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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to determine the interest of plaintiffs in 240 acres of land in Trego county acquired under an oral agreement, for specific performance of the' agreement, and to quiet their interest and estate as against any claims or interests of the defendants. In a trial in which a number of special questions were submitted to the jury the court, on the findings made, rendered judgment in favor of the plaintiffs. Defendants appeal.
In a former review of the case matters of pleading were considered and determined. (Kuhn v. Kuhn, 107 Kan. 391, 191 Pac. 487.) It appears that John Kuhn, sr., owned 480 acres of land, of which two quarters were in Ellis county and one in Trego county. Prior to his death, which occurred on March 8, 1912, he executed a will giving to his wife, Barbara Kuhn, 240 acres of his land, and the remainder was devised to his sons, John, Frank and Joseph, each to get 80 acres. The wife was to take her share from the whole as she might elect, and the division of the three 80’s was to be made among her sons as she might deem best. The personal property was given to the wife, except that $500 out of it was bequeathed to the daughter, Agnes Weigel, as her share in the estate. The will was duly probated and the widow elected to take under the will, and early in 1913 she made a selection of her share. No selection or division of the remainder among her sons was made, although some steps were taken towards a division, which were not completed. Subsequently to the death of her husband, Barbara purchased an additional 80 acres which adjoined the quarter section in Trego county. The land in Ellis county was more valuable that that in Trego, which was unimproved. Each quarter section in Ellis county was appraised at $5,000 and the one in Trego county at $2,000. At the death of their father the three sons were single, but Joe was married in 1913, and in 1914 John J. was married to the plaintiff, Maggie Kuhn, and Frank Kuhn is still unmarried. Joe and his wife lived with his mother for a time and Frank has always lived at the old home. After the marriage of John J. he resided elsewhere, and in June, 1915, was employed in running a grain elevator at Studley, Kan. About that time Joe was insisting on a division of the land, and Barbara was then sixty-five years’old and unable to operate the farm. She desired that John should quit working for others and should come back and work a part of the Kuhn land. All of her sons were called together and the matter of division of the land was discussed. The difference in the values of the several parts of the land made an equal division impracticable, but the conference resulted in an agreement that a division should then be made and that John J. should take the Trego land comprising 240 acres as his share; that Joe should take 160 acres of the Ellis county land, known as the Knoll quarter; and Frank was to take the home quarter. It was agreed that each son was to give his mother during her life as rental one-fourth of the crops raised on 80 acres of each share, and it was stipulated that John J. Kuhn was to give her such share as should be raised on a designated 80 acres of the tract allotted to him. It was further agreed that for the protection of the mother the legal title of all the land should remain in her during her life, but that at her death the shares thus apportioned to each son should vest absolutely in him. In pursuance of the agreement and to make the agreed partition complete, each son executed a deed conveying his interest in all the land to his mother and these deeds were duly recorded. On the faith of the agreement, and in June, 1915, John J. .with his wife and son moved upon the Trego county land set apart to him and began making improvements thereon. He built a bam, a granary, additions to the house, fences, and dug a well, expending over $1,600. He continued in the possession of the land from June, 1915, when the agreement was made, until he died, in October, 1918. Since his death the plaintiffs, his widow and son, have been in possession of the part allotted to him. Joe Kuhn took possession of the land which was apportioned to him and Frank has lived on the home place set apart as his share. After the death of John J. his mother appears to have held the opinion that his wife and son inherited no interest in the land, but that it reverted to his mother and brothers. She remarked to Maggie that the land “was to be yours and Johns if he had lived, now he is dead and you have nothing more to do with it.” After John’s death his mother denied plaintiffs’ right to the land under the agreement, and since the commencement of this action she attempted to convey 160 acres of it to others.
Upon the evidence, findings were made by the jury to the effect that an agreement had been made substantially as related, by which John J. was to have the Trego county land, and upon her death was to be vested with a complete title to it; that Joe and Frank joined their mother in the agreement; that in pursuance of the agreement John J. entered into the possession of the land and thereafter made permanent and valuable improvements thereon; that such possession continued until his death and his widow and son have continued in possession of it until the commencement of this action; that a part of the specified rental had been paid and that the plaintiff was ready and willing to pay any amount that may be due. The court appears to have adopted most of the findings of the jury, or at least included them in the more ample findings made for itself, and then adjudged that plaintiffs were entitled to the relief sought, including the use and occupancy of .the land subject to the right of Barbara Kuhn to receive during her life one-fourth of the crops grown on a certain 80 acres of it; that upon the death of Barbara Kuhn they were to be the owners in fee simple of the land, free from any right, title or interest of the defendants in it; and also that any and all deeds of Barbara Kuhn attempting to convey the portion of the lands to Joe or Frank Kuhn be canceled and set aside. There was a further provision in the decree that certain sums due from plain1 tiffs to Barbara for rental of the land should be paid by plaintiffs, and she was awarded a lien on the land as a security for the payment of such rentals. It is recited in the judgment that the amount due for rentals was tendered to Barbara in open court and that the interest on the claim for rental should cease on the date of the tender.
Defendants question the action of the court in overruling a demurrer to plaintiffs’ amended petition. The allegations of the pleading set forth the claims of plaintiffs under the agreement substantially as they were stated in the original petition, the sufficiency of which was upheld on the former appeal, and are undoubtedly sufficient to warrant the findings and judgment of the court.
Error is assigned on the admission of a selection made by Barbara Kuhn of her portion of the devised land. It had been made a part of the record of the probate court and was properly authenticated. In view of the fact that plaintiffs’ claim was based on an agreed division and upon a plan different from that made in the will, the matter of selection was not important. However, it was a part of the history of the estate and of the action of Barbara Kuhn with respect to it, and its admission cannot be regarded as prejudicial error.
The principal complaint upon this appeal is that the special findings to the effect that an agreement was made under which the son, Johif J., was given the equitable ownership of the land in controversy and had taken possession of it and made permanent improvements upon it, are not supported by the evidence. An examination of the record shows that while there is much conflicting testimony, that given in behalf of the plaintiffs abundantly sustains the findings essential to the support of the judgment. There is not only the direct evidence of Maggie Kuhn that the agreement was made, and some admissions of Barbara Kuhn, but it was also confirmed by the testimony of other witnesses to whom Barbara admitted that the division of the land had been made as claimed by plaintiffs. This evidence was reenforced by a number of circumstances, including the conduct of the parties. Among these is the circumstance that in 1915 and about the time that the agreement was made, John J. Kuhn gave up his position and home in another county and went into the possession of the Trego county land. He began improving and farming it as his own and had paid a rental on a part of it to his mother, and during this time no question as to his ownership was raised until after his death in October, 1918. It further appears that Joe Kuhn took possession of the Knoll quarter in 1915 about the time the agreement was made, paying rent to his mother on 80 acres of his share. Frank also remained on the home place which under the agreement was to be his share. There was the further circumstance of the execution by the sons of deeds conveying their interest to their mother, which warrants the inference of a purpose to place the legal title in her so that the agreement might be effectually carried out, and also as security to her that the rentals agreed upon would be paid. It is said that in cases like this where there is reliance upon a gift and on part performance of an oral agreement conveying land that these must be clearly, definitely and satisfactorily shown, and that tested by that rule the proof was insufficient. That test is to be applied by the trial court. It belongs to it to determine the force and effect of the evidence and decide whether or not the agreement has been satisfactorily shown. There was substantial and convincing evidence given in support of the findings and hence it must be presumed that the court in weighing the evidence and in making its findings applied the proper test. (Wooddell v. Allbrecht, 80 Kan. 736, 104 Pac. 559; Smith v. Cameron, 92 Kan. 652, 141 Pac. 596; Hegwood v. Leeper, 100 Kan. 379, 164 Pac. 173; Taylor v. Holyfield, 104 Kan. 587, 180 Pac. 208.)
The complaint is made of certain instructions given to'the jury. It is to be remembered that this was an equitable case and the jury was called to act only in an advisory capacity. Special findings of the jury were returned, as we have seen, but the court, as was its right, made independent findings which conformed to some made by the jury, practically covering the entire case, and its findings so made warrant the assumption that the proof was clear and satisfactory to it. The instructions to the jury are therefore not so important as in cases triable by a jury as a matter of right. The court having given independent consideration to the evidence and made complete findings of fact, errors, if any were made, would not require a reversal. However, we discover no material error in the rules laid down by the court in its charge. Other objections are suggested, but we find nothing substantial in them.
An examination of the evidence upon which the findings were based leads us to conclude that a just judgment was rendered and that none of the errors assigned warrant a reversal.
Judgment affirmed. | [
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The opinion of the court was delivered by
DawsoN, J.:
The plaintiff recovered damages against the city of Rosedale because of injuries she sustained in being tripped and thrown by a defective sidewalk.
The city assigns error in permitting the plaintiff to amend her petition during the trial so as to introduce an allegation that her earning power had been reduced or destroyed by reason of her injuries. But the city’s physician had examined the plaintiff’s injuries a month before the trial, and when he testified he avoided a direct answer to the question whether her injury was a lasting or perma nent one, merely saying: “I believe usually those conditions are cured by proper treatment.” It thus appears that the city had its own sources of information touching the extent of plaintiff’s injuries long before the trial, and it cannot be said that the allowance of this amendment was prejudicial. In such cases the allowance of belated amendments to pleadings is within the sound discretion of the trial court. (Bank v. Badders, 96 Kan. 533, 536, 152 Pac. 651.)
Another amendment to the petition changed the amount of damages demanded from $10,000 to $20,000, to which the defendant also objected; but as the verdict and judgment were for $4,500, this particular amendment wrought no prejudice to defendant.
When the foregoing amendments were allowed, defendant moved for a continuance and filed an affidavit in support of the motion. The affidavit recited that the amendment to plaintiff’s petition took defendant by surprise:
“That this defendant had made no preparation to refute any testimony offered as to the great and excruciating pain on account of said injuries; that this defendant has had no opportunity to obtain any evidence whatever as to the previous earning capacity of the plaintiff or the present earning capacity of the plaintiff, and the time during the trial is not sufficient to permit this defendant to obtain such evidence, and this defendant therefore is unable to continue in the trial of this case in consequence thereof; that the allegations complained of materially change the cause of action and introduce new elements into the same, upon which this defendant has had no opportunity to secure evidence.”
The motion for a continuance was denied, the trial court ruling—
“I think it don’t change the issues in any respect as I can see. Thé only thing it changes is the measure of damages, and the injuries have all been set out, everything that they claim, everything that was proven was set out in the pleadings. Now as to what her damages might be, you were just as able to show at the time the petition is filed as you would be now.”
We are not prepared to hold that this ruling was erroneous. (Davis v. Wilson, 11 Kan. 74, syl. ¶ 3.) Defendant argues that it did not know that plaintiff was a widow and dependent upon her own labor for the support of herself and child. But nearly a year elapsed between the time the plaintiff made her demand on the city for damages and the time the case was tried, and the defendant had ample time to gather information concerning the woman. With diligence defendant could have readily ascertained that she was a widow with one child, and that she had to earn her livelihood. Moreover, it cannot be said that the issues were changed; the allegation that plaintiff’s earning power was destroyed was rather an elaboration of her pleadings of injuries and damages than the introduction of a new element thereto. (Thompson v. Machine Co., 94 Kan. 453, syl. ¶ 2, 146 Pac. 1188; 13 C. J. 173.) Her original petition alleged:
“That her right ankle was bruised, sprained, wounded and contused. Her right knee was bruised and wounded, and the patella thereof was injured. Her right hip was wounded, bruised and contused, and the muscles, ligaments and tendons thereof were injured, wrenched and strained. Her back was injured and wounded, and her spine was wrenched and the ligaments, tendons and nerves in and about the small of her back were torn loose and wounded, bruised and contused, and she was caused to suffer a severe nervous shock; and the wound on her back has so caused her kidneys to become disordered until they do not perform their usual functions. She was caused to suffer a severe nervous shock and other internal injuries, at this time to plaintiff unknown, and for that reason not herein set out; and that her injuries are permanent and lasting.” -
We have carefully reread Matson v. Railway Co., 80 Kan. 272, 102 Pac. 254, which defendant presses upon our attention, and to its soundness we still adhere, but there the court was asked to reverse a ruling where the trial court in the exercise of its discretion refused to allow a belated amendment introducing a new and additional element of damages, while here we are asked to reverse a ruling of the trial court where in the exercise of its discretion it has allowed an amendment and refused a continuance. There is a further and seemingly conclusive answer to this assignment of error. If it be' conceded that the amendment to plaintiff’s petition introduced a new element of damage which took the defendant by surprise, and which with further time the defendant could have met and defeated by opposing evidence, some showing to that effect should have been made. But defendant’s motion and affidavit gave no intimation that with more time it would be able to meet and controvert the matters alleged in the amendment, nor was any such showing made when the motion for a new trial was presented. Indeed, it is not argued that any opposing evidence was or yet is available to controvert the allegations of the amendment and the evidence adduced in support thereof.
A final contention is that the verdict was contrary to the evidence. This is based on the rather persuasive showing made by defendant that there was no sidewalk at the place where the plaintiff alleged that she was injured; that it had been removed in April, “along in April or May,” while the alleged accident and injury to plaintiff occurred on June 12. But the woman testified to her injuries caused by the defective sidewalk. Appellant abstracts her testimony, in part, thus:
“That on the 12th day of June, 1920, she went to Rosedale, Kansas, . . . That she was accompanied by her daughter . . that on 45th Street on the north side of the street in the city of Rosedale, Kansas, ’ . . . she and her daughter walked on a board sidewalk; that her daughter had hold of her hand; that her daughter stepped on the end of a board and the board flew up and tripped her and she fell and her knee hit the stringer of the sidewalk . .
The existence or nonexistence of the sidewalk was a jury question, not one for an appellate court’s determination. (Bruington v. Wagoner, 100 Kan. 439, 164 Pac. 1057.)
The record discloses no error to justify our disturbance of the judgment, and it is therefore affirmed. | [
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The opinion of the court was delivered by
BueCH, J.:
The action was to recover damages sustained by the plaintiff when his mule was gored by the defendants’ boar. A demurrer to the petition was sustained, and the plaintiff appeals.
The petition charged the boar was about four years old, was breechy and vicious, and would attack persons and domestic animals, all of which was known to the defendants. A demurrer to the petition was filed, and the court held no cause of action was stated, because the petition did not negative exemption from the statute forbidding swine to run at large. (Gen. Stat. 1915, §11035.) The plaintiff amended by pleading that the voters of the township had not voted to be exempt from the provisions of the statute. The court then held the statute of limitations had run.
Chapter 105 of the General Statutes of 1868, relating to stock, contained 59 sections, and was divided into 8 articles. Article 5 embraced sections 38 and 39. Section 39 related to stags. Section 38 related to bulls and boars, and read as follows:
■ “Any bull over one year old, or boar three months old, found running at large at any season of the year, shall be considered a stray, and may be taken up at any time or place, and posted as such.”
Article 7 related to swine. Section 46 read as follows:
“All persons owning or having charge of any swine in this state, shall keep the same from running at large, except as in this article otherwise provided.”
Succeeding sections provided for taking the vote of an organized township on the subject. If the vote were against keeping up swine, section 46 was to be inoperative in that township; otherwise, the section was to be in force, and the owner of swine suffered to run at large was liable in damages for trespass (§51). Swine running at large, contrary to the provisions of article 7, could be taken up and posted as strays (§53). The result w.as, a boar three months old was a stray, subject to be taken up and posted as such, whatever the situation in a township respecting the running at large of swine generally. In 1872, section 38 was amended to read as follows:
“If any bull over one year old or boar over three months old be permitted to run at large, the owner of the same shall be guilty of a misdemeanor, and on conviction thereof shall be fined for the first offense five dollars, and for every subsequent offense shall be fined ten dollars.” (Gen. Stat. 1915, § 11027.)
This statute is still in force.
The provisions of article 7, which are now contained in article 7 of chapter 112 of the General Statutes of 1915, have no application to the running at large of a boar more than three months old. That subject is covered by the provisions of section 11027 of the General Statutes of 1915. For ordinary trespassés committed by such an animal running at large, damages may be recovered, and if the animal be vicious, and be known to be so by the owner, he must keep it safely, or respond in damages resulting from a display of its known propensities.
The judgment of the district court is reversed, and the cause is remanded with direction to disregard the amendment to the petition and to overrule the demurrer. | [
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The opinion of the court was delivered by
JohNSTon, C. J.:
This was an action by Ben Dempster to recover from R. E. Edwards and Roy Null as partners a threshing bill for $443.20. Plaintiff recovered, and Edwards alone appeals.
The wheat threshed had been grown on the Edwards farm, which had been operated by Roy Null under a partnership between him and Edwards. That partnership had existed about seven years, and in the spring of 1920 they agreed upon a dissolution of it. At that time there was a growing crop of wheat on the farm, which matured after the making of the agreement of dissolution. This was harvested by Null, who procured the plaintiff to thresh the crop. It is conceded that Edwards and Null each owned one-half of the wheat threshed, and there is no dispute as to the quantity of wheat that was threshed nor as to the charge made for threshing it, but Edwards insists that it was not a partnership transaction, and that under their agreement Null was to pay the expenses of the threshing and deliver him one-half of the wheat free of any expense, and that in no event is he liable for more than the threshing of his own share. The question is, Did Edwards and Null at the time they made the agreement of dissolution arrange that the wheat should be harvested and threshed as partnership property, or was the agreement that Null should pay the expenses of threshing it? In answer to special questions the jury found that an agreement to dissolve the partnership had been made, but that it was not completely dissolved when the agreement was made, and as to the wheat, the jury found in their general verdict that Edwards and Null were liable as partners.
It was a question of fact which divided the parties, and that has been determined by the jury. If there is evidence to sustain the findings, the judgment must stand. While there are some inconsistencies in the evidence upon which findings are based and much evidence in contradiction of that offered in behalf of plaintiff, we cannot escape the conclusion that on the whole it is sufficient to uphold the verdict and judgment.
Affirmed. | [
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The opinion of the court was delivered by
Marspiall, J.:
The plaintiff commenced this action against J. C. Cloepfil, N. B. Trowbridge, and others, for the purpose of having the claims of all the defendants against the plaintiff adjudicated. Several of the defendants were claiming liens on the property of the plaintiff for labor and material furnished in the erection of a school building. During the pendency of the action N. B. Trowbridge died, and Harry Gravatt was appointed the administrator. J. C. Cloepfil was the contractor and had given a bond signed by N. B. Trow-bridge and H. C. Paulsen to satisfy all claims and demands incurred in the construction of the building. J. C. Cloepfil did not have money with which to build the schoolhouse. He'made arrangements with the Vesper State Bank, an intervening defendant, to loan him money for that purpose. Notes were given by Cloepfil to the bank for the money borrowed by him. The last note for $700 was not paid, and Cloepfil overdrew his account in the bank to the amount of $44.68. For the purpose of this case, it may be assumed that all the payments made by the bank were for labor and material that went into the construction of the building. The bank asked to be subro-gated to'the lien rights of those who had furnished labor and material for the construction of the building. The school district paid into court all the money that remained due Cloepfil under the contract. Most of that money, by order of the court and by consent of all the parties to this action, was paid to those who had claims for labor and material. A jury was impaneled, but at the close of the evidence the case was taken from the jury, and the court rendered judgment in favor of the bank against the bondsmen for the sum of $954.26. Harry Gravatt as administrator of the estate of N. B. Trowbridge, deceased, appeals from that judgment.
This case is controlled by Bank v. Insurance Co., 109 Kan. 562, 200 Pac. 281, where this court said:
“A bank loaned money to the contractor of a public building to pay and which was paid for labor and material used in the construction work, and took his notes drawing interest. The notes were not paid. The bank sued the bonding company, surety on the bond given by the contractor to the state conditioned that he should pay all indebtedness for labor or material furnished in the construction, and all claims which might be the basis of liens. Held, that by loaning the money to the contractor the bank acquired no interest in, and is not entitled to be subrogated to the rights of those whose claims, if not paid, might have been the basis for liens.” (Syl.)
The judgment as to Harry Gravatt, administrator, is reversed, and the trial court is directed to enter judgment in his favor. | [
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The opinion of the court was delivered by
Johnston, C. J.;
These proceedings are so closely related that they may be considered together. Both relate to the imposition of a service charge by the defendant upon its customers in the city of Lawrence in addition to the collection of an established rate for gas furnished.
The first is a motion to modify and correct the judgment rendered by this court in an original proceeding brought in the name of the state against the defendant to compel it to desist from collecting the added service charge. The result in that case depended upon whether the established rates had been enjoined by the federal court as confiscatory, in which event the defendant would have been entitled to promulgate rates of its own that would control until they were set aside or changed by the public utilities commission. The judgment in the federal court was given in an action brought by the receivers of the Kansas Natural Gas Company against the public utilities commission of Kansas, and a number of distributing companies, including the defendant, and also many municipalities, including the city of Lawrence. The federal decree as first announced bore the same title as the pleadings and named all the defendants sued, including the defendant in this action and the city of Lawrence. It contained general language to the effect that the injunction granted applied to the named defendants, and upon this state of the record this court determined that the decree applied to the defendant and the city of Lawrence, and therefore refused the relief asked by the plaintiff. (The State, ex rel., v. Light, Heat and Power Co., 109 Kan. 540, 200 Pac. 283.)
It appears now that the decree actually rendered by the federal court did not affect the parties to this proceeding, but was made in a supplementary proceeding which involved a controversy between four distributing companies other than the defendant, and the court of industrial relations which has been substituted for the public utilities commission. The obscurity and error in the form of the decree was subsequently brought to the attention of the federal court and a correction was accordingly made. In making the correction the court stated:
■“The decree of January 17, 1921, related only to controversies between the distributing companies, Atchison Railway Light & Power Company, Leavenworth Light, Heat & Power Company, L. G. Treleaven, Receiver of the Consumers Light, Heat & Power Company, The Wyandotte County Gas Company, on the one hand, and The Court of Industrial Relations of the State of Kansas on the other hand. ... No other distributing company than the four above mentioned offered testimony or submitted its cause, asking for relief.
“However, in view of the inadvertent omission of a subtitle to the cause containing the names of the four applicant distributing companies, the general language of the decree might be held to include other distributing companies who were parties to the suit 136-N, and misapprehension might thus arise in the mind of one reading the decree, and who was not acquainted with the actual proceedings upon the hearing.
“To avoid such misapprehension, I deem it advisable to correct said decree, by adding the proper subtitle to the original title of the cause, and by making the language of the decree refer specifically to the four distributing companies whose controversies alone were involved in the hearing, in the decision, and in the decree.”
It is clear from the nunc pro tunc entry that the decree had no application to the controversy between the defendant and the state or the city of Lawrence, and did not find or determine that the established rate for the gas furnished in the city of Lawrence was confiscatory or illegal. By reason of the terms of the original decree this court was led to the opinion that the defendant was a party to the proceeding and that the decree rendered enjoined the enforcement of the existing rate. Our judgment was based upon this mistake of fact, a fact that was essential to the judgment that we rendered. There is undoubted power in the court to correct a judgment based upon an erroneous understanding of the facts, either upon motion of a party to the case or upon its own motion. It is the duty of the court before or after the term to make its judgment conform to the real •facts and especially those facts which are essential to uphold the judgment.
Cooper v. Rhea, 82 Kan. 109, 107 Pac. 799; Caldwell v. Modern Woodmen, 90 Kan. 175, 133 Pac. 843; Martin v. Miller, 97 Kan. 723, 156 Pac. 709.
The claim that the modification may not be made because of the laches of the plaintiff is without merit. It follows that the judgment originally rendered by our court on July 9, 1921, must be set aside and the writ asked by the plaintiff allowed.
The second proceeding was brought by John L. Kilworth in behalf of himself and others similarly situated who were patrons and users of gas furnished by the defendant, to enjoin the defendant from collecting-from them a service charge of fifty cents per month in addition to an authorized rate of eighty cents per 1,000 cubic feet. A restraining order against the defendant was issued at the commencement of the action in May, 1921, and on June 1, 1921, the order of injunction from which defendant appeals was rendered.
This appeal depends upon the result of the preceding case. It was contended by the defendant, as in the earlier litigation, that the decree of the federal court in effect annulled the established rate on the ground that it was confiscatory and therefore the defendant was at liberty to promulgate a rate of its own, but the trial court ruled that the federal decree had not set aside the rate and gave judgment for the plaintiffs. This as the preceding case shows was a correct conclusion. Since that decree was rendered, on March 8, 1921, the rate for Lawrence consumers came before the public utilities commission, including the question whether the defendant had the right to collect the added service charge. Defendant appeared and offered evidence in behalf of its claim, but the right claimed was denied by the commission. Until the established rate has been set aside by a court of competent jurisdiction, the defendant has no right to promulgate a rate of its own nor to exact the added service charge. The order made by this court authorizing the collection and impounding of the extra charge during the pendency of this proceeding is set aside and the order of the court is that the defendant return to its customers the amount so illegally collected and withheld from them.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was an action brought by a widow and children to recover damages for the wrongful death of a husband and father while traveling as a guest in an automobile which collided with another vehicle.
The collision between the defendant Maxwell’s vehicle and one driven by a Phillip M. Ballantyne occurred at the intersection of Highway K-32 and Eudora Road in Leavenworth County, Kansas, at about 5:15 p. m., April 1, 1966. Eudora Road is blacktop, runs north and south, and southbound traffic is controlled by a stop sign at its intersection with Highway K-32. There is no control for traffic on Highway K-32 which has a speed limit of 70 miles per hour and is a blacktop state highway.
We gather these preliminary facts from the defendant’s testimony. Maxwell had lived in the Tonganoxie area all his life. He was familiar with the intersection of Highway K-32 and Eudora Road having traveled over it frequently. He was aware that a stop sign controlled southbound traffic at that intersection. He was aware that a person could not see eastbound traffic on Highway K-32 until that person was within a few feet of the stop sign north of the intersection. He knew the speed limit on Highway K-32 was 70 miles per hour.
On April 1, 1966, he took his children to school in Tonganoxie and then went to the Brady Motor Freight dock in Kansas City. He was driving his 1965 Chevrolet 2-door hardtop. It was equipped with automatic transmission, power steering and standard brakes. It had been driven about 11,000 miles and was in good operating condition. The weather was clear. He had some collecting to do at the freight company. He remained the rest of the morning and afternoon at the dock playing cards and visiting with other drivers. The deceased, Pickens, came in from a run for another owner and Maxwell offered to take him to his home in Eudora, Kansas. They left Brady Motor Freight about 4:00 p. m. The defendant was driving. They stopped at a tavern at 45th and State Avenue, Kansas City, Kansas, for the purpose of buying beer. They both went into the tavern where Pickens had a Schlitz and defendant had a coke. They each bought a 6-pack of beer and left to go home. The distance from the tavern to defendant’s home was about 22 miles. Neither of them had anything to drink during that trip. He does not know what time they arrived in Tonganoxie, Kansas, where defendant resided. He took one can of Hamms out of his 6-pack into the house for his wife. Pickens took one Schlitz out of his pack and Mrs. Maxwell and Pickens each drank a beer in the Maxwell home.
All three left to drive Pickens home, defendant was under the wheel, Mrs. Maxwell in the center and Pickens on the right side.
Mrs. Maxwell had forgotten her purse and Maxwell went back for it. When he returned he doesn’t know whether he got under the wheel but his children have since told him he was driving as the car left the home. As he left to get the purse his wife was opening another can of Hamms. The remaining cans were on the floor of the rear seat.
From this point the defendant remembers nothing of the trip or the accident. The next thing he remembers he was at the hospital. There were no eye witnesses to the accident. Mrs. Maxwell and Phillip Ballantyne, the driver of the other colliding automobile, died at the scene and Jerry Pickens died two days later.
As the accident was reconstructed, it appears the eastbound Ballantyne vehicle left skidmarks of 70 feet before impact. The southbound Maxwell car left 15 feet of uninterrupted skidmarks before impact. These skidmarks began 3 feet north of the center line on Highway K-32. The point of impact was just south of the south edge of Highway K-32. The major automobile damage was to the right front of the defendant’s car and left front of Ballantyne’s car. The Ballantyne car continued southeast 123 feet turning over on its right side en route. The defendant’s car spun counter clockwise to the east and slapped its right side against the Ballantyne vehicle’s left side after the initial impact. Pickens and Mrs. Maxwell were thrown from the right side of the Maxwell vehicle during this spin.
The stop sign controlling southbound traffic was 25 feet 6 inches north of the north edge of Highway K-32 and 49 feet 6 inches north of point of impact.
Officers, whose experience ranged from three to eleven years, gave their opinion as to the facts surrounding the accident.
Deputy Sheriff Floyd Baker testified that a person who stopped even with the stop sign could see 400 yards to the west on Highway K-32. Ballantyne’s automobile came from the west.
Trooper Bill Wilson’s testimony was summarized:
“. . . The length of skidmarks, lack of skidmarks, damage to involved vehicles were used to reach conclusions as to how the various accidents had occurred. The conclusions were later borne out by testimony or other proof as to how the various accidents had happened. Based upon his past experience, training and his investigation at the scene of the April 1, 1966 accident, including the skidmarks, damage, etc., Trooper Wilson was of the opinion that the Maxwell vehicle had not stopped at the stop sign.”
His testimony also inferred that the defendant was going over 20 miles per hour when he passed the stop sign or he could have stopped before the impact.
Trooper Ronald Cranor testified that in his opinion the defendant did not stop at the stop sign. If the defendant had only been going 20 miles per hour when he passed the stop sign he could have stopped prior to the point of impact.
Trooper Locy, while leaning over the defendant at the scene of the accident, “. . . smelled alcoholic beverage about him even though a very strong wind was blowing and Maxwell was lying in the open. He could not testify that the smell came from his breath. There were open cans of beer in the vicinity of where Maxwell was lying but how close he could not say.”
He also testified that—
“Based upon the fact there were no skidmarks or acceleration marks north of K-32 on Eudora Road, based upon the skidmarks on K-32 showing he had some speed when he came onto K-32, based upon the fact the Maxwell car was still in motion at time of impact, based upon his experience and training in traffic investigation, Trooper Locy was of the opinion that Maxwell ran the stop sign.”
At the close of plaintiff’s evidence the trial court sustained a motion for a directed verdict stating in part:
“. . . I have concluded that as a matter of law that the defendant was not guilty of wanton negligence.
“I think the most that can be said for the plaintiff’s evidence would be that it establishes — or at least the jury could find — that the defendant was driving the automobile at the time of the collision and that the defendant failed to stop at the stop sign. But the plaintiff’s evidence also shows, though, that there were skidmarks which would indicate that the defendant did apply the brakes prior to the impact, and the evidence establishes the skidmarks were 15 feet in length, and in view of all this I don’t feel that the Court can let this matter go to the jury. . . .”
The plaintiffs have appealed.
The only question before us is whether or not appellants presented a prima facie case of gross and wanton negligence when tested by a motion for a directed verdict.
It perhaps would be of assistance if we first consider the rules which govern the court’s consideration of plaintiffs’ evidence on a motion for a directed verdict.
We have presented here only the evidence favorable to appellants. We have ignored the evidence favorable to appellee and set out at length in his brief. This we are forced to do under the rules of this court.
Although the evidence is weak and inconclusive, a question of fact may not be taken from the jury where reasonable minds might reach different conclusions therefrom. On considering a motion for a directed verdict on an issue of fact, all disputed factual questions and all inferences reasonably to be drawn therefrom must be resolved strictly in favor of the party against whom the motion is directed and the trial court should not weigh conflicting evidence or consider the preponderance thereof. (Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67; Bendure v. Great Lakes Pipe Line Co., 199 Kan. 696, 433 P. 2d 558; Virginia Surety Co. v. Schlegel, 200 Kan. 64, 434 P. 2d 722; Furstenberg v. Wesley Medical Center, 200 Kan. 277, 436 P. 2d 369; Brown v. Godfrey, 200 Kan. 568, 438 P. 2d 117.)
Mindful of the above rules, we are next concerned with whether plaintiffs’ most favorable evidence infers “gross and wanton negligence” as that term is used in the automobile guest statute (K. S. A. 8-122b).
In the case of Muhn v. Schell, 196 Kan. 713, 413 P. 2d 997, we held:
“Wantonness constituting gross and wanton negligence, as that term is used in the automobile guest statute (K. S. A. 8-122b), indicates a realization of the imminence of danger, and a reckless disregard, complete indifference and unconcern of the probable consequences of the wrongful act.
“The mental attitude of the wrongdoers, rather than the particular negligent act or acts, tends to establish wantonness, and whether the necessary elements are present to constitute wantonness must of necessity depend on the facts and circumstances of each particular case.” (Syl. 1 and 2.)
At page 715 of the opinion we state:
“This court has had numerous occasions to consider and apply the phrase ‘gross and wanton negligence’ as used in the statute. In the recent case of Saunders v. Shaver, 190 Kan. 699, 378 P. 2d 70, our conclusions are summed up as follows:
“ ‘. . . A wanton act is something more than ordinary negligence, and yet it is something less than willful injury; to constitute wantonness, the act must indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result. A few of our most recent cases supporting the mentioned rules of law are MacDougall v. Walthall, 174 Kan. 663, 257 P. 2d 1107; Elliott v. McKenzie, 180 Kan. 344, 304 P. 2d 550; Hickert v. Wright, 182 Kan. 100, 104, 105, 319 P. 2d 152; Dirks v. Gates, 182 Kan. 581, 589, 322 P. 2d 750; Hanson v. Swain, 172 Kan. 105, 109, 238 P. 2d 750, and the many cases cited and reviewed in the mentioned authorities.’ (p. 701.)”
In the Muhn case we considered the fact that since this state does not recognize degrees of negligence, we had somewhat disregarded “gross negligence” and come to lean heavily on the word “wanton” in considering liability to a guest riding in an automobile, and stated:
“Perhaps the mental attitude of the wrongdoer, rather than particular negligent acts, tends to establish wantonness. It would appear that at least two attitudes must be present. There must be realization of imminent danger and reckless disregard, indifference and unconcern for probable consequences. Therefore, whether the necessary elements are present to constitute wantonness must of necessity depend on the facts and circumstances of each particular case.” (p. 716.)
Under the facts and circumstances of the present case, it would appear that the appellee (1) had a realization of imminent danger and (2) it could be inferred that he proceeded with reckless disregard, indifference and unconcern for probable consequences.
The evidence is not disputed that Maxwell had lived in the Tonganoxie area all his life. He was familiar with the intersection of Highway K-32 and Eudora Road and traveled over it frequently. He was aware that a stop sign controlled southbound traffic at that intersection. He was aware that a person could not see eastbound traffic on Highway K-32 until that person was within a few feet of the stop sign north of the intersection. He knew the speed limit was 70 miles per hour on Highway K-32.
With this knowledge of imminent danger, the appellee approached the intersection, passed the stop sign and entered the intersection at a speed in excess of 20 miles per hour. He exposed his passengers to injury by any automobile approaching the intersection from the west. There was one.
The trial court suggests "that there were skidmarks which would indicate that the defendant did apply the brakes prior to the impact.” It was then too late. The defendant’s negligence had committed his passengers to a danger from which they could not be extricated. The die was cast. In Bogle v. Conway, 198 Kan. 166, 422 P. 2d 971, while considering wanton negligence, we stated:
“. . . The fact that the driver on the left elected to try to return to his side of the road, instead of hitting the approaching automobile head on, does not change the fact that both drivers deliberately took the chance. Liability in such situation arises not from negligence after the emergency arises, but rather from conduct calculated to create the emergency” (p. 171.)
We are forced to conclude that the trial court erred in taking the case from the jury and in sustaining appellee’s motion for a directed verdict.
The judgment is reversed with directions to the trial court to grant the plaintiffs a jury trial in harmony with what has been said in the opinion.
APPROVED BY THE COURT.
Price, C. J., Schroeder and Fromme, JJ., dissenting. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a summary judgment in favor of the defendant, the Board of County Commissioners of Osage County, Kansas, in an action for wrongful death due to an alleged defect in a county road.
The general facts may be stated as follows:
A county road extends in a general north and south direction from Quenemo on the south, passing through the city of Overbrook, and extending to the north county line of Osage County. At a point about one-half mile south of Overbrook the county road is intersected by a township road which runs in an east and west direction at that location.
In the year 1958, the county engineer directed personnel under his supervision to place and erect stop signs on the east and west sides of the county road at the intersection of the township road directing traffic traveling on the township road to stop before-entering such intersection. The stop sign on the east side of the county road was installed east of the east line of the right-of-way. The installation was made without any authority, direction or order from the Board of County Commissioners.
Several months before October 16, 1965, the defendant, Contractors, Inc., in its construction work on the county road, knocked the stop sign down and employees of the Osage County Highway Department, with the knowledge of the county engineer, failed to replace the stop sign. It was removed to storage at Lyndon,, Kansas.
On October 16, 1965, a collision occurred at such intersection between a vehicle being driven in a southerly direction on the county road by Richard M. Coffman and an automobile belonging to John F. Fisher, which was being driven by Marvel E. Fisher in a westerly direction and had entered the intersection from the township road on the east side. Richard Coffman was fatally injured. The present case involves an action by the heirs at law of Richard M. Coffman against the county, and others, for his wrongful death.
The petition alleged:
“Prior to 16 October 1965, defendant Board of County Commissioners of County of Osage, Kansas, designated the county road proceeding south from the City of Overbrook, Osage County, Kansas, a through highway and, pursuant to said designation and order to the County Engineer of Osage County, Kansas, said county engineer erected and placed stop signs to control traffic entering said county road from the intersecting township roads. Said designation and orders are now and have been continuously in effect since prior to 16 October 1965.
After the entering of the designations and orders above-recited, but prior to-16 October 1965, defendant Contractors, Inc., by its servants and agents, negligently removed said stop signs without permission and approval of the defendant Board of County Commissioners of the County of Osage, Kansas,
“The failure of defendant Board of County Commissioners of the County of Osage, Kansas, to maintain said stop sign, constituted a highway defect,
The defendant, the Board of County Commissioners, answered denying liability and presented affidavits. There was a joint affidavit by the three county commissioners which read in part:
“That the Board of County Commissioners of Osage County, Kansas, has never designated the aforesaid County Road, or any part thereof, as a through highway, nor has said Board ever designated any intersection of any road thereof as a stop intersection or as a yield intersection.
“That the Board of County Commissioners of Osage County, Kansas, have never deemed it necessary to place and maintain traffic-control devices of any type, or for any purpose, except speed signs, upon or near said County Road mentioned in Paragraph No. 2 hereof.
“That the Board of County Commissioners of Osage County, Kansas, has never authorized, directed or ordered the erection, placement or maintenance of any stop sign or yield sign upon or near said County Road, nor at any intersection of any road thereof.”
There was also an affidavit by the county engineer which read in part:
“That the stop sign placed and erected on the east side of said highway at the aforesaid intersection was installed more than SO feet east of the above mentioned Section Line and was never located upon the aforesaid highway right-of-way.
“That he has never received any authority, direction or order from the Board of County Commissioners of Osage County, Kansas, to erect, place or maintain any stop sign or yield sign upon or near the aforesaid highway, or at any intersection of any road thereof, but that said stop signs installed at the particular intersection above mentioned were installed at his sole discretion and direction, upon the suggestion of some individual, the identity of whom he does not recall at this time.”
Although the oral testimony of the county engineer was also taken, it tended to support the statement in the affidavit.
The trial court sustained the motion of the Board of County Commissioners for summary judgment and in support of its action filed a well reasoned and comprehensive opinion in which it concluded:
“When all the facts and circumstances and authoritative interpretations are considered, the Court must and does conclude that there is no genuine issue as to any material fact and that as a matter of law, the condition disclosed by the record did not constitute a defective highway.
“The respective motions for summary judgment are sustained and judgment is rendered thereon for the defendant county and directed to be entered.”
There is no genuine dispute on any material issue of fact, hence the case was ripe for a summary judgment.
The only issue before us is whether or not the failure to place a stop sign, or the failure to replace the stop sign which had been knocked down by the contractor widening the county road, constituted a defect under the provisions of K. S. A. 68-301, which reads in part:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective . . . highway, may recover such damage from the county . . . wherein such defective . . . highway is located, . . . when such damage was caused by a defective . . . highway which by law, or agreement entered into pursuant to law, the county is obligated to maintain, and when any member of the board of county commissioners, the county engineer . . . shall have had notice of such defects for at least five days prior to the time when such damage was sustained; . . .”
