for in this action was the money of Preston Bowen when it was deposited with said bank, the jury should find for the defendant, the Citizens’ bank of Garnett.
2. That if the money deposited was obtained upon a mortgage of Preston Bowen’s land, made by Preston Bowen and Constance Bowen, and a note made by Preston Bowen and secured by said mortgage, that they should find for the defendant.
3. That the proceeds of a note made by a husband and secured by a mortgage made upon the homestead by husband and wife, are subject to be applied to the payment of the husband’s ■ debts previously existing, and the husband cannot lawfully place such proceeds out of the reach of previous creditors by a gift of such proceeds to his wife, or by placing the same in her hands without any valid consideration.
The court refused to give these instructions, or any one of them, and against the objections and exceptions of the bank, instructed the jury that the said Constance Bowen was enti tied to a verdict for the sum of $1161.64, with interest thereon at seven per cent, from January 17th, 1877, and directed them to find a verdict accordingly against the bank.
We may dismiss the within agreement of Dec. 1st, 1875, set up in the answer of the bank, with the single remark that it does not necessarily affect the case nor figure in the final • result. The court below was right in rejecting all consideration of such agreement as any defense under the pleadings to-the action of Mrs. Bowen, but not right in peremptorily instructing the jury to return her a verdict for the sum sued for. The money obtained on the note of February 1st, 1876, belonged to the maker, Preston Bowen. Its payment was •secured by a mortgage on land in his own name, and tine fact that such real estate was a homestead, and that it was necessary for the wife to sign the mortgage to make it valid, did not make the proceeds of the note the property of such wife. The husband was the principal, was solely liable on the note. The mortgage was a mere security creating a lien upon the property, but vesting no estate whatever. In one sense the wife might be said to be the surety for her husband, but in a very remote and attenuated sense. (Jenness v. Cutler, 12 Kas. 500.) When the note should be paid the lien would cease to exist. Nor would the proceeds of a note thus executed be exempt from the payment of the debts of the maker thereof, because the same was secured by a mortgage on a homestead. There is no theory of the law upon which any such principle can be sustained. If the rule were otherwise, then the husband could execute his notes, secure the same by a mortgage on his homestead, purchase other lands with the proceeds, which would be exempt .or belong to his wife, and after payment of the note from the proceeds of his lands, again issue other notes likewise secured, and repeat the operation, and thus forever cover up his property from the just claims of honest creditors, under the plea that the security for his notes was given on a homestead, which was signed by the wife. This result would lead to absurd consequences, and is an' unwarranted construction of the homestead provisions of the state. Viewing the money obtained on the note and mortgage as the personal property of Preston Bowen, any gift of it to his wife or the deposit of it in the bank to her credit without any consideration when he was insolvent, was fraudulent as against creditors and transferred no right or title. The money on deposit really belonged to Preston Bowen. He was a party to the action below, and the bank ought to have been allowed to set off his indebtedness to it as prayed for in its answer. The fact that Mrs. Bowen was the nominal owner of the deposit is no obstacle to the claim of the bank, because such ownership under the circumstances was utterly void, and of no effect as against the husband’s creditors. Under §1, ch. 62, Gen. Stat. 562, it is clearly evident that the real and personal property of a married woman received by her as a gift from her husband is still liable for his debts. The deposit of the money in the name of the wife being a mere covinous cloak to secrete it from an insolvent’s creditors, it was liable for such insolvent’s debts. There being no element of estoppel in the conduct of the bank or its officers precluding it from contesting the claim of Mrs. Bowen to the deposit, nor from having its set-off allowed, the judgment of the district court must be reversed, and the cause remanded for a new trial.
All the Justices concurring.