We need not cite authority for the statement that the liability of the county for any defects there may be in a county road is fixed by the above statute. The statute does not impose liability for general negligence. It is strictly a statutory liability for defects in highways. Whether an alleged defect comes within the purview of the statute is a question of law to be determined by the statute in the absence of any factual dispute as to the nature of the alleged defect. (Dunlap v. Lawless, 192 Kan. 686, 391 P. 2d 70.)
In considering whether or not the absence of a stop sign constitutes a defect in a state highway under K. S. A. 68-419, a statute similar to K. S. A. 68-301, this court has established the rule that failure to place a stop sign does not constitute a defect unless there is a statutory duty to erect a stop sign at the intersection. There would appear to be no reason why the same rule should not apply to county highways.
In Phillips v. State Highway Comm., 148 Kan. 702, 84 P. 2d 927, we stated:
“It will be noted, however, that the statutory provision just quoted only required the erection of such warning signs at the intersecting entrances of state and federal highways, not at the intersecting entrances of all public roads, however desirable such a statutory mandate would be. The intersection at which this accident to plaintiff occurred was that of a state highway and a secondary (county or township) road. We have no right to enlarge the scope of the statute nor to amend it by judicial interpretation. . . .
“And since it is clear that the state highway commission committed no breach of statutory duty in respect to the maintenance of the stop sign at the entrance to highway K4, where plaintiff was injured, it becomes immaterial whether our decision in this case on the first appeal (146 Kan. 112, 68 P. 2d 1087) be regarded as res judicata or not; and the judgment of the district court in this second appeal cannot be disturbed. . . .” (pp. 705 and 706.)
In Brown v. State Highway Commission, 202 Kan. 1, 444 P. 2d 882, we construed the above statement in the following language:
“Thus, in the second appearance of the Phillips case before this court, it was inferentially held that had the State Highway Commission been under a duty to erect a stop sign at the intersection in question, the alleged defect would have been within the purview of G. S. 1935 (now K. S. A.) 68-419.” (p. io.)
Although we hasten to add that the Brown case does not control the decision in the present case because of the difference in the factual situation, we do have authority for a definite rule that the absence of a stop sign on a highway, either state or county, does not constitute a statutory defect unless there is a breach of a statutory duty to maintain such a stop sign.
We fail to find any statutory duty on the part of the Board of County Commissioners of Osage County to erect and maintain a stop sign at the intersection in question.
The statute, K. S. A. 8-568 (a), dealing with authority to designate through highways and yield intersections, provides:
“The state highway commission with reference to state highways, and local authorities with reference to other highways under their jurisdiction, may designate through highways and erect stop signs or yield signs at specified entrances thereto, or may designate any intersection as a stop intersection or as a yield intersection and erect stop signs at one or more entrances to such intersection.”
The phrase “Through highway” is defined in K. S. A. 8-501 as—
“Every highway or portion thereof at the entrances to which vehiclecular traffic from intersecting highways is required by law to stop before entering or crossing the same and when stop signs are erected as provided in this act.”
Had the Board of County Commissioners designated the county highway under consideration as a through highway, or designated the intersection as a yield or stop intersection, it would then have had the statutory duty to place stop signs to so direct the traveling public. The trial court properly summed up the matter as follows:
“. . . Stop signs only function to limit or restrict the priority of traffic or use of a highway. They have nothing to do with its physical condition. A highway may be imperfect or unsafe as a means of transit and a stop sign would contribute nothing to the relief of an impaired condition or description in advance of any hazard beyond. The permission to heal authorities to designate through highways and to erect stop signs is a departure and enlarges the scope of responsibility to include traffic volume or use. Like many other board actions, it is discretionary and not mandatory and any failure to act cannot be the subject of judicial interference in the absence of bad faith. Such is not an issue here. [Emphasis supplied.]
“. . . The distinction is that absence of warning signs of the physical condition of the highway itself as a structural unit may constitute a defect, whereas absence of stop signs not specifically required by law, which inherently relate to another matter, that is, control of priority of use, do not. See Higman v. Quindaro Township, 89 Kan. 475; Thummel v. State Highway Comm., 160 Kan. 532; Schroeder v. Kansas Highway Commission, 199 Kan. 175; and Amis v. Jewell County, 98 Kan. 321. . . .”
The appellants appear to recognize the above rules and to have now abandoned the allegation in the petition that the Board of County Commissioners of Osage County designated the county road in question as a “through highway” and pursuant to such designation and order the county engineer erected the stop signs at the intersection. The uncontroverted facts were directly to the contrary. There had been no designation and no order to erect the stop sign on the part of the Board of County Commissioners.
The appellants would now contend that since the members of the Board of County Commissioners authorized the payment for the stop sign and learned that it had been placed at the intersection in question they ratified the act of the engineer and are now estopped to deny their approval. There is no evidence that a stop sign was bought for the particular location.
Although a board of county commissioners may ratify and make valid its faulty attempt to do a certain thing, we must question its authority to make a valid police regulation by acquiescence in the acts of an employee even though the employee has the status of a county engineer.
The legislature delegated to “local authorities” the power to designate “through highways” and “stop intersections” or “yield intersections.”
The term “Local authorities” is defined by K. S. A. 8-501;
“The Kansas turnpike authority and every county, municipal, and other local board or body having authority to adopt local police regulations under the constitution and laws of this state.”
The board of county commissioners is the only county authority having the power to adopt local police regulations. Certainly the county engineer cannot.
In Chaput v. Demars, 120 Kan. 273, 243 Pac. 311, we find the following statement:
“The law was passed under the police power of the state. 12 C. J. [Constitutional Law, § 423,] 912 uses the following language:
"'The police power is a governmental function, and neither the state legislature nor any inferior legislative body to which a portion of such power has been granted can alienate, surrender, or abridge the right to exercise such power by any grant, contract, or delegation whatsoever/” (p. 276.)
In Moore v. Wilson, 84 Kan. 745, 115 Pac. 548, we state:
". . . The general rule is that official duties of a ministerial character-may be delegated to another but those requiring the exercise of judgment and discretion can not, unless specific statutory authority to do so is given. . . .” (p. 747.)
We must conclude that a board of county commissioners could not be charged with having done by acquiescence and estoppel that which it could not have done by direct delegation of authority.
The record having disclosed no statutory duty on the part of the Roard of County Commissioners of Osage County to erect and maintain a stop sign at the intersection in question, the absence of the stop sign did not constitute a defect under the provisions of K. S. A. 68-301.
The judgment is affirmed.
APPROVED BY THE COURT.
Fatzer, J., dissents from the affirmance of the judgment of the district court. | [
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The opinion of the court was delivered by
O’Connor, J.:
This was an action to recover damages alleged to have resulted from false and fraudulent representations by the defendant, Stan Bloss, in the sale to the plaintiffs, Mr. and Mrs. Ed Culp, of three vending machines and location rights therefor. The jury returned a verdict in favor of plaintiffs for actual and punitive damages. After various posttrial motions were overruled and the district court entered judgment pursuant to the verdict, defendant appealed.
Although the evidence was sharply conflicting in many respects,, that tending to support the jury’s verdict will be summarized.
Shortly before February 11, 1965, the Culps saw defendant’s; advertisement in the Sunday newspaper regarding profits that could be realized from the purchase and operation of coin-operated,, automatic, vending machines. In response thereto plaintiffs went to defendant’s office in Mission, Kansas, where they talked to a salesman. They were introduced to Bloss, who told them about three machines located at the Rock Island Truck Terminal in Kansas. City, Kansas, which were reportedly producing substantial profits.. Defendant represented to the Culps that he was grossing $400 per month from the machines, and they could do likewise. Defendant offered to take $1250 for the three machines and $1250 for the location. He further told plaintiffs the truck terminal operated-seven days per week. Mr. Culp was taken to the terminal by defendant and shown purported records of daily sales disclosing a volume as represented. Upon their return to defendant’s office, Bloss; took plaintiffs’ credit application, which was approved the following; day (February 11). The transaction was consummated by plaintiffs; making a down payment by check of $200 and executing a note- and chattel mortgage for the remainder of the purchase price. Mrs.. Culp, who wrote and signed the check, noted on the instrument— “Downpayment on candy vending machine, coffee-hot choc. & cigarette and location at Rock Island Truck Terminal.” No bill of sale was received by the Culps.
Mr. and Mrs. Culp took over operation of the machines on February 12. They kept them at the terminal until December 11, 1965, when they removed them to their home at the request of the terminal manager. Never did the Culps gross $400 a month; from the machines; in fact, the operation was a financial failure.. Later developments disclosed that Bloss had no agreement with' the terminal officials giving him location rights for a particular-period of time. The only arrangement was that “he could keep them there as long as he kept them clean and kept them filled.”' Furthermore, the terminal, instead of being in operation seven days a week, was closed from Saturday noon until Monday morning. '
In time, the Culps defaulted on their payments, and the machines were repossessed by The Johnson County National Bank and Trust Company as assignee of the note and mortgage. The machines were eventually reacquired by Bloss. As a part of his answer to plaintiffs’ petition in this action, Bloss counterclaimed for a deficiency judgment in the amount of $492.06, the difference between the balance on the note and the value of the machines.
Defendant’s main complaint concerns the trial court’s admitting evidence of oral representations about the amount of sales from the machines, location rights, and other matters which were clearly outside the terms of the written note and chattel mortgage, in violation of the parol evidence rule. We are unable to agree.
The note and mortgage were in the usual form, describing the three vending machines, the purchase price, and terms of payment. The chattel mortgage contained the statement: “This constitutes the entire agreement between Buyer and Seller and no oral modification hereof shall be valid.” Defendant relies on the proposition that where parties carry on oral negotiations and later enter into a written contract covering the subject matter, all prior or contemporaneous negotiations and understandings are deemed to be merged in the contract and must be determined from the writing itself, and under such circumstances, where the contract is complete and unambiguous, parol evidence of prior or contemporaneous agreements or understandings tending to vary or substitute a new and different contract for the one evidenced by the writing is inadmissible. (See, Lawrence v. Sloan, 201 Kan. 270, 440 P. 2d 626, and cases therein cited.)
In his argument defendant overlooks the limited purpose of the note and chattel mortgage, which was to set out the terms and conditions of the security aspects of the entire sales agreement. Plaintiffs, by their evidence, made no attempt to vary the terms or alter the obligations of those instruments. They merely sought to ■establish all the complete agreement between the parties, only a part of which was in writing. Also involved in the transactions was a check accepted and negotiated by defendant which contained a notation that it constituted a down payment for the three vending machines and the location at the Rock Island Truck Terminal. The ■check was admitted without objection, and constituted evidence of the consideration intended for plaintiffs’ payment — the machines and location rights.
Location rights were not mentioned in the chattel mortgage. But when the notation on the check was considered with the provision in the chattel mortgage previously referred to, there became apparent some inconsistence and ambiguity as to whether or not the purchase price also included location rights. Under the circumstances, parol evidence was admissible to explain the terms of the complete agreement and clear up any ambiguity or conflict resulting from the notation on the check and the provisions of the chattel mortgage. (In re Estate of Goff, 191 Kan. 17, 379 P. 2d 225; Souder v. Tri-County Refrigeration Co., 190 Kan. 207, 373 P. 2d 155; Fulmer v. Hallbauer, 178 Kan. 535, 289 P. 2d 771. Also, see, Gibbs v. Erbert, 198 Kan. 403, 424 P. 2d 276.) In Souder v. Tri-County Refrigeration Co., supra, it was stated:
“The rule against the admission of parol evidence to contradict, alter or vary the terms of written instruments is not violated when such evidence does not contradict but explains or supplements indefinite or incomplete matters contained in the instruments, or when it tends to show the relation of the parties and the circumstances under which the instruments were executed.” (Syl. f 3.)
For that matter, if the chattel mortgage is considered alone, it being silent as to the matter of location rights, which plaintiffs urge was an essential point discussed and agreed upon between the parties, parol evidence was admissible to show the actual agreement in its entirety. (In re Estate of Goff, supra; Hummel v. Wichita Federal Savings & Loan Ass’n, 190 Kan. 43, 372 P. 2d 67; Kirk v. First National Bank, 132 Kan. 404, 295 Pac. 703.)
Furthermore, the parol evidence rule was not violated, as defendant contends, by the admission of alleged fraudulent representations made by defendant to the plaintiffs leading up to the parties’ entering into contract. A well-recognized exception to the parol evidence rule permits the use of such evidence where a contract is procured or induced by the fraudulent representations of one of the parties which were relied upon by the other. (Edwards v. Phillips Petroleum Co., 187 Kan. 656, 360 P. 2d 23; Stegman v. Professional & Business Men's Life Ins. Co., 173 Kan. 744, 252 P. 2d 1074; Stapleton v. Hartman, 174 Kan. 468, 257 P. 2d 113; McKay v. Clark, 162 Kan. 653, 178 P. 2d 679.)
Defendant also contends the trial court erred in admitting the testimony of Laverna Babcock concerning an earlier, unrelated sale in 1964 to her by defendant of vending machines at the truck terminal location in which she paid defendant $2,000 specifically for the “location rights.” In the instant case, whether or not a part of the consideration paid defendant by plaintiffs was earmarked for location rights was a hotly contested issue and constituted one of the grounds for plaintiffs’ claim of fraud. Essential elements of the fraud alleged were defendant’s motive and intent. Throughout the trial defendant steadfastly contended location rights were not included as a part of the sale. We are of the opinion the testimony was relevant and admissible for the purpose of showing defendant’s motive and intent to defraud the plaintiffs in the purported sale of location rights.
In actions involving fraud, evidence of the same or similar fraudulent representations made to others than the plaintiff is competent and relevant for the purpose of establishing the elements of motive or intent to defraud. (Stegman v. Professional & Business Men’s Life Ins. Co., supra; Becker v. McKinnie, 106 Kan. 426, 186 Pac. 496; 29 Am. Jur. 2d, Evidence § 365; 37 Am. Jur. 2d, Fraud and Deceit § 456; 1 Jones on Evidence [5th Ed.] §160.) The provisions of K. S. A. 60-455 state, in part:
“. . . evidence that a person committed a . . . civil wrong on a specified occasion, is inadmissible to prove his disposition to commit . . . civil wrong as the basis for an inference that he committed another . . . civil wrong on another specified occasion but, . . . such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” (Emphasis added.)
The principles announced in the foregoing statute are applicable to fraud cases and constitute nothing new in our law on the subject. (See Gard, Kansas Code of Civil Procedure, Annotated, § 60-455.)
Defendant further asserts the trial court erred in refusing to enter judgment against plaintiffs on his counterclaim for $492.06. This matter was raised by motions at the conclusion of plaintiffs’ evidence, at the close of all the evidence, and again in posttrial motions. We are not favored in the record with the court’s instructions to the jury; but it is apparent from the remarks of the trial judge at the hearing on posttrial motions that the jury was instructed to take into consideration defendant’s counterclaim in rendering its verdict. In other words, the counterclaim was reflected in the jury’s verdict, which was approved by the trial court. The burden is always upon an appellant to show error in the ruling he seeks to overturn (Hartman v. Stumbo, 195 Kan. 634, 408 P. 2d 693), and defendant has failed to establish affirmatively that the trial court erred in respect to his counterclaim.
The points discussed control the disposition of this case. Other matters raised in defendant’s brief have been examined and found to be without merit. After a careful examination of the record, we are satisfied no prejudicial error occurred at the trial, and the verdict is supported by substantial, competent evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fbomme, J.:
Willie Williams is serving a sentence in the state penitentiary at Lansing, Kansas, for second degree burglary and larceny. The sentence was imposed by the District Court of Johnson County. The record before this court does not include a copy of the judgment of conviction. We are informed by appellant the sentence was doubled pursuant to the Habitual Criminal Act (K. S. A. 21-107a) based upon a prior conviction in the District Court of Shawnee County, Kansas.
Appellant filed the present proceeding in the District Court of Shawnee County pursuant to K. S. A. 60-1507. The appellant’s motion for relief was denied and he has appealed.
Appellant states he entered a plea of guilty to attempted burglary in the second degree in the District Court of Shawnee County and was sentenced to the Kansas Industrial Reformatory at Hutchinson on October 29, 1958. He further states he completed that sentence and was discharged from confinement.
He alleges he was found guilty of second degree burglary and larceny by a jury in the District Court of Johnson County and was sentenced to the State Penitentiary at Lansing, Kansas, on May 2, 1960. The present proceedings were filed almost eight years later.
Appellant attacks the Shawnee county conviction because it was used to enhance the sentence he presently is serving from Johnson County. In view of our ultimate decision the basis for his attack becomes immaterial to this appeal. We do not reach the merits of his claim.
K. S. A. 60-1507 (a) provides:
“A prisoner in custody under sentence of a court of general jurisdiction ■claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the con- . stitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at . any time move the court which imposed the sentence to vacate, set aside or correct the sentence.”
The statute authorizes a prisoner in custody under sentence to move the court which imposed the sentence to vacate, set aside or correct the sentence. It is difficult to see how this could be stated • more clearly.
The appellant is a prisoner in custody under sentence. The court which imposed the sentence is the District Court of Johnson County. If the sentence he is serving is to be corrected such proceeding must be filed in that court. Our reports are full of cases involving the use of this post conviction remedy. With but one exception, noted in the following paragraph, those cases have been processed in the court which imposed the sentence.
We are not unmindful of our decision in Chance v. State, 198 Kan. 16, 422 P. 2d 868. In that case the sentence imposed in Labette county had been served. The judgment of conviction had been entered in violation of the provisions of G. S. 1949 (Now K. S. A.) 62-1304 and was void on its face. The prisoner had previously attacked the judgment in Labette county. He filed a petition for writ of habeas corpus. He was thwarted in obtaining an adjudication because he was not present in that county. His attack on the judgment was made prior to the enactment of K. S. A. 60-1507.
Later attempts to attack the judgment were unsuccessful in both Labette and Linn counties after K. S. A. 60-1507 became effective. No decision was reached on the merits. Under the circumstances peculiar to that case a denial of petitioner’s right to be heard on the merits would have been an arbitrary denial of his right to question a judgment void on its face. A court is not so impotent that .such a result should follow. The case must be limited to the par ticular situation which confronted the court in that transition period. It does not apply to our present case. No post conviction remedy has been pursued by appellant in Johnson county.
The sentence which appellant attacks in the present case was imposed by the District Court of Johnson County. The provisions of K. S. A. 60-1507 (a) require the proceedings to be brought in the court which imposed the sentence. The present proceedings were improvidently filed in Shawnee county.
The judgment of the Shawnee County District Court denying appellant’s motion for post conviction relief is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was an action by the trustee under a will to have the instrument construed because of conflicting claims of various parties.
August Anderson died February 3, 1941, leaving a last will and testament dated February 23, 1939. There were certain codicils which need not be considered. The will was duly admitted to probate March 6, 1941, by the probate court of McPherson County, Kansas.
We summarize the will except for those matters that are before us for consideration.
Paragraph 1 of the will contained the usual provision for payment of debts, and last illness and hospital expenses.
Paragraph 2 provided:
“I give, bequeath and devise to Arthur A. Anderson and The McPherson & Citizens State Bank, of McPherson, Kansas, a corporation, as Trustees, all of the following described real estate, situated in the County of McPherson, and State of Kansas, to-wit:
“The Northeast Quarter (NE/4) and the North Half (N/2) of the Southeast Quarter (SE/4) of Section Nine (9), Township Twenty (20) South, Range Five (5) West of the Sixth Principal Meridian; in trust, upon the following terms and no others, to-wit: [These were set out in Paragraphs (a), (b), (c) and (d).]”
Subparagraph (a) directed the trustee should have full management and control of the real estate exercising all of the rights of ownership.
Subparagraph (b) provided:
“I direct that my said Trustees shall annually pay over the net income of said trust estate to my son, Willard D. Anderson, during his life time, and after his death in equal shares to his surviving children bom in lawful wedlock, and the living issue, if any, of any such prior deceased children in accordance with the statute of descent, until the youngest of his said children reaches the age of twenty-one years.”
Subparagraph (c) provided in part:
“I direct that no title or interest in the property of this trust estate, or in the income accruing thereform, shall vest in any beneficiary of this trust during the continuance of the trust; nor shall any beneficiary acquire any right in or title to any of the net income otherwise than by and through the actual payment of such income by the Trustees hereunder, and the receipt thereof by the beneficiary in each case; . . .”
Subparagraph (d) provided in the first sentence for the disposition of the real estate in case the son, Willard D. Anderson, died without leaving surviving children born in lawful wedlock or the living issue of any such prior deceased children and then provided further in the second sentence as follows:
“. • • And in the event that my said son, Willard D. Anderson, leaves surviving children born in lawful wedlock, or the living issue of any such prior deceased children, then this trust shall continue until the youngest of his said children reaches the age of twenty-one years, and thereupon this trust shall immediately cease and determine, and I give, bequeath and devise and direct my said Trustees to assign, transfer and convey said trust property in equal shares to such surviving children bom in lawful wedlock, and the living issue, if any, of any such prior deceased children in accordance with the statute of descent, to have and to hold in fee simple forever.”
Paragraphs 3, 4, 5 and 6 of the will made separate bequests which are not material to the issue before us.
Paragraph 7, the residuary clause, reads:
“I give and bequeath all of the rest, residue and remainder of my property and estate to Lillian Anderson and Marion Anderson, being the two children of my niece, Minnie A. Anderson, and to Elvera M. Ekholm, Elmer C. Ekholm, and Leland L. Ekholm, being the children of my deceased niece, Mary Ekholm, share and share alike.”
The balance of the will provided for the appointment of a trustee and other provisions not material here.
For convenience we note here that the will was executed February 23, 1939, the testator died February 3,1941, a grandson, Norman August Anderson, was bom March 24, 1948, the testator’s son, Willard D. Anderson, died January 16, 1954, and Willard’s son, the testator’s grandson, Norman August Anderson, died October 23, 1965, at the age of seventeen.
The appellant, M. Barbara Anderson, mother and sole heir of Norman August Anderson, contended before the district court where the case was transferred for determination, and contends in this court on appeal, that subparagraphs (c) and (d) of paragraph 2 of the will are in direct conflict creating an ambiguity and that sub-paragraph (d) should be construed as vesting fee title in Norman August Anderson when he survived his father.
The trial court concluded:
“3. That paragraphs 2 (c) and 2 (d) of the last will and testament of August Anderson, deceased, clearly and unequivocably express August Anderson’s intention that title to the trust corpus and accrued but unpaid income should not vest in Norman August Anderson (being the only surviving child of Willard D. Anderson) until he reaches the age of 21, and since the language contained in the will is clear, the same must be followed without necessity of employing rules of construction.
“4. That upon looking at all four corners of the will of August Anderson, it is clear that the intention of the testator, August Anderson, was:
“(a) To vest title solely in the trustee during the trust;
“(b) To create a contingent interest in the trust property in Norman August Anderson until he reached 21 years of age and not to create a vested interest in Norman August Anderson;
“(c) To ultimately vest title in the blood line of the testator, August Anderson, at the termination of the trust by conveyance and transfer from the trustee.”
The trial court further concluded that since all beneficiaries under the trust had become extinct on the death of Norman, the trust lapsed and the corpus should be distributed to the residuary legatees.
M. Barbara Anderson, mother and sole heir of Norman August Anderson, the deceased grandson of the testator, has appealed.
The specific contention of the appellant may be simplified. She contends that the will contains no specific provision as to where the .corpus of the trust would go if a living child of Willard D. Anderson did not reach the age of 21, but that subparagraphs 2(c) and 2(d) which touch on the subject are in direct conflict rendering the language of the will ambiguous and requiring construction. Appellant then contends that under the proper construction of the will Norman took a vested remainder in the real estate placed in trust on the death of his father, Willard D. Anderson, with the right of possession postponed until he reached the age of 21 years.
The first responsibility of a court when the meaning of the language in a will is challenged is to determine from the consideration of all the language whether or not a conflict or ambiguity exists. If no ambiguity exists there is nothing to construe and the will must be enforced in accordance with its terms and provisions. In In re Estate of Miller, 186 Kan. 87, 348 P. 2d 1033, we stated at page 90 of the opinion:
“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. This court has long been committed to the rule that 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. (Johnston v. Gibson, 184 Kan. 109, 113, 334 P. 2d 348; In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689; and authorities cited in the foregoing cases.)”
The appellant calls our attention to numerous rules of construction in support of her claim of vested remainder. It will suffice to state that a court must determine the intention of a testator when clearly and unequivocally expressed, without resort to rules of judicial construction applicable to the interpretation of an instrument which is uncertain, indefinite and ambiguous in its terms. (In re Estate of Porter, 164 Kan. 92, 100, 187 P. 2d 520; for recent cases stating that rules of construction are inapplicable where terms of will are explicit, see, In re Estate of Reynolds, 173 Kan. 102, 244 P. 2d 234; In re Estate of Woods, 181 Kan. 271, 311 P. 2d 359; In re Estate of Blank, 182 Kan. 426, 320 P. 2d 775; Johnston v. Gibson, 184 Kan. 109, 334 P. 2d 348; In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689; In re Estate of Taylor, 185 Kan. 523, 345 P. 2d 1028; In re Estate of Jones, 189 Kan. 34, 366 P. 2d 792; Parsons v. Smith, Trustee, 190 Kan. 569, 376 P. 2d 899.)
The trial court found that “since the language contained in the will is clear, the same must be followed without the necessity of employing rules of construction.” We are forced to agree with the conclusion of the trial court.
The pertinent part of subparagraph 2(c) reads:
“I direct that no title or interest in the property of this trust estate, or in the income accruing therefrom, shall vest in any beneficiary of this trust during the continuance of this trust; . . .”
This language is clearly and unequivocally expressed. The corpus would not vest while the trust continued. The first clause of the last sentence of subparagraph 2 (d) states how long the trust will continue—
“. . . And in the event that my said son, Willard D. Anderson, leaves surviving children born in lawful wedlock, or the living issue of any such prior deceased children, then this trust shall continue until the youngest of his said children reaches the age of twenty-one years, . . .”
The last clause of the last sentence of subparagraph 2 (d) provides for the determination of the trust when the living issue of Willard reaches the age of 21 and how the determination will be accomplished—
“. . . and thereupon this trust shall immediately cease and determine, and I give, bequeath and devise and direct my said Trustees to assign, transfer and convey said trust property in equal shares to such surviving children born in lawful wedlock, and the living issue, if any, of any such prior deceased children in accordance with the statute of descent, to have and to hold in fee simple forever.”
We are unable to find any inconsistency in the language used in subparagraphs 2 (c) and 2 (d) of the will.
The corpus of the trust was not to vest until the youngest child of Willard D. Anderson reached the age of twenty-one years. The only child died at the age of seventeen, hence the title to the real estate never vested under the terms of the trust.
It necessarily follows that we agree with the conclusions of the trial judge as heretofore stated and with his disposition of the controversy.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Herman Brown, Jr., was convicted of second degree burglary and larceny. He has appealed.
Evidence presented by the state was to this effect: About 2 a. m., August 17, 1967, a liquor store was burglarized. The owner, Violet Stevens, lived next door. She was awakened by the sound of crashing glass and saw two men enter the store through a broken window and come out the same way with part of her stock of merchandise. Both men were young. One sported a goatee and wore heavy construction boots. The two men got into a maroon Volkswagen and sped away.
Officers were summoned, a description was given, and an alarm was sounded over the police network. About 2:45 a. m. an officer who had heard the police dispatch, passed by Thelma’s Steak House and saw a man with a goatee. Pulling into the parking lot, the officer observed a maroon Volkswagen, which a license check showed was registered to a Roger R. Ayres, who was also charged with and convicted of the same burglary in the companion case of State v. Ayres, 203 Kan. 376, 454 P. 2d 534. Blood appeared to be on the floor boards of the car. The officer entered the club looking for Ayres and while inside he saw this defendant sitting at the end of the bar with bandages on his right arm.
After Ayres was found in the club, he accompanied the officer outside where a search of his Volkswagen revealed several bottles of the stolen liquor. While Ayres and the officer were talking, Brown made an appearance, without his bandages. Upon questioning by the officer, Mr. Brown said he had received the cuts either in a fight or at work — the officer was not sure which. The cuts, which appeared to be recent, had not scabbed, but the blood had dried or congealed. Brown admitted knowing Ayres but was not detained at this time. About two hours later he was arrested behind the garage at his home.
The defendant’s finger prints were found on three bottles of the purloined liquor which the officers had discovered in searching the maroon Volkswagen. Additional evidence disclosed that Mr. Brown had sold the bartender a half gallon of Kentucky Gentleman whiskey that same night for $8. This bottle of bourbon was identified as one of those stolen from Mrs. Stevens’ liquor store.
With this brief summation of the evidence we turn to the points raised by the defendant on appeal.
It is first contended that the trial court erred in its instruction on possession of recently stolen property, in that possession was not defined. The instruction was in these words:
“One of the factual issues in this case is whether or not liquor taken in a burglary and larceny was in the possession of the defendant shortly after the commission of the burglary and the larceny.
“In this regard you are instructed that the laws of Kansas provide that possession of property taken in the commission of a burglary and larceny shortly after the commission of said burglary and larceny is prima facie evidence that the possessor or possessors committed the burglary and larceny, and throws upon any possessor the burden of explaining his possession. If such possession is unexplained, or if the explanation is not satisfactory, it is of itself sufficient to sustain a conviction of the burglary and larceny.”
This instruction substantially reflects the law in this area as expounded by this court from an early date. (State v. Cassady, 12 Kan. 550; State v. White, 76 Kan. 654, 92 Pac. 829; State v. Rice, 93 Kan. 589, 144 Pac. 1016; State v. Grey, 154 Kan. 442, 119 P. 2d 468; State v. Williams, 196 Kan. 628, 413 P. 2d 1006; State v. Oswald, 197 Kan. 251, 417 P. 2d 261.)
But the defendant complains that failure to instruct on the meaning of possession, in its relationship to the inference of guilt, permitted the jury to speculate. We agree that the term “possession,” as used in the context of the instruction given by the court imports more than an innocent handling of the stolen property; the term denotes control, or the right to exercise control and dominion, over the property, even though this right be jointly shared. (See State v. Phinis, 199 Kan. 472, 430 P. 2d 251; State v. Runnels, 203 Kan. 513, 456 P. 2d 16.) Hence we believe it would have been appropriate for the court to have included an instruction concerning, the nature and quality of the possession from which the inference of guilt might be drawn. However, we believe its omission was. not prejudicial to the defendant under the circumstances of this case.
Evidence offered by the defense pertained only to alibi and related matters. No other issues appear to have been raised by the defendant at the trial. Moreover, evidence that the defendant sold a half gallon of the stolen bourbon, if believed by the jury, would clearly establish his control of and dominion over that part of the loot. (See State v. Bell, 109 Kan. 767, 201 Pac. 1110.) In the-face of evidence to such effect, coupled with evidence that Brown’s, fingerprints were found on three of the stolen bottles found in Ayre’s maroon Volkswagen within two hours after the burglary, the failure of the court to define possession can scarcely be said to constitute-prejudicial error.
Neither of the two federal cases cited by the defendant are of controlling importance on this phase of the case because of factual differences.
The defendant next complains of the following portion of the-court’s instruction on circumstantial evidence:
“In many cases circumstantial evidence is the most convincing of all evidence; more convincing than direct testimony. A witness may be mistaken, self-decieved [sic] or untruthful. Facts and circumstances are definite and impartial.”'
In State v. Murray, 200 Kan. 526, 437 P. 2d 816, this identical' instruction was challenged and we held that while the instruction could not be approved, we were unable to say it had resulted in prejudice to the defendant’s substantial rights under the existing; circumstances of that case. We believe the same may be said in-this case in view of the compelling nature of the evidence. However, we are constrained at this time to note our disapproval of the-instruction, which we trust will be heeded, because of the undue-stress it places on the force and cogency of circumstantial evidence. This court said many years ago in State v. Scott, 117 Kan. 303, 235. Pac. 380:
“. . . But when the jurors must be informed of the circumstances by the-testimony of witnesses, there may be false testimony concerning circumstantial! evidence as well as positive evidence. (See, 1 Wigmore on Evidence, 2d ed., §26, and authorities there cited; also 16 C. J. 763.)” (p. 324.)
A third point raised by the defendant pertains to a portion of the testimony given by a Wichita police officer who, after talking with Mrs. Stevens, supplied the police dispatcher with a description of the two burglars. The trial court, after sustaining an objection to a question put to the officer designed to elicit what Mrs. Stevens had told him, then advised the officer he could relate the descriptions of the men which he himself had given to the dispatcher, and the witness thereupon proceeded to do so. It is insisted this testimony was inadmissible as being essentially hearsay.
Assuming, without deciding, that the officers testimony constituted objectionable hearsays in an indirect guise, we cannot brand it as substantially prejudicial to the defendant. The essence of the description to which exception was taken is simply this: that one of the men involved possibly might have been an Indian or a Mexican male and was darker than the other. Even though Mr. Brown was of Indian extraction, the description relayed to the dispatched was of such a vague and generalized character that we believe it could not have been substantially damaging vis-á-vis the state’s evidence.
Although it is differently phrased, the defendant’s fourth claim of error is that the verdict is not supported by the evidence. It is our opinion that the evidence already detailed sufficiently refutes the validity of this contention and that further discussion on this point is not required.
It has often been said by this court that errors which do not prejudicially affect the substantial rights of an accused do not constitute grounds for reversal. (2 Hatcher’s Kansas Digest [Rev. Ed.] Criminal Law, § 439.) This principle, we believe, is applicable to the facts of the present case.
Prejudicial error has not been made to appear and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This case arises out of a workmens compensation proceeding. The plaintiff has appealed from the order of the district court sustaining his motion for summary judgment in an amount less than the amount he sought to recover in an action commenced pursuant to K. S. A. 44-512a.
On or about November 15, 1962, the claimant sustained personal injury by accident which arose out of and in the course of his employment. He timely commenced a proceeding before the workmens compensation director, and his claim, like Rip VanWinkle, lay peacefully sleeping in the office of the director until July 12, 1966, when a hearing was had before an examiner. Again the plain tiff’s claim went into a state of repose and rested in the office of the director until February 28,1968.
This court has no knowledge as to the reasons for the unwarranted delays in the processing of the plaintiff’s claim, but later, on February 28, 1968, an award was made in favor of the plaintiff and against the respondent and self-insurer, The Kansas State Highway Commission, hereafter referred to as the commission, for 415 compensable weeks at the rate of $38 per week for a total award of $15,770. The examiner found that the plaintiff sustained 70 percent permanent partial disability, and as of February 1, 1968, there should have been paid to him the sum of $10,450, which was ordered paid in one lump sum, and the balance of compensation in the amount of $5,320 was ordered paid at the rate of $38 per week for 140 weeks, or until the further order of the director.
The examiner further entered an award in favor of the plaintiff for accrued medical expenses in the sum of $591.40, and future medical expenses not to exceed $6,000, less medical expenses therefore paid or ordered paid under the terms of the award of February 28, 1968.
The commission made timely written request to the director to review the examiner’s award pursuant to K. S. A. 44-551. Upon review, and on March 11, 1968, the director approved and confirmed the examiner’s award in favor of the plaintiff in all respects, except he found that as of the date of the plaintiff’s injury, the statutory maximum of future medical expenses was $4,000, and accordingly modified the award in that respect by reducing future medical expenses from $6,000 to $4,000.
On March 15, 1968, the commission perfected its appeal to the district court of Phillips County from the award of the director in favor of the plaintiff (Case No. 10,373). No bond was filed by the commission in accordance with K. S. A. 44-530 and 44-556, and the commission paid no compensation of any kind to the plaintiff in compliance with the terms and requirements of the directors award, or as required by the provisions of K. S. A. 44-556, during the pendency and determination of its appeal to the district court.
On June 25, 1968, the plaintiff served his personal handwritten statutory demand by registered mail upon the commission and its attorneys of record, as follows:
“To: State Highway Commission of Kansas
State Office Building
Topeka, Kansas
“To: John H. Morse and John A. McKinnon — Attorneys
State Highway Commission of Kansas
State Office Building
Topeka, Kansas
“Gentlemen:
“The undersigned hereby respectfully makes demand for payment of all due compensation.
“Dated this 25th day of June, 1968.
“/s/ Henry I. Griffith
Henry I. Griffith
Phillipsburg, Kansas 67661.”
Receipt of the plaintiff’s written demand was acknowledged by counsel for the commision.
The plaintiff and the commission stipulated that the commission failed to pay compensation within twenty days in accordance with the plaintiff’s written demand of June 25, 1968, and that the twenty-day period following service of said written demand ended on July 15, 1968, at which time the commission was in default of payment of all compensation awarded the plaintiff pursuant to the provisions of 44-512a.
On August 7, 1968, the plaintiff commenced this 44-512a action against the commission in the district court, case No. 10,395, to recover the entire amount of compensation awarded by the director on March 11,1968.
On August 23, 1968, the commission filed its answer to the plaintiff’s petition, admitting the proceedings before the workmen’s compensation director; the entry of an award in his favor in the total amount of $15,770 and accrued medical expenses of $591.40, and limiting future medical expenses to not exceed $4,000. The commission alleged the timely perfection of its appeal to the district court of Phillips County where the merits of the plaintiff’s award was then pending, and denied the other allegations of the petition. It further alleged that:
“. . . this action is covered by K. S. A. 44-556 wherein it specifically provides that no compensation is due and owing except a ten (10) week period immediately preceding the examiner’s award and a weekly compensation award some twenty (20) days after the date of the award entered by the Workmen’s Compensation Director.”
And further alleged that:
“This is a cause of action brought under K. S. A. 44-512 (a) which is not applicable by virtue of the above set out statute.”
On September 5, 1968, the plaintiff filed his motion for summary judgment against the commission and served notice for the hearing of said motion on September 16,1968.
In the meantime, and on August 6, 1968, the district court heard the merits of the commission s appeal from the award of the director. On August 23, 1968, the district court made findings of fact and conclusions of law to the effect the plaintiff sustained personal injury by accident on or about November 15, 1962, which arose out of and in the course of his employment; that he sustained a ten percent permanent partial disability in the compensable sum of $3.80 per week from and after November 30, 1962, making a total award of compensation in the sum of $1,577; that as of August 24, 1968, there was due and owing the plaintiff the sum of $1,052.40, which should be paid in a lump sum and the balance due the plaintiff in the sum of $524.60, should be paid at the rate of $3.80 per week for an additional 117 weeks. The court further found that the commission should pay tire plaintiff’s medical expenses in the total sum of $326.30, and should pay future medical expenses of the plaintiff incurred in the treatment of his disability in a total sum of $4,000, less any sums previously paid.
Thereafter, the plaintiff timely appealed from the judgment of the district court to this court, which was docketed as Griffith v. State Highway Commission, 203 Kan. 656, 456 P. 2d 32.
On September 24, 1968, the plaintiff’s 44-512a action came on for hearing before the district court upon the plaintiff’s motion for summary judgment. In deciding the matter, the district court filed its memorandum opinion, making findings of fact and conclusions of law to the effect that, having entered its decision and award in favor of the plaintiff in the workmen’s compensation case (Case No. 10,373) and entered judgment in the plaintiff’s favor in the total amount of $1,903.30, it adopted that amount as the judgment to be entered in favor of the plaintiff in his 44-512a action, and the plaintiff has duly perfected this appeal.
It is first contended the plaintiff’s “demand letter” of June 25, 1968, was insufficient and was not calculated to fairly apprise the commission of what was intended. The point is not well taken. The letter was addressed to the commission and its attorneys of record and was sent by registered mail. It was sufficient to invoke the provisions of 44-512a. The fact the letter was registered should have indicated to counsel it was an important instrument, and its contents clearly indicated it involved the plaintiff’s compensation case. The commission, not the plaintiff, was responsible for the passage of time in which it might have paid the accrued compensation and avoided the effects of the statute under which the entire award became due and payable. It was the commission’s burden to avoid the effects following the demand, and neither the plaintiff nor his counsel was under obligation to advise the commission of the exact amount due. That was a matter of record and there was never any dispute as to the amount.
The entire matter was set to rest in Miller v. Massman Construction Co., 171 Kan. 713, 237 P. 2d 373. There the claimant wrote the employer by registered mail in which he stated, “[p]lease send my compensation due me as I need it bad.” This court held the written demand was sufficient to invoke the statute. Moreover, the commission’s answer failed to raise the sufficiency of the plaintiff’s written demand, and its real complaint is not that the demand letter was insufficient, but that the plaintiff had no right to serve it at the time it was served, since the commission’s answer alleged, “[t]his is a cause of action brought under K. S. A. 44-512(a) which is not applicable by virtue of the above set out statute” — reference being made to K. S. A. 44-556. This statute was first construed in Scammahorn v. Gibraltar Savings & Loan Assn., 195 Kan. 220, 404 P. 2d 165, and it was said:
“Likewise, it is obvious the legislature intended by its amendment to 44-556 that if an employer was insured for workmen’s compensation liability, or if he was a self-insurer and had filed a bond with the district court pursuant to 44-530, he was relieved of payment of compensation during the first twenty days after the entry of the award if, within such twenty-day period, he perfected an appeal to the district court. However, the legislature also intended that if such an employer perfected an appeal to the district court, he was not relieved of payment of compensation due for the ten-week period next preceding the director’s decision and of additional payments in accordance with the terms of the award until the district court rendered its decision on appeal. If an employer failed to make payment of compensation after his appeal was perfected, the legislature further intended that a statutory demand under 44-512a could be served.” (1. c. 224.) (Emphasis supplied.)
Without further discussion we hold the demand letter of June 25, 1968, was sufficient to invoke the statute. (Miller v. Massman Construction Co., supra.) See, also, Shinkle v. State Highway Commission, 202 Kan. 311, 448 P. 2d 12, where it was said:
“. . . When the claimant served his employer and its attorney of record with the written demand by registered mail, the requirements of 44-512a, supra, for service of the demand were met.” (1. c. 315.)
The plaintiff contends the district court erred in entering judgment against the commission in his 44-51£a action in the sum of $1,903.30. He argues that, notwithstanding the commissions appeal to the district court on March 15, 1968, and its failure to file a bond as a self-insurer as required by K. S. A. 44-530 and 44-556, the entire amount of compensation awarded by the director of $16,361.40 became due and payable on July 15, 1968, by virtue of service of his statutory demand on June 25, 1968, and the commission s refusal •or failure to pay all compensation due within twenty days thereafter, and that he was authorized by 44-512a to recover the specific amount matured thereby in a separate action in like manner as for ■the collection of a debt. The pertinent part of the statute reads:
“That if any compensation awarded ... or any installment thereof shall not be paid . . . when due, . . . then the entire amount . . . shall become immediately due and payable and said employee . . . may maintain an action . . . for the collection thereof in like manner as for the collection of a debt.” (Emphasis supplied.)
The district court did not have the benefit of our recent decision in Casebeer v. Alliance Mutual Casualty Co., 203 Kan. 425, 454 P. 2d 511, to guide it in deciding the plaintiff’s 44-512a action. What was said and held in Casebeer requires a reversal of this appeal with directions to enter judgment in favor of the plaintiff for the entire amount of compensation matured by his statutory demand and the commission’s default on July 15, 1968, together with statutory interest thereafter, and for costs of the proceedings. (Fleming v. National Cash Register Co., 188 Kan. 571, 363 P. 2d 432.) In Casebeer it was said:
“. . . Section 44-512a was adopted by the Legislature in 1943, and this court has construed and applied its provisions in a whole series of cases. Without deviation, it has been held that if any compensation awarded shall not be paid when due, then, following service of the written demand provided for, continued nonpayment for twenty days thereafter accelerates the •entire amount of compensation awarded, which immediately becomes amount •of compensation awarded, which immediately becomes due and payable, and the person entitled thereto may maintain an action to recover the specific amount in like manner as for the collection of a debt. (Citations.)
“The statute is the declared public policy of the state that compensation awards shall be promptly paid, and is the means selected by the Legislature to insure their enforcement and applies to all awards or judgments without the slightest qualification. (Citation.) Its terms become a part of the contract of employment and are binding upon the employer and workman alike. (Citation.) Its provisions are remedial in character and deprive the employer and his insurance carrier of no vested rights. (Citation.) They were intended to supplement existing remedies, and apply to a different state of facts from those embraced in the provisions of the Act prior to its adoption. (Citation.) They clearly give the workman the right to maintain, and a court the power to hear and determine the action (citation), and the burden of avoiding effects following service of a written demand is upon the employer and his insurance carrier, not the workman. (Citation.)”
It was also said:
“Under the remedy provided, the employer and his insurance carrier have the choice of protecting their vested rights by merely complying with the terms and requirements of the Director’s award by which they are bound, and with the provisions of K. S. A. 44-556, during the pendency and determination of their appeal to the district court (citations), and they may appeal from any findings or order of the district court to this court on questions of law by merely complying with the terms of its judgment by which they are likewise bound, and with the provisions of 44-556, until the judgment is affirmed, reversed, or modified (citations), or permit the workman to invoke the remedy and proceed to collect all compensation matured by his written demand and their default. (Citations.) The statute may be rigorous, but it is possible to comply with its provisions. (Citation.) ”
It was further said:
“It has always been held that the employer may appeal at will from the award of the Director (citations), and from the judgment of the district court on questions of law (citations), by complying with the provisions of the Act for the taking of appeals prescribed in detail in 44-556 which are complete and exclusive. (Citation.) But no provision is found in that section, or elsewhere in the Act, authorizing the staying of payment of compensation pending an appeal, or staying the enforcement of any remedy available to the workman, including the prosecution of a 44-512a action, where the compensation awarded is not paid. (Citation.) On the contrary, the language that compensation ‘shall not be stayed’ pending an appeal to either court imposes an affirmative duty to pay compensation. Hence, it may be said the statutory scheme of the 1961 amendment was to make the time within which to serve the statutory demand and the time for the employer to appeal to the district court coextensive, and to permit the employer to have his ‘day in court’ by securing judicial review of the validity of the Director’s findings and award, but conditioning his right to review upon the continued payment of compensation pending such an appeal, which suspends all remedies of collection available to the workman until the award or judgment is set aside, modified, affirmed or reversed. (Citation.) In Krueger v. Hoch, supra, it was said:
“ ‘By the plain language of the statute the right of appeal to the supreme court is qualified by the requirement that compensation payable be not stayed. In other words, continuance of payments is a prerequisite of the right to appeal as well as a requirement pending appeal . . .’ (1. o. 321.) (Emphasis supplied.)”
Following its appeal to the district court, the commission had the choice of protecting its vested rights by merely complying with the terms and requirements of the director’s award and with the mandatory requirements of 44-556 until the award was set aside, modified or affirmed by the judgment of the district court. The director’s award of $16,361.40 was in full force and effect and was not superseded by the commission’s purported appeal. By its failure to comply with the provisions of 44-556, or to pay compensation pursuant to 44-512a in accordance with the plaintiff’s statutory demand, the plaintiff was entitled to recover the entire amount of compensation due and payable on July 15, 1968. The later review of the director’s award by the district court did not change the amount of compensation due the plaintiff in accordance with 44-512a, or affect his right to maintain the action to recover the amount due. (Scammahorn v. Gibraltar Savings & Loan Assn., supra; Casebeer v. Alliance Mutual Casualty Co., supra.) Indeed, the continued payment of compensation was a prerequisite to the commission’s right to appeal and it was subject to dismissal by the district court. (Krueger v. Hoch, 202 Kan. 319, 447 P. 2d 823.) Moreover, as hereafter stated, the failure to file a bond as a self-insurer (44-556) was jurisdictional to the perfection of the appeal.
It is contended that when the plaintiff filed his notice of appeal to this court from the judgment entered in the workmen’s compensation case (Case No. 10,373), he acquiesced in the judgment rendered in his 44-512a action and thereby deprived himself of appellate review of the judgment rendered on September 24, 1968. In support of its novel theory, the commission relies upon Neufeld v. Mid-Continent Casualty Co., 193 Kan. 131, 391 P. 2d 1009. The contention is untenable. The rule of acquiescence rests upon the recognition of the judgment as valid. The plaintiff yielded no obedience to the judgment rendered in the compensation case, and that appeal has been dismissed by this court as being moot. (Griffith v. State Highway Commission, [No. 45,579], supra, this day decided.) Likewise, his appeal from the judgment rendered in his 44-512a action on September 24, 1968, which was for the same amount as was awarded in the compensation case, clearly was not inconsistent with any purported claim he yielded obedience to either judgment. This court has never held that the perfection of an appeal from a judgment constituted an acquiescence therein. See Dexter v. Wilde Tool Co., 188 Kan. 816, 365 P. 2d 1092.
The claim is made that the commission, being an arm of the state and also being a self-insurer, was not required to file a bond to perfect its appeal to the district court as required by 44-556. The argument is not impressive. In Redenbaugh v. State Department of Social Welfare, 187 Kan. 320, 356 P. 2d 794, it was said that when a state commission or department elects to come under the provisions of the Workmens Compensation Act, it places itself in the same position as other employers with respect to the application of 44-512a. In Carter v. State Department of Social Welfare, 184 Kan. 825, 339 P. 2d 5, it was said:
“. . . the workmen’s compensation act cannot be dissected into parts with a result that an employer can elect to be subject to the act but pick and choose which sections it will be subjected to by reason of its election. When the appellee elected to come within the law, it waived its immunity to each and every portion thereof and the trial court erred in concluding contrarily.”' (1. c. 829.)
Having elected to come under the provisions of the Workmen’s Compensation Act, the commission, as a self-insurer, was required to comply with the provisions of 44-556 for the taking of an appeal to the district court, including the filing of a bond.
Other points have been raised by the commission, but we think it is unnecessary to discuss them at length. One is the appeal should be dismissed for failure to comply with Rule 8 (a) (c) and (d) of this court, and the failure of the plaintiff to file a statement of points as required by Rule 6 (d). An examination of the record indicates that the plaintiff made lengthy and adequate statements of points on appeal, and his brief was timely filed and served upon counsel for the commission within a reasonable time thereafter.
As admitted by the commission’s answer and the stipulations of its counsel, it failed within the requisite period of twenty days from service of the plaintiff’s written demand to make payment of all compensation then due and unpaid and thereby subjected itself to-the provisions of 44-512a making the entire award immediately due. The district court committed error in failing to determine the-action in accordance with the pleadings on file and counsel’s stipulations, and its judgment is reversed with directions to calculate the-amount of compensation due the plaintiff on July 15, 1968, and to- enter judgment accordingly, together with interest thereon at the statutory rate, and for costs of the proceeding.
It is so ordered.
Price, C. J., dissents. | [
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The opinion of the court was delivered by
Schroeder, J.:
This action was filed by the divorced wife to recover the proceeds of the decedent’s life insurance policies, which named her as beneficiary. The decedent left a widow who also claimed the proceeds of the decedent’s life insurance policies. The insurance companies admitted liability for payment of the proceeds, but faced with conflicting claims by the two claimants who are represented by attorneys, were permitted to interplead the conflicting claimants and pay the proceeds into court.
The only question on appeal is whether K. S. A. 40-256 authorizes the assessment of attorneys’ fees against the insurance companies, where they at all times were willing to pay the insurance proceeds to the party legally entitled thereto, but sought to be protected .against double liability.
In 1957 Swift and Company Employees Benefit Association (defendant-appellant) and Aetna Life Insurance Company, the carrier ■of Swift’s group life insurance plan, each issued a policy of insurance on the life of Robert Leon Hermon, a Swift employee. The designated beneficiary under both policies was “Nettie A. Hermon, wife.” She was the wife of Robert Leon Hermon when he took out the policies of insurance, but was divorced from him on January 29, 1964.
On March 1, 1966, Swift’s group life insurance plan was transferred from Aetna Life Insurance Company to Globe Life Insurance Company (defendant-appellant).
At the time of Robert Leon Herman’s death on August 16, 1966, he was married to Elizabeth Hermon and had a son by her, but the designated beneficiary under both policies had not been changed and was still “Nettie A. Hermon, wife.”
By reason of his death, a death benefit in the net amount of $1,750 became payable under the defendant Swift’s policy, and insurance in the net amount of $6,750 became payable under the defendant Globe’s policy.
A few days after the death of Robert Leon Hermon, Swift received a letter from Mrs. Joseph Anderson of Mission, Kansas, an attorney at law, dated August 18, 1966, in which Mr. Anderson stated he was making a claim on behalf of Elizabeth Hermon “for the amounts payable under both policies.” Mr. Anderson also stated in this letter that “Approximately four or five months ago, Mr. Hermon completed a form changing the beneficiary on these policies. We are uncertain as to whether or not your office received this change.”
On August 23, 1966, Mr. Lang of Swift advised Mr. Anderson by letter that Swift and Globe did not have any information regarding the change of beneficiary and that the designated beneficiary under the two policies in question was Nettie Ann Hermon. At the conclusion of the letter, Mr. Lang stated that “unless your client and the designated beneficiary can come to some amicable settlement, we will have no recourse to pay the funds into court by inter-pleader action.”
Mr. Lang did not receive an answer from Mr. Anderson and wrote to him again on October 4, 1966, to ask him to comment on his course of action and his intention to pursue Elizabeth Hermon s claim. At the conclusion of the letter Mr. Lang stated “We would appreciate this information in order to proceed with the settlement of this claim.”
Mr. Lang again did not receive an answer from Mr. Anderson and wrote to him again on November 2, 1966, to ask him to advise promptly whether he intended to pursue Elizabeth Hermon s claim and to tell him that if he did not respond by November 15, 1966, Swift and Globe would have no alternative but to assume he no longer wished to pursue the matter. Mr. Lang further stated in that event “attention will be given to the claim by the designated beneficiary, Nettie A. Hermon regarding both coverages.” A copy of this letter was sent to counsel for Nettie.
Mr. Lang then received a letter from Mr. Anderson, dated November 4, 1966, in which Mr. Anderson stated, among other things, that:
“We must apologize for not keeping you advised as to our activities in this case, but we have been in contact with the attorney who represents the ‘other’ Mrs. Hermon and we hope to be able to come to some sort of agreement in the next week.
“As soon as we have received a decision from the other attorney, we will be in touch with you.”
Nothing further was heard from Mr. Anderson, and on December 9, 1966, Mr. John Kummerer of Swift wrote to Mr. Anderson to ask him whether he intended to pursue Elizabeth Hermon’s claim. Mr. Kummerer further stated ‘We note in your letter of November 4 that it was hoped that some sort of agreement could be reached within the next week and we would appreciate the courtesy of a prompt reply at this time.”
On December 15,1966, Swift received a letter from Mr. Ernest N. Yamevich, plaintiff’s attorney, dated December 12, 1966. In the letter, Mr. Yamevich advises that his office represents Nettie Hermon Macek, plaintiff herein, and that he has transmitted to the local industrial relationship department of Swift the necessary proofs of loss, together with the death certificate of Robert Leon Hermon. The letter further requested the immediate payment of all funds to the plaintiff and stated further “I understand that Mr. Anderson of Mission, Kansas, an attorney at law, represents a purported claimant to these funds, but feel as though our client being designated as beneficiary, is entitled to immediate payment.”
After this letter no word was heard from anyone concerning the payment of these claims until February 16, 1967, the day plaintiff’s lawsuit was filed, when Mr. Haas of Swift wrote to both Mr. Anderson and Mr. Yamevich. In the letter to Mr. Anderson Mr. Haas notes that Mr. Anderson had not replied to Mr. Kummerer’s letter of December 9, 1966, and advises that if Mr. Anderson and Mr. Yamevich “do not reach agreement by March 1, 1967 as to the distribution of these proceeds it will be necessary to instigate interpleader action.” At the conclusion of the letter, Mr. Haas asks Mr. Yamevich to advise “if this matter can be resolved so that the necessary release forms can be drawn up.”
With regard to the amount payable by Swift Nettie A. Macek (plaintiff-appellee) filed suit against Swift on February 16, 1967. Globe Life Insurance Company was not named as a party defendant in plaintiff’s petition. Plaintiff simply alleged therein that she was entitled to recover $9,000 under Swift’s certificate No. 971765.
Swift subsequently filed an answer in which it stated that a death benefit in the net amount of $1,750 was payable under its policy; that it was and at all times since the death of Robert Leon Hermon has been ready, willing and able to pay said death benefit to the person or persons lawfully entitled thereto; that plaintiff and Elizabeth Hermon, by and through their respective attorneys, have asserted conflicting claims for said death benefit; that by reason of such conflicting claims Elizabeth Hermon was a necessary and indispensable party to this proceeding; that it was unable to determine which claimant was entitled to the net amount of the death benefit; that it may be subjected to multiple liability and the defense of a multiplicity of suits; and that it has deposited with the clerk of the court the net amount of said death benefit to be paid to the party determined by the court to be legally entitled thereto.
At the same time, Swift filed a counterclaim and cross-claim for interpleader and moved for an order of the court that Elizabeth Hermon be joined in this action as an additional party defendant and that she be summoned to appear and answer said cross-claim for interpleader.
With regard to the amount payable by Globe plaintiff, at the time of the filing of her petition against Swift, was apparently not aware that any amount was payable by Globe. Thereafter, the attorney for Swift and Globe advised the attorney for the plaintiff that insurance proceeds in the net amount of $6,750 were payable under Globe’s master policy No. G153 by reason of the death of Robert Leon Hermon. It was thereupon decided and agreed by both attorneys that plaintiff would file an amended petition joining Globe in this action as a party defendant; that Globe would pay the net amount of said insurance proceeds into court; and that Swift and Globe would file a counterclaim and cross-claim for interpleader similar to the one previously filed on behalf of Swift.
In accordance with the agreement of both attorneys, plaintiff filed her first amended petition herein against Swift and Globe, and they subsequently filed an answer, a counterclaim and cross-claim for interpleader, and a motion for joinder of Elizabeth Hermon as an additional party defendant. At the same time, Globe deposited with the clerk of the court the net amount of said insurance proceeds — $6,750, to be paid to the party or parties determined by the court to be legally entitled thereto.
After plaintiff’s petition was filed, defendants advised Elizabeth Hermon’s attorney of plaintiff’s lawsuit and asked him whether his client would intervene in the lawsuit, and, if not, whether she would drop her claim. Elizabeth Hermon’s attorney promised by a letter in reply to furnish defendants’ attorney with a letter setting forth his client’s intentions, but did not do so. Elizabeth Hermon’s claim, asserted through attorney Anderson, was never withdrawn.
On June 30, 1967, the defendants’ motion for joinder of Elizabeth Hermon as an additional party defendant was sustained by the court, and subsequent thereto, service was had upon Elizabeth Hermon by publication pursuant to K. S. A. 60-307, as amended, the-sheriff being unable to locate her in Wyandotte County, Kansas.
On September 6, 1967, the defendants moved the court for judgment by default pursuant to K. S. A. 60-255 (a), as amended, against Elizabeth Hermon, and on October 6, 1967, the court sustained the motion granting judgment against Elizabeth Hermon by default as prayed for in the defendants’ counterclaim and cross- claim for interpleader. The court further found the plaintiff was entitled to judgment for the amounts payable under the two insurance policies in question and deposited by the defendants with the clerk of tire court. The court entered judgment accordingly and discharged the defendants from further liability for the payment of death benefits or insurance on the life of Robert Leon Hermon. The court further found the defendants were not entitled to recover reasonable attorneys’ fees for the filing and prosecution of their counterclaim and cross-claim for interpleader. The defendants have taken no appeal from the order entered pursuant thereto.
On November 3, 1967, the trial court in an opinion letter sustained the plaintiff’s motion for the allowance of attorneys’ fees, and offered to hold a hearing on the sole subject of the amount of the attorneys’ fee to be set by the court. Previous requests by the defendants for the court to hold a hearing on the plaintiff’s motion for allowance of attorneys’ fees were denied.
It should be noted that as of this time the trial court was not advised of the negotiations between counsel for the respective parties in an effort to settle the conflicting claims prior to the filing of the lawsuit.
The defendants’ attorneys, in a letter to the court dated November 7, 1967, again requested the court to hold a hearing on plaintiff’s motion for the allowance of attorneys’ fees, and the court responded by notifying both parties on November 20, 1967, that a hearing would be held on November 22, 1967, “on the question of the amount of attorney fee.”
Without advance notice to the defendants the court on November 22, 1967, agreed to hold a hearing on the plaintiff’s motion for allowance of attorneys’ fees, as well as on the amount of the attorneys’ fees to be set, and proceeded to hold such a hearing where the evidence was presented. At the conclusion of the hearing the court again held that the plaintiff was entitled to an attorney fee under 40-256, supra, and set the amount of the fee at $2,000, of which $412 was taxed against Swift, and $1,588 was taxed against Globe.
After the trial court overruled the defendants’ motion for a new trial, appeal was duly perfected to this court on the 4th day of January, 1968.
The material facts in this case on the issue presented are not in dispute. It may be said the situation is similar to one where the parties have stipulated as to the facts. (See, Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219.) The question is whether the trial court properly applied the law to the foregoing facts by allowing an attorney fee to the plaintiff’s attorney.
K. S. A. 40-256 provides:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in section 40-201 of the General Statutes of 1949, and including in addition thereto any reciprocal or inter-insurance exchange on any policy or certificate of any type or kind of insurance,, if it appear from the evidence that such company or exchange has refused without just cause or excuse to pay the full amount of such loss, the court in? rendering such judgment shall allow the plaintiff a reasonable sum as am attorney’s fee to be recovered and collected as a part of the costs: Provided,, however, That when a tender is made by such insurance company or exchange before the commencement of the action in which judgment is rendered and the amount recovered is not in excess of such tender no such costs shall be allowed.”
Kansas cases construing this statute hold that it is only where an insurer refuses to pay “without just cause or excuse” that an. allowance can be made to the insured for reasonable attorneys’ fees. (Parker v. Continental Casualty Co., 191 Kan. 674, 383 P. 2d 937;. and cases cited therein.) It is also held this statute requires the insured to prove by a preponderance of the evidence that the insurer refused to pay “without just cause or excuse.” (Thompson-Transport Co. v. Middlestates Construction Co., 195 Kan. 172, 403 P. 2d 999.)
The law applicable under the provisions of 40-256, supra, was; fully discussed in Wolf v. Mutual Benefit Health & Accident Association, supra, and reference is made thereto without further discussion herein.
It does not appear from the evidence in this case the defendants-refused without just cause or excuse to pay the amounts payable-under the two insurance policies in question in this action.
It is undisputed the defendants, after the death of Robert LeonHermon, were confronted with conflicting claims by two claimants, each of whom was represented by an attorney. The defendants; were at all times ready, willing and able to pay the full proceeds of their respective policies to the party or parties legally entitled thereto. They stated not only their willingness to pay, but their intention to file an interpleader action if the conflicting claimants; persisted in their claims, and the defendants were thereafter in formed that the two claimants were attempting to negotiate their differences. When the defendants were not notified of an agreement between the two claimants, they informed claimants’ respective attorneys that the defendants would file an interpleader action if an agreement was not reached before a certain date. At a time when the defendants understood that negotiations were still pending between the claimants to the insurance proceeds, one of the claimants (plaintiff herein) brought suit against Swift only, but claimed the proceeds payable not only by Swift but under the Globe policy as well. The defendant Globe on its own initiative pointed out to the plaintiff that it had not been joined as a defendant but should be joined in order that it might interplead and deposit its insurance proceeds with the court to be paid in accordance with the determination of the court. The defendants requested and were granted by the trial court the right to interplead the two contending claimants, and both defendants deposited the insurance proceeds payable under their respective policies with the court in order that the proceeds might be paid by the clerk of the court to the party or parties found to be legally entitled thereto. The trial court entered judgment for the plaintiff for the sum deposited with the court and not for the full amount of $9,000, for which the plaintiff brought suit.
Under these circumstances we hold as a matter of law the defendants did not refuse to pay the insurance proceeds to the plaintiff without just cause or excuse within the meaning of 40-256, supra. That statute does not authorize assessment of attorneys’ fees against an insurance company where the insurance company was at all times willing to pay the insurance proceeds to the party legally entitled thereto, when it only required that in paying the proceeds it be protected against multiple lawsuits and possible double liability. Since the defendants were confronted with two conflicting claims to the same proceeds, they were justified in withholding payment to either claimant pending an agreement between the claimants, and failing that, a determination by the court.
The appellee argues in the case at bar she was the designated beneficiary; that there was no question raised as to the default in premium payment; that proof of loss was shown by a certificate disclosing the death of Robert Leon Hermon on August 16, 1966; and that the beneficiary under the two policies was never changed.
Under these circumstances it is claimed she made proof of loss within a reasonable time for the benefits under these contracts, and was entitled to allowance of a reasonable attorney fee by reason of the delay of the insurance companies in making payment. It is argued the companies under K. S. A. 60-222 had a right to file an action of interpleader to be relieved of double liability. (Citing Equitable Life Ins. Co. of Iowa v. Dinoff, 72 F. Supp. 723 [D. Kan. 1947].)
In the trial court the defendants were granted the right to inter-plead under 60-222, supra, and no one questioned their right to do so. Under K. S. A. 60-222 (a) persons having claims against a defendant may be joined as addtional defendants and required to interplead when their claims are such that the defendants are or may be exposed to double or multiple liability. The statute clearly permits interpleader in situations where a defendant is faced with conflicting claims, and it does not require a defendant to forego interpleader relief when one of several conflicting claims may appear to have more merit that the others.
Although our research has disclosed no Kansas cases which have directly passed on the question, a number of cases from other jurisdictions uphold the right of an insurance company to interplead whenever it is faced with conflicting claims and the threat of multiple liability, regardless of its opinion as to the merits of the conflicting claims. (Hunter v. Federal Life Ins. Co., 111 F. 2d 551 [8th Cir. 1940]; Equitable Life Assur. Soc. of United States v. Maloney, 85 F. Supp. 212 [E. D. Mo. 1948]; Equitable Life Ins. Co. of Iowa v. Gilman, 114 F. Supp. 387 [W. D. Mo. 1953]; United Benefit Life Insurance Company v. Katz, 155 F. Supp. 391 [E. D. Pa. 1957]; and New York Life Insurance Company v. Welch, 297 F. 2d 787 [D. D. C. 1961].)
In Hunter v. Federal Life Ins. Co., supra, it was said:
“The jurisdiction of a federal court to entertain a bill of interpleader is not dependent upon the merits of the claims of the defendants. . . .” (p. 556.)
In New York Life Insurance Company v. Welch, supra, the United States Court of Appeals for the District of Columbia Circuit said:
“The interpleader statute is liberally construed to protect the stakeholder from the expense of defending twice, as well as to protect him from double liability. Metropolitan Life Ins. Co. v. Segaritis, 20 F. Supp. 739 (E. D. Pa. 1937). A stakeholder, acting in good faith, may maintain a suit in interpleader to avoid the vexation and expense of resisting adverse claims, even though he believes only one of them is meritorious. . . .” (p. 790.)
Insofar as we are concerned with interpleader in this action, K. S. A. 60-222 (a) is the same as Federal Rule 22 (1), and federal decisions in point construing it are persuasive.
The appellee argues the widow has never made formal claim to the proceeds with the insurance companies. But this is immaterial. In Knoll v. Socony Mobil Oil Company, 369 F. 2d 425 (10th Cir. 1966), it was said:
“Appellants argue that the trial court lacked jurisdiction to entertain inter-pleader because, as they maintain, it does not appear that the named defendants had made adverse claims to the fund. A conclusive answer to this is that the present act (Title 28 U. S. C. § 1335) is not limited to adverse claimants who ‘are claiming/ but also includes two or more adverse claimants who ‘may claim’ to be entitled. There must be a real risk of vexatious, conflicting claims but certainly that is present here. . . .” (p. 428.)
Two cases in which the allowance of attorneys’ fees were considered on facts similar to those in the instant case — where conflicting claims were made over insurance proceeds between the divorced wife and a widow of the decedent — are Equitable Life Assurance Society v. Hughes, 152 F. Supp. 187 (E. D. Ark. 1957); and Equitable Life Assurance Society v. Nichols, 84 So. 2d 500 (Fla. 1956). In the Hughes case the insurer filed an interpleader suit in federal court to obtain a determination as to which of the claimants residing in different states was entitled to the proceeds of the policy. One of the claimants had previously filed an action in the circuit court of Jefferson County, Arkansas, seeking recovery on the policy.
Our holding in the instant case is consistent with the decisions in these cases.
It should be noted on the facts in this case we are not confronted with an unreasonable delay in the payment of the proceeds on the policies in question or with unreasonable delay in the filing of an interpleader action by the insurance companies. The facts disclose that Swift was pressing the two claimants to resolve their difficulty so that settlement could be effected. In fact, a representative of Swift on the day the plaintiff filed this lawsuit, without knowledge of the lawsuit, wrote that Swift would be required to instigate interpleader action unless the claimants reached agreement by March 1, 1967, as to the distribution of the insurance proceeds.
The judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the respondent and its insurance carrier from a judgment entered by the district court of Barton County, Kansas, for a lump sum award pursuant to K. S. A. 44-512a.
The only question is whether the respondent and its insurance carrier (defendants-appellants) failed to make full payment of compensation due after written demand was served pursuant to 44-512a, supra.
The matter was determined in the trial court on a motion for summary judgment (K. S. A. 60-256) filed on the ground that the pleadings and admissions on file disclosed there was no genuine issue as to any material fact. The claimant’s motion recites that the admissions made by the respondent and insurance carrier establish negligence on the part of the respondent and its insurance carrier as a matter of law.
Where a matter is determined on a motion for summary judgment, if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law, the judgment shall be rendered forthwith. (West v. Prairie State Bank, 200 Kan. 263, 436 P. 2d 402.) Furthermore, a pleading is to be liberally construed in favor of the party against whom the motion for summary judgment is directed. (Price, Administrator v. Holmes, 198 Kan. 100, 422 P. 2d 976.)
For purposes of the motion in this case the answer of the appellants and the exhibits attached thereto are admitted by the appellee as true. The pleadings on file, and the admissions of the claimant and of the respondent and its insurance carrier establish the following facts:
On the 7th day of March, 1968, an examiner’s award of compensation was affirmed by the workmen’s compensation director awarding the claimant, James J. Kraisinger (plaintiff-appellee) 35 weeks of temporary total disability at the rate of $42 per week, and 366 weeks of permanent partial disability at the rate of $40.99 for a total of $15,037.59, of which amount as of January 1, 1968, there was due and owing $1,589.61. The remaining sum of $13,438.98 was ordered paid at the rate of $40.99 per week. The award further allowed medical, hospital, travel and per diem. Among these items was an entry:
“Central Kansas Medical Center........ $75.00”
The respondent was also ordered to furnish “future medical expense not to exceed the sum of $6,000.00 less medical heretofore paid or ordered paid under the terms of” the award.
The Central Kansas Medical Center had rendered treatment to the claimant on two separate occasions. When claimant was hospitalized for treatment by Dr. C. R. Brown on December 5, 1966, and dismissed on December 17, 1966, the patient’s file was marked “Compensation,” and the billing of $356.50 was voluntarily paid by the insurance carrier, Alliance Mutual Casualty Company. The hearing on the claim for compensation filed with the Kansas workmen’s compensation commission by the claimant was concluded by the examiner on the 20th day of July, 1967. The period of time the matter was before the examiner included the above noted hospitalization at the Central Kansas Medical Center. Subsequently, from August 31, 1967, through October 3, 1967, the claimant was treated as an outpatient at the Central Kansas Medical Center at the request of Dr. C. R. Brown for additional treatment. This billing of the medical center in the amount of $75 was sent directly to the claimant, and since the evidence in the compensation case had been completed and the case had been submitted to the examiner for decision on August 15, 1967, the attorneys of record for the claimant under date of September 30, 1967, sent the billing charge for $75 to the examiner for inclusion in the award. A copy of this correspondence was forwarded directly to the attorney of record for the respondent and its insurance carrier, Thomas C. Boone, Hays, Kansas. This letter dated September 30, 1967, addressed to the examiner, stated in part:
“There is also an unpaid balance at the Central Kansas Medical Center for physical therapy treatments over the past several months, and we request that this medical bill be ordered paid as a part of the award in this case.”
Thomas C. Boone acknowledged receipt of a copy of this letter in an answer to request for admissions.
A second bill was received by the claimant for the same $75 charge of the Central Kansas Medical Center in November, 1967, since it remained unpaid. Thereupon claimant’s attorney under date of November 10, 1967, addressed additional correspondence to the examiner which read in part:
“As you know, this case was submitted to decision on August 14. Since that time, the claimant has received an additional bill from the Central Kansas Medical Center in the amount of $75.00 for physical therapy treatments.
“We are enclosing a copy of this statement, and request that payment of this statement be allowed as part of the award in this case.”
A copy of this correspondence was also forwarded to the attorney of record for the respondent and its insurance carrier, Thomas C. Boone, and he admitted receiving the copy.
It is to be noted the $75 charge at the Central Kansas Medical Center was specifically itemized in the award of compensation.
After the award of compensation was affirmed by the director on the 7th day of March, 1968, Phyllis S. Linaweaver, an employee of the insurance carrier, Alliance Mutual Casualty Company, was directed by her superior, the service office manager, to make sure that all bills allowed in the award were paid. Phyllis S. Linaweaver in an affidavit filed with the answer stated:
“. . . One of such bills was that of Central Kansas Medical Center, and the award was in the amount of $75.00. My records showed that the Alliance Mutual Casualty Co. had already paid the amount of $356.50 to the Central Kansas Medical Center, which was more than the award. To check on the amount and to find out if there was any outstanding balance with the medical center I did on March 13, 1968, telephone the Central Kansas Medical Center in Great Bend, Kansas, and spoke with the girl in the accounting or bookkeeping department.
“I do not know her name, but I was advised that there was no outstanding bill against James J. Kraisinger under the workmens compensation claim at that time; she acknowledged the payment of the $356.50 previously paid to the Center.
“No bill has ever been sent to the Alliance Mutual Casualty Company by the Central Kansas Medical Center, or on their behalf, for $75.00 or any amount other than what was previously paid as stated above. I would have known of any such bill had it been sent. I assumed that since the $75 was not outstanding in the medical center bill, it was included in the amount we had paid.” (Emphasis added.)
On the basis of such information the Alliance Mutual Casualty Company refrained from paying the $75 item.
After the award of compensation was affirmed by the director on March 7, 1968, counsel for the respondent and its insurance carrier wrote a letter to the attorneys for claimant under date of March 14, 1968, enclosing drafts specifically enumerated covering each item of the award remaining unpaid, except the 75 item payable to the Central Kansas Medical Center. The letter then reads:
“The bill of Dr. Wallace Holderman has already been paid, as per our conversation with his office and bookkeeper; the Asbury Hospital bill has been paid; Dr. Findley Law’s bill has already been paid; the Central Kansas Medical Centers bill has already been paid in full. The only outstanding medical bills, prior to receipt of these drafts, was Dr. Roy B. Coifey, Dorothy D. Martin and a balance of $20.00 to Dr. Reifif Brown.
“I have tried to carefully determine the amount of the medical expenses still due and owing for Mr. Kraisinger and I believe my computations are correct became 1 have talked direct to each medical claimant involved. If you do not agree with the drafts enclosed for medical attention and other expenses, feel free to get in touch with me. If you have any questions about the manner in which we computed the permanent partial, feel free to contact me, but I do believe that it is correct, as per the award.” (Emphasis added.)
The letter concluded by requesting permission to make payments on a monthly basis rather than a weekly basis, if this was agreeable.
On the 18th day of March, 1968, Mr. Balloun, one of the attorneys for the claimant, answered the letter of Mr. Boone as follows:
“This will acknowledge receipt of your letter of March 14, 1968. I have not had an opportunity to check to see whether or not the payments are correct.
“However, concerning the last paragraph of your letter, the claimant has requested that the payments be made on the regular weekly basis, inasmuch as he is in need of his compensation.
“We appreciate your attention to this.” (Emphasis added.)
As all items enumerated in the award had not been paid on June 26, 1968, demand was served in writing on the respondent and its insurance carrier and their attorneys of record "for payment of all compensation and all other obligations under the award recommended by the Workmen’s Compensation Examiner on January 8, 1968, and approved and awarded by the Workmens Compensation Director on March 7, 1968, in the above-captioned matter, all under the provisions of and in compliance with K. S. A. 44-512a.”
The respondent and its insurance carrier admitted the foregoing demand for payment of all compensation on the 26th day of June, 1968, by a qualified answer as follows:
“Yes, the demand for payment was made but counsel for the plaintiff did not advise respondent and insurance carrier what bill was unpaid and that due to the peculiar circumstances of the way this matter was billed at the Central Kansas Medical Center, it was impossible for us to determine if there was any unpaid balance due at the time the award was rendered herein.”
Since the charge of the Central Kansas Medical Center in the amount of $75 was still outstanding and unpaid on August 1, 1968, a letter under that date was forwarded by the attorneys of record for claimant to the attorney of record for the respondent and its insurance carrier, reciting the nonpayment of the account and making demand for the entire balance of compensation due, thereby giving rise to this cause of action.
In the claimant’s request for admissions the respondent and its insurance carrier were requested to admit that a copy of the attached bill for $75 from the Central Kansas Medical Center was received prior to the time demand for payment was made. They answered:
“We will admit that we were aware of the $75.00 claim which we believed, all pursuant to the Affidavit of Phyllis Linaweaver, was included in the total bill which was paid by the respondent and insurance carrier.”
The first actual notice from the claimant subsequent to the award that the $75 item at. the Central Kansas Medical Center was unpaid was on the 1st day of August, 1968, when counsel for the claimant notified counsel for the respondent and its insurance carrier of the $75 unpaid item.
After actual notice that the bill was in fact unpaid, on August 8, 1968, the Central Kansas Medical Center, by letter explained the reason why the insurance carrier was not able to learn of the outstanding bill on March 7, 1968. This letter addressed by Mrs. Reba Raleigh in the credit office at the Central Kansas Medical Center to the insurance carrier regarding the claimant reads as follows:
“Enclosed is a copy of both our paid and unpaid bills which are being sent pursuant to our recent telephone conversation.
“Regarding the unpaid bill — when a person receives hospital out-patient services, the only information the hospital office has relative to the responsibility for payment is that originally furnished by the department rendering the service. When Mr. Kraisinger received the therapy treatments, for some reason this was not noted by the employees in the therapy department as being covered by compensation. As a result his bill was marked ‘personal’ and was not placed in the workmen’s compensation account file. Therefore when your representative telephoned this hospital regarding outstanding bills, the clerk who checked did not find an unpaid account for this patient in the workmen’s compensation accounts.
“Eventually we learned this bill was to be covered by workmen’s compensation when the patient’s attorney called us to that effect. This call was in response to the last statement which we sent to the patient.
“We regret the circumstances which has caused this confusion but would appreciate your cooperation in paying this account.”
This letter and the affidavit of Phyllis S. Linaweaver were filed as exhibits to the answer of the respondent and its insurance carrier.
On the 9th day of August, 1968, the insurance carrier paid the Central Kansas Medical Center $75 by check to cover this medical bill for James J. Kraisinger.
Upon the filing of the claimant’s petition for a lump sum judgment, the matter was submitted to the trial court on a motion for summary judgment as heretofore stated, and on the 10th day of January, 1969,. the court decided the matter in favor of the claimant. In its memorandum opinion the trial court said, among other things:
“There is no question that the award of the Examiner set out a bill due the-Central Kansas Medical Center in the amount of $75.00; that prior to the award, the respondent and insurance carrier had paid to the Central Kansas Medical Center a bill in the amount of $356.50, which bill had been incurred by the-claimant almost one year prior to the $75.00 bill.
“The evidence before the Court on Plaintiff’s Motion for Summary Judgment-consists of affidavit, other exhibits and admissions made on behalf of defendant in response to requests made by plaintiff’s attorney.
“While the affidavit of one Phyllis S. Linaweaver and the exhibit consisting-of a letter from the credit office of the Central Kansas Medical Center are persuasive in the defendant’s favor, the answers of defendant to plaintiff’s, requested admissions are in the opinion of the court rather damaging to defendant’s position. It is admitted by the defendant that copies of two letters, were received dealing with the seventy-five dollar bill in question. These letters both addressed to the Workmen’s Compensation Examiner with a carbon copy-to the defendant’s attorney are dated September 30, 1967 and November 10,. 1967, respectively, and because of their importance are set forth in this Memorandum Decision:
[Letters heretofore quoted are omitted.]