JANUARY TERM, 1879. PRESENT: Hon. ALBERT H. HORTON, Chief Justice. Hon. DANIEL M. VALENTINE, 1 Associate Justices Hon. DAVID J. BREWER, j ASS0GIATE dxJSTI0ES- | [
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The opinion of the court was delivered by
Valentine, J.:
A motion has been madé in this court to dismiss the petition in error, because it is founded upon what purports to be merely a copy of a case-made, and' is not founded upon the original case-made. Since said motion was made, the plaintiff in error has filed with his petition in error the original case-made. The motion will be overruled.
This action was commenced originally in a justice’s court, and taken on appeal to the district court. The only pleading ' filed in the case, was the plaintiff’s (defendant in error’s) bill, of particulars. In this bill of particulars, the plaintiff alleged, among other things, that the defendant (plaintiff in error) “unlawfully, and with force, seized, took, and carried away,” “one two-horse lumber wagon, of the said plaintiff, of the value of eighty-five dollars,” “and converted and disposed of the same to his own use, to the damage of the said plaintiff, $85;”. and prayed for judgment for that amount.
The case was tried before a jury. “The plaintiff stated the nature of his case [to the court and jury] and the evi- . dence which he expected to offer; and the defendant stated, by his counsel, the nature of his defense in substance as fol-lows: That said defendant expected to swear, that prior to the commencement of this action, one William Orr bought on credit the wagon in controversy; that he gave his notes for it, which notes contained a promise in substance, that the title to said wagon should not pass to said Orr, till said notes were paid; that said notes were not paid; that the defendant, under the direction and at the instance of the owner of the wagon, took said wagon into his possession; that defendant, among other things, expected to prove that plaintiff was not the owner of said wagon at the time this suit was commenced.”
The plaintiff then introduced his evidence, showing that on February 7, 1877, he had the possession of said wagon, claiming it as his own, and that on that day the defendant Huffman, and O. L. Hall came upon the plaintiff’s premises, and took the wagon from his possession, and never returned it, and that it was worth $85.
The defendant then offered to introduce his evidence, and a small portion thereof he did introduce, but the court below excluded the greater portion .thereof. This evidence was excluded upon the ground that, as Huffman did not claim to own or have any interest in the wagon, he could not show that Hall or any other person owned the wagon, or that what he (the defendant) did, was done merely as the agent or servant of Hall, or of any owner of the wagon. The defendant claimed that said Hall owned said wagon, and had the right to the possession thereof, and that all that the defendant did was done at the instance and request, and by the direction of Hall, who was personally present all the time. The defendant attempted to prove this in various ways, but the plaintiff, in all cases, objected to the evidence, because, as he claimed, it was “irrelevant, incompetent, and immaterial,” and the court below sustained the objection, and excluded the evidence. Among other things, the defendant offered to introduce said notes in evidence, but the plaintiff objected, assigning, as the ground .of- his objection, that said papers were “irrelevant, incompetent, and immaterial.” The court sustained the objection, and to the ruling of the court the defendant at the time duly excepted. Thereupon the defendant .recalled the witness, O. L. Hall, and said defendant, by his attorneys, stated to the court in open court that said defendant desired, and offered to prove, by said witness Hall, that said Hall, at the time of the alleged taking and conversion of the wagon mentioned in plaintiff’s bill of particulars, was the owner of said wagon, and had the right of possession thereto; and all that defendant did in the matter of taking said wagon, was simply at the instance and direction of said Hall. The court in reply to said proposition, told defendant’s attorneys to put such questions as they desired to their witnesses, and the court would pass upon the questions. Thereupon said defendant’s attorneys asked the witness, O. L. Hall, the following question:
“You may state what you know, if anything, about the ownership of the wagon in controversy, on the 7th of February, 1877?”
.The. plaintiff, by his attorneys, objected to the question, on the ground that it was irrelevant, incompetent, and immaterial. Thereupon counsel for defendant stated to the court that they did not expect to prove that Huffman was the owner óf the wagon, but that they expected to prove that Hall was the owner, and that what Huffman did with the wagon was at the instance and direction of Hall, and as Hall’s agent. The court announced that any individual interest of Huffman to the wagon could be shown, but ruled and held that the interest of a third person, not a party to the suit, could not be shown in defense of the action. And thereupon the the court sustained the objection, and to the ruling of court the defendant at the time duly excepted. Thereupon defendant’s attorneys asked said witness Hall the following •question:
“ State what interest, if any, you had' in the wagon in controversy at the time of the alleged taking thereof by the •defendant?”