“The provisions of K. S. A. 44-512a have been dealt with on numerous occasions by all concerned, making it unnecessary to set out its provisions. The-provisions of this section are harsh and in the court’s opinion place an unjust burden on the respondent and insurance carrier. In the application of this provision, however, as in all sections of the Workmen’s Compensation Act, it must be construed liberally and in favor of the claimant. See Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 211 P. 2d 89; Palmer v. Fincke,. 122 Kan. 825, 253 Pac. 583, to name only several cases that have so held. There • is no doubt in the Court’s mind that the better practice in these cases should require claimant’s attorney to divulge the payment claimed unpaid by respondent and insurance carrier. This is not the law, unfortunately, and the-Supreme Court has not so interpreted this section.
“While the Court feels that the provision of 44-512a places an undue burden-on the respondent and insurance earner in all cases, as indicated in this: memorandum and many times by our Supreme Court, it is not the claimant’s-. responsibility to furnish this information to respondent and insurance carrier this burden is theirs.
“Therefore, the Court must in this case find for the claimant, costs to be assessed to respondent and insurance carrier. . . .”
The foregoing order was to become effective when journalized. Prior to the filing of the journal entry (February 5, 1969) the respondent and its insurance carrier on the 14th day of January, 1969, moved to reopen for the purpose of introducing additional documentary evidence. The trial court granted this motion and permitted the respondent and its insurance carrier to introduce correspondence between Mr. Boone and Mr. Balloun dated March 14, 1968, and the reply thereto dated March 18, 1968, heretofore recited in the facts. This correspondence was admitted by the claimant, accepted as evidence, and considered by the trial court in ruling on the motion for summary judgment. On the 18th day of February, 1969, the trial court affirmed its prior decision, stating in its memorandum:
“The Court from reading the latest documents is impressed with the thoroughness of the defendants in attempting to make sure that all medical bills were paid. The fact remains, however, that a $75 medical bill was outstanding at the Central Kansas Medical Center of which the defendants had knowledge of, through various other exhibits referred to in the original Memorandum Decision of the Court. Under our law there was no duty on the part of the claimant or the plaintiff in a case of this nature based on K. S. A. 44-5l2a to reveal to the defendant the bills that are outstanding so long as bills are outstanding after a demand is made under provisions of this statute, judgment must be rendered.”
The trial judge effectively summarized the facts and the issue presented by this appeal in the foregoing remarks quoted from the memorandum decisions.
This court has held and adheres to the rule that the “payment of compensation” includes furnishing and paying for medical treatment incurred by an injured employee covered by the workmen’s compensation act.
A case similar to the instant appeal was before this court in Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 303 P. 2d 168. The question there presented was whether under 44-512a, supra, the employer’s failure to pay within two weeks after the employee’s written demand a part of the medical expense incurred in the treatment of the employee, and included in the award made to the employee by the workmen’s compensation commissioner, accelerates and makes the employer liable to pay the entire award. The court there held the furnishing of medical aid and hospitalization by an employer to an employee was payment of compensation as the-term is used in the workmens compensation act; and that:
“An award by the workmen’s compensation commissioner, providing for the payment of certain medical expenses for the care and treatment of the-injured employee, is an award of compensation to the injured workman, including all items that go to make up the award for the benefit of those-named therein, to the same extent as an award for certain weekly payments of compensation made in his favor.” (p. 288.)
The court there also considered whether failure on the part of the defendant to pay on demand the medical expense under an award was sufficient to accelerate and make the defendant liable-to pay the entire award. After quoting 44-512a, supra, the court said:
“Under the plain language of the statute, a failure to pay any part of the compensation awarded, within two weeks after demand, authorizes the employee to bring a suit for all unpaid compensation awarded. The failure to pay, upon demand, the sum of $396 due Dr. Muller for medical treatment, being-compensation and a part of the award, authorized the plaintiff to maintain this action for the unpaid compensation awarded. There is nothing in the act that indicates such a suit may be maintained, only in the event of failure to-pay the weekly installments due the -workman.” (p. 289.)
K. S. A. 44-512a has been amended since the decision in the-Owen case (180 Kan.) to extend the time for payment after the service of demand from two weeks to twenty days. On the facts in-this case there was a failure on the part of the respondent and its. insurance carrier to pay the $75 item to the medical center for a period of forty-four days, or more than six weeks, after serving the-written demand.
But, on the admitted facts, was the $75 item specified in the-award “due” the Central Kansas Medical Center within the contemplation of 44-512a, when service of written demand was made-upon the respondent and its insurance carrier? For the reasons, hereafter assigned the $75 item was not due in the eyes of the-law when written demand was served pursuant to 44-512a, and the demand was ineffectual to accelerate payment of the entire-amount of compensation awarded.
The claimant relies on Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 303 P. 2d 168, for the rules of law heretofore stated, and on a paragraph in Criss v. Folger Drilling Co., 195 Kan. 552, 407 P. 2d 497, where the court made a statement concerning whose- burden it was to determine the specific items remaining unpaid in a workmen s compensation award:
‘It has also been held that 44-512a, supra, places the burden upon the respondent and its insurance carrier to determine what is due and payable where an award has been made ordering them to make payments. In Miller v. Massman Construction Co., 171 Kan. 713, 237 P. 2d 373, the court held it was the respondent, not the claimant, who was responsible for the passage of time in which it might have paid the accrued compensation and avoided the statute under which the entire award became due. The court further stated it was the respondent and its insurance carrier that had the burden of avoiding the effects following the 44-512a demand, and that neither the claimant nor his counsel was under any obligation to advise the respondent of the exact amount due.” (p. 555.) (Emphasis added.)
In Criss the court also reviewed Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267, upon which the claimant relies, hut then distinguished the cases discussed by observing:
“The foregoing decisions are indicative of the law as applied to the factual situations there confronting the court. In each of these cases the distinguishing characteristic is the fact that the respondent knew the actual amount of compensation awarded, and that sums were due and payable under the award within the prescribed period from the demand.” (p. 555.) (Emphasis added.)
If, as our cases hold, “payment of compensation” includes furnishing and paying for medical treatment incurred by an injured employee covered by the workmens compensation act, and an award of compensation to the injured workman includes all items that go to make up the award for the benefit of those named therein, to the same extent as an award for certain weekly payments of compensation made in the workman’s favor, then the injured workman stands in the same shoes regarding the payment of compensation as the medical center which provides him service and is designated as a creditor in the compensation award for the amount due it. In other words, if the Central Kansas Medical Center has not been paid the $75 due it, which is a part of the compensation awarded, then the workman has not been paid compensation to that extent. On the other hand, if the Central Kansas Medical Center has been paid, then the workman has been paid compensation to that extent.
Now, if the workman stands in the same shoes as the Central Kansas Medical Center regarding payment of the $75 item in question, then an admission by the Central Kansas Medical Center, that there is no outstanding bill against the claimant under the workmens compensation claim, is equivalent to an admission that the $75 item has been paid. This admission is binding on the claimant and overrides other considerations, until such time as the Central Kansas Medical Center or the claimant notifies the respondent and its insurance carrier to the contrary — that it (the Central Kansas Medical Center) has made a mistake and corrects it to the satisfaction of the respondent and its insurance carrier.
Admissions against interest made by a party are the strongest kind of evidence and override other factors. (Hiniger v. Judy, 194 Kan. 155, 165, 398 P. 2d 305; Reeder v. Guaranteed Foods, Inc., 194 Kan. 386, 393, 399 P. 2d 822; and see Green v. Higbee, 176 Kan. 596, 272 P. 2d 1084; Stewart v. Gas Service Company, 252 F. Supp. 385 [D. Kan. 1966]; and K. S. A. 60-460 [g] and [h].)
Counsel for the claimant argue in their brief that the appellants “admit nonpayment of the medical bill as ordered in the award, but plead third party error as the cause for nonpayment.” Here, however, the claimant and the Central Kansas Medical Center are on the same side of the case, and insofar as payment of the $75 item is concerned stand in the same shoes. They are bound as if they were one and the same party. Instead of being third party error, this is equivalent to being error on the part of the claimant himself.
Counsel for the claimant were fully aware of the foregoing situation because they devote several pages of claimant’s brief to the proposition that this case involves solely a factual issue which the trial court determined adversely to the respondent and its insurance carrier. It is said in the claimant’s brief: “This appeal is not based in any manner on any error by the trial court in its understanding of the law, but rather on the sole factual issue that its failure to pay the medical item was the result of a bookkeeping error by a third party.”
The appeal herein presents a pure unadulterated question of law based upon uncontroverted facts which the claimant has admitted by his motion for summary judgment. The answer of the appellants fully set forth the facts heretofore disclosed. The answer was fully documented with six exhibits which the claimant admits by his motion to be true. These included the affidavit of Phyllis S. Linaweaver and the explanation of the Central Kansas Medical Center by letter dated August 8, 1968, which is the equivalent of claimant’s admission of the mistake on his part that was previously made reporting payment of the item. It is to be noted this explanation by the Central Kansas Medical Center was not made until the 8th day of August, 1968, which is after the 44-512a written demand was served and after the claimant made demand, after reciting nonpayment of the account, for the entire balance of compensation due. Apparently the explanation of the erroneous report of payment satisfied the respondent and its insurance carrier because payment of the $75 item was promptly made on the next day.
The point of law decided in Criss v. Folger Drilling Co., supra, controls the factual situation presently before the court. There the attorney for the claimant had paid medical fees of Dr. Coffey, and the case arose because it was contended the failure of the respondent and its insurance carrier to pay Dr. Coffey, after serving the 44-512a demand, was sufficient after the lapse of twenty days to accelerate the award. The court held, however, that the sum of $50 was paid by counsel for the claimant and said:
“. . . Had the respondent made inquiry of Dr. Coffey concerning the charge for his services, he would have answered, as he did in his deposition, that he had been paid. And since the claimant did not pay for the services of Dr. Coffey, the claimant cannot urge that compensation awarded him for the services of his examining physician was due and payable when the 44-512a demand was served upon the respondent.” (pp. 555, 556.)
Here the admission of payment of the $75 item by the Central Kansas Medical Center to the respondent and its insurance carrier is equivalent to an admission of payment by the claimant, which is analogous to the payment of the $50 item to Dr. Coffey by claimant’s counsel in the Criss case. In both situations there was in the eyes of the law nothing due on the items in question when the 44-512a demand was served by the claimant.
As the record stands in this case, when the 44-512a demand letter was served upon the respondent, there was a zero balance owed at the Central Kansas Medical Center in the workmen’s compensation claim of James J. Kraisinger as previously reported to the insurance carrier.
To pinpoint the obligation of the claimant in this case the facts will be highly summarized. The chronology of events is extremely important.
The respondent and insurance carrier paid $356.50 to the Central Kansas Medical Center voluntarily for services to the claimant prior to the entry of the award. The workmen’s compensation award did not include any of the items comprising this sum of $356.50, except insofar as it referred to “medical heretofore paid.” It is true the expenses itemized in this bill were incurred approximately one year prior to the therapy treatments which comprised the $75 item, but the correspondence of September 30, 1967, and November 10, 1967, were prior to the approval of the award by the workmen’s compensation director which included the $75 item.
Upon approval of the award by the workmen’s compensation director on the 7th day of March, 1968, counsel for the respondent and insurance carrier immediately initiated correspondence with counsel for the claimant on the 14th day of March, 1968, making payment of all unpaid items in the award, and specifically calling attention of the claimant and his counsel to the fact that the Central Kansas Medical Centers bill had already been paid in full. This was based upon the admission of the Central Kansas Medical Center to the Alliance Mutual Casualty Company that the item had been paid.
If this information was incorrect counsel for the respondent and its insurance carrier requested clarification, but no clarification was forthcoming. Instead, counsel for the claimant evasively answered “I have not had an opportunity to check to see whether or not the payments are correct.”
Under the circumstances presented by the facts in this case, counsel for the claimant was obligated at that time to inform counsel for the respondent and its insurance carrier of the mistake.
Further opportunity was given to correct the mistake by notifying counsel for the respondent and its insurance carrier when the 44-512a demand was filed on the 26th day of June, 1968. But again nothing was said by counsel for the claimant and sufficient time had elapsed since the March 18, 1968, letter to check the accuracy of the payments. In fact, counsel for the claimant knew of the error or the 512a demand letter would not have issued. Counsel for the claimant requested the Central Kansas Medical Center to correct its records in response to the last statement (date not indicated) mailed to claimant.
Simply stated, the respondent and its insurance carrier were misled by a statement from the Central Kansas Medical Center, which was equivalent to an admission of payment of the $75 item. As such, the admission is binding on the claimant who stands in the same shoes as the Central Kansas Medical Center. Under these circumstances the claimant has the affirmative duty to correct the mistake by actual notice and satisfactory explanation to the respondent and its insurance carrier, before he can issue an effective 512a demand to lay the foundation for acceleration of the compensation awarded for nonpayment of the $75 item.
It is an exercise in futility to say the workmens compensation act shall be liberally construed in favor of the workman in the 44-512a situation here presented. Is it the purpose of the act to give the workman a lump sum award and mold the law to support such conclusion? To answer this question, one must ascertain the real purpose of the workmen’s compensation act. The basic purpose of the act is to shift the burden of injury to workmen occasioned in the course of employment upon industry. To accomplish this purpose the act provides an orderly procedure for the determination of compensation due which is made payable throughout a period of time which theoretically corresponds with the period of the workman’s disability — when his earning capacity by reason of injury received in employment is impaired.
Now, when it is said the workmen’s compensation act shall be liberally construed in favor of the workman, is one to look to this legislative purpose of the act, or must one assume it is the purpose of the workmens compensation act to see that the workman gets all of his compensation in one lump sum? Workmen and their families are accustomed to live on their earnings from pay day to pay day. To force a lump sum payment of the award cannot be the purpose of the act; 44-512a is remedial in character and designed to enforce the overall purpose of the act. (Owen v. Ready Made Buildings, Inc., 181 Kan. 659, 313 P. 2d 267; and Teague v. George, 188 Kan. 809, 815, 365 P. 2d 1087.)
In 101 C. J. S., Workmen’s Compensation, § 841, it is said under “Commutation of Award:”
‘It is not the purpose of such provision to destroy the general scheme of the compensation act of establishing periodical payments and to permit the commission in every instance to commute periodical payments into a lump sum payment. Rather it is the purpose to provide for particular and exceptional cases. The exception must be in the interest of justice, and should not depend on the whim or caprice of claimant or the employer, or on an arbitrary ruling of the commission. Each case should be considered by itself. . . .” (p. 167.)
By analogy, it is not the purpose of 44-512a to destroy the general scheme of the workmen’s compensation act of establishing periodical payments.
The judgment of the lower court is reversed. | [
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|
The opinion of the court was delivered by
Price, C. J.:
Defendant appeals from a conviction of “escape” as defined by K. S. A. 21-734.
The question presented is whether the “Kansas state reception and diagnostic center” (K. S. A. 76-24a01 et seq., as amended) and hereafter referred to as Center, is a penitentiary or prison within the meaning of the above mentioned “escape” statute.
For reasons hereafter appearing we hold that it is, and that defendant’s contentions to the contrary cannot be sustained.
In 1963 defendant was convicted in the district court of Sedgwick county of the offenses of burglary in the second degree, larceny in connection with such burglary, and possession of burglary tools. Sentences of not less than 5 nor more than 10 years, not less than 1 nor more than 5 years, and not less than 1 nor more than 3 years— were imposed — to run concurrently. Pursuant thereto defendant was committed to the state penitentiary at Lansing.
In July 1966, while confined in the state penitentiary under the above sentences, defendant was transferred to the Center which is located at Topeka. There he was housed in a barracks outside the security fence, and performed certain maintenance duties about the Center. On the night of August 25, 1966, he was found to be missing. Five days later he was apprehended in Kansas City. He was charged with escape in violation of K. S. A. 21-734.
In substance, the information charged that defendant, while being lawfully confined in the state penitentiary at Lansing under a sentence for term of years less than life, and having been assigned and transferred to the Center at Topeka as a “trusty” and while being lawfully confined therein — escaped from the confinement and custody of such institution.
K. S. A. 21-734 reads—
“If any person confined at hard labor for any term less than life shall escape therefrom without being guilty of breaking such prison within the meaning of the preceding section, he shall upon conviction be punished by confinement and hard labor for a term not exceeding three years, to commence at the expiration of the original term of imprisonment.”
The preceding section (K. S. A. 21-733) provides that if any person confined in the penitentiary for any term less than life shall escape from such prison or from the custody of the officers, he shall be liable to the punishment imposed for breaking the prison.
Defendant’s motion to quash the information on the ground it stated no offense was overruled. He was convicted as charged, and this appeal followed.
The gist of defendant’s contentions may be summarized briefly:
The “escape” statutes, above, have reference only to a “prison or penitentiary”. The law creating the Center was enacted long after those statutes, and the legislature simply failed to keep pace in enacting legislation making it a crime to escape from such new facility. In other words, it is argued that the Center is not a prison or penitentiaiy within the meaning of the escape statutes — and, there being no statute specifically referring to escape from the Center — to do so does not constitute an offense.
The Center was created by Chapter 436, Laws of 1961, now appearing at K. S. A. 76-24a01, et seq., as amended. Under provisions of the act a “state penal institution” is defined as the state penitentiary, the state industrial reformatory, “or any other penal institution hereafter established by the state for the confinement of male offenders.” The Center is placed under the jurisdiction of the state director of penal institutions. The declared function and purpose of the Center is to provide a thorough and scientific examination and study of all felony male offenders to the end that a maximum of rehabilitation may be accomplished. Male offenders are first taken to the Center for examination and study, and after completion of the recommended rehabilitation program are delivered to one of the state penal institutions for confinement. The director of penal institutions may make requisition upon the warden of the penitentiary for any prisoner and transfer such prisoner to the Center for examination and study, and upon completion of such study and examination the prisoner shall be assigned to a penal institution for confinement in like manner as new offenders are assigned. The director also may direct a prisoner in the penitentiary to be transferred to the Center for the purpose of performing work or services at the Center, and a prisoner so employed is entitled to the same good-time allowances as he would receive for similar work or service at the institution from which he is transferred. The director is empowered to make all rules and regulations necessary for the discipline and confinement of all prisoners at the Center.
The word “penitentiary” — signifying a prison or place of punishment — means the place of punishment in which convicts sentenced to confinement and hard labor, are confined by authority of the law (Millar v. The State, 2 Kan. * 174, syl. 7; The State v. Nolan, 48 Kan. 723, 731, 29 Pac. 568). And see State, ex rel., v. Owens, 197 Kan. 212, 221, 416 P. 2d 259.
The scope, purpose and intent of the creation of the Center was to facilitate the administration of justice by improving and modernizing the rehabilitative capacity of the state penal system. The transfer of defendant from the penitentiary at Lansing to the Center was merely an “institutional transfer” — fully authorized by the act creating the Center. By the very provision of the act [K. S. A. 76-24a01 (c)] the Center is declared to be a “state penal institution”. It follows that escape therefrom under the circumstances related constitutes an offense under the “escape” statute in question.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action upon a promissory note given by the defendant, A. R. Head, to the plaintiff, Luther Lapham, for $225. The note was executed under the following circumstances: In 1873, one A. D. Edwards held a quarter-section of government land near the plaintiff's residence, and Edwards desiring to go east on account of his wife, and Lapham desiring the claim for a brother then on a visit to Texas, a sale of the improvements on the land was made by Edwards to Lapham in consideration of $1,000, for which Lapham gave his notes. At this time, Lapham and his brother-in-law, John Layner, had the cultivated ground on said land rented from Edwards, and Layner resided thereon with Edwards. On his return, Lapham’s brother concluded not to take a claim, and went back east. Lapham then made arrangements with Layner, and a filing in the local United States land office was made for the land, July 3d, 1873, in the name of John Layner. At this time both Layner and Lapham were residing upon the land. July 6th, 1873, the defendant Head came into the neighborhood of this land, heard of it, and concluded a bargain with Lapham, whereby he agreed to pay Lapham $1,050, and Lapham agreed to relinquish the filing he held on the land, and to surrender the possession, improvements and crops to Head. On July 7th, 1873, Lapham and Head went to the United States land office in Salina, where the Layner filing was relinquished — a team, and the note in suit, and three other notes, delivered to the plaintiff — and within a few days thereafter, Lapham and Layner vacated the land, leaving Head in full and undisputed possession, with all the crops and improvements. At the time of the trial of this case in the court below, Head was still in the undisputed enjoyment of the premises. On the trial, the defendant claimed a want of consideration for the note and part payment. The court found payment to the amount of $220.70, made February 10, 1874; that Lapham did not have a valid filing on the land when the note in suit was executed; and concluded as a matter of law, that the note was given in pursuance of an agreement which was contrary to public policy, and that no recovery could be had upon it.
The case was tried by the court without a jury. The court made special findings of fact and conclusions of law, and upon these findings and conclusions rendered judgment in favor of the defendant and against the plaintiff for costs.
We think the court below erred both as to the facts and the law of the case.
The defendant claims, and he so testified on the trial, that up to the time of making said notes he did not know that Lapham’s name was Lapham, but supposed that it was John Layner, and that at the time of making said notes he learned for the first time that Lapham was Lapham and not Layner. He also claims and testified that he thought whilex he was dealing with Lapham he was dealing with the man in whose name the said filing of said declaratory statement for said land was made, and that the filing was valid, and gave' to the person in whose name it was made a valid right to the land. He also now claims, though there was no evidence to support such claim, that he delivered said team (consisting of a pair of mules and harness and a wagon) to- Lapham before said notes were executed, and before he knew that Lap-ham was not Layner. He also now seems to claim that Lapham sold him the land, and not merely that Lapham agreed to relinquish to him all his and Layner’s claim to the possession of the land, and all their right to purchase the same from the government, and all their improvements and crops thereon; and he also seems to make several other claims not sustained by the evidence, which we shall not specifically mention.
The following evidence, we think, will show that he did know who Lapham was before he had any dealings with him; that he did know from the commencement of their dealings in whose name the filing was made; that he did not deliver any property or anything else of value in payment for the claim until after he had drawn up and signed said notes in which Lapham, was the payee, and that he knew he was not purchasing the land (but only improvements, etc.) from Lapham.
Mr. A. W. Segar testified on the trial, as follows:
“Am acquainted with the parties. First saw Head about July 6, 1873, where he was camped on the creek below me, and near this land. He was looking for a place, and I told him that Lapham had a claim for sale; that he had two, and had to sell one.- Afterward, I took Lapham down and introduced him to Head as Mr. Lapham who had the claim. I think Head knew that his name was Lapham. I told Head the place' was mixed a little; that Lapham could not hold if. I knew that Lapham had bought the place for one of his brothers. I knew when I spoke to Head that Layner had a filing on the land, and claimed it. I think L told Head that Layner had a filing ok it.”
Mr. Charles Hunt testified as follows:
“Am acquainted with Lapham and Head. Came withi Head to this country. Was at Lapham’s place with Head,. July 6th, 1873. Mr. A. W. Segar was at our camp before-we saw Lapham, and he told Head that Lapham had a claim, to sell. I did not go with Head to look at the place at first. He came to me and got me to go down to it. I think Head knew when he made the contract with Lapham that his name-was Lapham. It was understood, and I think Head knew,, that the filing was in Layner’s name. I think so from what he said.”
The defendant, Head, himself testified as follows:
“Mr. Segar introduced me to Lapham. I was camped on. the creek in that neighborhood, and Mr. Segar came where-we were and told me of this place of Lapham. I was then looking for a place. I wanted to get a place partly improved if I could. Mr. Segar told me Lapham had a place for sale. I went with Lapham to look at the place, and we walked over it. I made an examination of it, so that I might know what it was. Everything looked very well, and the place was-in good condition,” etc.
The plaintiff Lapham testified as follows:
“Got acquainted with the defendant in July, 1873, near-where I was living. Mr. A. W. Segar introduced me to him mentioned my name; and Head knew at that time that my name was Lapham.”
Lapham and Layner were brothers-in-law, and were at this time living on the land in the same house. Layner testified by deposition as follows:
“The defendant A. R. Head came to the place where Lap-ham and this deponent resided, about the month of July,, 1873, in said Saline county, Kansas, and purchased from the- plaintiff Lapham the said premises; that this deponent told said defendant Head that the land was filed on in this deponent’s name, and never told him that it was not filed on in my name; that the land was relinquished to the defendant Head with my knowledge and consent; that deponent moved from the premises and gave possession thereof to the defendant Head, so that the said plaintiff might realize the purchase money paid Edwards for the improvements on the laud; that he would not have thus surrendered possession if the said defendant had not purchased the said premises from plaintiff.”
The defendant looked at said land on July 6, 1873. On the next day, he and the plaintiff went to the United States land office at Salina, where the plaintiff relinquished Layner’s claim to the premises as aforesaid. The defendant Head testified with reference thereto as follows:
“July 7, 1873, we went to the land office, and he (Lapham) made this relinquishment in Layner’s name on the back of the filing paper. I saw Lapham sign the name of John Layner to the relinquishment. Layner was not with us in town at that time. The filing paper of Layner, with the relinquishment, was then given to me by Lapham, and I have had it ever since. When the relinquishment was made, I knew that the filing was in the name of Layner. I found it out by seeing the-relinquishment made out and signed.”
Said “filing paper” also showed that the filing was made in the name of Layner.
The defendant further testified:
“This was done July 7, 1873. Pie signed the name ‘John Layner’ to the relinquishment. I did not know then but that he was Layner; did not know his name was Lapham. We then went to a store in Salina, and I wrote out a note and handed it to him. I drew the note payable to John Layner. He said then that his name was not Layner but Lapham, and he wanted the notes drawn payable to him. I tore that note up, and wrote new notes payable to Luther Lapham, signed them, and delivered them to him. After we had been to the land office, and after the relinquishment was made, and before we left town, I turned the team over to Lapham. . . . We came to Salina that day with the team that I traded to Lapham. I drove it to town, and he drove it home. I turned it over to him after the relinquishment was made. I don’t remember whether the team was turned over before or after the notes were drawn.”
The plaintiff testified on this subject as follows:
“Head knew that the filing was in the name of Layner before he delivered either the team or notes. Team was not def livered-until after the notes. Head drove team to town, and as we went to start home he turned it over to me, and I drove ■home.”
We think the court below erred in finding that the team was turned over to Lapham before the notes were executed, .as there was no evidence to support this finding.
With respect to what the defendant supposed he was purchasing from the plaintiff, he testified as follows:
“I purchased the possession and improvements of a piece of land from the plaintiff. What I wanted was the possession and improvements of that piece of land. I got that. I •did not expect to get title to the land from Lapham, but from the government. When I made the bargain with Lapham, I agreed to give him $1,050 for the possession and improvements and the land, and the relinquishment of a valid filing •on the land by Lapham, which I supposed he had, and which was a part of the consideration I paid. I intended to file on the land and get my title and patent from the government, but I also expected that Lapham would relinquish a valid filing to the land.”
With respect to some bonds which the defendant pledged as security for said notes, he testified as follows:
“I deposited with Mr. A. W. Segar some Brown county (Ohio) bonds, as collateral security for the four notes I gave Lapham. The next day, or several days after, we were in Salina; I delivered the.bonds to Segar.”
The plaintiff testified that “in a day or two after they returned from Salina, some Brown county (Ohio) turnpike bonds were deposited with A. W. Segar as security for the notes.” Whether the defendant deposited these bonds with Segar before or after he got possession of said land, is not shown.
Afterward the defendant made two or three different payments on said notes — one of $3, one of $39.50, and possibly one of $220.75. As to the last item of payment the pre ponderance of the evidence shows that it was not a'payment, except upon a condition precedent which has never been fulfilled. If, however, it should be considered as a payment absolute, then it should be, according, to the preponderance of the evidence, set aside for fraud. It was made merely by delivering to the plaintiff some of said Brown county (Ohio) turnpike bonds, which had previously been deposited with Segar as collateral security for said notes. ■ Said bonds were in fact, though the plaintiff did not know it, worth but little, if anything; and the plaintiff received them only upon the assurance from the defendant that they were good, and that they would be paid when presented on that or the next month. The court allowed the defendant to prove that this supposed payment was an absolute payment, by allowing the defendant to testify among other things as to what his “understanding” was upon the subject. The plaintiff objected to the- introduction of this evidence, for various reasons, and also moved to strike it out, but the court overruled his objections, and said motion was overruled, and the plaintiff duly excepted. We think the court erred in this. But the most serious error committed by the court below — the one which goes to the very foundation of the plaintiff’s right to recover — was in holding that the contract between the plaintiff and defendant was void, at least partially if not totally, as being against public policy. We do not think the contract was or is void in any respect. Gen. Stat. 184, §9; Moore v. McIntosh, 6 Kas. 39; Bell v. Parks, 18 Kas. 152; Fessler v. Haas, 19 Kas. 216; Wilson v. Webster, Morris (Iowa), 312; Stannard v. McCarty, Morris, 125; Hill v. Smith, Morris, 70; Freeman v. Holliday, Morris, 80; Ellis v. Mosier, 2 G. Greene, 246; Pierson v. David, 1 Iowa, 23; Spry v. Sleppy, 15 Iowa, 409; Clark v. Shultz, 4 Mo. 235; Stubblefield v. Branson, 20 Mo. 301; Welch v. Bryan, 28 Mo. 30; People v. Shearer, 30 Cal. 645.
The defendant received all he bargained for. He did not expect to get any title to the land from Lapham. He did not purchase Lapham’s filing or Layner’s filing. He did not suppose that any previous filing by Lapham or Layner or by any other person would be of any benefit to him. All that he contracted for was the possession of the land with the improvements and the crops thereon,, and he got all these. It is not against the public policy of this state, as is shown and declared by our own public statutes, (Gen. Stat., p.184, §9,) for persons in good faith to enter into a contract for the purchase and sale of improvements made on the public lands of the United States. And whether the purchaser in such a case gets any legal consideration for his agreement or promise or not, he nevertheless cannot under such statutes be allowed to set up a want of consideration to avoid performing what he has voluntarily agreed to perform. Even if the legislature has no power to authorize a sale of improvements on the public lands, still it has the power to say that the purchaser of such improvements shall not be relieved from the performance of his contract made in consideration of such improvements, merely because of a supposed want of .consideration for his contract. It is even competent for the legislature to render illegality of consideration, as well as a want of consideration, no defense to an action on a contract. But in this ease there was nothing illegal, so far as this contract is concerned. The land was subject to settlement and sale. Edwards had the rightful possession thereof. He rented a portion thereof to Lapham and Layner. They took the rightful possession under Edwards of this portion of the land, and put in their crops. Lapham then bought Edwards’s improvements, paying or agreeing to pay f 1,000 therefor. Edwards then gave to Lapham and Layner the full possession of the entire premises. They then filed their declaratory statement for preemption in the name of Layner. Perhaps as against the government of the United States, and at the instance of the government, this filing would not beheld. to be valid; but so long as the government treats it as valid, all others having no prior right to the land must also treat it as valid. (Houck v. Kelsey, 17 Kas. 333.) At the time that said contract was made between the plaintiff and defendant, the defendant had no right to treat said filing of Lapham and Layner as void. Neither party in the present case contracted to do anything illegal. The plaintiff agreed to give or rather to relinquish to the defendant the possession of said land, with the improvements and the crops thereon, and to relinquish said filing. He did not agree to sell to the defendant said filing, for everybody must know that that could not be done, whether the filing was valid or void. Now it is not claimed that the agreement to give the defendant the possession of said land, improvements and crops was illegal; and how it can be claimed that it was illegal to agree to relinquish said filing for preemption, we cannot understand. Suppose that the filing was void: would there even then be any illegality in relinquishing it, or in agreeing to relinquish it? And whether valid or void, the defendant did not purchase the filing, and could not under any circumstances have gotten any benefit from it. The defendant does not claim that anything that he agreed to do was illegal. The claim of the defendant that he did not know who Lap-ham was, or in whose name the filing was made, amounts to nothing, for before the contract was finally consummated he did know beyond all doubt all of these things. He in fact knew every material circumstance necessary to be known in order to make a valid and binding contract; and he knew all of these things before he delivered to Lapham said notes, or said team, or anything else of value. Pie knew them all before he made the contract, or at least before he completed the contract; and then completed the contract with his eyes open. He has no room to plead ignorance of facts, and his alleged ignorance of law will not excuse him. The plaintiff relinquished to him a filing and a possession with improvements and crops, which the government was allowing him, the plaintiff, to enjoy, and which might have been of great value to the plaintiff, and this relinquishment was a sufficient consideration for the defendant’s contract.
The court below also erred in overruling the plaintiff’s motion for a new trial. The judgment of the court below will therefore be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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Per Curiam:
The above case is affirmed, upon the authority of Mayberry v. Sivey, 18 Kas. 291, and Trembly v. The State, 20 Kas. 116. | [
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The opinion of the court was delivered by
Horton, C. J.:
This is the second time this case has been here on error. (Brown v. Holmes, 13 Kas. 482.) On the new trial awarded by this court, the chattel mortgage of October 31, 1871, from Ledrick to Brown & Kinsolving, was duly proved and admitted; also the identity of the cattle in question, with those in the mortgage, and their value; that Holmes had personal knowledge of the mortgage from the time it was given; and that he received the cattle from Led-rick to feed at the rate of four dollars per head for all he got through the winter. The court sustained a demurrer to the evidence of plaintiffs, on the ground, we suppose, that the defendant’s possession was rightful, as his lien for feeding had never been paid or tendered. Plaintiffs claim that no payment or tender of the charges for wintering the cattle was necessary. In support of this view, an attempt was made to introduce certain testimony which they allege proved the defendant based his refusal to deliver .up the cattle on the asser tion of title in one Plumb, and by his express declarations dispensed with any tender to himself.
The evidence shows that about May 1, 1872, prior to the commencement of this action, the plaintiffs then living at Council Grove, Morris county, sent PI. E. Hager and George Stone, from Council Grove to defendant’s farm, in Chase county, for the cattle. The only instruction given to Stone was, to accompany Mr. Hager and demand the stock of defendant by virtue of the chattel mortgage. Mr. Hager was directed, before starting for the cattle, to take a copy of the chattel mortgage, then to go to defendant’s place in Chase county, and demand, by virtue of the chattel mortgage, the stock in Holmes’s care belonging to Ledrick; and if Holmes was fool enough to let him have them, to bring them to Council Grove as fast as he could. If Holmes would not let him have them, to get Holmes to drive them to Council Grove and plaintiffs would pay him well for wintering the stock and for driving them. On reaching Holmes’s place, the following conversation was had:
“Holmes was asked whose stock he was wintering. He said they belonged to Ledrick. Hager then told Holmes he had a copy of a chattel mortgage on those cattle from Led-rick to Brown & Co., and demanded the cattle under the mortgage. Holmes said he would not give them up until he was paid for wintering them. Hager then told Holmes he demanded them by virtue of the chattel mortgage, as deputy sheriff of Morris county, under instructions from Brown & Co. Holmes said he would not give them up, and then Hager told Holmes that if he (Holmes) would help drive these cattle to Council Grove, Brown & Co. would pay him for wintering them, or, if he was not satisfied with that, he (Hager) would get the money and bring it to him, and then take the stock. Holmes answered, he would not let Brown & Co., nor Ledrick, nor the sheriff have the stock, if they did pay for them; that he would not let Hager have the stock, even if he paid; that he would not take the money from Hager if he had it there; that Ledrick was about to break up, and had given Plumb a bill of sale of the cattle; that Plumb had told him not to let any one have the cattle but him; that Plumb' would see he got his pay for wintering them, and he (Holmes) would stand by his agreement with Plumb, and hold the cattle for him till he paid him.”
The reply of Holmes to Hager, when the latter stated “he would get the money, bring it to him, and then take the stock,” was excluded, and is the error complained of.
As the defendant expressly made mention of the lien he had for the wintering of the cattle, the fact that he added thereto that he should hold them for Plumb, cannot be considered a waiver of the lien on his part. This evidence did not tend in any way to prove an abandonment of his lien or his intention to give up the cattle until his charges were paid. As to the point that this evidence should have been admitted to prove that an actual tender was dispensed with, it is sufficient to say that Hager had no direction or authority to say to the defendant on behalf of the plaintiffs that “he would get the money, bring it to him, and then take the stock.” His instructions had been fully carried out before this statement,, and his promises about bringing the money were substantially the promises of a stranger. He was then acting beyond the scope of his authority, and not representing his principals. The answer of the defendant being to a stranger, was properly excluded by the court. Hager had no authority to make any tender, and the refusal of defendant to him did not dispense with a tender of the charges on the part of the plaintiff before commencing their action.
The other questions in the action were disposed of when the case was in this court on the former occasion: Brown v. Holmes, supra.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
After the application for an injunction had been denied by the district judge, in the case of The State v. The Board of County Comm’rs of Marion County, just decided, the commissioners met on October 7th, 1878, and opened bids for the construction of permanent county buildings at Marion Centre. They then accepted the bid of Henry C. Koble, and entered into a contract with him, on behalf of the county, for the erection of said, buildings at a cost of $7,450. Thereupon, they appropriated $7,450 out of the general county fund for the payment of such buildings; and before any work had been done, under the contract, ordered that a warrant should be drawn upon the treasury of the county of Marion and against the general county fund, in favor of said Koble, for $4,500, as part payment under the contract. On the said 7th day of October, the warrant was issued, and paid out of the general county fund. The plaintiff then applied to the judge of the district court of Marion county for a temporary injunction against the board and the other defendants, to restrain the issuance of any other warrants for a like purpose, and to prevent the further action of the commissioners and the other defendants, under the said contract, at the expense of the county. This application was heard on October 23d', 1878, and denied by the district judge.
The decision of this court in the case of The State v. The Board of County Comm’rs of Marion County, supra, is decisive of this case. The alleged contract of October 7th, 1878, is null and void as against Marion county, on account of the want of power' on the part of said commissioners to execute it. The warrant of $4,500 was unlawfully drawn and paid.' To prevent further illegal acts of the defendants, under said contract, in the erection of county buildings and using the general county revenue therefor, the district judge should have ■ granted 'the temporary injunction prayed for by the plaintiffs. His refusal to do so was error.
The order of the district judge will therefore be reversed, and the case remanded with direction to said judge to grant the injunction.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, O. J.:
This was an action brought by the defendant, in error against the plaintiff in error in the district court of Atchison county to recover the sum of $35, the value of a Colt alleged to have been killed on the line of the road of the plaintiff in error, oh or about the 8th day of October, 1877, .while in the operation of its said railroad. The case was tried in the court below on the 20th day of June, 1878, at the June term of said court, before a jury duly impanneled to try the same. After’ the plaintiff in the court below had rested his ease, the defendant in that court, the railroad company, filed its demurrer to the evidence, which was overruled; and without the introduction of further evidence the case was submitted to the jury, who returned a verdict for the plaintiff for the sum of .$32.50, the value of the colt, and $25 attorney’s fees. The railroad company thereupon filed its motion for a new trial, which was overruled by the court, and judgment entered on the verdict for the defendant in error. The plaintiff in error now seeks a reversal of said judgment.
It is conceded that the defendant in error was the owner of the animal in controversy, and that the line of the railroad company’s road was unfenced; but it is claimed that there was not sufficient proof that the animal, if killed, came to its death on the dine of the road of plaintiff in error, by the engineer cars of said company, or in any other manner whatever in operating such railway. The testimony upon these disputed points was as follows:
The plaintiff was then called and sworn as a witness, and testified as follows:
Q,. You are the plaintiff in this action, Mr. Pate ? A. I am; yes, sir.
Q,. Please state if on the 8th day of October you were the owner of one iron-gray colt? A. I was. There is a little dispute about the color of-the colt; some claimed that it was a black colt, but I regarded it as an iron-gray.
Q. Where do you' reside, Mr. Pate? A. Kapioma township, Atchison county, Kansas.
Q,. How old was your colt, Mr. Pate, on or about the 8th day of October, 1877? A. Something near six months old.
Q,. What sized colt was it? A. Oh, the colt was what I called a good-sized colt.
Q. What was its color ? A. The colt was, I should say, a ' very dark iron-gray. Some people would call it black, but by observing closely you could see the gray hairs.
Q,. Where was that colt on or about the 8th day of October, A. D. 1877? A. I can’t tell you exactly where it was all day, because I .was not at home all day.
Q,. Where was it the last time you saw it? A. About 10 o’clock in the morning I was going to Muscotah. Just before I started away I saw the colt at my place, where it was usually running, on the outside of the bars.
Q,. How far from the track of the Central Branch? A. I suppose somewhere about 200 or 300 feet from the track.
Q,. What railroad runs along there? A. Central Branch.
Q,. The Central Branch Union Pacific Railroad? A. Yes, sir.
Q,. This colt was within 200 or 300 feet of the track? A. Yes, sir.
Q,. Where did you go on that day ? A. To Muscotah.
Q. I will ask you if you know of a train on the Central Branch Union Pacific Railroad passing along there that day? A. Something near 11 o’clock, I guess, after I had left home going to Muscotah, I heard the cars pass.
Q. Which way were they going? A. Going east.
Q. Did you ever see the colt after that at any time? A. I don’t know whether’ I did or npt; I can say I never saw it alive again.
Q,. State what you did see. A. I saw a grave dug by the side of the railroad track, and a part of a colt that resembled my colt very much.
Q. How long was this after you went to Muscotah? A. Perhaps a week.
Q,. Have you ever seen that colt alive since? A. I never have.
Q. Was this grave at or near any public crossing ? A. No, sir.
Q,. When you saw this colt, buried; or a part of a colt buried, how far was that grave from the railroad track ? A. Something near fifteen or twenty feet from the railroad track, I guess.
Also, Nelson Simmons, who being duly sworn, testified as follows, to wit:
Q,. Mr. Simmons, where do you reside? A. In Grasshopper township, about three miles from Muscotah.
Q,. How far do you reside from the plaintiff in this action? A. About a mile, to the best of my knowledge.
Q,. How far from the railroad track of the Central Branch ? A. About a mile, I should think.
Q,. Were you living there on or about the 8th day of October, A. D. 1877? A. I was.
Q. I will ask you to state if, on or about this date, you saw a colt near that railroad track. A. I did; yes, sir.
Q,. State where that colt was, and how you came to see it. A. The colt was lying by the side of the railroad track, buried. I was sent after to come and appraise the colt.
Q,. Who was it sent after you? A. Mrs. Pate, wife of the plaintiff Boley Pate. We scratched a little dirt off the colt, and appraised it.
Q,. What kind of a colt was it? 'A. A dark-colored colt.
Q,. What was its size? A. Looked to be about a six-months’-old colt.
Q. Had you ever seen the colt before, Mr. Simmons? A. Yes, sir.
Q,. Whose colt was that that was buried there ? A. I think it was Mr. Pate’s colt.
Q,. How far was the colt from the side of the track? A. About 15 or 20 feet.
Q,. Did you examine the track there? A. I did..
Q,. What did you see there? A. I saw hair on one end of the ties; the hair corresponded with the color of the hair on the colt that was buried there, and I believe the rails I saw where it looked as if something had been dragged.
Q,. How far did that extend ? A. A rod and a half, I guess, to two rods.
Q. Can you tell which way the colt had been dragged ? A. Yes, sir; east, I think.
Q,. How could you tell that ? A. By the tracks.
Q,. Did you see anything else there that showed where the animal had been pushed along? A. I saw a place where it looked as if something had been pushed along that was caught by the foot.
Q,. This mark looked as if the animal had been dragged east? A. Yes, sir.
Q. Was the place where the animal had been buried, the grave, east of these marks? A. Yes, sir.
Q. You say you saw hair along the track? A. Yes, sir.
Q,. In how many different places ? A. I can’t say positively; in three or four places —probably more.
Q,. Did the hair correspond with the color of the hair of the animal buried there? A. Yes, sir.
Also, James Thomas, who being duly swmrn, testified as follows:
Q,. Are you acquainted with the plaintiff? A. Yes, sir.
Q,. Where do you reside? A. In Kapioma township, Atchison county, Kansas.
Q,. How near do you reside to the plaintiff? A. About a quarter of a mile, I guess.
Q,. Were you ever near the, railroad near Pate’s, on or about the 9th day of October? A. Yes, sir.
Q,. What did you see there? Go on and state the whole • thing. A. I saw a colt buried there.
Q,. Go on and describe it. A. The colt I called a dark iron-gray colt; it was buried up in the ground .there.
Q. Where was the grave situated? A. About fifteen or twenty feet north of the railroad track. The colt was covered up with dirt.
Q,. What did you do? A. We took a hoe and dug off a little dirt until we could see the colt and see what kind of a colt it was.
Q,. Well, whose colt was it? A. We thought it was Mr. Pate’s colt.
Q. How long before you saw the colt there had you seen it alive ? A. I think I saw it the morning Mr. Pate started to Muscotah.
Q,. Did you ever see it more than once? A. I saw it almost every day.
Q,. Have you ever seen Mr. Pate’s colt alive since you saw that colt buried there? A. No, sir.
Q,. What else did you see there, if anything ? Did you see anything on the track? A. I saw hair on the ends of the ties.
Q,. What else, if anything? A. I saw where it looked as if an animal’s foot had been caught and dragged along. That was in this county.
Q,. Was there anything'else that showed you that an animal had been dragged along there? Marks along the ends of the ties, and between the iron rails.
Q,. What was the color of the hair on the ends of the ties? A. Dark iron-gray.
Q,. How did it compare with the colt? A. Same color; some few gray hairs.
Q. How far along the track did the hair and those marks •extend? A. About rod and a half.
Q,. Could you tell from the looks of those marks there which way the animal had been dragged? A. It looked like it was east.
Q,. Do you know what time the train passed there in the morning, then? A. I think about eleven o’clock. I noticed it several times passing close on to eleven o’clock.
Q. How far did you dig up this colt? A. We dug just ■so we could see the color of the colt.
Q,. Did you recognize the colt as Mr. Pate’s? A. I think it was the same colt.
Taking the whole evidence together, we think it is sufficient to make out a prima fade case that the colt in controversy was killed on the road of the plaintiff in error by the •engine or cars of the company, or at least in some manner ■connected with the operation of the railroad. All the inferences are in that direction. The facts more naturally fit this hypothesis than any other; and this being a civil case, if there are conflicting hypotheses, the judgment must be for that for which there is á preponderance of proof. The preponderance of proof is certainly on the side of the defendant in error. In addition to the facts proved, the jury had the right to use the knowledge and experience they are supposed to possess in common with the generality of mankind in making up a verdict, and hence in this case they had the right, in view of the proximity of the colt to the railroad track on the morning of October 8th, to consider the probability of such colt attempting to cross the track, or of straying thereon, and also its likelihood of being struck by the engine of the train going eastward at 11 A. M. of said day. Its death must be accounted for in some way, and the jury have applied the facts to the most reasonable theory. The district court has approved the verdict by refusing to set it aside and to grant •a new trial, and, under the circumstances, this court will not reverse the judgment; therefore the judgment will be affirmed.
All the Justices concurring. | [
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Per Curiam:
The judgment of the court below will be reversed, and cause remanded with the order that the peremptory writ of mandamus asked for by the plaintiff below | be refused.
This decision is made upon the authority of the following among other cases, to wit: McConnell v. Hamm, 16 Kas. 228; Spencer v. School District, 15 Kas. 259, 262; State v. Osawkee Township, 14 Kas. 418, 420; Loan Association v. Topeka, 20 Wall. 655. | [
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The opinion of the court was delivered by
Horton, C. J.:
The appellant was indicted -in May, 1870, for the alleged murder of one Robert Clark, in May, 1866, and was convicted in the court below of murder in the first ■degree, at the May term, 1878.
On the trial, Mrs. Clark, the widow of the deceased, testified on the part of the state, that on Sunday, the 27th day of May, 1866, her husband and she were sitting in their cabin, when they noticed a stranger on horseback ride around the south end of the cabin and in front of the east door, tie asked if Robert Clark lived there, and being answered in the affirmative, asked if he was at home. Clark said, Yes. The stranger then inquired the direction to Brazil’s. Clark, still sitting in his chair, leaned his body out of the door, and while in the act of giving the man the direction to Brazil’s, was shot from the north end of the house; that she did not see or know who fired the pistol; that Clark jumped up and attempted to reach his gun, hanging on a rack, but fell to the floor. After he had fallen down, she looked at the door and recognized the appellant as he passed on horseback; that almost immediately after she saw the-appellant pass the door, three men on horseback rode up to the window in the south side, or end of the cabin, with their revolvers drawn and pointed toward the house; that she recognized the appellant as one of them, and said to him: “For God’s sake, Wash. Petty, don’t kill me and my little children — you have already killed my husband;” that the three men stood at the window until her husband was dead, and then rode away.
The appellant, on his defense, introduced as a witness one Tatman, who testified that he arrived at Clark’s house about two hours after Clark was killed; that when he reached there, the body had been dressed and laid out; that as soon as he got to the house, Mrs. Clark came up to him at the door, and said, “Oh, Joe! Robert has been murdered;” that he asked her, “Who did it?” and she replied, “She did not know who shot him; that there were three strange men, and she did not know any of them;” that he said to her, “He believed it was Wash. Petty;” she answered, “She did not know either of the three men; ” that he had not heard Petty’s name mentioned in connection with the murder until he suggested it to Mrs. Clark.
On rebuttal, the state produced as witnesses, Seth Kellogg, E. C. Guffey, Chris. Hoover and William Hoover. Kellogg was permitted to testify, against the objection of appellant, that Mrs. Clark told him the day her husband was killed, “That Wash. Petty was one of three men that killed her husband; that she saw and recognized him.” The Hoovers, against like objections, testified that Mrs. Clark also told them, at her house, the evening her husband was killed, “That Wash. Petty was one of the three men that killed her husband.” Guffey gave similar testimony, but fixed the time of the declarations of Mrs. Clark as having occurred about one hour after the killing of Clark, and-before the body was laid out. None of these conversations of Mrs. Clark, related on' the part of the witnesses for the state, were connected with the statements of Tatman with Mrs. C.; nor does it appear from the record that either of the witnesses on rebuttal was present at the time of the conversation between Tatman and Mrs. C.
- The statements of Mrs. Clark to Kellogg and the Hoovers formed no part of the transaction, and were only hearsay; hence, they were not entitled i'o be received as a part of the res gestee. This conclusion seems to be conceded; but it is insisted that this testimony was competent, not as evidence against the appellant, but in support of the evidence previously given by Mrs. C.; that, as the testimony of Tatman was introduced to contradict and destroy the evidence of Mrs. Clark, by showing that she never thought of Petty being one of the murderers until Tatman suggested it, two hours after the homicide, the testimony on rebuttal was competent to sustain Mrs. Clark. As to Guffey’s evidence,.this argument is sound, and no error was committed in receiving that. The declarations to him by Mrs. Clark were fixed at a time antecedent to her conversation with Tatman, but the record does not show a like state of facts in reference to the declarations to Kellogg and the Hoovers, and as all of the testimony has been embodied in the bills of exceptions, there are no presumptions favoring the ruling of the court below. These latter declarations do not purport to have been made prior in point of time to the statements testified to by Tat-man. It is the general and almost universal rule, that evidence of what the witness has said out of court cannot be received to fortify his testimony. Corroborative statements of this character are very easy of . . . n manufacture, and, if admitted, might oftentimes be made the means of great imposition. To this general rule» however, there are exceptions. Thus, when a witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, then it may be shown that he made similar declarations at a time when the imputed motive did not exist; and where there is evidence in contradiction, tending to show that the account of the transactions given by the witness is a fabrication of a late date, it may be shown that the same account was given by him before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen. (Whar. on Ev., vol. 1, § 570; Robb v. Hackley, 23 Wend. 49; People v. Finnegan, 1 Parker’s Crim. Rep. 147; Dailey v. State, 28 Ind. 285; Conrad v. Griffey, 11 How. 480; 2 Phillips, Cowen & Hill’s notes, 979.)
Within the exceptions, the declarations made to Guffey were admissible, as tending to support the original testimony of Mrs. Clark, that she recognized Petty at her house immediately after the shooting, and so stated before she saw Tat-man on that day. The evidence of Kellogg and the Hoovers has not been brought within these exceptions. For aught that appears to us, these declarations were made subsequently to the conversation with Taiman. If so, they would not contradict his testimony nor support the original testimony of Mrs. C. Being incompetent, unless within the exceptions, and not being shown within sáid exceptions, we are under the necessity of declaring the court erred in admitting them. All the declarations of Mrs. Clark to these witnesses should have been confined to a time prior to Tatman’s visit and conversations at the house. Such declarations, to have been admissible, must have been clearly made antecedently to the conversation with-Tatman. The facts that Kellogg stated the declarations to him were made the day of the homicide, and that the Hoovers fixed the time of their conversations on the evening that Clark was killed, in no manner establish these declarations prior to Tatman’s alleged suggestions to Mrs. Clark.
The point is further made, that the indictment does not charge murder in the first degree. Within the authority of Smith v. State, 1 Kas. 365, this point is not well taken, as the language of the indictment construed together clearly imports that the killing was willful, deliberate and premeditated.
. For the error in receiving incompetent testimony, the judgment of the district court will be reversed, and a new trial awarded. The appellant will be returned from the penitentiary, and delivered over to the jailer of Greenwood county, to abide the order of the district court of that county.
All the Justices concurring. | [
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The judgment in this case will be reversed, and cause remanded for a new trial, on the authority of the case just decided, of Fraker v. Cullum, ante, p. 555.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The agreed statement of facts brings this case within the decision of the Cent. Branch Rld. Co. v. Lea, 20 Kas. 353, if it appears therefrom that the defendant in error permitted his swine to run at large. This is the debatable question. Upon this point the statement shows that the hogs came upon the track and were killed, in Grant township, Reno county; that the voters of said township had never voted to exempt it from the operations of §46 of art. 7 of the act entitled “An act relating to stock,” approved March 20, 1868, (Gen. Stat. 1011;) that the board of county commissioners of said county, some months prior to the killing of the animals in question, directed by order that swine and certain other animals should not be allowed to run at large within the bounds of the county, pursuant to the law of 1872, (p. 384,) and that the order was in force in the county at the time of the alleged wrong complained of. While counsel for the defendant in error concedes that the animals were running at large, they claim that as the record is silentwhether the hogs were at large with the knowledge or permission of their owner, the presumption is that they were at large without fault or negligence on his part; in other words, that; to avoid the liability of the railroad company, it was incumbent on the company to show that the defendant was knowingly acting in disobedience to the commands of the statutes. And as the presumption is never made that a party violates the law, in the absence of proof that the defendant in error knew the hogs were running at large, it must be held he had no such knowledge. We think the argument of counsel faulty in this: while it is true that the guilt or wrong of a party is not presumed, and generally that a person is not required to prove a negative, yet when as in this case, it is shown or agreed that the hogs were running at large, while under the control and charge of the owner, it ,is presumed they were at large with his permission. It was his duty to see that the hogs were so secured as not to be at large. The proof that they were at large, changes the presumption, and throws upon the owner the burden of showing that they were at large without negligence or wrong on his part. Such evidence is peculiarly within his knowledge. The conclusion we reach is, that under the agreed statement of facts, the hogs killed were at large with the permission of the defendant in error, and that the case of Cent. Branch Rld. Co. v. Lea, supra, is applicable.
The judgment must be reversed, and the cause remanded with instructions to the district court to enter judgment on the facts stated, for the plaintiff in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by the plaintiff, Louise Butler, against her husband, William Butler, and his daughter, by a former wife, Mary A. Austin, nee Mary A. Butler, to set aside a conveyance made by her husband to his daughter shortly prior to her- own marriage, and in fraud, as she claimed, of her marital rights. The facts as they appear are, that in February, 1873, plaintiff was a widow living in Indiana, and defendant, William Butler, a.widower living in Kansas. At that time, in correspondence between them, he represented to her that he was the owner of two good farms in Kansas, and some personal property. This-correspondence was had with a view to marriage, though the parties were not engaged to be married until the month of May, 1873, when he visited. Indiana- and remained there for about a month. April 16th, 1873, prior to his departure from Kansas, he executed a deed for these farms to his two minor children then living at home with him. He said to them at the .time that he was going to Indiana in a -few days to get married, and in case the marriage did not turn but all right, he wanted them provided for. The deed was a gift, nothing being paid by^thern for the land. August 13,1873, pursuant to the engagement in the month of May prior, Mr. and Mrs. Butler were married, and since then have been residing on one of the farms. The deed was recorded August 18, 1873. Mrs, Butler had no knowledge of this conveyance until long after the marriage. When one of the minors became of age he deeded back to his father the undivided half of this property, receiving in exchange a mortgage thereon for fifteen hundred dollars, payable when the property was sold, or Mr. Butler died. And this action is brought to set aside the conveyance so far as the other minor is concerned. It appears from the' testimony that the plaintiff was possessed of but little means at the time of the marriage, but there is nothing showing the extent of Mr. Butler’s property. For anything in the records, these farms in Johnson county may have been but a small part of his estate. He made no defense to the action, and the litigation was between the wife and the minor daughter, then herself married. It appears also that Mrs. Butler has, during her present marriage, been well provided for by her husband. Indeed, she makes no complaint in this respect. No brief has been filed for the defendant in error, so we cannot say positively upon what ground the district court decided against the plaintiff; but upon the facts as above stated, we think the judgment was properly entered in favor of the defendant and against Mrs. Butler.
It is doubtless true that at common law it was the disposition of courts to hold that a voluntary conveyance of all her property by a woman engaged to be married, made without the knowledge of her intended husband, was a fraud upon his marital rights, and might after the marriage be avoided by him. See in support of this view, the valuable list of authorities in brief of counsel for plaintiff in error. Whether the same rule obtained, when the husband just before marriage made such a conveyance1 of his property, is not so clear. See 1 Bright’s Husband and Wife, p. 356; X Leading Cases in Equity, White and Tudor’s notes, p. 618.
The reason for the supposed difference in the rule grew out of the different .rights each acquired in the property of the other, and the different obligations assumed by each to and for the other by that relation'. We deem it unnecessary to enter into any discussion of these matters, for the constant tendency has been to do away with these differences, and give to each the same rights in the property of the other. Of course, when each acquires by marriage the same rights in the property of the other, and is under the same obligations to and for the other, then that which would be a fraud if done by one will under the same circumstances be a fraud if done by the other.
It will also be conceded that the course of decision in this country has been in favor of the general proposition, that a voluntary conveyance by either party to a marriage contract of his or her entire property, made without the knowledge of the other and just prior to the marriage, is a fraud upon the marital rights- of such other. See, among other authorities, Swain v. Perine, 5 Johns. Ch. 482; Smith v. Smith, 2 Halsted’s Ch. 515; Petty v. Petty, 4 Ben. Monroe, 217; Leach v. Duvall, 8 Bush. 201; Duncan’s Appeal, 43 Penn. St. 67; Kline v. Kline, 57 Penn. St. 120; Logan v. Simmons, 3 Iredell’s Eq. 487.
It may be doubted whether such is the law in Kansas to-day. The writer of this- opinion is strongly inclined to believe that it is not. It is a familiar maxim, that where the reason for a rule fails, the rule itself ceases. Now, at common law the husband by marriage assumed responsibility for all his wife’s debts, became also the owner of her personal property, and entitled to the use, rents, and profits of her real estate. Marriage therefore contemplated on his part both the assumption of responsibility and the acquisition of property. The fact that the wife acquired no present interest in any of her husband’s property, and only the inchoate interest of dower in his real estate, and assumed no responsi bility for his obligations, occasioned the doubt whether the husband’s ante-nuptial conveyance was, under any circumstances, a fraud upon the wife. Under our law, marriage involves neither the assumption of indebtedness nor the acquisition of property.' Neither the title nor the possession or control of any property, real or personal, is changed by marriage, nor does either husband or wife become responsible for the antecedent debts of the other. How can it be said that a woman who the day before marriage gives away ten thousand dollars of personal property, her entire estate it may be, has in any sense of the term defrauded her intended husband, when if she had not given it away the day before she could the day after the marriage, in spite of his objection and beyond the possibility of his restraint ? It remains hers after as it was hers before marriage, with the absolute right of disposal. And the same is true in respect to the husband’s personalty. As to the realty, the proposition it is true is not quite so broad. Marriage works no-change in the title, the use, or the control of it. The husband is not entitled to the possession of his wife’s real estate, nor to-the rents and profits, and the estates of dower and by courtesy are abolished. True, in lieu thereof each is entitled upon the death of the other to a half of all the real estate owned by the deceased during the marriage, and which has not been sold on judicial sale and is not necessary for the payment of debts, and of which the survivor has made no conveyance; so that there is an inchoate interest to the extent of one-half given to each party in the real estate of the other.
But is this inchoate interest, which may never ripen into a complete title, and which is subject to be defeated during marriage by judicial sale and thereafter by the payment of debts, such an interest as will justify a court in pronouncing fraudulent and void the ante-nuptial voluntary conveyance of either husband or wife?
But it is not necessary to decide this question, and the court declines to express any opinion thereon. Conceding the law to be in accord with the general proposition as first stated, still, upon the facts in this case, the judgment will have to be affirmed, and for several reasons:
The conveyance was made prior to any contract for marriage; and so far as the findings of fact by the court show, it was prior to any thought of marriage. True, it appears from the testimony that the representations to Mrs. Butler and the conveyance were both made during courtship and in view of marriage; but still the fact is undisputed, that the conveyance was made some weeks before any actual agreement to marry was entered into. Would it have been held, even at the common law, that a conveyance before any contract to marry was a fraud upon marital rights ? (England v. Downs, 2 Beavan, 522.)
Again, the conveyance was meritorious, and to those having claims upon the grantor. It was to his minor children, and as a provision for them. Surely, the duty of a father to his minor children by a deceased wife is as great as that to a woman he is hoping to wed. It was not an absolute rule that an ante-nuptial voluntary conveyance was fraudulent and void. In Schouler’s Dom. Rel., p. 270, it is said:
“ From the decisipns, it would appear that some alienations of the wife’s property without her intended husband’s knowledge will be allowed to stand. The facts are always open to inquiry, and it seems settled that the court is warranted in considering such circumstances as the meritorious object of the conveyance and the situation of the husband in point .of pecuniary means.”
Lord Thurlow held that such a conveyance, being made by the absolute owner of the property, was prima facie good, and that facts and circumstances must be shown, indicating an intention to deprive the husband of that which he might rightfully and reasonably expect to obtain by the marriage, before it could be adjudged fraudulent and void. (Strathmore v. Bowes, 1 Vesey, Jr., 22.)
Chancellor Kent, in his Commentary, vol.'2, p.175, says: “If the settlement be upon children of a former husband, and there be no imposition practiced upon the husband, the settlement would -be valid without notice,” citing King v. Cot ton, 2 P. Wms, 674; Jones v. Cole, 2 Bailey S. C. Rep. 330. See also, Lyles v. Lyles, Harper’s Eq. 288. And this is right and reasonable. The intent of Mr. Butler in this conveyance was not to defraud the future Mrs. Butler. That was not the purpose which prompted the act. It was done with no hostility to her, no desire to Avrong her, nor from any thought of mere personal gain, but from a desire to protect those too young to guard their oavu interests, and whose interests it was his duty to protect. Perhaps this property had been bought Avith money belonging to their mother, or if not, it may have been the accumulation of the joint industry and saving of their mother and himself, and it Avas fitting that the title should be passed to them before he contracted any new matrimonial alliance. Certainly it Avould seem a misnomer to call such a transaction fraudulent.
And again, it is not shoAvn what property he had at the time of the conveyance. If possessed of large estate, a voluntary conveyance .of a small portion thereof to a stranger even, and made after the contract for marriage had been entered into, would scarcely be fraudulent. If he retained that which would be ample provision for the support of himself and wife and family, a gift to a stranger would be no fraud upon her marital rights. Surely a contract to marry does not debar a man from all control of his property, or tie up his estate like an order of court.
For these reasons, we think the judgment of the district court was properly entered in favor of the'defendants, and it must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action to set aside a certain deed of assignment, made by the defendants in this action ostensibly for the purpose of benefiting the assignors’ creditors, but claimed by the plaintiffs in this action to have been made for the purpose of hindering, delaying and defrauding creditors. The case was referred, with power to the referee to hear and determine the same, and to “make a full report of all his proceedings” therein to the court. The referee heard the case and made twenty-three special findings therein, and then reported the same to the court below. Neither party made any objection to the findings or to the report, but both parties claimed to be entitled to a judgment thereon. The referee recommended that the judgment should be rendered in favor of the plaintiffs; but the court below, notwithstanding this recommendation, rendered judgment upon the facts found by the referee in favor of the defendants and against the plaintiffs, and of this the plaintiffs now complain, and assign for error “that the said judgment was given for said defendants when it should have been given for the said plaintiffs, according to the law of the land.” The only question therefore for us to consider in this case is, whether the court below did err in so rendering said judgment. Or, in other words, it is whether the facts found by the referee show affirmatively that said deed of assignment was executed with the intention of hindering, delaying and defrauding creditors; or to state the question more exactly, it is whether the court below-erred in construing that the facts found by the referee did not show affirmatively that said deed of assignment was executed with the intention of hindering, delaying and defrauding creditors; for the burden of proving that the deed of assignment was executed with the intention of hindering, delaying and defrauding creditors, and the burden of having, the facts reported by the referee show that the deed of as-, signment was so executed, rested upon the plaintiffs. If the facts reported by the referee were not sufficient to support a judgment in favor of the plaintiffs, the court rightfully, as the plaintiffs did not ask for a new trial nor for additional findings, rendered judgment in favor of the defendants. We. cannot say that the court below erred. The first fact found by the referee urged as showing that the assignment was fraudulent and void, was a transaction had between the de-: fendants and one Walter S. Dubois'; but as this transaction was had several days before the assignment was even contemplated, and does not seem to have had any connection with the assignment, we do not think that it can show that the assignment was fraudulent or can render it void. . '
The next and the only other fact found • by the referee, urged as showing that said assignment was fraudulent and void, was the giving of a certain mortgage by one of the defendants to J. C. Eraker. This mortgage was given three days before the assignment was made, seven days after the assignment was first contemplated, and while it was in contemplation; but all the transactions connected with this mortgage were in good faith. The mortgage was given to secure preexisting debts, for the bulk of which the defendants had; long prior thereto, long prior to any contemplated assignment, long prior even to any supposed insolvency, promised, to execute such mortgage.
The next grounds urged, as showing that said assignment was fraudulent and void, are the following findings made by. the referee, to wit: . '.
“Twentieth: That the said Hills and Kramer [the defend-.' ants and assignors] reserved to themselves, in said deed of assignment, interests and benefits in the property assigned be-, fore the creditors are to be paid in full.
“Twenty-first: That the said deed of assignment from the said Hills and Kramer to the said H. C. Day is, as to the plaintiffs in this cause of action, fraudulent and void.”
■ The twentieth finding of the referee is evidently only a conclusion of law, and not a finding of fact. It is founded upon a certain exception placed in the deed of assignment, which excepts from the operation of the deed all property exempt by law from legal process. The exception is in the following words, -to wit: “except what is by law exempt.” The deed in terms transfers to the assignee all the defendants’ partnership property, “except what is by law exempt.” There is no other exception or reservation of property to be found in the deed of assignment. Immediately after the deed of assignment was executed, the assignee took possession of the property assigned, and it does not appear that the defendants have at any time since claimed to be entitled to any portion of the property as “exempt,” or otherwise. Indeed, the property was all partnership property, and therefore under the law none.of it was or is exempt, (Guptil v. McFee, 9 Kas. 30;) and as none of it was or is exempt, none of it was reserved to the defendants. This case differs very materially from that of Clark v. Robbins, 8 Kas. 574. In that case $800 worth of the very property assigned was reserved for the benefit' of the assignors, and they were to select the same themselves. In this case nothing is reserved, and no attempt was made in the deed of assignment or elsewhere to give to the defendants any right to select any of the property assigned for themselves. The said words, “except what is by law exempt,” used in said deed of assignment, being nugatory, may be .treated as surplusage.
The twenty-first finding of the referee, we think, is also only a conclusion of law, and not a finding of a fact. Indeed, it would seem to be only a conclusion from the twentieth finding. The referee probably concluded that because the defendants “reserved to themselves in said deed of assignment interests and benefits in the property assigned,” that therefore the “deed of assignment” was “fraudulent and void.” The referee would undoubtedly have been correct in his twenty-first, finding if his twentieth had been correct. But, as wehave.already, shown, his twentieth finding is-not •correct. We think the twenty-first finding is a conclusion of law, and not a finding of a fact, for the following reasons:
1. The referee does not call it a finding of fact, although he numbers it consecutively along with other findings which are findings of fact.
2. The court below evidently treated it as a mere conclusion of law, and the plaintiffs, whose interest it was to make it appear fo be a finding of fact and not a conclusion of law, and upon whom rested the burden of having it made to so appear, did not ask to have the report returned to the referee so that it might be amended so as to make it so appear, but seemed to be satisfied with it as it was.
3. The referee seems to have attempted to find all the facts in great detail, while this finding is couched in very general language.
4. None of the facts stated in detail support this finding.
. 5. The finding immediately preceding this one is unquestionably a mere conclusion of law, and this finding seems to be a mere inference or conclusion from that finding.
'6. If there-had been any facts to support this finding, the referee would undoubtedly have stated' them in his detailed statement of the facts, or, failing to do so, the,plaintiffs would undoubtedly have called his attention to the matter and asked him to do so; and if he had still failed, they would undoubtedly have asked the court to have the report returned fo the referee for additional findings.
■ 7. The last two findings following the words “as matter of law Tfind,” and numbered 1 and 2, cañscarcely be said to be conclusions of law from the facts found. ’ The first of said last two findings, is merely the referee’s opinion as to what judgment and the amount of the judgment that should be rendered. The second is certainly not a conclusion of law from the, facts found, but is merely the referee’s statement with reference to certain costs.
8. Therefore, as there is nothing in the case to support said twenty-first finding except merely a conclusion of law, and as this conclusion of law is .itself incorrect, we think said twenty-first finding must also be incorrect.
• The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The .opinion of the court was delivered by
Valentine, J.:
.This is the second time that we have been called upon to consider this case. (Usher v. Hiatt, 18 Kas, 195.) At the first time, we reversed the judgment of the court below, and remanded the case for a new trial. A new trial was afterward had before the court below and a jury, which resulted in a verdict and judgment in favor of the plaintiffs below, Hiatt and Maris, and against the defendant below, Usher, for $1,473 and costs. Usher now as plaintiff in error seeks to have this judgment reversed. The principal grounds urged for reversal are, that the .court below miscon strued the contract between the parties. Said contract reads as follows:
“It is agreed between John P. Usher, O. S; Hiatt and C. F. Maris, as follows: Said Hiatt & Maris agree to reset, cultivate and complete the hedge upon sections 23 and 24 of township 10, range'22, in Leavenworth county, and section 19, in Wyandotte county, immediately east of said sections, which was undertaken to be grown by A. S. Penfield; to cultivate and maintain said hedge in a skillful manner, until the same shall be sufficient to turn ordinary stock, and such as is contemplated by the laws of Kansas relating to hedge fences. The above sections of land belong to said Usher, . and the hedge when completed will divide these lands into quarter-sections. In consideration of this agreement to construct and the construction of said hedges for the said Usher, he agrees to and with the said Hiatt & Maris that if they shall have said hedge set and reset in good and proper cultivation oir or before the 1st day of July next, 1871, the said Usher will pay them at that date one thousand ($1,000) dollars; and if the said parties continue to cultivate and maintain said hedge as before agreed, said Usher will pay them five hundred dollars ($500) on the 1st day of July, 1872, and upon the completion and turning over said hedge .to said Usher, he will pay them one thousand dollars ($1,000), or the third thereof on the completion of the hedge upon a sec- ' tion, as the case may be. If it shall' then happen that in consequence of rains, the parties cannot put all of said hedge in good condition l?y the 1st of July next, as above agreéd, then said Usher will pay the $1,000 as soon as the hedge is in such condition; and the parties mutually agree with each other that the said Hiatt & Maris will set and reset and cultivate said hedge as aforesaid without any delay on their part, and said Usher will promptly and faithfully pay them as agreed herein. J.'P. Usher. .
O. S. Hiatt.
“Leavenworth, Nov. 5, 1871. C. F. Maris.”
The words, “until the same shall be sufficieüt to turn ordinary stock, and such as is contemplated' by the laws of Kansas,” are construed by all parties to mean “such” hedge and not “such” stock “as is contemplated by the laws of Kansas.”
We shall now proceed to consider the alleged errors as discussed in brief of plaintiff in error.
I. What do the words,“cultivate and maintain” mean, as used in said contract? They are first used where Hiatt and Maris agree “to cultivate and maintain said hedge in a skillful manner,” &c. And secondly: After providing in the contract that Hiatt and Maris shall set and reset said hedge, putting it in good condition and in proper cultivation, and providing that Usher shall pay them $1,000 therefor, the words are again used as follows: “And if the said parties continue to cultivate and maintain said hedge as before agreed, said Usher will pay them five hundred dollars” more.' The word “cultivate,” as used in this connection, we think has its usual and ordinary signification; and' the word “maintain,” ás used in this contract and in connection with the word “cultivate,” means to maintain in the nature of cultivation. The two words are used together and must be construed together, and both must be construed in the light of all the surrounding circumstances; and when so construed, we think they mean such cultivation and maintenance as plowing, hoeing, trimming, plashing, replanting, &c., and do not mean the building and maintaining of fences (as seems to be claimed by counsel for plaintiff in error) on both sides of the hedge, to protect it from the casual depredations of roaming cattle allowed to run inside or outside of the fields. The outside fence, however, seems to have been already built when said contract was made. It must be remembered that the plaintiffs below were to receive less than fifty cents per rod for setting, resetting, cultivating and maintaining said •hedge, which fact would seem to demolish all supposition that the plaintiffs were to either build or maintain fences on both sides of the hedge. There were from sixteen to eighteen miles of hedge to be set, cultivated, &c., and they were to recéive only $2,500 for it. The principal injury that was done to the hedge by stock, was done by the stock of the tenants of the defendant below, plaintiff in error.
II. What do the words “ordinary stock,” as used- in said contract, mean? The hedge was to be “sufficient to turn ordinary stock, and such [hedge] as is contemplated by the. laws of Kansas relating to hedge fences.” Under the laws of Kansas a hedge should be “composed either of thorn or Osage orange.” (Gen. Stat. 486,'§ 1.) And “all hedges shall be of such height and thickness as will be sufficient to protect the field or inclosure.” (Gen. Stat. 487, § 2; Laws of 1873, p. 183.) And “swine are not allowed to run at large.” (Gen. Stat. 1011, §46.) The statutes therefore merely require that the hedge shall be composed of “thorn or Osage orange,” and shall be sufficient “ to protect the field or inclosure” from stock, but from such stock only as is supposed to be running at large; and as said contract was drawn up with reference to the statutes, the words “ ordinary stock,” as used in the contract, were intended to mean such stock only as is permitted by law to run at large; and, therefore, as swine are not permitted to run at large, the words “ordinary stock,” as used in said contract, did not include swine. .The jury also found that swine were not ordinary stock under the contract.
III. The contract required that the plaintiffs should do everything that was reasonable to make a good hedge, but it did not require that they should do unreasonable things.
IV. Arid the contract required that the plaintiffs below should grow a hedge everywhere on the contemplated lines where it was practicable for them to do so; but it did not require them to grow a hedge where it was impracticable to do so. Of course, it was possible for them to grow a hedge anywhere — even across streams, by building culverts, etc. — ■ but we do not think that the contract required them to do everything that was possible, but only such as was practicable. This seems to have been the opinion of the court below, and we think the court below correctly interpreted the opinion of this court formerly delivered in this case. There is nothing in the record that shows that “the court [below] was of the opinion that if the defendants [plaintiffs"below] made a reasonable effort to perform their contract, whether, they did in fact perform it or not, they discharged their whole duty.” The court below was of the opinion that the plaintiffs were required to perform their contract, but that their contract, when rightfully construed, did not require them to perform unreasonable things.
But suppose that the plaintiffs did not perform their contract in every particular — that would not' prevent them from recovering. Usher v. Hiatt, 18 Kas. 195; Duncan v. Balter, ante,, p. 99. They might still recover as upon a quantum meruit count. Both the pleadings and the evidence were sufficient for that purpose. The petition stated “the facts” constituting-the plaintiffs’ cause of action, just as it should have done,, (Code, § 87, Gen. Stat. 647,) setting forth the special contract^ the work done under it, and its value; and the evidence introduced proved these facts. Upon the facts thus pleaded and proved, the plaintiffs had a right to recover, provided they could have recovered thereon at common law, either upon the special contract or upon a quantum meruit count.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This is a proceeding in mandamus, brought originally in this court, to compel the issue of forty thousand dollars of the bonds of the township of Delaware (formerly Grasshopper Falls), Jefferson county, in payment of ,a subscription of a like amount of the capital stock of the plaintiff The vote on the question of subscribing this stock and issuing these bonds was taken under the provisions of chapter 90, laws of 1870, and was had on the 11th day of July, 1871. A canvass of the votes showed that the whole number cast at said election was 393, of which number 291 were cast for subscribing the stock and issuing the bonds, and 102 against. Afterward, in pursuance of the proceedings had, the board of county commissioners of Jefferson county ordered the county clerk to make such subscription in the name of Grasshopper Falls (now Delaware) township; and on December 4th, 1871, the county clerk of the county subscribed for $40,000 of the capital stock of the plaintiff, on behalf of said township, and delivered such subscription to an attorney of the plaintiff, by whom it was delivered to the general manager of the railroad, and by him handed to the treasurer of the company. After completing the railroad in accordance with the terms of the order of submission, on January 5th, 1877, at a meeting” of the board of county commissioners of said Jefferson county, the plaintiff presented to the board an affidavit showing a full compliance on the part of the plaintiff with all the terms and conditions submitted at the election of July 11th, 1871, and then tendered to the board for Delaware township $40,000 of the full-paid capital stock of the plaintiff for the subscription, and demanded from the board the issuance and delivery to it of $40,000 of bonds in the name of said township, in payment of said subscription. This matter was taken under advisement till a meeting on February 16th, 1877, when the board refused to accept the stock, or issue the bonds, for the reason that the members were not. satisfied that the plaintiff was lawfully entitled to the bonds of the township, and declined to hear testimony offered by the plaintiff) because no evidence was presented on the part of the township, and no authority existed to compel the attendance of witnesses for the township to investigate and determine the matter. On March 15th, 1877, this proceeding was instituted to obtain the bonds.
The defendants made several • defenses to the issuance of the bonds and the granting of.a peremptory writ in this case, and we shall consider these objections in their order.
I. It is contended that the plaintiff never had the power to accept of, or become a party to, the assumed contract of subscription. The argument is that, as the railroad company was chartered and organized under a territorial act, approved February 11th, 1859, which conferred the power on the corporators, after $50,000 had been subscribed to the capital stock of the company, and ten per centum actually paid to the grantees therein named, and a certificate thereof, from a majority of them, filed in the office of the secretary of the territory, to open books for further subscription, requiring payments or installments from time to time, that the plaintiff could take no subscription upon which such requirement could not be made at any and all times when the needs of the company should require it; and as the bonds voted were not to be issued until the railroad had been completed through the township voting them, the subscription was in conflict with the charter, the act of the company in attempting to accept the same in excess of the power conferred, and the whole transaction void. We do not see any force'in the argument pressed upon us, that this subscription was ultra vires on the part of the plaintiff. Sections 17 and 18 of the original charter are as follows.
“Sec. 17. When the citizens of any county or city in this territory are desirous of subscribing to the stock of said company, the citizens of such city or county are authorized to purchase, subscribe or hold shares, not exceeding $100,000 in amount, as shall be determined by the county court or common council making such subscription, in all respects as stock owned by individuals; and such railroad company may dispose of bonds, issued for such stock by said county or council, upon such terms as may be necessary.
“Sec. 18. Subscriptions to the stock of said company may be made in land in the same manner as in cash, and said company are hereby authorized to hold, purchase and convey the same as they may deem for their interest.”