The plaintiff objected to the question, on the ground that it was irrelevant, incompetent, and immaterial. The. court sustained the objection, and to the ruling of the court the defendant at the time duly excepted. Thereupon the attorneys for defendant asked said witness the following question:
“State whether or not you ever had said wagon in your possession prior to the 7th of February, 1877?”
The plaintiff objected to the question, on the ground that .the same was irrelevant, incompetent, and immaterial. The court sustained the objection, and to the ruling of the court the defendant at the time duly excepted. Thereupon the defendant, by his attorneys, asked the witness the following question:
“State what claim, right, or title, if any, and the nature thereof, which you had to the wagon in controversy at the time of the alleged taking thereof by the defendant?”
The plaintiff objected to the question, on the ground that it was irrelevant, incompetent, and immaterial. The court sustained the objection, and to the ruling of the court the defendant at the time duly excepted. Thereupon the witness was permitted to retire, and the defendant John Huffman, being produced and sworn as a witness in his own behalf, testified as followstook the wagon away from Mr; Parsons’s premises.” Thereupon the defendant, by his attorneys, asked the witness the following question:
“State at whose instance, request and direction, if by any one, you took the wagon away?”
The plaintiff objected to the question, on the ground that it was irrelevant, incompetent, and immaterial. The court sustained the objection, and to the ruling of the court the defendant at the time duly excepted. Thereupon the defendant, by his attorneys, asked the witness the following question:
■ “State what you know, if anything, with reference to any claim or interest that O. L. Hall had in said wagon at the time you took the same?”
The plaintiff objected to the question, on the ground that it was irrelevant, incompetent, and immaterial. The court, sustained the objection, and to the ruling of the court the defendant at the time duly excepted.
Other questions of the same character but in different-words were asked, but not allowed to be answered.
The court below charged the jury, among other things, as-follows:
“If the plaintiff was the owner of the property, or held the same in his possession under some claim of title, and the defendant forcibly took the same 'from his possession, the plaintiff is entitled to recover, unless the defendant had some ownership, claim or interest in the same. The defendant cannot defeat the plaintiff’s right to recover by merely showing that the property was owned by a third person.”
And the court below refused to give the following instruction, which the defendant asked to have given, to wit:
“If you believe from the evidence-that at the time of the-alleged taking by the defendant of the wagon mentioned in-plaintiff’s bill of particulars, one O. L. Hall was the owner of said wagon and had the right of possession thereto, and that said defendant in taking said wagon was duly acting under the direction and instruction of said O. L. Hall, .and in his presence, and on behalf of said Hall, then you should find for the defendant.”
The jury found a verdict in favor of the plaintiff and against the defendant, and assessed the damages at $85. The defendant then moved for a new trial upon all the various-statutory grounds, which motion the court overruled, and the defendant then brought-the case to this court.
We think the judgment of the court below must be reversed. If Hall owned said wagon and had the right of possession thereto at the time it was taken, and if the defendant acted under Hall and in his presence in taking the same, he is certainly not liable for the value thereof. (Hutchinson v. Lord, 1 Wis. 249.) And it makes no difference what the action may be called, whether trover and conversion, trespassde bonis asportatis, or a “civil action” under the code of civil procedure. (Gen. Stat. 631, §10.) Hall’s agent would not be liable for any greater amount for taking the wagon than-Hall himself would be. If Hall had a right to the wagon, Huffman was not a mere wrong-doer. Hall’s right for the-time being was extended to Huffman, and Huffman was entitled to rely upon Hall’s right. If any wrong was committed in connection with the taking of the wagon, Hall and. Huffman would both be liable for that wrong, but the measure of the damages would not be the value of the wagon.’ If Hall had the paramount right to the wagon (and this the-defendant offered to prove), then the taking of the wagon was, in the abstract, right.