By these sections, subscriptions from counties and cities were payable in bonds; and subscriptions could also be made in land. Thus, the original charter clearly provided for the payment of stock in other modes than in money. Chapter 90, laws of 1870, expressly authorized subscriptions to be made as was done in this case. The law is entitled “An act to enable municipal townships to subscribe for stock in any railroad, and to provide for the -payment of the same.” Either this law is not applicable to the plaintiff, as it gives municipal townships authority to subscribe for stock and pay in bonds, while the original charter only contemplates cities and counties making subscriptions in this manner, or else its terms and provisions may be accepted by all the railroads in the state, including the plaintiff, that wish to take advantage of the powers conferred. There is no prohibition in the original charter preventing townships being authorized by the legislature to subscribe for stock and pay in bonds, and the provision therein for city and county subscriptions does not by implication tend to prevent the legislature from granting such power if willingly exercised by the corporation. The legislation is paramountly for the benefit of the railroad company, not for its injury, destruction, or any limitation of its franchise. The question of the impairment of a contract by legislation hostile to the interests of the corporation is not raised. If the corporation seeks the advantages of the law allowing municipal townships to aid the work in which it is engaged, it does so willingly, and because its interest runs in that direction. No force is used; no compulsion can.be effected. The issue of railroad-aid bonds has been sustained by the declarations of the legislative and the judicial departments of the state, and as the legislature has authorized subscriptions of this character to any railroad, we find nothing in the original charter of the company preventing it from accepting subscriptions on the conditions of the law of 1870. The terms and conditions of the subscription having been made in compliance with said act, with the consent of the corporation, it cannot be said to be unauthorized and void. The plaintiff had the right to accept any additional benefits provided by after-legislation which did not defeat the purposes of its charter; and certainly it had the power to accept the benefits which directly promoted these purposes. The provision in the law that the bonds were not to be issued until the railroad had been fully completed through the township voting them, or to such point in said township as was agreed upon, was a wise measure, and one which in all cases should be strictly adhered to. In this connection, we may add that, under all the authorities, when a subscription is received after the organization of a company, different principles apply than when made prior thereto.
After organization, a party is in existence with whom the subscriber can stipulate, and then his conditional promise can work no fraud on the other stockholders or co-subscribers.
II. Objection is made to the terms of submission on the ground that the proposition contained a clause providing that the township on the completion of the railroad from Topeka to Parnell station, in Atchison county, would assign and transfer to plaintiff its stock in the corporation for the consideration of one dollar. It is said that this condition was intended to make and did make the whole contract a donation of $40,000 of bonds to the plaintiff; that while it was nominally a subscription to stock coupled with a contract to sell, it was really a contract to donate $40,000 to the plaintiff to build its railroad and depot within the township. At most, this stipulation in the contract of subscription was a condition subsequent to the issuance of the bonds. It was subsequent, under the proposition of submission, to both the subscription and the liability to pay. Whether the township has the power to comply with this condition, we need not decide. That may be a matter of future discussion and determination. We do not intimate that this condition can be •enforced, or that it is valid, and purposely leave the question open. In this case the plaintiff is not seeking any stock, nor the transfer to it of stock. It is seeking the delivery of the bonds in payment of stock already subscribed. If the condition for the sale of the stock is void, being subsequent, it leaves the subscription valid and binding. If the condition is not illegal,Then it does not avoid the subscription.
III. It is further urged that the subscription is void because by its terms the plaintiff was required to locate and ■construct its road through the city of Grasshopper (now Valley) Falls or through a tract of land adjoining, and erect a • depot thereon. It is said that this condition is contrary to public policy, as it is alleged that it allowed the location of the road to be controlled by bonds, bribes and gifts. It is undoubtedly true that any contract that a railroad company will not discharge or by which it cannot discharge the obligations it owes to the public, is a breach of public duty and cannot be enforced. (St. Jos. & D. C. Rid Co. v. Ryan, 11 Kas. 602.) The question is, does the agreement to locate the road at or near to Valley Falls, and the erection of a depot thereon, contravene this well-settled doctrine? Ch. 90, laws of 1870, under which the subscription was made, provides: “That the commissioners shall not cause the bonds to be issued until the railroad shall have been completed through the township voting such bonds, or to such point in said township as may be conditioned in the bonds.” Within the law the plaintiff had the right to contract that the railroad should be constructed through Grasshopper (Delaware) township. No testimony is presented showing that running the road through or adjoining Grasshopper (Valley) Falls, caused the plaintiff to deflect in any way its road from a direct route between Topeka and Atchison, and for aught that appears in the case, such location was adopted to best subserve the public interest. Certainly the erection and maintenance of a depot at or adjoining Grasshopper (Valley) 'Falls, a large and growing village, would greatly tend to accommodate the public in the matter of transportation and travel. There is no agreement not to build other depots, nor any condition expressd or implied by which the public convenience is sacrificed to individual interest. The condition for the location of the road and the building of a depot, being within the power of the plaintiff and in furtherance of the interests of the corporation, and also seemingly for the benefit of the public generally, is valid.
IV. It is next insisted that said subscription cannot be lawfully asserted, for the reason that, according to the terms thereof, the county of Jefferson and said township could not both be stockholders in the plaintiff’s corporation, and that if the plaintiff received any bonds of said county under any subscriptions, then the subscription of the said township was to be null and void, and as the plaintiff’s corporation, prior to the commencement of this action and after such subscription by the said township, attempted to enforce a subscription from said county of Jefferson for one hundred and fifty thousand dollars and obtain county bonds therefor, that the plaintiff elected that the county should be a stockholder in the company rather than the township, and is estopped from enforcing the subscription of the township. The facts are these: In 1868, a vote was taken in Jefferson county on the question of subscribing stock and issuing bonds to the plaintiff, and the canvass by the county commissioners showed a majority in favor of the subscription and the bonds. In September, 1872, the plaintiff commenced an action in this court, alleging that on January 19th, 1868, the county commissioners of that county, by their proper officers, made a subscription in writing for the stock, in accordance with the terms and conditions mentioned in the proposition submitted at said election, and demanded that the county should accept stock itself, and issue therefor $150,000 of county bonds. On final hearing, it was decided that a majority of the legal votes cast at said election of 1868 were against making the subscription and issuing the bonds; and the said subscription was held invalid for want of power on the part of the subscriber to make it. This subscription was then canceled, and no bonds obtained thereunder. As the plaintiff has never received from the county of Jefferson any of the bonds of that county, and as such county is not now and never has been a valid stockholder, the action of the plaintiff in having settled by judicial determination the status of that county under the attempted subscription, is no bar to this suit, and did not render the subscription of the township void.
The other matters submitted by the counsel for the defendants are of minor importance to these referred to, and constitute no defense. It is unnecessary to specially comment thereon. Under the pleadings and the facts presented, the subscription made in the name of the township is valid, the said township is the owner of $40,000 of the capital stock of the railroad corporation, and the plaintiff is entitled to $40,000 of the bonds of such township, as stated in the alternative writ of mandamus issued in this case.
The peremptory writ will be granted, and judgment entered for costs against the defendants.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
At the time that this case was instituted in the supreme court, the following statute was in force, to wit: “That in attractions hereafter instituted by petition in error in the supreme court, the plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or a certified transcript of the record of said court.” (Laws of 1877, pages 243, 244.) Prior to the passage of this statute, the following statute was in force, to wit: “The plaintiff in error shall file with his petition a transcript of the proceedings, containing the final judgment or order sought to be reversed, vacated or modified, or the original case-made as hereinafter provided, or a copy thereof.” (Code, §546 as amended, Laws of 1870, page 169.) The plaintiff in error in this case has not complied with either of these statutes. She has not filed with her petition in error “the original case-made,” “or a copy thereof,” nor “a certified transcript of the record of said [district] court,” nor “a transcript of the proceedings, containing the final judgment or order sought to be reversed, vacated or modified; ” but all that she has filed therewith is only a copy of a mere bill of exceptions, certified to by the clerk of the district court of Mitchell county, as follows: “ I certify that the foregoing is a correct copy of the bill of exceptions in the above entitled cause now on file in my office.” This bill of exceptions does not purport or profess to give the full “record” of the case in the court below, nor does it profess to give all the “proceedings” had in such cáse. Therefore, how much of the “record” or how much of the “proceedings” is not brought to this court, we cannot tell. And that portion of the “record” or “proceedings” not brought to this court may be very essential. It may be necessary to any correct understanding of the case, and might explain all the supposed errors complained of by the plaintiff in error. It is true that the bill of exceptions contains many things which ought not to be put into a bill of exceptions: for instance, it purports to contain copies of the pleadings, or, at least, copies of a portion of the pleadings; but, of course, these supposed copies are not properly authenticated. The clerk, who is the custodian of the pleadings, and who is the only person who can properly certify to the correctness of copies thereof, does not certify that these copies are true copies of the original pleadings. At most, he only certifies that they are true copies of copies of such of the pleadings as are copied into the bill of exceptions. It is well said, in the case of Shumaker v. O’Brien, 19 Kas. 476, 477, that “the object of” a bill of exceptions “is generally to bring upon the record for review a decision of the court upon a matter of law which the record would not otherwise show, in which case it must be reduced to writing, allowed, signed and filed at the term the decision complained of is made. Nor is it correct practice to set out the pleadings in the action in the bill of exceptions; neither should the judgment nor orders of the court be embraced in it. They tend to burden that record and increase the expense of the transcript without any benefit. The bill of exceptions is only a portion of the record,” etc. In order for us to review the proceedings of the court below, as we have not received a “case-made” we should have “acertified transcript of the record” — a “transcript of the proceedings.” But, instead of that, we have a transcript of only a portion of the record. If it be said that this portion of the record shows what the other portion is, it may be answered, that' we cannot know that such is the case. There may be much of the proceedings that this bill of exceptions does not contain. Besides, we are entitled to copies of the original proceedings, to copies of the original pleadings, process, motions, orders, journal entries, and judgment; but we have not obtained them. We have only copies of supposed copies of a portion of these things. A portion of these things is erroneously copied into a bill of exceptions, and then we get only copies of these copies. But how are we to know that these original pleadings and proceedings are correctly copied into the bill of exceptions ? The party drawing the bill copies these things into the bill of exceptions himself. The other side does not necessai’ily see the bill until after it is allowed and signed. The judge signing and allowing the bill does not have the custody of the records, and cannot conveniently know what they contain; and what is already in the record should not again go into the record by placing it in a bill of exceptions. Parties have no right to duplicate or triplicate the record by placing things already of record in the bill of exceptions, and thereby needlessly incumber the record, and increase the costs and expenses of the case. Besides, the judge does not have authority to certify to the correctness of copies of the record, or copies of any of the proceedings which are already of record. It is the duty of the judge only to see that the original record is made up properly, and that it speaks the truth; and the clerk then certifies to the correctness of copies thereof, or to copies or portions thereof. But the clerk does not, and has not in this case, certified to the correctness of the copies of the pleadings copied into this bill of exceptions. That is, while the clerk certifies that the copy of the bill of exceptions brought to this court is a correct copy of the original bill of exceptions, yet he does not certify that the original pleadings or proceedings, or any of them, were correctly copied into the original bill of exceptions, and he does not certify that the copies of pleadings and proceedings found in-the copy of the bill of exceptions brought to this court are true copies of the original pleadings and proceedings.
We think it will be seen from the foregoing, that this court could not reverse a judgment upon a mere bill of exceptions. The judgment of the court below, we think, however, was right, and if any error did intervene, it was mere technical error.
Said judgment will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of ejectment brought by Edwin Tucker, plaintiff in error and plaintiff below, against the defendants in error, defendants below, to recover the possession of the lands described in plaintiff’s petition. The facts, as found by the court, are these:
That on the 25th of May, 1874, and long prior thereto, one H. C. Jackson was the owner in fee of the lands in controversy, and that on said 25th of May, said Jackson, for a good and valuable consideration, sold and conveyed by warranty deed the said lands to defendants in good faith; that on the 1st of July, 1874, the defendants entered upon and took actual possession of said lands, and have continued in possession ever since. On the 1st day of September, 1874, a writ of attachment was duly levied on said lands as the property of said Jackson, at the suit of the Eureka bank against said Jackson, in Greenwood county district court, which attachment remained in full force till the rendition of judgment in such action. On the 7th day of November, 1874, the said deed of Jackson to the defendants for said lands was duly recorded. On the 27th day of April, 1875, the said Eureka bank duly obtained judgment in said suit in said district court against said Jackson for $446.70, and $61.80 costs, and said judgment was declared a lien on said lands theretofore attached in said action; and by the terms of such judgment said lands were ordered to be sold for the satisfaction thereof, as on execution; and on the 28th day of June, 1875, an execution was duly issued on said judgment, and by virtue thereof said lands were, on the 27th day of September, 1875, duly sold to the plaintiff for the sum of $620; and on the 16th day of October, 1875, said district court duly confirmed said sale; and on the 26th of October, 1875, the sheriff of Greenwood county, in due form of law, executed and delivered to said plaintiff a sheriff’s deed, conveying to him all the right, title and interest of said Jackson in said lands, and that prior to the levying of said attachment upon said lands, the plaintiff had no actual notice of the deed of Jackson to defendants for said lands.
“The court found as conclusions of law, that the plaintiff was not, at the time of the commencement of this action, the owner of or entitled to the possession of said lands, and that the defendants were entitled to judgment for costs. And thereupon said court rendered judgment in favor of the defendants for costs; and immediately afterward, and on the same day, the said plaintiff moved to set aside the conclusions of law and for a new trial, which motion was by the court overruled, to which the plaintiff at the time duly excepted, and now brings the case here.”
The only question involved in this case is the following: Where an order of attachment is levied on a certain piece of' land, which the public records show belongs to the defendant in the attachment, but which in fact does not belong to him, but belongs to a third person who has the actual possession thereof, and holds the same in good faith and for a good, valuable, and sufficient consideration, under a prior but unrecorded deed, is the attachment a lien on such land as against said third person?
This question we think has already been substantially settled in the negative by prior decisions of this court. (See Moore v. Reaves, 15 Kas. 150; Johnson v. Clark, 18 Kas. 157; School District v. Taylor, 19 Kas. 287; Greer v. Higgins, 20 Kas. 420, 426; especially, the case of School District v. Taylor.)
As between the defendants in this case and Jackson, the defendant in the attachment, (and all others having actual notice of said deed,) the defendants in this case were the absolute owners of said land in every respect, both in law and in equity. But as between the defendants in this case and the plaintiff, who really represents the plaintiff in the attachment suit, the defendants in this case were probably only the equitable owners of the land — the legal title thereto still remaining in Jackson. But they were the absolute, unqualified, unconditional, equitable owners; and as they were in the actual possession of the property, the plaintiff, as well as all others, was bound to take notice of their equitable ownership. Of course, such possession, in order to require parties to take notice thereof, must also be open and visible; but from the record in this case, we must presume that it was open and visible, and not only as against Jackson and the parties claiming under the attachment, but also as against all other persons it was exclusive. Before the plaintiff in this case obtained any interest in said land — indeed, before any judgment was ever rendered in the attachment suit — the defendants in this case converted their said equitable title to said land into a legal title by having their deed from Jackson recorded.
We decide this case upon the theory that said deed from Jackson to the defendants in this case was void as against the plaintiff in this case, when considered separate and alone, and not in conjunction with the other facts; and that it cannot be considered as valid in any case against such persons as the plaintiff in this case, except where it as a simple contract, and the other facts of the case taken together, are sufficient to constitute an equitable title. An attachment cannot be made to operate upon a mere legal title as against the equitable owners of real estate, where the parties claiming under the attachment have at the time the attachment is levied or are bound by law to take notice of the paramount outstanding equitable title. As between the parties to this action, the levy of said attachment, and all proceedings founded thereon, must be considered as void.
The judgment of the court below will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The full statement of the case is found in the following findings of the court, to wit:
The above-named parties, on the 8th of January, 1876, mutually made and entered into the following contract, at the city of Fort Scott, Kansas, viz.:
[No. 10,488.] Land Department of the Mo. River, 1
Ft. Scott & Gulf Railroad Co. j
This agreement,'made this 8th day of January, in the year 1876, between the Missouri River, Fort Scott & Gulf railroad company, of the first part, and F. M. Brickley, of the county of Bourbon, state of Kansas, of the-second part, Witnesseth: That in consideration of the stipulations herein contained, and the payments to be made as is hereinafter specified, the first party agrees to sell unto the second party the northeast quarter of the southeast quarter of section No. 11, in township No. 28, south, of range No. 25, east of the sixth principal meridian, in the county of Crawford and state of Kansas, containing, according to the United States survey, forty acres, be the same more or less, for the sum of one hundred and twenty dollars; on which the said second party hath paid the sum of forty dollars, being a part of the purchase money.
And the said second party, in consideration of the premises, hereby agrees to pay to the said first party, at the land department of the Missouri River, Fort Scott & Gulf railroad company, at Fort Scott, the following sums of principal and interest, at the several times named below:
And it.being mutually understood that the above premises are sold to said second party for improvement and cultivation, and the said second party hereby further agrees and obligates himself, his heirs and assigns, that all improvements placed upon said premises shall remain thereon, and shall not be removed or destroyed until final payment for said land; and further, that he will punctually pay said sums of money above specified as each of the same becomes due; and that he will regularly and seasonably pay such taxes and assessments as may be lawfully imposed upon said premises, including the taxes for 1875.
In case the said second party, his legal representatives or assigns, shall pay the several sums of money aforesaid, punctually and at the several times above limited, and shall strictly and literally perform, all and singular, his agreements and stipulations aforesaid, after their true tenor and intent, then the first party will make unto the second party, his heirs or assigns, (upon request at the land office of the first party, at Fort Scott, and the surrender of this contract,) a deed conveying said premises in fee simple with the ordinary covenants of warranty, reserving, however, a strip of land one hundred and fifty feet wide, to be used by the first party for a right of way or other railroad purposes, where the line of the Missouri River, Fort Scott & Gulf railroad is laid over the premises.
But in case the second party shall fail to make the payments aforesaid, or any of them, punctually, and upon the strict times and terms above limited, and likewise to perform and complete all and each of his agreements and stipulations aforesaid, strictly and literally, without any failure and default, the times of payment being of the essence of this contract, then the party of the first part shall have the right to declare the contract null and void; and all rights and interests hereby created or then existing in favor of said second party, or derived under this contract, shall utterly cease and determine, and the premises hereby contracted for shall revert to and revest in said first party (without any declaration of forfeiture or act of reentry, or without any other act by the said first party to be performed, and without any right of said second party of reclamation or compensation for moneys paid or improvements made), as absolutely, fully and perfectly as if this contract had never been made.
And it is further stipulated, that no assignment of the premises shall be valid unless the same shall be indorsed hereon, or permanently attached hereto, and countersigned by the commissioner of the land department (for which purpose this contract must be sent to this department by mail or otherwise); and that no agreement or conditions or relations between the second party and his assignee, or any other person acquiring title or interest from or through him, shall preclude the first party from the right to convey the premises to said second party or his assigns, on the surrender of this agreement and the payment of the unpaid portion of the purchase money which may be due to the first party.
In witness of which, the Missouri River, Fort Scott & Gulf Railroad Company hath caused these presents in duplicate to be signed by the commissioner and the secretary, and countersigned by the cashier of the land department, and the second party has hereunto set his name on the day and year first above written. John A. Clark, Commissioner.
H. Wilson, Secretary.
Countersigned: F. M. Brickley, Purchaser.
T. H. Annable, Cashier.
At the time of the execution and delivery of said agreement, the plaintiff Brickley paid the defendant $40 on the same, it being part of the purchase-money for said land. At the time of making said agreement, the plaintiff Brickley knew of the existence of a three-feet vein of coal on said land, which was unknown to the defendant, although the means of knowledge were equally open and accessible to both parties; but at the time of the making of the contract nothing was said by either party relative to the existence or nonexistence of coal on said land.
In the fall of 1876, the plaintiff, Brickley, who had been in th.e employ of Isaac Stadden, a .business' man in the city of Fort Scott, Kansas, went to the town of Anderson, in the-state of Indiana, on a visit, leaving his papers, including the aforesaid agreement, in Stadden’s safe and in his possession, and also, a credit due him from Stadden of forty-two or forty-three dollars, without any instructions to Stadden' in relation either to the papers or the credit, he (Brickley) expecting to return in a few weeks to Fort Scott; but while in Indiana, on the 27th of October, 1876, he dislocated his right-ankle, and erysipelas set in, and he was confined to his bed and ro,om by reason thereof till the latter part of March,. 1877, during which time, or a part thereof, he corresponded with Stadden frequently, saying nothing, however, relative to said contract with the defendant until on or after April 4th, 1877.
On the 8th day of January, 1877, the second installment on said agreement fell due, being $40 principal and $5.60-interest, which installment the plaintiff Brickley failed to-pay; and, therefore, on the 2d day of April, 1877, the defendant, after a delay extending from said 8th day of January to the 2d day of April, 1877, exercised the power or right, reserved to it in said contract, and declared the same void for the plaintiff’s failure to pay said installment at the time stipulated in said agreement, and duly notified the plaintiff of its exercise of said power, which notice of forfeiture the plaintiff received by mail on the 5th day of April, 1877, in the-state of Indiana.
On the 4th of April, 1877, the plaintiff wrote the defendant from Indiana, addressing his letter to Gen. John A. Clark, defendant’s land commissioner at Fort Scott, Kansas,, informing Clark that he had met with the aforesaid misfortune in dislocating his ankle, and that he had forgotten whether the second installment on said agreement fell due- ■on the 1st of April or the 1st of May, 1877; also, inquiring when said installment did fall due, and stating if then due, to call on Stadden and he would pay it for plaintiff; that he had left the money with Stadden to pay it, which letter the said Clark received, and on the 6th day of April, 1877, replied, informing the plaintiff of the action of the defendant in declaring a forfeiture of said contract, and that he had forwarded him notice thereof, which letter plaintiff afterward received by mail.
On the 14th day of April, 1877, the plaintiff, having arrived at Fort Scott, Kansas, tendered the defendant in legal-tender notes $47, and in silver fifty .cents, in full of said installment falling due on the 8th of January, 1877, together with the interest then accrued on the said purchase money up to that date, which the defendant refused.
On the 17th day of March, 1876, the plaintiff Brickley paid the taxes on said land for the year 1875, amounting to $5.30, and on the 4th day of May, 1877, he paid the tax on the same for the year 1876.
On the 31st day of July, 1877, the plaintiff, declaring that he still held up and continued the said tender by him made on the said 14th of April, 1877, again tendered the defendant $95 as payment in full of both the deferred payments on said agreement, and the accrued interest on the same, by United States legal-tender notes, which was also refused by the defendant.
At the time of the making of said agreement, the said laud was, with the exception of a few acres, wild and uncultivated, and for the most part untillable, and has never been taken into actual possession by the plaintiff Brickley.
The said land, including the said vein of coal thereon, with the said railroad constructed and operated across or close to the same, was worth about $50 per acre, the increase in the value thereof from the $3 to about $50 per acre being due to the existence of the said coal vein and the immediate prospect of the completion of the said railroad, now in process of construction, and the construction of which has been finally determined on since the making of said agreement.
The plaintiff Brickley had knowledge of the probable extension of the Fort Scott, Southeastern & Memphis railway in the direction of the said land when he entered into the said contract; and when he wrote the said letter of April 4th, 1877, to John A. Clark, the defendant’s land commissioner, he had additional information, and of a more reliable character, to the same effect.
The last-mentioned railroad is a branch road connecting with the defendant’s road about four or five miles south of the city of Fort Scott; and Clark, the land commissioner of the defendant, had knowledge of the said Fort Scott, Southeastern & Memphis railroad company’s determination do extend its road in the direction of said land about the time of the said declaration of forfeiture made by him of said contract, as the agent of the said defendant; and said Clark issued said declaration of forfeiture immediately upon his receiving an order from the general manager of the’defendant’s road to withdraw their lands along the line of the Fort Scott, Southeastern & Memphis railroad from the market.
The custom of the defendant has been, when deferred payments on its contracts for the sale of its lands fell due, and were not met at the time by the purchaser, in case he was actually occupying the land, to notify him of the fact, and extend the time of payment if desired; but in case the purchaser did not occupy and improve, then its custom has been to hold the contract subject to cancellation, upon its rpeeting with a satisfactory offer from another purchaser to buy the same.
The default of the plaintiff Brickley was not willful, and for the purpose of awaiting the contingency of a rise in the value of the land, but was the result of his misfortune in having his aukle dislocated, and his consequent sickness which detained him from home, together with his mistake in the recollection of the time when the payments on the said contract fell due, and some slight negligence on his part in observing the times of payment thereon.
The defendant has publicly advertised for several years that it is always ready to receive the deferred payments on its contracts for the sale of its lands in advance, and to make deeds to the purchasers at any time on complete payment pf the whole of the,purchase money.
The plaintiff herein pleaded the tenders above mentioned in this action, and held them, and both of them, up on trial; and the defendant pleaded a tender back to the plaintiff of the whole amount of money that the plaintiff has paid to it on said contract, and held up the tender on the trial hereof.
Upon the findings it is apparent that if the contract between these parties is enforced according to its terms, judgment was improperly entered in favor of Brickley. They had stipulated that upon his failure to make the payments punctually, the 'times of payment being of the essence of this contract, it should have the right to declare the contract null and void, and thereupon all his rights thereunder should cease. He did fail to make such punctual payments. It exercised the power reserved in it, and declared the contract at an end. By what right may the court ignore this stipulation of the contract, while it upholds and enforces the others? The parties fix the price at a certain sum. Does the court ever attempt to change that price? Does it not always say that it cannot make contracts for parties, and as they have agreed upon the price, that concludes the matter? May they not also fix the time at which the price must be paid? — and if not, why not? Why is the matter of time outside the power of the parties absolutely to determine, when all other matters — price, interest, security, etc.— must be determined by them alone? It is true that at one time it was the doctrine of the court of chancery that parties could not make time of the essence of a contract of sale of real estate. Such seems to have been the opinion of Lord Thurlow, from the case of Gryson v. Riddle, cited by Sir Samuel Romilly, from his own notes in the argument of the case of Seton v. Slade, 7 Vesey, 265. But that doctrine has long since been overthrown, and now, in equity as well as at law, wherever it clearly appears to be the intention of the parties that time should be of the essence of the contract, that essential feature will be upheld. (Hudson v. Bartram, 3 Madd. 440; Boehm v. Wood, 1 J. & W. 419; Williams v. Edwards, 2 Sim. 78; Hipwell v. Knighi, 1 Y. & C. Exch. Ca. 401; Nokes v. Lord Kilmorey, 1 De G. & S. 444; Parkin v. Thorold, 16 Beav. 59; Gedye v. The Duke, 26 Beav. 45; Hudson v. Temple, 29 Beav. 536; Benedict v. Lynch, 1 Johns Ch. 370; Wells v. Smith, 2 Edwards Ch. 78; 7 Paige, 82; Scott v. Fields, 7 Ohio, 424; Brewer v. Connecticut, 9 Ohio, 189; Davis v. Stevens, 3 Iowa, 158; O’Fallon v. Kennerly, 45 Mo. 124; Kemp v. Humphreys, 13 Ill. 573; Chrisman v. Miller, 21 Ill. 327; Grey v. Tubbs, 43 Cal. 359; Phelps v. Ill. Cent. R. R., 63 Ill. 469; Reed v. Breeden, 11 P. F. Smith, 460; Bullock v. Adams, 5 C. E. Green, 371; Jennisons v. Leonard, 21 Wall. 302.) It is true that courts of equity do not presume that parties intended that time shall be of the essence of such a contract, but rather that the substantial matters are the transfer of title on the one side and the payment of the price on the other, and that if these be accomplished, although not at the exact time named therefor, the contract is in its substance and intent upheld. Hence it is common for courts to say, when there is simply a' bond to convey upon the payment of certain amounts at specified times, that time is not of the essence of the contract, and decree conveyance of the title upon tender after the specified times of the stipulated price and interest. But this interpretation of the effect and intent of certain contracts is no denial of the right of the parties to make time of the essence of the contract, and no assertion of the right of the courts to disregard or annul such stipulation when made.
The syllabus in Wyncoop v. Cowing, 21 Ill. 570, reads:
“Where parties make time-one of the conditions of .a contract, courts of equity will not relieve a defaulting party where there is no waiver by the other party.”
That in Kemp v. Humphreys, 13 111. 573, says:
“Parties have the right to make their own contracts, making the time of their performance material, so that a failure to perform at the time will avoid the agreement. A court of equity has no power to enforce the specific execution of a contract contrary to the clearly-expressed intention of the parties.”
And in Chrisman v. Miller, 21 Ill. 227, Chief Justice Catón says:
“It is conceded on all hands that parties have the right to make their contracts as stringent as they please, and to make time of the very essence thereof; and if one party, without the consent of the other, állows the specified time to pass, no matter from what cause, without performing the condition, the stipulated consequences must follow. Here, by the express contract of the parties, time is made of the essence of the contract. The contract is, that if payments should not be made at the stipulated times, then the purchaser’s interest under the contract should cease.”
See, also, a later case, in which the court says:
“A party demanding specific performance is bound to show that he himself has always been ready, and willing, and eager to perform on his part, when the contract'itself does not make time of its essence. In cases where time is of the essence, it has been the constant ruling of this court, that such a provision cannot be dispensed with, but will be enforced except under very peculiar circumstances. A court of equity has no power to alter contracts of parties, hut to enforce them as made.” (Phelps v. Ill. Central R. R., 63 Ill. 469.)
It being then settled, at law and in equity, that the parties to such a contract may make time of its essence, and that when so made that stipulation like all others is binding upon the court, let us examine the contract and the findings to ascertain what were the rights of the parties under the one, and if any ground is shown in the other for setting aside or disregarding the stipulations of the former. In reference to the contract, counsel for Bricldey contend that a failure to make punctual payment does not of itself avoid the contract, but only gives to the company the right to avoid it; that this option must be exercised immediately upon the default in payment, or it will be waived; or if it must.not.be exercised immediately, and is in fact attempted to be exercised months after the default, that then a reasonable time for payment' exists after notice of the claim of forfeiture. Again, they say that this was a sale upon condition subsequent, and that equity will relieve against the breach of a condition subsequent, when compensation can be made, and that interest is the legal compensation for breach of a contract to pay money; and further, that having regard to the fact that this is a sale upon condition subsequent, that possession is given, and that the improvements are to remain until payment of the price, this should be regarded as really a contract for the security of the payment of money — in fact, tantamount to a mortgage. None of these claims can be sustained. This is purely and strictly a contract for the sale of land. That is its purpose and object, and not the loan of money, or mere security for money loaned. No better description of the character of this contract can be found than that given by Mr. Justice Hunt, in the case from 21 Wall., supra, as follows:
“This was one of the sales of real estate by contract so common in this country, in which the title remains in the vendor and the possession passes to the vendee. The legal title remains in the vendor, while an equitable interest yests in the vendee to the extent of the payment made by him. As his payments increase, his equitable interest increases; and when the contract price is fully paid, the entire title is equitably vested in him, and he may compel a conveyance of the legal title by the vendor, his heirs, or his assigns. The vendor is a trustee of the legal title for the vendee, to the extent of his, payment. The result of this state of things is quite unlike'that of a conveyance subject to a-condition subsequent which is broken, and when reentry, or a claim of title for condition broken, is necessary to enable the vendor to restore to himself the"title to the'estate. The legal title having, in that case, passed out .of him, some measures are necessary to replace it. In the case of a contract like that which we are now considering, no legal title passes. The interest of the vendee is equitable merely, and whatever puts an end to the equitable interest, as notice, an agreement of the parties, a surrender, an abandonment, places the vendor where he was before the contract was made.”
In the case of Walker v. Rogan, 1 Wis. 527, cited by counsel, there was an express conveyance of the legal title. A deed was executed conveying the fee in consideration of one dollar, and the bond thereafter recited and conditioned, that if the grantee should fail to comply with the conditions of said bond, the same being a bond for the payment of money, then the conveyance and the estate thereby created should cease, determine, and be of no effect, and the grantor should have the right to reenter, etc. That plainly was a deed upon ■a condition subsequent. Here, the company owned the land, •and desired to sell it. It made this contract to effect the sale. It retained the legal title, not as security for money loaned, •but for the unpaid portion of the price. This was no mere mortgage, in which security for the payment of money is the primary purpose, but a contract, in which - the. sale of real estate is the thing intended. It did not convey the title subject to a lien: it retained the title, and simply gave to the purchaser the right of obtaining a title upon performance of certain prescribed precedent conditions. Instead of being a conveyance of title upon conditions subsequent, it was a contract to convey upon conditions precedent. Again, the contract gives to the company the option, upon the default of Brickley, to declare the contract at an end. Nowhere is it said that this option must be exercised at the exact moment of default, or be lost to the company, nor can any such inference be drawn from any reasonable construction of the language. The same rule applies here as in case.of the time of payment.- Time is not presumed to be of the essence, and is only held to be so when expressly stipulated, or when the facts and circumstances clearly indicate the intention of the parties' that it should be so. Here, there is no expressed .stipulation for fixing the exact time of exercising the option, nor do the facts and circumstances indicate any such intention, but rather the 'reverse. And in order to clearly interpret a contract in ■the light of the surrounding facts and circumstances, we must regard rather the situation at the time the contract is entered into, than those matters which may transpire thereafter. What, in view of that situation, did the parties intend? is ■the question, and not, What in the light of those after-matters would ■ have been the most prudent, and attended with the least risk ? It must be presumed that Brickley, by entering into this contract, intended to. purchase this land, desired to do so. Asking time for part of his payments, it cannot be presumed that he desired that the company should cut off his entire interest in the premises, and all his rights in the contract upon the first happening of any default. The. more time the company would give him, the better. .The longer it waited before exercising its option and destroying his contract, the greater .the probabilities of his finally completing the purchase and securing the land. The company insisted that time of payment should be of the essence of the contract, instead of executing a deed and taking a mortgage back; in which event, upon default, a foreclosure suit would have been necessary to recover money or land. It simply gave its contract to convey upon the payment of certain sums at specified times. It protected, its rights by reserving the option to declare the contract at an end upon Brickley’s default. Qf what value to it was any limitation on the'time of exercising this option ? Must it be presumed that it was contracting in advance, that.it would show no mercy, or that it was so framing its agreement that it could grant no favor without, giving .up an essential element of its security? Even against a corporation, no such presumption as that obtains, but rather, .while insisting upon the right of putting an end to the contract whenever the purchaser should make default as essential to its security, it might, nevertheless, without yielding this right, postpone its exercise so long as a due regard to its own interests and the rights of the purchaser should permit.
Again, the contract gives the company the right upon default, to declare the contract at an end, and provides that “all rights and .interests hereby created or then existing in favor of said second party, or derived under this contract, shall utterly cease and determine.” This plainly implies that upon the declaration of forfeiture, the contract shall then, ipso facto, be at an end, and not that it shall end unless payment be made within a reasonable time. It does not provide for a future but a present termination of the contract. This does not assimilate the case in which, time not being of the essence, there has been a long delay on the part of the purchaser, and the vendor elects to put an end to the contract, arid gives notice of his intention thereto, in which it is held that the vendee has a reasonable time thereafter in which to pay. In such case, the courts are not interpreting the very terms of the contract, but are enforcing the equitable obligations of the parties; and it is held that the vendor, having himself waited long, shall not be permitted in a moment to cut off all rights of the purchaser. (2 Leading Cases in Equity, White Tudor’s Notes, part II, page 1001, and cases cited.) It seems to us, therefore, that under this contract, ex m termini, the plaintiff had lost all his rights in the land.
But again, at law each party always stood upon the very letter of the contract. He could claim nothing which the contract did not in terms give. “As to the contract of the party,” says Lord Eldon, in the case of Seton v. Slade, supra, “the slightest objection is an answer at law.” Only in equity was relief ever granted to any one who had not complied with every stipulation of his agreement. If the purchaser had not paid at the very time he had promised to pay, the law gave him no relief, and equity only interfered when it was equitable to do so. “Where either the vendor or purchaser has not completed the contract on his part at the appointed time, if the contract be inequitable or the price unreasonable, that is to sav, inadequate in one case or exorbitant in the other, equity will not afford its aid by decreeing specific performance.” (Whorwood v. Simpson, 2 Vern. 186; Lewis v. Lord Lechmere, 10 Mod. 503.) In the leading case of Longworth v. Taylor, 14 Peters, 172, Story, J., speaking for the court, says:
“In the first place, there is no doubt that time may be of the essence of a contract for the sale of property. It may be made so by the express stipulation of the parties, or it may arise by implication from the. very nature of the property, or the avowed objects of the seller or the purchaser. And even when time is not thus either expressly or impliedly of the essence of the contract, if the party seeking a specific performance has been guilty of gross laches, or'has been inexcusably negligent in performing the contract on his part; or if there has, in the intermediate period, been a material change of circumstances, affecting the rights, interests or obligations of the parties, in all such cases courts of equity will refuse to decree any specific performance, upon the plain ground that it would be inequitable and. unjust. But except under circumstances of this sort, or of an analogous nature, time is not treated by courts of equity as of the essence of the contract; and relief will be decreed to the party who seeks it, if he has not been grossly negligent and comes within a reasonable time, although he has not complied with the- strict -terms of the contract. But in all such cases, the court expects the party to make out a case free from all doubt, and to show that the relief which he asks is, under all the circumstances, equitable.”
Would it be equitable to enforce this contract, under all the circumstances? We think not. The land is worth $2,000. For the pitiful sum of $120, plaintiff asks the court to compel the company to convey him this land. That is, he asks the court to take $2,000 worth of property away from the defendant, while he is only willing to pay therefor $120. Surely, there is nothing in that to appeal to the conscience of a chancellor, or to set the eager footsteps of a court of equity in motion. He that seeks equity must do equity; and one who asks to take from another property of such great value, without the payment of the sixteenth part of such value, ought to be able to show that he has himself done all that is “ nominated in the bond.” It is true, the findings show the value at the time of the decree, and not that at the time of the • contract; but the difference between such value and the price is found to be owing to a vein of coal, and to the prospective construction of a railroad in proximity to the land. The one was there at'the time of the contract, and was known to the purchaser, and not to the seller. Whatever of additional value that gave, then existed — a value which he knew, but the company did not. They did not therefore contract upon equal terms. The railroad company, supposing the land merely farm land, sold it upon the basis of its value as such, for cultivation and improvement. Brickley, saying nothing of the larger value he knew that it possessed on account of the valuable coal deposits underneath its surface, bought it not for farm, but for mining purposes. And while this ignorance on the part of one, and knowledge on the part of the other, might not of itself be ground for setting aside the contract, yet it is a very potent reason why the strong arm of the chancellor should not be lifted to relieve him from the consequences of his own failure to comply with the terms of this unequal contract. Again, the prospective construction of a railroad in proximity to the land is the other element affecting the valué. That there was some prospect of this, Brickley knew at the time of the contract. Whether the company did or not, the findings do not show. In all probability it did, however. But about the time of the forfeiture, each party became aware of facts renderinS • more probable the. immediate construction of this .road, and undoubtedly the action of the one. party,, and certainly the action of the- other, was influenced by this additional information. In other words, since the contract, and, indeed, since the default, there had been a material change of circumstances affecting the value of property. Such a change of course does not affect the yalidity of the contract, nor release either party from the obligation to perform, but like the other element referred to affecting the value, it is material in determining whether it. would be equitable to relieve the plaintiff against a forfeiture caused in part, at least, by his own negligence.
In the case of Margraf v. Muir, 57 N. Y. 155, where no default was claimed on the part of the purchaser, and where the only imputation of wrong on-his part was in his concealing the fact of a rise in the value of real estate, the court refused to enforce the contract or give to the purchaser any further damages than the return of the money paid by him, and interest. Earl, J., in giving the opinion of the court, uses this strong language:
“This was an unconscionable contract, and could not be specifically enforced on the ground of the inadequacy of the consideration. The plaintiff lived near the lot, and knew its value. The defendant lived at a distance, and did not know its value. While the plaintiff did not make any misrepresentations, he concealed his knowledge of the recent rise iu value of the lot, and took advantage of her ignorance, and thus got from her a contract to convey to him the lot for but a little more than one-third its value. Such a contract, it is believed, has never yet been enforced in a court of equity in this country. When a contract for the sale of lands is fair and just and free from legal-objection, it is a matter of course for courts of equity to specifically enforce it. But they will not decree specific performance in cases of fraud or mistake, or of hard and unconscionable bargains, or when the decree would produce injustice, or when such a decree would be inequitable under all the circumstances.” (1 Story Eq. Jur. §769; Willard’s Eq. J. 262; Osgood v. Franklin, 2 Johns. Ch. 1; 14 Johns. 527; Seymour v. Delancey, 6 Johns. Ch. 222; 3 Cow. 445.)