We shall not comment upon the various possible questions-that may hereafter arise when all the evidence shall be introduced, for we cannot tell what evidence may be introduced. It may turn out that Hall is not the owner of the wagon.
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to recover possession of certain real estate. The case was tried by the court, without a jury, and these are, in substance, its findings:
That the city was and is an incorporated city of the second class; that it is the owner of the premises in dispute; that the defendants do and have, since the ,10th day of September, 1877, forcibly detained the possession of said premises from ■the city; that the possession of the same was duly demanded from-the defendants; that after the passage of the act of the legislature known as chapter 31 of the laws of 1870, which provided for the issue of bonds to build boarding-houses for the use of the students of the Normal School, and prior to any action under it by the town of Emporia, the town was duly incorporated as a city of the second class; that after such incorporation, the city called an election under said act, to vote bonds in accordance therewith; that at said election said bonds were defeated; that subsequently the city passed another ordinance under said act, authorizing the issue of $6,000 in bonds of said city, to build boarding-houses for the Normal School, which ordinance was duly ratified by a vote ■of the electors of said city; that in this ordinance were the following provisions: that the boarding-houses should remain the property of the city, and should be under the control of the State Normal School authorities only so long as they should be used as boarding-houses, and that there should be paid into the city treasury, annually, rents from such buildings sufficient to meet the interest on the bonds; that in September following, the bonds so authorized were issued and sold, and the proceeds used to build two houses upon lots belonging to the city but selected by the executive committee ■of the Normal School; that upon the completion of the buildiijg, about January 1st, 1871, the buildings were taken possession of by the Normal School authorities and the students of such school, and that the said authorities and said students have ever since remained in the possession of said buildings and premises; that previous to June 26th, 1871, there was $138.25 rent paid to the city for said buildings, which is and was the only rent ever paid therefor; that at a meeting of the city council in July, 1872, a resolution was passed, and entered in the records of said city, instructing the committee on city property to lease to the state the Nor mal School boarding-house buildings for the term of eight years, the state to keep the buildings in repair and insured for the benefit of the city; that such committee never made any report as to how they had obeyed said resolution, and that siuce that time (July 22, 1872) the city has never taken any other action in relation to said property, except to instruct the city attorney to bring suit to recover the possession of the same; that the board of directors of the Normal School, on August 7, 1872, caused to be entered on its minutes the following, among other proceedings:
“The proposition of the city of Emporia to lease the normal boarding houses at a nominal rent to the state of Kansas-for the term of eight years, on condition that the state should keep them in repairs and insured for the benefit of the city,, was adopted.” That the proposition referred to in this resolution was that of the city of Emporia, by its resolution of July, 1872; that no lease in writing was ever executed.
That the board of regents of the Normal School have kept said buildings in repair up to the present time, and have insured the same for $>3,500, for the benefit of the city, from January 1st, 1871, up to November 4th, 1873, and from June 10th, 1874, up to June 25, 1878; that the city has never been in the actual possession of said property since the completion of said buildings thereon, but the same has been in the actual possession of the professors and students of the Normal School' ever since said time; that since July 22d, 1872, it has not been possible to rent said buildings for sufficient to pay the interest on the bonds issued to build.
Upon these facts, the court found for the defendants. The plaintiff filed its motion for a judgment upon the facts found, which was overruled and excepted to. It then filed its motion for a new trial, which was also overruled and excepted to, and a judgment entered for the defendants for costs.
Did the court err in its conclusions? That the title to the property is in the city, is shown. Whether the act under which the bonds were issued was valid or not, the city did issue its bonds and receive the proceeds. The money realized was its money, and that money was used in building this boarding-house. The right of possession follows this ownership, unless shown to have been divested by some act or contract of the city. Two things are relied on : First, it is said that the act of 1870 furnishes the only authority the plaintiff had in the matter, and it prescribed no conditions upon which the use of the boarding-house should pass to the Normal School authorities, and therefore the city could attach none. Upon this, counsel for the defendants in error say:
“ We most emphatically deny that the voters of the city of Emporia had any right to incorporate any conditions or limitations into the terms of that act. The city, in its corporate capacity, was authorized to issue its bonds to erect the house in controversy for the use of the students, first having submitted the proposition to the voters on the simple naked question, ‘For, or against, bonds to build boarding-houses/ and the council could not incumber it with any ‘guarantees;’ and under this statute, authorized by such a vote, the only structures that could be erected were boarding-houses, for ‘ the use of the students of the State Normal School.’ Hence, such buildings having been erected, they could only be for the use of such students; hence, such students having such use, the city nor no one else, at least without additional legislative authority, can dispossess them.”
We cannot assent to the views above expressed. Conceding for the purposes of this case, the constitutionality of the act, and the validity of the bonds (and it will be time enough to consider that question when the bonds themselves are in controversy), and still we think the conditions prescribed in the ordinance must be sustained. No duty was cast upon the town of Emporia by the act, but only a power. Neither was any duty cast upon the corporate authorities by an affirmative vote, but only an authority. The naked question of issuing bonds under that act was submitted to the people, and lost. Was tha power granted by the act exhausted by such vote? There are authorities to that effect. If it was, then the subsequent vote and issiie were unauthorized by it. If it was not, and the question could again be submitted under the act, it was submitted only as coupled with the guaranties. That is the only manner in which the town ever assented to or granted authority for the issue of the bonds. Counsel would sustain the authority and reject the conditions. But the town refused the authority without conditions; it granted it only upon conditions; and the true rule is, that the conditions are valid, or the authority never passed. If no conditions were lawful, then the submission under the act was against the-bonds, and the last submission was without authority of and outside the act.
So that under any view which may be taken, it seems to us that the claim of counsel cannot be sustained.
If the act were unconstitutional and the bonds void, then the Normal School authorities could make no valid claim to the perpetual use of the buildings erected with the proceeds of such bonds. If the act were constitutional, but limited the question which might be submitted under it to that of a naked unconstitutional grant of authority to issue bonds, then the only time the question was so submitted such authority was refused, and the Normal School authorities, having accepted the buildings erected by the plaintiff in pursuance of the authority granted by the vote of its citizens, cannot now retain the buildings and repudiate the conditions attached to the grant.
With this view of the first question presented, it is unnecessary to discuss the other, though we may say in passing that it does not seem to us that any valid lease is shown.
The findings not being excepted to by the defendants, it becomes our duty to direct the proper judgment to be entered upon them; and the judgment of the court below will be reversed, and the case remanded with instructions to render judgment in favor of the plaintiff for the possession of the premises, and for costs of suit.