• In this last citation is a long review of the authorities by Savage,'C. J., which is very satisfactory. ■ See, also, Howard v. Edgell, 17 Vt. 28; Robinson v. Robinson, 4 Md. Ch. 182; Kimball v. Tooke, 70 Ill. 553. So far as plaintiff’s accident is concerned, while that of course is always a ground for the interposition of equity, yet it will be noticed that he did not leave in the hands of his employer an amount fully sufficient to make the payment; that he, during his confinement, frequently corresponded with such employer, but made no allusion to his contract; that he did not seem impressed with any anxiety to perform on his part until he received the additional information which led him to believe in the immediate construction of the railroad ; that he never entered into actual possession or made any improvements, as was contemplated by his contract; and finally, as the court finds, his own negligence contributed in some degree at least to his default.
So far as the public advertisement of the company is con cerned, that, of course, refers only to payments in advance of the specified'times, and cannot be construed as meaning that the company waived all forfeitures and agreed to hold all contracts perpetually open.
Though the contract provides for a forfeiture of all moneys paid under it, yet the company tenders back- all moneys it had received.
On the whole case it seems to us more in consonance with equity, which means equality, that the plaintiff seeking to purchase a valuable tract of land whose value he knew, but of which the defendant was ignorant, should, on being reimbursed his money, lose an enormous speculation, than that the defendant should be compelled to part with its property for a pitiful and-grossly-inadequate consideration; and the -plaintiff, having lost his right to rely upon the letter of his contract, must abide by that which equity says is just and fair between man and man.
The judgment of the district court will be reversed, and the case remanded with instructions to render judgment in favor of the defendant, the railroad company, upon its making its tender good.
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RüLON, }.:
Scott M. Arculeo, defendant, appeals his sentence resulting from his guilty plea to one count of attempted theft, K.S.A. 21-3701 and K.S.A. 21-3301, a level 10, nonperson felony. We affirm.
The facts of this case are not in dispute.
Defendant was originally charged with one count of theft of property valued at greater than $500 but less than $25,000. At the time he committed the crime he was out on bond awaiting sentencing in cases out of Butler and Coffey Counties. Pursuant to a plea agreement, defendant pled guilty to one count of attempted theft in exchange for the State’s promise to recommend an 8-month sentence and not to seek any kind of durational departure. Neither party asked for a departure.
The district court sentenced defendant to 9 months in prison and 12. months’ postrelease supervision. Given that the crime of conviction was a severity level 10 and defendant’s criminal history was E, the presumptive sentence was 24 months of a nonprison sanction. K.S.A. 21-4704; K.S.A. 21-4611(c).
The sole issue before us is whether the sentencing court erred in finding that if a defendant commits a crime while on bond and awaiting sentencing in another case, the court has the authority to impose a prison sentence when the presumptive sentence is non-prison, without the sentence being a dispositional departure.
This case involves the interpretation of the Kansas Sentencing Guidelines Act and is thus a question of law. This court’s scope of review on questions of law is unlimited. See State v. Fierro, 257 Kan. 639, 643, 895 P.2d 186 (1995).
Defendant argues the sentencing court erred in interpreting K.S.A. 21-4603d, and thus sentencing him to prison was a dispositional departure. According to defendant, because the court failed to find substantial and compelling reasons for departing, the court erred under K.S.A. 21-4716, and his case must be remanded for resentencing. The State agrees with the defendant. We disagree with both parties.
This record shows that the sentencing court believed that because defendant was released on bond while awaiting sentencing in two cases from other counties, K.S.A. 21-4603d authorized the imposition of a prison sentence despite the fact that the presumptive sentence was nonprison.
K.S.A. 21-4603d(a) reads in relevant part:
“When a new felony is committed while the offender is incarcerated and serving a sentence for a felony or while the offender is on probation, assignment to a community correctional services program, parole, conditional release, or post-release supervision for a felony, a new sentence shall be imposed pursuant to the consecutive sentencing requirements of K.S.A. 21-4608, and amendments thereto, and the court may sentence the offender to imprisonment for the new conviction, even when the new crime of conviction otherwise presumes a nonprison sentence. In this event, imposition of a prison sentence for the new crime does not constitute a departure.” (Emphasis added.)
The sentencing court reasoned that the bond imposed conditions and thus defendant was on conditional release. The record shows that defendant was not incarcerated, not on probation, not on assignment to community corrections, and not on parole or postrelease supervision. The only question presented is whether he was released on “conditional release.”
Defendant correctly argues there is no definition of the phrase “conditional release” in Chapter 21 of the Kansas Statutes Annotated. However, he notes that K.S.A. 22-3718 indicates that conditional release refers to that period which is computed by subtracting an inmate’s work and good behavior credits from his or her maximum sentence. “Conditional release releases the accused from parole supervision at the end of the maximum term, less work and good behavior credits earned, subject to rules and conditions of the parole board until expiration of the maximum term or until otherwise discharged.” Parker v. State, 247 Kan. 214, 218, 795 P.2d 68 (1990).
In determining the meaning of a statute, “ ‘[i]t is a fundamental rule of statutory construction, to which all other rules are subor dinate, that the intent of the legislature governs if that intent can be ascertained.’ ” City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). This court has said that “[t]he legislature is presumed to understand the meaning of the words it uses and the procedures it establishes.” State Bank Commissioner v. Emery, 19 Kan. App. 2d 1063, 1071, 880 P.2d 783 (1994). Criminal statutes are to be construed strictly against the State. State v. Frazier, 248 Kan. 963, 971, 811 P.2d 1240 (1991). “Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meaning.” K.S.A. 1995 Supp. 77-201 Second.
Arguably, because the term “conditional release” has been given a unique definition by the legislature, in the absence of any contraindication, it is .presumed that the legislature meant to use the term as it has been used in Chapter 22 of the Kansas Statutes Annotated. Thus, in keeping with the doctrine of strict construction of penal statutes, conditional release would not include the time a defendant is on bond awaiting sentencing. If the legislature had intended such a meaning, it could have included such a condition in the statute.
However, in at least two places in Chapter 21 of the Kansas Statutes Annotated, the term “conditional release” is used in a way that suggests something other than early release from parole supervision.
K.S.A. 21-4619 reads in relevant part:
“(g) Whenever a person is convicted of a crime, pleads guilty and pays a fine for a crime, is placed on parole, postrelease supervision or probation, is assigned to a community correctional services program, is granted a suspended sentence or is released on conditional release, the person shall be informed of the ability to expunge the conviction.” (Emphasis added.)
This language suggests that “conditional release” has a broader meaning because, in the context of this subsection of the statute, the individual has not been sentenced to prison and thus release from parole supervision is inapplicable.
K.S.A. 21-4721 reads in relevant part:
“(a) A departure sentence is subject to appeal by the defendant or the state. The appeal shall be to the appeEate courts in accordance with rules adopted by the supreme court.
!‘(b) Pending review of the sentence, the sentencing court or the appeEate court may order the defendant confined or placed on conditional release, including bond.”
Once again, if the individual'is being released pending a review of sentence, he or she could not be on release from parole supervision. Consequently, there is language in the statutes, specifically in Chapter 21, which indicates that “conditional release” can be construed to include being released on bond awaiting sentencing.
While penal statutes are to be strictly construed in favor of the accused and against the State, “ ‘[t]his rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and intent. State v. Fowler, 238 Kan. 213, 215, 708 P.2d 539 (1985),'” State v. Heffelman, 256 Kan. 384, 386, 886 P.2d 823 (1994).
“In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act but are required to consider and construe together aE parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the literal import of words or phrases which conflict with the manifest purpose of the legislature.” State v. Gonzales, 255 Kan. 243, Syl. ¶ 4, 874 P.2d 612 (1994).
Utilizing the above standards of review, we conclude that because of the context in which the phrase “conditional release” is used in Chapter 21, the legislature meant “conditional release” to include any situation where a defendant is released by the court under restrictive conditions.
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Marquardt, J.:
Sandra D. Newell appeals the trial court’s decision which affirmed the Kansas Civil Service Board’s (Board) termination of her employment by the Kansas Department of Social and Rehabilitation Services (SRS). Newell contends that SRS violated the statutory procedure for termination of a permanent civil service employee and that the decision to terminate her was not supported by substantial competent evidence.
Newell began working for SRS in 1986 as a social worker in adult services. Newell was responsible for investigating reports of adult abuse, assessing the need for in-home services for the elderly and disabled, and assessing the need to initiate conservatorship/guardianship proceedings.
Deana Robben became Newell’s supervisor in January 1991. Based on a consultation with Newell’s former supervisor, Robben rated Newell’s job performance as satisfactory on her 1990 evaluation. Robben rated Newell’s job performance as unsatisfactory on her 1991 evaluation. Newell’s job performance was reevaluated during the next 60 days and she received a satisfactory rating.
In August 1992, Robben warned Newell about her inadequate job performance. Notwithstanding Robben’s warning, Newell’s job performance did not improve. Newell received an unsatisfactory rating for the evaluation period February 12, 1992, to February 11, 1993.
Newell sustained a workers compensation injury on January 11, 1993. Newell was on medical leave from February 3,1993, to September 8, 1993. Newell received an unsatisfactory rating for the evaluation period September 8, 1993, to December 17, 1993.
On March 3, 1994, SRS notified Newell of her proposed dismissal and offered her the opportunity to respond. On March 15, 1994, Newell met with Gene Dawson, director of the Hays area SRS. Newell’s employment was terminated effective March 17, 1994.
Newell appealed her dismissal to the Board. The Board affirmed Newell’s dismissal by SRS. Newell timely filed a petition for judicial review. The district court affirmed the decision of the Board. New-ell timely filed her notice of appeal.
K.S.A. 75-2949 et seq. provides a procedure for summary dismissal of civil service employees.
K.S.A. 75-2949e(b) and (c) provide:
“(b) Unless the appointing authority determines that the good of the service will best be served by proceeding directly to the procedure prescribed in K.S.A. 75-2949 and amendments thereto, the appointing authority may propose dismissal ... of a permanent employee for deficiencies in work performance only after the employee has received two performance evaluations in the 180 calendar days immediately preceding the effective date of the proposed dismissal ....
“(c) If the appointing authority proposes to dismiss ... a permanent employee for deficiencies in work performance without the two evaluations described by subsection (b) and if the employee appeals the action to the state civil service board, the board shall require the appointing authority to show that the employee was adequately counseled concerning the nature of the deficiencies in work performance and concerning what was expected of the employee in correcting the deficiencies.”
Newell contends that once SRS had initiated termination proceedings under either subsection (b) or (c), it could only proceed under that individual subsection. Newell contends her dismissal was initiated tinder subsection (b) and since she did not have two unsatisfactory performance evaluations in the 180 days immediately preceding the dismissal, SRS could not terminate her. In the alternative, Newell suggests that before the appointing authority could proceed under subsection (c), it must show that “the good of the service [would] best be served by proceeding directly to” termination. K.S.A. 75-2949e(b).
This issue requires that this court interpret various provisions of the Kansas Civil Service Act, K.S.A. 75-2925 et seq. Statutory construction is a question of law over which this court’s review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
The provisions of K.S.A. 75-2949 et seq. must be read “ ‘together with a view of reconciling and bringing them into workable harmony and giving effect to the entire statute if it is reasonably possible to do so.’ ” See Guardian Title Co. v. Bell, 248 Kan. 146, 151, 805 P.2d 33 (1991) (quoting Easom v. Farmers Insurance Company, 221 Kan. 415, Syl. ¶ 3, 560 P.2d 117 [1977]).
K.S.A. 75-2949(a) provides that “[a]n appointing authority may dismiss or demote any permanent employee in the classified service when the appointing authority considers that the good of the service will be served thereby.” Subsection (b) merely restates the general spirit of the Act which requires that all dismissal decisions be for some legal cause, i.e., for the “good of the service.” See Swezey v. State Department of Social & Rehabilitation Services, 1 Kan. App. 2d 94, 99, 562 P.2d 117 (1977). Newell’s contention that SRS must make an additional “good of the service” finding prior to dismissing an employee who has not had two unsatisfactory performance evaluations within a 180-day period is incorrect.
An appointing authority has presumptive justification for the dismissal of an employee who has had two unsatisfactory performance evaluations within the 180-day period immediately preceding the dismissal.
If the employee has not received two unsatisfactory performance evaluations in the 180-day period immediately preceding the date of dismissal, and the employee appeals the dismissal, the appointing authority is required to establish that the employee was adequately counseled concerning the nature of the deficiencies in his or her work performance and what was expected of the employee to correct the deficiencies. K.S.A. 75-2949e(c).
In essence, the interplay between subsections (b) and (c) of K.S.A. 75-2949e merely establishes which party will carry the burden of persuasion during the appeal process. An unsatisfactory performance evaluation carries with it a presumption that the employee was apprised of the deficiencies in his or her performance and was advised of what measures needed to be taken to improve. If the appointing authority can establish that the employee has been independently advised as to his or her deficiencies in performance and has been counseled on how to improve, the statutory requirement has been met.
Newell fails to cite any authority to demonstrate that the procedures outlined in subsections (b) and (c) are mutually exclusive. Nothing in the statute requires that an agency elect one method of termination and “stick” with that method until the termination process has been completed. Newell cites to Swezey, 1 Kan. App. 2d at 98, in which this court indicated that “[w]here a statute sets forth the procedure for dismissal and requires that the cause of dismissal be stated in writing, the written statement so made is conclusive of the cause of removal.”
Newell erroneously asserts that SRS chose to initiate the dismissal process under K.S.A. 75-2949e(b) and limited its written letter of dismissal to that procedure. Newell would arguably be correct if SRS had limited its proposed dismissal to subsection (b). However, a review of the written statement provided to Newell reveals that SRS placed no such limitation on the dismissal procedure.
In its March 3, 1994, letter, SRS provided the following reasons in support of Newell’s proposed dismissal: “Deficiencies in work performance as documented in unsatisfactory performance evaluations for the periods 02-12-92 to 02-11-93 and 09-08-93 to 12-17-93. . . . Specific deficiencies in [Newell’s] work performance are outlined in [her] performance evaluations.” SRS’s reference to two evaluations does not commit SRS to proceed under K.S.A. 75-2949e(b). The factual support for Newell’s dismissal under subsection (c) is the same as that for termination under subsection (b) except that Newell’s two unsatisfactory performance evaluations did not occur within the prescribed period. Therefore, in the event of a subsequent appeal, SRS could not merely rely on the existence of the two unsatisfactory performance evaluations to support its decision to terminate Newell. SRS was required to establish that Newell had been given counseling and the opportunity to improve her performance prior tó dismissal. The requirement of the “adequate counsel” provision comes into play once the employee decides to appeal from the dismissal. Newell’s contention that exclusive reliance on a specific subsection must be stated in the appointing authority’s original written notice of proposed termination is without basis. Subsections (b) and (c) of K.S.A. 75-2949e are not mutually exclusive.
Newell argues that even if the district court properly followed the statutory procedure, SRS’s decision to terminate her employment was not supported by substantial competent evidence.
Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Dutta v. St. Francis Regional Med. Center, Inc., 18 Kan. App. 2d 245, 258, 850 P.2d 928 (1993), aff’d 254 Kan. 690, 867 P.2d 1057 (1994).
This court’s review is limited to whether there is evidence to support the fact that Newell’s job performance had been unsatisfactory and whether Newell was advised of the measures that needed to be taken to improve her performance. Appellate courts are not to reweigh the testimony or pass on the credibility of witnesses. McKissick v. Frye, 255 Kan. 566, Syl. ¶ 8, 876 P.2d 1371 (1994).
For the period December 12, 1990, to December 11, 1991, Robben rated Newell’s performance as unsatisfactory, indicating that “[ojrganization of time, follow-up on client service, and cooperation with agency staff need improvement.” In February 1992, Newell was reevaluated and received a satisfactory rating; however, Robben indicated on the evaluation that “Sandra needs to continue to maintain current caseloads and monitor her work production to be able to continue completing job responsibilities in a satisfactory manner. When problems arise, Sandra needs to continue to consult with supervisor.”
Robben’s letter of August 11, 1992, instructed Newell to “[u]se an assertive and caring approach versus an [aggressive] and blaming approach.” Robben warned Newell that “[i]f improvement is not seen in the [listed] areas of concern, a special evaluation will be conducted.” Newell’s job performance was rated as unsatisfactory at the end of 1992. A 60-day reevaluation was not done because Newell sustained a workers compensation injury in January 1993 and was on medical leave from February 3,1993, to September 8, 1993.
When Newell returned from medical leave, Robben met with her to discuss what accommodations SRS could make to help her. SRS allowed Newell to work 4-hour days with a 100-mile driving limit. Newell’s case load was reduced to conform to her limitations. Robben set organizational goals for Newell and met with her to discuss ways in which she could improve her work performance. Newell acknowledged that despite her restrictions she would be able to manage the reduced workload. Notwithstanding these assurances, Newell had difficulty meeting some of the goals.
Robben conducted a job performance reevaluation for the period September 8, 1993, to December 17, 1993, rating Newell’s performance as unsatisfactory. In the evaluation, Robben had written, “Due to lack of improvement from the last evaluation, Sandra has received the above rating. Numerous efforts have been made by this Supervisor to help Sandra improve her work performance. Sandra has not demonstrated a satisfactory response to Supervisor’s suggestions for improvement of work performance.” At the Board’s review hearing, Robben testified that she had made every effort to help Newell improve her job performance prior to her termination. Robben testified that in conducting the final evaluation, she did take into account that Newell had been gone for a period of time; however, the evaluation period was long enough for Robben to determine that Newell had not made sufficient improvements in her job performance.
David Schmidt, SRS chief of social services for the Hays area, discussed Newell’s performance with Robben and how Robben was to counsel Newell concerning the unsatisfactory evaluation she received for the year 1991. Schmidt also met wifh Robben con ceming Newell’s unsatisfactory evaluation in February 1993. New-ell was given the opportunity to meet with Robben and Schmidt to discuss this evaluation. Schmidt also visited with Newell to discuss ways in which Newell could improve her work performance.
Newell’s entire job performance history evidences the willingness of SRS supervisors to work with her and Newell’s inability to maintain a level of competence for a sustained period of time.
The record contains substantial competent evidence to support the Board’s findings that Newell was terminated due to her unsatisfactory job performance and that Newell was adequately counseled prior to her termination.
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Brazil, C.J.:
Westboro Baptist Church (Westboro) appeals from what it considers a temporary injunction by the trial court. St. David’s Episcopal Church (St. David’s) filed a petition based in nuisance seeking to enjoin Westboro from engaging in focused picketing activity within certain distances of St. David’s property shortly before, during, and shortly after any religious event at St. David’s. The trial court issued a temporary restraining order (TRO) and an amended TRO which granted most of the restrictions sought by St. David’s. After the court denied Westboro’s motion to vacate or to alter, amend, or modify the TRO, Westboro perfected this appeal. Westboro’s main contention on appeal is thát the court erred in issuing what it considers, in effect, a temporary injunction. Westboro also challenges an order which denied its motion for a change of judge and challenges the trial court’s failure to require a bond before issuing the injunction.
Because a full evidentiary hearing has yet to be held in this case, the facts have been taken from the pleadings and affidavits relative to each of the respective appealed-from orders.
St. David’s maintains a house of worship on the northwest comer of 17th and Gage streets in Topeka. Since about March 1992, Westboro has conducted demonstrations and picketing activities on each of the four comers of that intersection.
On June 13,1994, St. David’s filed its petition alleging that Westboro’s activities constituted a private nuisance and requesting a temporary injunction against Westboro and, ultimately, a permanent injunction. The petition defined focused picketing as “standing, sitting or walking at a deliberately slow speed or walking repeatedly around Plaintiff’s house of worship by any person governed by the order, while carrying a banner, placard or sign.” The petition defined a religious event as “any scheduled worship service (5:30 p.m. Saturday; 8:30 a.m. and 10:30 a.m. Sundays), and any wedding, funeral, memorial service for the dead or the observation of other sacraments, rituals, or celebrations which, are announced by a sign posted within 10 feet of the St. David’s sign on 17th Street which announces its ordinary services.” The petition further sought to restrain Westboro “from making any noise by singing, chanting, shouting or yelling, that can be heard through the walls of the church during any religious event.” St. David’s filed with its petition affidavits from, nine persons associated with St. David’s describing Westboro’s picketing activities and the alleged harm caused by Westboro.
On July 1,1994, Westboro filed a notice of removal to the United States District Court for the District of Kansas. The United States District Court granted St. David’s motion to remand, finding that, under the well-pleaded facts of the original petition, the court lacked subject matter jurisdiction: That judgment was filed in the state district court on July 18, 1994.
On July 18, 1994, St. David’s filed a motion for a TRO. The motion was based in part on St. David’s belief , that Westboro’s attempt to remove the case was in bad faith and had caused an inequitable delay in the state court proceedings. The trial court had scheduled a hearing on the original petition to be held July 12-13, 1994, but later continued the hearing upon Westboro’s removal notice. In its motion, St. David’s requested the TRO. “[f]or purposes of good public policy and the orderly and efficient administration of justice” because Westboro’s attempt at removal had delayed the injunction hearing to the detriment of St. David’s rights.,
The parties and the court apparently held a télephone conference on July 19, 1994, concerning St. David’s motion for a TRO. At that time, the court stated it would allow the parties to submit any support for their positions but that it would take some action on the matter on July 21, 1994.
At 10:51 A.M. on July 21,1994, Westboro filed a response to St. David’s motion and a motion for judgment on the pleadings and to dismiss. The response contained 13 supporting affidavits and numerous exhibits, amounting to a 245-page filing.
At 2.T4 P.M. on July 21, 1994, the court issued a TRO against Westboro “pending a hearing on a temporary injunction.” The order restrained Westboro:
“1. From engaging in focused picketing of plaintiff on public property within 36 feet to the east, within 36 feet to the west, within 36 feet to the north and within 215 feet to the south of the church property owned and used for religious purposes by St. David’s (the property located on the northwest comer of 17th and Gage) from a period beginning one-half hour before and ending one-half hour after a religious event. The distance is to be measured from all points along the property line of the church’s property.
“2. That ‘focused picketing’ means picketing by driving, standing, sitting or walking at a deliberately slow speed or walking repeatedly past or around plaintiff’s house of worship by any person governed by the Order, while carrying a banner, placard, or sign. ‘Religious event’ means any scheduled worship service 5:30 p.m. Saturday, 8:00 a.m. and 10:30 p.m. Sundays, and any wedding, funeral, memorial service for the dead, or the observation of other sacraments, rituals, or celebrations which are announced by a sign posted within ten feet of the St. David’s sign on 17th Street which announces its ordinary services.
“3. Defendant and the others described above likewise will be restrained from making any noise by signing [sic], chanting, shouting or yelling, that can be heard through the walls of the church during any religious event.
“4. The Sheriff of Shawnee County, Kansas is directed to personally serve a copy of this Temporary Restraining Order on the Reverend Fred W. Phelps, as resident agent and personally as the pastor of defendant Westboro Baptist Church at 3701 West 12th Street, Topeka, Kansas, 66604, and upon any and all persons engaged in picketing or carrying or displaying any signs or placards at St. David’s Episcopal Church at 3916 West 17th Street, Topeka, Shawnee County, Kansas.”
On July 25, 1994, Westboro filed a “MOTION TO VACATE OR TO ALTER, AMEND OR MODIFY TEMPORARY RESTRAINING ORDER & MOTION FOR ORDER REQUIRING PLAINTIFF TO PAY FOR AND PROVIDE A SURVEY & TO MARK THE BUFFER ZONE & MOTION FOR IMMEDIATE HEARING.” Among other things, the motion alleged judicial bias by the trial court in issuing the TRO. This allegation involved the trial court’s apparent signature on a petition which had run in the local Topeka newspaper more than a year earlier. This petition, apparently aimed at Westboro’s crusade against homosexuality, stated:
‘We, the undersigned, offer witness of our belief that all people have the right to live in dignity, in safety and in privacy, regardless of age, gender, race, ethnicity, religious preference or sexual orientation. We embrace love rather than hate; safety rather than endangerment, respect rather than harassment. Our commitment to these beliefs compels us to create a community that promotes these values.”
Following a hearing held August 9,1994, the court denied Westboro’s motions of July 25, 1994.
On July 27,1994, St. David’s moved the court to amend its TRO. According to St. David’s motion and accompanying affidavit, after the original TRO was issued, Westboro had continued to demonstrate at the places and times prohibited by the original TRO but did so without carrying banners, placards, or signs. Westboro filed a response opposing the motion. The court issued an “AMENDED TEMPORARY RESTRAINING ORDER” on July 29, 1994. The only substantive difference in this amended TRO involves paragraph 2 of the order which redefines focused picketing as “picketing or demonstrating by driving, standing, sitting or walking at a deliberately slow speed or walking repeatedly past or around Plaintiff’s house of worship by any person governed by the Order, with or without a banner, placard, or sign.” (Emphasis added.)
On August 14, 1994, Fred W. Phelps, Westboro Pastor, conducted a broadcast on a Topeka radio station which contained comments alleging misconduct by the trial judge, Michael A. Barbara. On September 15, 1994, a FAX “News Release” from Westboro contained derogatory comments and depictions of Judge Barbara. Based upon these events, and based upon comments by Margie Phelps, Westboro trial counsel during the September 20, 1994, hearing on Westboro’s motion for a change of judge, contempt proceedings were ultimately filed against Fred Phelps and Margie Phelps. As a result, the court found Fred Phelps in indirect contempt of the court and Margie Phelps in direct contempt of the court. This decision was announced on the record by the court on October 19,1994, and journalized December 19,1994. Those contempt citations are the subject of a separate appeal in this court.
As a result of the attention devoted to the contempt proceedings, considerable delay occurred with regard to the TRO. During the pendency of the contempt proceedings, the Kansas Supreme Court assigned a judge to determine the legal sufficiency of Westboro’s affidavit to disqualify Judge Barbara. On October 17, 1994, the judge concluded the affidavit was legally insufficient:
On November 28, 1994, Westboro filed a motion which, among other things, requested the court to expedite the hearing on the temporary injunction and opposed consolidation of the temporary injunction hearing with the trial on the merits.
After a hearing held December 19, 1994, the court, on the record, denied all of Westboro’s outstanding motions. The journal entry of the court’s decision was not filed until March 16,1995.. At the December 19,1994, hearing, the court and the parties set April 10, 1995, as a tentative date for a consolidated trial on the temporary and permanent injunctions.
On March 9, 1995, St. David’s moved to file a first amended petition. The first amended petition contained the original nuisance count and also a second count alleging service mark infringement by Westboro for depicting St. David’s church sign in its signs, placards, and banners. On March 28, 1995, the court granted St. David’s motion over Westboro’s objection..
On April 13, 1995, Westboro filed a notice of appeal from the TRO, the amended TRO, and the court’s denial of Westboro’s motions to vacate or amend those TROs.
On May 2, 1995, this court ordered the parties to show cause why the appeal should not be dismissed as no temporary injunction had yet been ordered by the trial court. After noting the responses of the parties, this court retained the appeal on May 31, 1995. ,
Westboro first contends the court failed to afford it an adequate opportunity to be heard before the temporary injunction was issued.
K.S.A. 60-905(a) states: “No temporary injunction shall be granted until after reasonable notice to the party to be enjoined and an opportunity to be heard.” Absent unusual circumstances, a hearing is required before a temporary injunction restraining First Amendment rights may be issued. State v. Alston, 256 Kan. 571, 579-80, 887 P.2d 681 (1994).
Westboro complains it was not provided a formal hearing before the July 21, 1994, order was issued. Underlying this argument is Westboro’s position that the July 21, 1994, order was, in fact, a temporary injunction. We - disagree. Although the TRO, as amended, eventually ripened into a temporary injunction for reasons stated below, on July 21, 1994, the order that issued was a TRO, and Westboro was provided more due process than normally is provided for a TRO. Westboro also maintains that, although it had submitted substantial evidence to the court in the form of affidavits, exhibits, and photographs prior to the July 21, 1994, order, the court could not have .given adequate consideration to this evidence given the court’s time constraints. Again, we disagree.
Westboro responded by providing the court with a 240-page filing.-In its memorandum in support of the TRO, the court stated it had reviewed Westboro’s filing, although it had not reviewed a videotape which was also submitted by Westboro. (The videotape is not included in the record on appeal.)
Although not given an opportunity to put on witnesses in support of its filing, Westboro has admitted on appeal that a hearing would not have furthered its position in any material respect. According to Westboro’s response to the show cause order, “[a]ny further evidentiary hearing would do nothing but build on or fill in the current positions of the parties. No new issues, factual or legal, will be presented.” Given Westboro’s position that a hearing was unnecessary, we will not consider its argument that the lack of a hearing violated its due process.
For these same reasons, and because of the length of time in which the TRO or an amended version has been in effect, we conclude that the TRO had ripened into a temporary injunction by the time that this appeal was filed. See City of Wichita v. Home Cab Co., 151 Kan. 679, 684-85, 101 P.2d 219, cert. denied 311 U.S. 677 (1940); Bowman v. Hopper, 125 Kan. 680, 682, 265 Pac. 743 (1928).
. Westboro next contends the court erred in issuing the temporary injunction.
There are four prerequisites to obtain a temporary injunction: (1) a substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury, unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, will not be adverse to the public interest. Wichita Wire, Inc. v. Lenox, 11 Kan. App. 2d 459, 462, 726 P.2d 287 (1986). “A trial court’s decision to grant or deny an injunction is discretionary and will not be disturbed on appeal absent a showing of an abuse of discretion. [Citation omitted.] The burden is on an appellant to show that the trial court abused its discretion by issuing the temporary injunction.” 11 Kan. App. 2d at 462.
Substantial likelihood of prevailing
The question of whether St. David’s had a substantial likelihood of prevailing on its nuisance claim is clouded by the procedural posture of this case. In its TRO, the trial court made limited findings concerning the potential for violence at the picketing locality and expressly deferred the issue of whether Westboro’s picketing involved unprotected speech. Although the parties assure this court that a full hearing on the temporary injunction would not have contributed to the evidentiaiy record, the fact remains that the trial court has not had the opportunity to weigh the evidence and make the factual findings which are essential to this court in ruling on these difficult constitutional issues. In determining whether St. David’s had a substantial likelihood of prevailing on its nuisance claim, we, as an appellate court, do not weigh the facts and, therefore, must consider the facts drawn from St. David’s petition viewed in the light most favorable to St. David’s.
The merits of St. David’s petition are based upon a claim of private nuisance. In Williams v. Amoco Production Co., 241 Kan. 102, 117, 734 P.2d 1113 (1987), our Supreme Court, citing Prosser and Keaton on Torts, announced four requirements for recovery on a private nuisance claim: (1) The defendant acted with the intent of interfering with the use and enjoyment of the land by those entitled to that use; (2) there was some interference with the use and enjoyment of the land of the kind intended, although the amount and extent of that interference may not have been anticipated or intended; (3) the interference that resulted and the physical harm, if any, from that interference proved to be substantial; and (4) the interference was of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.
Westboro argues there is nothing in the record to suggest it had knowledge that its picketing activities were causing harm to St. David’s.
“Occasionally, the defendant may act from a malicious desire to so harm for its own sake; but more often the situation involving a private nuisance is one where the invasion is intentional merely in the sense that the defendant has created or continued the condition causing the interference with full knowledge that the harm to the plaintiff’s interests are occurring or are substantially certain to follow.” Prosser and Keeton on Torts § 87, pp. 624-25 (5th ed. 1984).
Certainly, if Westboro were found to be employing speech which is not constitutionally protected — fighting words, obscenity, and the like — then it seems it should have known that harm to St. David’s was substantially certain to follow from its picketing activity and St. David’s would have a substantial likelihood of prevailing on the merits. Again, however, because the trial court has not yet addressed the issue of whether Westboro was employing unprotected speech in its picketing activity, this court is not in a good position to determine this issue.
As to the trial court’s finding that there was a threat of physical violence at the picketing locality, the affidavits filed with the petition show several members of St. David’s expressed concern for the physical safety of themselves and/or their children upon entering or leaving church services. The question, however, is (1) whether Westboro’s conduct was unreasonable, and (2) if so, whether, on balance, the gravity of harm to St. David’s outweighed the • utility of Westboro’s conduct. See Kaplan v. Prolife Action League of Greensboro, 111 N.C. App. 1, 22, 431 S.E.2d 828, rev. denied 335 N.C. 175 (1993), cert. denied 129 L. Ed. 2d 894 (1994) (discussing nuisance in the context of an injunction which prevented anti-abortion activists from picketing within a specified distance of the residence of a doctor who performed abortions).
Westboro argues its actions were not unreasonable because of St. David’s efforts to counter-picket at the site. The Kaplan court, in discussing whether an interference with the use and enjoyment of one’s land is unreasonable, stated:
“ ‘Reasonableness is a question of fact to be determined in each case by weighing the gravity of the harm to the plaintiff against the utility of the conduct of the defendant. . . . Determination of the gravity of the harm involves consideration of the extent and character of the harm to the plaintiff, the social value which the law attaches to the type of use which is invaded, the suitability of the locality for that use, the burden on plaintiff to minimize the harm, and other relevant considerations arising upon the evidence. Determination of the utility of the conduct of the defendant involves consideration of the purpose of the defendant’s conduct, the social value which the law attaches to that purpose, the suitability of the locality for the use defendant makes of the property, and other relevant considerations arising upon the evidence.’ ” 111 N.C. App. at 22 (quoting Pendergrast v. Aiken, 293 N.C. 201, 217, 236 S.E.2d 787 [1977]).
Westboro asserts that, because St. David’s engaged in counter-picketing activities, it failed to minimize any harm by Westboro. Westboro also claims that St. David’s actions underscored the suitability of the locality for picketing.
The record shows that Westboro conducted its picketing activities for nearly a year before St. David’s responded with picketing of its own. In addition, although St. David’s may have engaged in picketing activity at some point, at issue in this case is the manner in which Westboro conducted its picketing activity at the locality. The affidavits before the trial court show that Westboro picketed in such a manner that the religious worship of St. David’s was infringed by the fear held by St. David’s members that physical violence might occur. The trial court found these circumstances particularly escalated in light of the fact that children accompanied their parents to the religious services. The trial court’s findings are supported by the limited record that is before this court. Thus, there is substantial evidence to find that the gravity of the harm to St. David’s outweighed the utility of Westboro’s conduct. If the trial court finds that Westboro has employed constitutionally unprotected speech as well in its picketing activities, then this issue will weigh even more in St. David’s favor.
In short, the affidavits filed with St. David’s petition show there was an interference with the use and enjoyment of its property that was intentional, substantial, and unreasonable. Based upon these affidavits, St. David’s has a substantial likelihood of prevailing on its nuisance claim. “ ‘It is only necessary that plaintiffs establish a reasonable probability of success, and not an “overwhelming" likelihood of success, in order for a preliminary injunction to issue.’ ” Wichita Wire, 11 Kan. App. 2d at 463-64 (quoting Atchison, T. & S.F. Ry. Co. v. Lennen, 640 F.2d 255, 261 [10th Cir. 1981]).
Irreparable injury
Westboro does not specifically address this issue. St. David’s states it has been irreparably injured through the loss of existing members, the loss of potential members, the decreased worship experience of some of its members, reputational injury, and injury from the potentially violent atmosphere of the picketing locality. The nature of these injuries is such that St. David’s does not have “a full, complete, and adequate remedy at law through recovery of calculable money damages.” Wichita Wire, 11 Kan. App. 2d at 465. Westboro has failed to show error on this point.
Threatened injury outweighed damage
Westboro contends the temporary injunction unduly infringes its First Amendment rights of freedom of speech and religion.
The parties agree to the application of the recent United States Supreme Court decision in Madsen v. Womens Health Center, 512 U.S. 753, 129 L. Ed. 2d 593, 114 S. Ct. 2516 (1994), but dispute the effect of applying Madsen to the present case. In Madsen, the Court addressed the constitutionality of an injunction which created a buffer zone around an abortion clinic and around the residences of clinical staff. The Court began by addressing whether the injunction restricted the content of the protesters’ speech:
“Our principal inquiry in determining content neutrality is whether the government has adopted a regulation of speech ‘without reference to the content of the regulated speech.’ [Citations omitted.] We thus look to the government’s purpose as the threshold consideration. . . . [T]he fact that the injunction covered people with a particular viewpoint does not itself render the injunction content or viewpoint based.” 512 U.S. at 763.
The express purpose of the temporary injunction in this case was to thwart potential violence around St. David’s property during specific times of the day when prior encounters between the two groups occurred. The trial court also expressly stated it was not yet ruling upon whether the content of Westboro’s message would be further restricted until after hearing evidence on the matter. The injunction imposed in this case, therefore, is content neutral.
In evaluating a content-neutral injunction, Madsen held that the proper test is “whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” 512 U.S. at 765. In so holding, the Court rejected the application of a strict scrutiny analysis to evaluate a content-neutral injunction. 512 U.S. at 764-67.
Madsen further upheld a combination of government interests used by the Florida Supreme Court as “quite sufficient to justify an appropriately tailored injunction to protect them.” 512 U.S. at 768. Many of'those interests apply in the present case as well, including the State of Kansas’ strong interest in ensuring the public safety and order, in promoting the free flow of traffic on public streets and sidewalks, and in protecting the property rights of all its citizens. See 512 U.S. at 764-66. Also, as noted by the trial court in its injunction, an additional important government interest at stake here is the right to worship one’s religion without infringement. See Kan. Const. Bill of Rights, § 7.
In addition to the government interests cited in Madsen, does the government have a further interest in protecting the property at issue because it is a place of religious worship for the members of St. David’s?
The recent Supreme Court cases involving focused picketing have noted a special government interest in protecting residential privacy to uphold restrictions upon the focused picketing of an individual’s home. See Madsen, 512 U.S. at 768; Frisby v. Schultz, 487 U.S. 474, 484-85, 101 L. Ed. 2d 420, 108 S. Ct. 2495 (1988). In Madsen, the court went even further and upheld the Florida Supreme Court’s finding that the government had an interest in protecting an abortion clinic’s property from targeted picketing because targeted picketing threatens both the psychological and physical well-being of the clinic’s patients. 512 U.S. at 767-68.
After noting the government interest in protecting residential privacy which has been upheld by the United States Supreme Court, the trial court in this case ruled that one’s place of worship “would place a close second to one’s residence when it comes to the right to worship and communicate with the maker of one’s choice in a tranquil, private and serene environment.”
We agree with the trial court and find that, in addition to the government interest in protecting residential and clinical privacy, the government has a legitimate interest in protecting the privacy of one’s place of worship as well. This interest does not flow directly from the right of free exercise of religion found in the First Amendment to the United States Constitution and Section 7 of the Bill of Rights of the Kansas Constitution. Those constitutional provisions safeguard the free exercise of religion from governmental interference. However, the right of free exercise would be a hollow one if the government could not step in to safeguard that right from unreasonable interference from another private party.
In discussing the time, place, and manner restrictions that may be placed upon free speech, the United States Supreme Court has noted that “religious worship may not be disturbed by those anxious to preach a doctrine of atheism.” Kovacs v. Cooper, 336 U.S. 77, 86, 93 L. Ed. 513, 69 S. Ct. 448 (1949). More broadly stated to apply here, one’s religious worship may not be unduly disturbed by another anxious to preach a different religious or social philosophy.
The trial court here also found that the temporary injunction was warranted because of harassment and threats of violence and injury surrounding the picketing of St. David’s by Westboro. The court reasoned the climate was particularly volatile in light of the fact that children were accompanying their parents to the religious services at St. David’s and that these parents would tolerate less harassment when accompanied by their children than otherwise. The court also noted that the constitutional limits of Westboro’s speech would be lessened given the fact that children were routinely part of the audience which was subjected to Westboro’s speech. However, the court deferred a determination of whether the speech employed by Westboro fell within the First Amendment’s protection until an evidentiary hearing could be held.
Because an evidentiary hearing has not been held nor findings made, this court is not in a position to determine whether Westboro’s speech was constitutionally protected. However, we can address the legal question raised by the trial court: Is the speech employed by Westboro in its focused picketing afforded less constitutional protection because children routinely are part of the audience?
St. David’s cites three United States Supreme Court cases to support its position that the government has an added interest in protecting children from objectionable speech: Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 92 L. Ed. 2d 549, 106 S. Ct. 3159 (1986), FCC v. Pacifica Foundation, 438 U.S. 726, 57 L. Ed. 2d 1073, 98 S. Ct. 3026, reh. denied 439 U.S. 883 (1978), and Ginsberg v. New York, 390 U.S. 629, 20 L. Ed. 2d 195, 88 S. Ct. 1274, reh. denied 391 U.S. 971 (1968). In general, these cases show that, depending upon the context, the government does have an interest in protecting children from objectionable speech beyond the interest it has in protecting adults from the same speech.