All the Justices concurring. | [
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February ,4th, 1879, the judgment of the court below in this case was affirmed, but no opinion was filed herein. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action on two notes. A demurrer to the evidence was sustained, and this is the ruling complained of. This demurrer could have been sustained only in case of a total failure of proof upon some' essential- fact. If the plaintiff’s pleading was sufficient, and there was testimony tending fairly to establish every essential fact, then the ■demurrer was impropérly sustained, no matter on which side the preponderance of the evidence may appear to be. (Jansen v. The City of Atchison, 16 Kas. 358.) The notes were signed “Wm. Rogers, by Mary Rogers his wife,” and the important •question is as to her authority. If there was testimony tending fairly to establish such authority, then, without doubt, the ■demurrer should have been overruled, and the question submitted to the jury. Either prior grant or subsequent ratification would create the authority. There was no direct testimony of express grant or express ratification. Was there testimony from which either could be implied, or from which a jury could fairly deduce the existence of either? The circumstances were these:
Wm. Rogers, in October, 1875, left for the Pacific coast, to be absent two years. Prior to his departui’e, he leased his farm to his brother-in-law, James M. Gallagher. The lease was in writing, and for the term of two years. The rent was to be a share of the crop. He also turned over to him eighteen head of cattle, to be kept for three years for one-half the increase; also, sold him a span of horses, for which he took Gallagher’s note secured by chattel mortgage; and also a steer, for which Gallagher promised to pay in the ensuing March. Mrs. Rogers did not accompany her husband, but remained with Gallagher on the farm, a certain portion of the house being reserved for her use. During the fall, Gallagher did some plowing, sowed" some wheat, and put up about eighty tons of hay. The lease and note were left by Rogers with his wife. After he had gone, and during the following winter, some differences arose between Mrs. Rogers and Gallagher, the nature of which does not appear, and she proposed an arbitration. He says she told him “that she-wanted to submit all matters of difference between him and Wm. Rogers about the lease of the farm, and the cattle, by which she was to get possession of the same for Wm. Rogers.” He assented, and arbitrators were selected, she naming one, he another, and the two selecting the third. The arbitrators decided that Gallagher should surrender the farm, the cattle, the hay, and the horses he had purchased; that Rogers should give up the note and chattel mortgage, and pay him ■the sum of $132.58. In pursuance of this decision, the note, lease and mortgage were handed to the arbitrators, and by them burned. Gallagher surrendered everything he had received from Rogers — farm, cattle, &c. — and Mrs. Rogers gave him the two notes in controversy, for the amount awarded by the arbitrators. Mrs. Rogers took possession of all the property surrendered, and leased the farm for the year 1876 to John Talbot, who occupied it that season. Rogers returned in October, 1876, and from that time to the time of trial occupied his farm, and had possession of the horses he had sold and the cattle he had turned over to Gallagher. At the time of his return, some of the hay which Gallagher had put up the prior season was still on the place, and Rogers fed it out to his stock. Mrs. Rogers claimed at the time of the arbitration that she had full authority from her husband in the premises. Rogers wrote a letter to one of the arbitrators, after he had heard of what had taken place, in which he thanked them for what they had done; said he did not blame them at all; but that Gallagher had swindled him, and he did not propose to pay the notes unless he was compelled to.
Upon these facts we remark that one who voluntarily accepts the proceeds of an act done by one assuming, though without authority, to be his agent, ratifies the act, and takes it as his own, with all its burdens, as well as its benefits. He may not take the benefits and reject the burdens, but he either accepts or rejects them as a whole. This is a general proposition, to which, of course, there may be exceptions and limitations. JBut still, it is potent in this case, as showing that there was some testimony from which a jury might deduce a ratification by him of the acts of the wife. He acted knowingly, and repudiated nothing of benefit to himself. Can he avoid the burdens? Counsel say that Gallagher abandoned the farm, and that Rogers was compelled to take it or let it run down, and that such mere measure of protection ought not to be construed as a ratification of the unauthorized act of his wife. But his action was not limited to that. He took possession of the hay which had belonged to Gallagher, and was given him by the arbitrators, and fed it to his stock. The cattle, and also the horses which he had turned over to Gallagher, and which were returned only in pursuance of the arbitration, he keeps the possession of. And' in the letter which he wrote on receipt of the news, he does not deny his wife’s authority, or propose to repudiate the entire action, but only to contest the payment of these notes. Nowhere does he insist upon Gallagher’s continuing the lease or the contracts he had made with him, or offer any objection to the termination of' these and the surrender of the property back to himself. Now it seems to us that in these matters there was testimony tending to show a ratification. We do not mean to be understood as saying that it was conclusive, or was not subject to explanation or contradiction, but we do hold that if upon it the jury had found there was a ratification, we should not have felt warranted, in setting aside the verdict as entirely without support.
The judgment of the district' court will therefore be reversed, and the case remanded with instructions to grant a new trial.
All the Justices concurring. | [
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