Fraser and Ginsberg are less helpful to resolve the current issue because, unlike the audience which is subject to Westboro’s speech in the present case, the audiences subject to the speech in Fraser and Ginsberg were solely or primarily children.
In FCC, tire Court recognized a government interest in protecting minors from exposure to vulgar or offensive spoken language. The case arose following the broadcast of comedian George Carlin’s 12-minute monologue entitled “Filthy Words.” The FCC issued an order condemning the local station which broadcast the monologue, and the order was challenged in court. On appeal, the United States Supreme Court, in considering the constitutionality of the FCC’s order, addressed “whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content.” 438 U.S. at 745.
The Court noted that the patently offensive words at issue in FCC were “not entirely outside the protection of the First Amendment,” 438 U.S. at 746, but nonetheless “the constitutional protection accorded to a communication containing such patently of fensive sexual and excretoiy language need not be the same in every context.” 438 U.S. at 747.
The Court upheld the FCC order as constitutional and, in doing so, relied upon two basic reasons. First, the Court found that the nature of the broadcast medium was such that offensive material “confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder.” 438 U.S. at 748. Second, the court found broadcasting “uniquely accessible to children,” 438 U.S. at 749, in contrast to other forms of offensive expression which may be withheld from children without restricting the expression at its source, e.g., indecent literature and movies.
Although the FCC Court emphasized that its holding was a narrow one, the veiy same reasons for upholding the restriction of speech in FCC are present here. The attending of worship services by members of St. David’s involves a public and private exercise— public in the sense that the members must naturally travel through and amid public property to get to their church (i.e., the setting giving rise to the current lawsuit involves a traditional public forum), and private in the sense that the members are engaging in private devotion (i.e., as already recognized earlier, there is a government interest in protecting the privacy of St. David’s place of worship).
In addition, the times of day affected by the trial court’s injunction — immediately before, during, and immediately after a religious event — are times when children are routinely part of the audience which is subject to Westboro’s verbal barrage. As in FCC, although there is language and expression which Westboro could lawfully use where adults alone made up the audience, the same cannot be said where the audience involves a mixture of adults and children. Importantly, as in FCC, the audience cannot be otherwise separated out so that the children are not subject to the objectionable speech, absent requiring the children to remain home, which would be an obvious assault upon their free exercise of religion.
In short, the trial court did not err when it found that the standard forjudging the constitutionality of Westboro’s speech is such that it may be narrowly tailored to suit both adults and children during the effective times of the injunction.
On the whole, the combination of these government interests and those cited in Madsen is sufficient to justify an appropriately tailored injunction to protect them.
Throughout its brief, Westboro challenges some of these justifications by the trial court, stating that there was no threat of violence and no obstruction of vehicle or pedestrian traffic. This court’s retention of this appeal was largely based on Westboro’s assurance in its response to the show cause order that further hearings by the trial court would not contribute to the evidentiary record now before the court. Thus, Westboro’s opportunity to challenge the trial court’s findings concerning the government interests at stake in this case have been foreclosed by its own desire for an appeal of the trial court’s order.
The next question is whether the injunction burdens no more speech than necessary to serve the government interests at stake. The trial court imposed a buffer zone within which Westboro is prohibited from engaging in focused picketing from a period beginning one-half hour before and ending one-half hour after a religious event. The zone extends 36 feet to the east, 36 feet to the west, 36 feet to the north, and 215 feet to the south of St. David’s church property.
Westboro argues that, even if the injunction is upheld, the trial court’s buffer zone burdens more speech than is necessary to carry out the government interests at stake. St. David’s requests this court to reform the trial court’s buffer zone to extend 100 feet from its property in all directions and to impose other restrictions not imposed by the trial court.
Unfortunately, because of the posture of this case and the lack of findings by the trial court, it is impossible for this court to determine whether the court’s buffer zone requires reformation. The cases cited by the parties which have upheld various buffer zone distances, while relevant, are not determinative in anyway because injunction cases, like the present one, are extremely fact specific depending upon the physical nature of the area involved. What is desperately needed in this case is an evidentiary hearing to deter mine whether the buffer zone falls short of, satisfies, or exceeds its stated purpose. The parties would apparently have this court take judicial notice of what has been going on at 17th and Gage Streets for the past 1 and Vz years.
Westboro also fails to explain why the other avenues of expression left open by the injunction as it currently exists — the-limited picketing allowed by the order, picketing elsewhere, mailings, leaflets, etc. — give it insufficient other means to communicate its message. Based upon the record that is before this court, we affirm the court’s buffer zone with specific directions on remand that, if the court decides to impose a permanent injunction, it should make findings concerning the appropriateness of whatever distances the court ultimately imposes.
We do have a problem with the court’s order proscribing noise contained in the third paragraph of its injunction order. The United States Supreme Court has upheld as constitutional some noise restrictions related to picketing activity. See Madsen, 512 U.S. at 772-73. As Westboro points out, however, there is nothing in the affidavits which accompanied St. David’s petition which suggests that the noise from Westboro’s picketing activity was interfering with the worshipping by St. David’s. Although the petition did request an injunction on such noise, St. David’s has yet to provide the trial court, or this court, with any basis for such an injunction. On the present record, we reverse the trial court’s order enjoining noise by Westboro.
As a final matter under this issue, Westboro would like for this court to resolve the question of whether a court can enjoin picketing outside of a church on public sidewalks. St. David’s argues that this issue was not considered by the trial court and should not be considered on appeal.
Westboro’s arguments on this issue seem to presume that its speech is constitutionally protected, an issue expressly left open by the trial court. Any ruling by this court on this issue, therefore, would be advisory in nature.
Adverse to public interest
Westboro makes no showing that the court’s order is adverse to the public interest other than its general arguments concerning preservation of freedom of speech. As noted already, however, injunctions of picketing activity have often been upheld against First Amendment challenges where the burden on the speech is outweighed by the need for protection from the picketing activity. See, e.g., Madsen v. Women’s Health Center, 129 L. Ed. 2d 593; Kaplan v. Prolife Action League of Greensboro, 111 N.C. App. 1, 431 S.E.2d 828, rev. denied 335 N.C. 175 (1993), cert. denied 129 L: Ed. 2d 894 (1994). In these types of cases, the public’s interest is better served when the freedom to speak is not completely unfettered.
In sum, the four prerequisites for a temporary injunction having been met, Westboro has failed to meet its burden of showing the trial court abused its discretion by issuing the temporary injunction.
Next, Westboro contends the assigned judge erred in ruling that the affidavit supporting its motion for a change of judge was legally insufficient. The assigned judge denied a similar motion in the portion of this case that involves the contempt proceedings against Fred and Margie Phelps.
The sufficiency of an affidavit filed pursuant to K.S.A. 20-311d is a matter of law over which this court has unlimited review. State v. Clothier, 20 Kan. App. 2d 994, 995, 894 P.2d 257 (1995).
As a preliminary matter, St. David’s argues Westboro failed to timely appeal the order which ruled that its affidavit was insufficient. Although St. David’s suggests that the order denying the motion to change judge was immediately appealable, it provides no authority for this proposition. There was no certification of Westboro’s change of judge claim under K.S.A. 60-254(b). Westboro’s appeal from this order is as timely as the rest of the appeal.
Westboro argues the district court erred in ruling the affidavit failed to show that Judge Barbara lacks impartiality. Westboro is most concerned about Judge Barbara’s signature on a petition which appeared in the local Topeka newspaper over a year before the filing of the present lawsuit. The petition, restated here for convenience, states;
“We, the undersigned, offer witness of our belief that all people have the right to live in dignity, in safety and in privacy, regardless of age, gender, race, ethnicity, religious preference or sexual orientation. We embrace love rather than hate; safety rather than endangerment, respect rather than harassment. Our commitment to these beliefs compels us to create a community that promotes these values.” •
In State v. Griffen, 241 Kan. 68, Syl. ¶ 5, 734 P.2d 1089 (1987), the court announced:
“The standard to be applied to a charge of lack of impartiality is whether such charge is grounded on facts that would create reasonable doubt concerning the judge’s impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.”
The reviewing judge, as well as the appellate court, passes only on the legal sufficiency of the affidavit and not on the truth of the facts alleged. State v. Clothier, 20 Kan. App. 2d at 996.
Our Supreme Court stated in State v. Foy, 227 Kan. 405, 411, 607 P.2d 481 (1980):
“The rule generally followed throughout the United States is that the words “bias" and “prejudice,” as used in connection with the disqualification of a judge, refer to the mental attitude or disposition of the judge toward a party to the litigation and not to any views that he might entertain regarding the subject matter involved. Bias and prejudice mean a hostile feeling or spirit of ill will against one of the litigants, or undue friendship or favoritism toward one. [Citations omitted.] K.S.A. 20-311d(b)(5) specifies that personal bias, prejudice, or interest is ground for disqualification. This requires antagonism and animosity toward the affiant or his counsel or favoritism towards the adverse party or his counsel. “Personal bias” is to be distinguished from “judicial bias,” and does not include views based upon matters arising during the course of the- litigation or upon general attitudes common to the public generally.” (Emphasis added.)
See 46 Am. Jur. 2d, Judges §§ 146-56, 160-65.
Foy can be distinguished in the sense that there is no indication the trial court in that case was targeting the defendant when he made his comments concerning indigent defendants. Here, although the petition signed by Judge Barbara does not expressly identify Westboro or any of its members as its target, Westboro asserts it is obvious the petition was directed toward its picketing activity. However, like in Foy, the principles espoused by signers of the petition here are general in nature. Moreover, the principles stated -in the petition signed by Judge Barbara are principles en tirely opposite from those required for a finding of bias or prejudice, namely, hostile feelings or a spirit of ill will.
The remainder of the issues relating to the lack of impartiality were well addressed in the assigned judge’s order. There are sufficient grounds to support the trial court’s finding that the affidavit was insufficient as a matter of law.
However, there still remains the fact that Westboro’s picketing has been and continues to be the focus of much attention in the community, and Judge Barbara’s signature was on a petition which, as asserted by Westboro, was directed toward its picketing activity. Therefore, on remand, given that courts must strive to avoid “even the appearance” of bias, we conclude that another judge should be assigned for farther proceedings.
Finally, Westboro contends the court erred in failing to require a bond before issuing the restraining order pursuant to K.S.A. 60-903(a).
St. David’s argues Westboro has failed to preserve this issue. As St. David’s points out, there is nothing in the record on appeal to suggest that Westboro raised this point before the trial court. “[A] point not presented to the trial court will not be considered for the first time on appeal.” Plummer Development, Inc. v. Prairie State Bank, 248 Kan. 664, Syl. ¶ 3, 809 P.2d 1216 (1991).
In addition, the language of K.S.A. 60-903(a) indicates the decision whether to require a bond for a restraining order lies within the sound discretion of the trial court. Westboro makes no showing of an abuse of discretion here other than a general suggestion that no restraining order involving a First Amendment concern should be issued without a bond.
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|
Knudson, J.:
The State brings this interlocutory appeal from the district court’s ruling suppressing evidence from a breath test administered to the defendant, Douglas Counseller.
Deputy John Schrock arrested Douglas Counseller for reckless driving and transported him to the Shawnee County Sheriff’s Department. Schrock smelled liquor on Counseller’s breath and requested that he submit to a breath test to determine the presence of alcohol. Counseller was provided a copy of the implied consent advisory pursuant to K.S.A. 1995 Supp. 8-1001(f)(l). He gave consent, and a breathalyzer test was then administered that produced a test result of .197. Counseller was subsequently charged with the additional offense of driving under the influence of alcohol contrary to K.S.A. 1995 Supp. 8-1567.
After hearing arguments at a hearing to suppress the evidence and reviewing submissions, the district court ordered suppression of the breath test. The court reasoned that the implied consent statute is constitutional under the Fourth Amendment because arrest for an alcohol-related offense establishes probable cause. The court relied on a portion of the syllabus in State v. Brunner, 211 Kan. 596, Syl. ¶ 9, 507 P.2d 233 (1973), which stated: “Under K.S.A. [1995] Supp. 8-1001 refusal to submit to a blood test leads to a possible suspension of one’s driver’s license only when a driver is arrested or otherwise taken into custody for an offense involving the operation of a motor vehicle while under the influence of intoxicating liquor.” Since Schrock did not arrest Counseller for a .traffic offense related to the influence of intoxicants, the court reasoned that the implied consent advisory given to Counseller was coercive and not valid.
The issue on appeal is whether the trial court correctly construed K.S.A. 1995 Supp. 8-1001(b)(l). We conclude that the district court erred and the appeal should be sustained.
“When reviewing a trial court’s suppression of evidence, the appellate courts normally give great deference to the factual findings of the trial court. The ultimate determination of the trial court’s suppression of evidence is a legal question requiring independent appellate determination.” State v. Vandiver, 257 Kan. 53, Syl. ¶ 6, 891 P.2d 350 (1995).
In this litigation, the parties are in general agreement regarding the facts. The issue is: What is the correct interpretation of K.S.A. 1995 Supp. 8-1001? Interpretation of a statute is a question of law. “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
Before addressing the statutory interpretation issue, we consider Counseller’s argument that K.S.A. 1995 Supp. 8-1001 must be strictly construed and any ambiguity resolved against the interests of the State. This contention ignores subsection (i), which states: “This act is remedial law and shall be liberally construed to promote public health, safety and welfare.” Remedial legislation requires liberal construction. Smith v. Marshall, 225 Kan. 70, 75, 587 P.2d 320 (1978).
We now turn to construction of K.S.A. 1995 Supp. 8-1001, which states:
“(a) Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs. . . .
“(b) A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both. . . . and one or more of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both .... or (2) the person has been involved in a vehicle accident or collision resulting in property damage, personal injury or death . . . .” (Emphasis added.)
The State appears to argue that K.S.A. 1995 Supp. 8-1001(b) does not preclude a police officer from requesting a test so long as circumstánces under subparagraph (a) of the statute exist. In other words, the State argues subparagraph (b) is a mandatory directive to law enforcement officers that really has nothing to do with the implementation of the implied consent law under a myriad of other circumstances. Such a construction of the statute is not only inconsistent with statutory language, it also would be violative of the Fourth Amendment prohibition against unreasonable searches and seizures. See Schmerber v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966). However, this does not end our analysis.
In its ruling, the district court relied upon State v. Brunner, 211 Kan. 596. We conclude that the district court’s reliance upon Brunner was misplaced. In Brunner, the defendant was not under arrest or otherwise in custody when requested by a highway patrol trooper to submit to a blood test under 8-1001.
When Brunner asked the trooper what would happen if he refused to take the test, he was told his license to drive would be suspended. The court stated:
“The result here is that Brunner’s purported consent must be regarded as involuntary because coerced by the unfounded threat of suspension. The search (i.e., the blood test) must therefore be tested constitutionally as a warrantless search of the person made without consent. Constitutionally it would be valid under Schmerber only if incidental to a valid arrest. Since there was no arrest at all, the search and its fruits must fall under the Fourth Amendment axe.” (Emphasis added.) 211 Kan. at 605.
Our reading of Brunner does not persuade us that the prior arrest required under K.S.A. 1995 Supp. 8-1001 must be for a per se alcohol or drug offense.
In our opinion, 8-1001 recognizes the constitutional principles in Schmerber but further provides that a person may refuse a law enforcement officer’s request that the test be taken, albeit subject to the possible suspension of one driver’s privileges. The language of the statute does not support the construction given it by the district court. Subsection (b)(1) of the statute requires that before a test is requested two conditions must be met: (a) an arrest arising out of the operation of a vehicle for any offense in violation of a state statute or a city ordinance and (b) reasonable grounds to believe the driver was under the influence. The district court’s interpretation of “[t]he person has been arrested . . . for any offense involving operation ... of a vehicle while under the influence,” would render wholly redundant the requirement that the “officer has reasonable grounds to believe the person was operating a vehicle while under the influence of alcohol.” K.S.A. 1995 Supp. 8-1001(b)(l). While “reasonable grounds” is synonymous in meaning with “probable cause,” (see Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 766-67, 758 P.2d 226 [1988], rev. denied 243 Kan. 777 [1988]), one may have reasonable grounds to believe that a person was operating a vehicle under the influence but not have the probable cause required to arrest under K.S.A. 1995 Supp. 8-1001(b)(1). An arresting officer may formulate reasonable grounds sufficient to request a test under the statute before or after arrest and, under K.S.A. 1995 Supp. 8-1001(b)(2), without any arrest whatsoever.
Additionally, the phrase “any offense involving operation ... of a vehicle while under the influence of alcohol” in K.S.A. 1995 Supp. 8-1001(b)(l) makes clear that the statute’s reach is not limited to motorists arrested for a per se alcohol or drug offense that would impair one’s ability to operate a motor vehicle safely.
On appeal, Counseller contends that such construction of K.S.A. 1995 Supp. 8-1001 is also inconsistent with K.S.A. 1995 Supp. 8-1002(h)(1), which states:
“If the officer certifies that the person refused the test, the scope of the hearing shall be limited to whether: (A) A law enforcement officer had reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drags, or both, . . . (B) the person was in custody or arrested for an alcohol or drug related offense or was involved in a vehicle accident or collision resulting in property damage, personal injury or death; (C) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and (D) the person refused to submit to and complete a test as requested by a law enforcement officer.” (Emphasis added.)
The scope of the hearing under K.S.A. 1995 Supp. 8-1002(h)(2) for a person failing the test is the same as for a person refusing the test.
Counseller assumes from the text of K.S.A. 1995 Supp. 8-1002(h) that “arrested for an alcohol or drug related offense” means an arrest for driving under the influence or some other specific category of criminal statutes. We disagree. We believe the determination as to whether an offense was alcohol or drug related may be made subsequent to an arrest. There is nothing within the text of the statute that suggests otherwise, and Counseller has been unable to provide any other authority for his assertion.
The State’s appeal is sustained, and this case is reversed and remanded to the district court for further proceedings consistent with this opinion. | [
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Brazil, C.J.:
Darren Devon Schultz appeals from the district court’s computation of his guidelines sentence. He does not challenge the indeterminate sentence imposed by the court. Specifically, Schultz contends that his prior conviction from Missouri for the burglary of a gas station should have been classified as a nonperson felony for criminal history purposes. We agree and reverse the district court’s determination of Schultz’ criminal history classification.
The record shows that Schultz was charged in Missouri with burglary in the second degree, in violation of Mo. Rev. Stat. § 569.170 (1994), when he “knowingly entered unlawfully in an inhabitable structure . . . for the purpose of committing the crime of stealing, therein.” In a separate count in the information charging Schultz with stealing it was alleged that the building which Schultz unlawfully entered was a Sinclair gas station. Schultz testified at sentencing that he had worked at the gas station prior to the burglary. In describing the burglary, he stated he broke into a storage building adjoining or near the gas station and stole cigarette cartons. He also stated on cross-examination that the building contained no residential structure and no one was living in it. Apparently no one was present in the building at the time of the burglary because Schultz was not charged with burglary in the first degree, Mo. Rev. Stat. § 569.160 (1994). The district court found that the gas station was a dwelling under K.S.A. 1994 Supp. 21-3715 and ruled that the burglary conviction constituted a prior person felony.
K.S.A. 1994 Supp. 21-4711 provides for the criminal history classification of burglary convictions and out-of-state convictions:
“(d) Prior burglary adult convictions and juvenile adjudications will be scored for criminal history purposes as follows:
(1) As a prior person felony if the prior conviction or adjudication was classified as a burglary as described in subsection (a) of K.S.A. 21-3715 and amendments thereto.
(2) As a prior nonperson felony if the prior conviction or adjudication was classified as a burglary as described in subsection (b) or (c) of K.S.A. 21-3715 and amendments thereto.
“The facts required to classify prior burglary adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence.
“(e) Out-of-state convictions and juvenile adjudications will be used in classifying the offender’s criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime. . . . The facts required to classify out-of-state adult convictions and juvenile adjudications must be established by the state by a preponderance of the evidence.”
Schultz first argues that because Kansas does not have a crime labelled “Burglary in the Second Degree,” Kansas has no comparable offense and therefore his burglary conviction must be classified a nonperson felony pursuant to K.S.A. 1994 Supp. 21-4711(e).
Mo. Rev. Stat. § 569.170.1 states: “A person commits the crime of burglary in the second degree when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.” K.S.A. 1994 Supp. 21-3715 states:
■ “Burglary is knowingly and without authority entering into or remaining within any:
“(a) Building, manufactured home, mobile home, tent or other structure which is a dwelling, with intent to commit a felony, theft or sexual battery therein;
“(b) building, manufactured home, mobile home, tent or other structure which is not a dwelling, with intent to commit a felony, theft or sexual battery therein; or
“(c) motor vehicle, aircraft, watercraft, railroad car or other means of conveyance of persons or property, with intent to commit a felony, theft or sexual battery therein.
“Burglary as described in subsection (a) is a severity level 7, person felony. Burglary as described in subsection (b) is a severity level 7, nonperson felony. Burglary as described in subsection (c) is a severity level 9, nonperson felony.”
Our crime of burglary is comparable to the Missouri crime of burglary in the second degree. Although the two statutes are differently worded, they are similar in nature and cover similar types of criminal conduct.
. : Next, Schultz argues the court erred in finding the gas station he burglarized to be a “dwelling” as contemplated by K.S.A. 1994 Supp. 21-3715. The State argues the word “inhabit” as used in Mo. Rev. Stat. § 569.170.1 is legally the same as “dwelling” in K.S.A. 1994 Supp. 21-3715.
The crime of second-degree burglaiy in Missouri applies when the structure involved is “a building or inhabitable structure.” Mo. Rev. Stat. § 569.170.1. An “inhabitable structure” is defined in Mo. Rev. Stat. \ 569.010(2) (1994), in pertinent part, as “a ship, trailer, sleeping car, airplane, or other vehicle or structure: (a) Where any. person lives or carries on business or other calling.” (Emphasis added.) In enacting Mo. Rev. Stat. § 569.010(2)(a), the Missouri Legislature intended to protect homes and businesses wherever located. State v. Liffick, 815 S.W.2d 132, 134 (Mo. App. 1991). Thus, under the Missouri burglary statute, a gas station would be an “inhabitable structure” because business is carried on there.
In contrast, the Kansas burglary statute distinguishes between structures which are or are not “dwellings.” According to K.S.A. 1994 Supp. 21-3110(7), “ '[djwelling’ means a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence.” (Emphasis added.) See also K.S.A. 1994 Supp. 77-201 Twenty-third (defining “ ‘[residence’ ” as a person’s “place of habitation and to 'which, whenever the person is absent, the person has the intention of returning”). From these definitions, it is clear that normally a gas station would not be considered a “dwelling” as contemplated by our legislature absent some proof that the gas station either is used or intended for use as a human habitation, home, or residence.
The State failed to offer any evidence to show that the gas station which Schultz burglarized was used or was intended for use as a human habitation, home, or residence. We find the court erred in determining the gas station constituted a dwelling under K.S.A. 1994 Supp. 21-3715.
We reverse and remand for recomputation of Schultz’ guidelines sentence pursuant to K.S.A. 1994 Supp. 21-4724(f). In doing so, we point out that tire district court admitted improper evidence by the State to prove Schultz’ criminal history. As noted by Schultz’ ' counsel at sentencing, the Missouri court documents must comply with the out-of-state authentication requirements of K.S.A. 60-465 to be admissible. See State v. Strickland, 21 Kan. App. 2d 12, 14-15, 900 P.2d 854 (1995).
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Gernon, J.:
Dold Foods, Inc., (Dold) and its insurance carrier, Liberty Mutual Insurance Company (Liberty), appeal an award by the Workers Compensation Board (Board) to Ana Maria Guerrero. The award allowed a 43% permanent partial work disability.
Dold and Liberty argue that the disability finding is not supported by substantial competent evidence and that it was error not to assess any liability to the Kansas Workers Compensation Fund (Fund).
Guerrero worked for Dold for over 7 years, beginning in 1985. Her primary job function was packaging bacon. In 1992, she began experiencing pain in her arms and shoulders.
Guerrero sought medical attention from Dr. Melhom, an orthopedic specialist, who operated on her for right carpal tunnel, right ulnar nerve elbow, and right medial epicondylitis. Epicondylitis is an inflammation of the humerus bone and the surrounding tissue. See Stedman’s Medical Dictionary 521 (25th ed. 1990).
Dr. Melhom assigned Guerrero a 10.35% permanent partial impairment of function to the right arm and restricted her work function to lifting no more than 35 pounds, 20 pounds frequently, and limited her repetitive tasks to no more than 30 minutes.
Guerrero was then given a job labeling and weighing bacon but was terminated after notifying her supervisor that the repetitive work was causing her problems. The basis for firing Guerrero, according to Dold, was her refusal to work within restrictions.
Guerrero was also examined by Dr. Bernard Poole, who found her permanently unfit for work involving repetitive motion and assigned her a 5% permanent partial loss of function to the body as a whole.
A personnel and human resources consultant concluded that Guerrero had suffered a 85% to 90% loss of access to her available labor market, coupled with a 45% loss of her ability to earn comparable wages in the open labor market.
The administrative law judge (ALJ) found that Guerrero sustained one injury which began in May 1992 and which was finalized on her last day of work. The ALJ stated:
“Determining that the Claimant has a partial work disability, the trier of fact has concluded that the Claimant has a work disability somewhere between 5% and 45%. The Claimant is not entitled to claim loss of ability to earn a comparable wage, because she demonstrated she had the ability to return to some jobs at Dold at a comparable wage. Although the Claimant and the employer could not agree on a job which was satisfactory to both sides, the Claimant’s medical restrictions clearly prohibit her from fully accessing the open labor market. Therefore, the Claimant is entitled to be compensated for a partial disability based upon her labor market losses.
“In concluding that the Claimant has a 25% work disability, the trier of fact has taken into consideration, the fact that the Claimant did not fully cooperate with Dr. Melhom and the employer in making a good faith effort to return to work. In addition, the employer failed to work with the Claimant by ehminating the labeling position, which was too repetitive in nature according to Dr. Melhom. These events culminated and led to the involuntary separation of the Claimant from her employment. Therefore, the Claimant under these facts, is entitled to a partial work disability of 25%.”
On review, the Board affirmed the ALJ’s decision and awarded Guerrero a 5% functional impairment up to the last day she worked and a 43% work disability from then on. Based on that finding, she was entitled to permanent partial impairment and permanent partial general disability benefits. The Board also found that the Fund was not liable. Dold and Liberty appeal these findings.
Substantial Competent Evidence
The 1993 workers compensation amendments limited review of all orders issued after October 1, 1993, to questions of law. K.S.A. 44-556(a). Whether the Board’s findings of fact are supported by substantial competent evidence (K.S.A. 77-621[c][7]) is a question of law. See Tovar v. IBP, Inc., 15 Kan. App. 2d 782, 784, 817 P.2d 212, rev. denied 249 Kan. 778 (1991).
. The relevant scope of review is set forth in K.S.A. 77-621(c)(7):
“(c) The court shall grant relief only if it determines any one or more of the following:
7. the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act.”
'' 'Substantial evidence’ is evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can be reasonably resolved.” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 365, 770 P.2d 423 (1989).
This court may not reweigh the evidence presented at the agency hearing or determine the weight or credibility of the witnesses’ testimony. City of Wichita v. Employment Security Bd., 13 Kan. App. 2d 729, 733, 779 P.2d 41 (1989).
Among the Board’s findings were as follows:
“The Administrative Law Judge found, and the Appeals Board agrees, that claimant could have performed one or more of the positions offered at Dold Foods. These positions were comparable wage positions and, accordingly, the Appeals Board finds a zero percent (0%) loss of ability to earn a comparable wage.
“The Appeals Board finds, however, that the reduction of ability to obtain employment in the open labor market has been significantly impaired. The only testimony in the record is that of Mr. Hardin, and he testifies to his opinion that claimant would have an eighty-five to ninety percent (85-90%) loss of access to the open labor market on the basis of either Dr. Poole’s or Dr. Melhom’s restrictions. The Appeals Board considers this evidence sufficient to overcome the presumption against work disability and finds claimant has, in fact, suffered an eighty-five percent (85%) loss of ability to obtain employment in the open labor market. As authorized in Hughes v. Inland Container Corp., 247 Kan. 407, 799 P.2d 1011 (1990), the Appeals Board considers it appropriate in this case to give equal weight to the loss of ability to earn a comparable wage and the loss and reduction of ability to obtain employment in the open labor market. On that basis, the Appeals Board finds claimant has a forty-three percent (43%) permanent partial general disability.”
Dold relies on Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140.(1994), rev. denied 257 Kan. 1091 (1995).
In Foulk, the claimant was placed on work restrictions after suffering a back injury. In response, the employer offered the claimant a different job within her restrictions, at the same rate of pay, but the claimant rejected the offer. On appeal, the claimant argued that the presumption of no disability under K.S.A. 1988 Supp. 44-510e(a) did not apply to her because she was not engaged in a job that paid comparable wages.
This court rejected Foulk’s argument, noting: “To construe K.S.A. 1988 Supp. 44-510e(a) as claimant suggests would be to reward workers for their refusal to accept a position within their capabilities at a comparable wage.” 20 Kan. App. 2d at 284.
The key word in that ruling, “refusal,” distinguishes Foulk from the case before us. In Foulk, the claimant never attempted to perform the new job offered by the employer. In this case, Guerrero attempted to work within her work restrictions. Moreover, Dr. Melhom notified Dold that Guerrero’s new job assignment was repetitive and increased her chances of further injury.
We conclude that the Board properly considered Guerrero’s ability to perform work in the open labor market and her ability to earn comparable wages. See K.S.A. 1992 Supp. 44-510e(a); Hughes v. Inland Container Corp., 247 Kan. 407, 422, 799 P.2d 1011 (1990). The Board then averaged the two figures to reach a disability percentage. See Schad v. Hearthstone Nursing Center, 16 Kan. App. 2d 50, 53, 816 P.2d 409, rev. denied 250 Kan. 806 (1991). As long as the two statutory factors were considered, we cannot say the Board erred in the method it used in awarding a 43% work disability to Guerrero. See Hughes, 247 Kan. at 422; Schad, 16 Kan. App. 2d at 53.
Fund Liability
K.S.A. 1992 Supp. 44-567(a) provides that an employer who knowingly employs or retains a handicapped employee shall be relieved of liability for compensation awarded or be entitled to an apportionment of the costs thereof as follows:
“(1) Whenever a handicapped employee is injured or is disabled or dies as a result of an injury and the director awards compensation therefor and finds the injury, disability or the death resulting therefrom probably or most likely would not have occurred but for the preexisting physical or mental impairment of the handicapped employee, all compensation and benefits payable because of the injury, disability or death shall be paid from the workers’ compensation fund.
“(2) Subject to the other provisions of the workers compensation act, whenever a handicapped employee is injured or is disabled or dies as a result of an injury and the director finds the injury probably or most likely would have been sustained or suffered without regard to the employee’s preexisting physical or mental impairment but the resulting disability or death was contributed to by the preexisting impairment, the director shall determine in a manner which is equitable and reasonable the amount of disability and proportion of the cost of award which is attributable to the employee’s preexisting physical or mental impairment, and the amount so found shall be paid from the workers’ compensation fund.”
In order to be relieved of liability, the employer must prove either that the employer had knowledge of the preexisting impairment at the time the employer employed the handicapped employee or that the employer retained the handicapped .employee in employment after acquiring such knowledge. K.S.A. 1992 Supp. 44-567(b). “The employers knowledge of the preexisting impairment may be established by any evidence sufficient to maintain the employer’s burden of proof with regard thereto.” K.S.A. 1992 Supp. 44-567(b).
In affirming the ALJ’s decision, the Board found:
“The Kansas Workers Compensation Fund becomes Hable when the respondent employs or retains the individual with knowledge of a handicap and then the handicap contributes to subsequent disabihty arising out of and in the course of employment. In this case die Appeals Board finds the claimant has not suffered two separate accidents, but, instead, a series of mini-traumas which, in effect, constitute an injury over a period of time ending with the last date of employment. See Berry v. Boeing, Case No. 71,001 (1994). In addition, the testimony from Dr. Melhom relating to contribution does not reflect a percentage of contribution after respondent had knowledge of the handicap. For these two reasons the Appeals Board finds that the respondent has not estabfished the prerequisites for imposing fiabifity on the Kansas Workers Compensation Fund.”
The ALJ had found:
“In tile instant case the employer has failed to meet its burden of proving known retention of a handicapped employee. The employer asserted all along that the Claimant had a scheduled injury Hmited to the right extremity. The employer cannot now come forth and claim they knew all along the employee had a bilateral problem due to overcompensation.”
Dold had the burden of proving knowledge of a handicap to relieve itself of liability under the Workers Compensation Act. Therefore, a finding that it introduced no evidence to show such knowledge is a negative finding indicating that it failed to sustain its burden of proof on this issue.
“Our scope of review on appeal of a negative finding is to the effect that such a finding will not be disturbed absent proof of an arbitrary disregard of undisputed evidence, or some extrinsic circumstance such as bias, passion, or prejudice." Duncan v. City of Osage City, 13 Kan. App. 2d 364, 369, 770 P.2d 843, rev. denied 245 Kan. 783 (1989); see Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, 606, 621 P.2d 448 (1980), rev’d on other grounds Denton v. Sunflower Electric Co-op, 242 Kan. 430, 748 P.2d 420 (1988).
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Lewis, J.:
Defendant Larry Dean Parker was convicted of one count of aggravated robbery and sentenced to a term of 9 to 23 years in prison. This is a direct appeal from the conviction and sentence.
The scenario begins in Hot Rods, a tavern in Emporia. Defendant and his brother Glenn had gone to the tavern to drink beer and play pool. In the course of the evening, they met and began drinking with Bruce Niederhauser. The three left Hot Rods sometime during the evening and went to Hooters. At Hooters, they continued to drink beer, and there is an indication that Niederhauser became totally intoxicated and incapacitated. At some point during the evening, all three left Hooters and got into Glenn’s pickup.
Sometime between leaving Hooters and 8 o’clock the next morning, Niederhauser was brutally beaten, stripped of his clothing, and left in a ditch. A Lyon County citizen spotted Niederhauser in the ditch and called the sheriff’s office. When the sheriff’s deputy arrived, Niederhauser was found naked, lying in the ditch, covered with blood and abrasions.
Niederhauser could not remember any details of the beating, but related that he could recall he was with defendant and his brother. A police investigation uncovered incriminating evidence, and defendant and his brother were both charged with the beating and robbery of Niederhauser.
Glenn made a deal with, the authorities and, in exchange for his testimony against his brother, was allowed to plead to conspiracy to commit aggravated robbery and was sentenced to community corrections. According to Glenn, it was defendant who beat and stripped Niederhauser and left him in the roadway.
As might be imagined, defendant related a different story of the events than did his brother. Defendant testified at trial that it was Glenn who beat Niederhauser. Defendant insists he attempted to stop his brother and that he did not hit or kick Niederhauser. He did admit that at one point he pretended to kick Niederhauser so that Glenn would not call him a “chicken.” Defendant insisted, however, that he only pretended to do so and that he did not actually participate in the beating of Niederhauser.
The jury convicted defendant of aggravated robbery. Defendant raises several issues on appeal.
AIDING AND ABETTING
The trial court gave the jury an instruction on aiding and abetting over the objection of defendant. Defendant argues that the trial court erred in so instructing the jury and that there was not sufficient evidence to convict him on an aiding and abetting theory.
Defendant’s basic argument is that under the evidence, he could only have been convicted as a principal or acquitted as an innocent passive observer. We do not agree.
There is no crime of aiding and abetting in this state. An individual is guilty of a crime either because he or she is the principal actor in the event or because he or she aided and abetted in the commission of a crime. In either event, a defendant is simply adjudged to be guilty of a crime charged, and the jury verdict does not specify whether guilt is as a principal or an aider and abettor.
“To be guilty of aiding and abetting in the commission of a crime the defendant must wilfully and knowingly associate himself with the unlawful venture and wilfully participate in it as he would in something he wishes to bring about or to make succeed.” State v. Schriner, 215 Kan. 86, Syl. ¶ 6, 523 P.2d 703 (1974). See State v. Green, 237 Kan. 146, Syl. ¶ 4, 697 P.2d 1305 (1985).
There is ample evidence in the record to convict defendant as the principal actor in the aggravated robbery of Niederhauser. The testimony of defendant’s brother, Glenn, along with certain other demonstrative evidence, is more than sufficient to sustain a verdict of guilty. Defendant and his brother offered totally different versions of what happened. Glenn testified that defendant did it, and defendant testified that Glenn did it. The jury apparently believed Glenn, which was its prerogative.
There was also sufficient evidence to justify the giving of the aiding and abetting instruction.
For instance, defendant testified that while at Hooters, he learned that Glenn was planning to beat Niederhauser. Niederhauser was so drunk at Hooters that he had to be helped to leave the premises, and defendant aided him and placed him in Glenn’s vehicle. Even though defendant now testifies that he thought Glenn had decided not to beat Niederhauser, his assistance in getting Niederhauser to the pickup may very well be considered as aiding and abetting in the commission of the crime. In addition, defendant admits that he pretended to kick Niederhauser. Although he testified that he did not actually do so, he apparently convinced Glenn that he was helping in the beating. This could only have encouraged Glenn to continue his attack on Niederhauser if one chooses to accept defendant’s version of the events. In addition to these specific incidents, there is adequate evidence in the record to support an inference that if defendant was not the principal actor in the crime, he certainly aided and abetted in its commission.
After reviewing the record on the issue at hand, we hold there was sufficient evidence that defendant aided and abetted in the commission of the crime of aggravated robbery. The trial court did not err in instructing the juiy on this issue.
VOLUNTARY INTOXICATION
Defendant next argues that the trial court erred in refusing to give his requested instruction on voluntary intoxication.
In State v. Montano, 18 Kan. App. 2d 502, Syl. ¶ 7, 855 P.2d 979, rev. denied 253 Kan. 862 (1993), we outlined what must be shown in order to require an instruction on voluntary intoxication:
“To require the giving of an instruction on voluntary intoxication, there must be some evidence upon which a jury might find that defendant was so intoxicated that his mental faculties were impaired to the extent that he was incapable of forming the necessary specific intent required to commit the crime. Statements of an accused can negate testimony about consumption of alcohol and, thus, justify a court’s refusal to instruct on voluntary intoxication.”
The evidence in this case did not require that the trial court give the requested instruction. The testimony of defendant at trial indicates he was able to detail all of the events preceding the beating of Niederhauser and to explain precisely what he did do and did not do during that beating. His testimony also indicates he was able to control himself to the extent of not harming Niederhauser and imploring Glenn to stop his attack on Niederhauser. The ability to recall events leading up to the commission of a crime is evidence that a defendant’s mental faculties were not sufficiently impaired by intoxication. State v. Gonzales, 253 Kan. 22, 853 P.2d 644 (1993); State v. Minski, 252 Kan. 806, 812, 850 P.2d 809 (1993); State v. Payton, 229 Kan. 106, 114, 622 P.2d 651 (1981).
“The burden of showing that intoxication has robbed defendant’s mental faculties is on defendant.” State v. Minski, 252 Kan. 806, Syl. ¶ 3. Defendant’s testimony in this case clearly indicates his mental faculties had not been robbed by his intoxication. The record shows that defendant was clearly not “ 'utterly devoid of consciousness or awareness.’ ” See State v. Warren, 252 Kan. 169, 174, 843 P.2d 224 (1992). Defendant’s testimony in this case indicates he could reason, plan, recall, exercise his motor skills, and pretend to kick at the victim to fool his brother. The evidence indicates the trial court did not err in refusing to give an instruction on voluntary intoxication.
SENTENCE OF CODEFENDANT
As indicated, defendant’s brother, Glenn, was convicted of conspiracy to commit aggravated robbery, a class E felony, and was sentenced to community corrections. Defendant, on the other hand, was convicted of aggravated robbery, a class B felony, and was sentenced to a term of 9 to 23 years. Defendant argues the trial court erred in giving him a sentence much harsher than that received by his codefendant. He also argues the trial court erred in not stating the reasons for giving him a harsher sentence than was imposed on his brother. In State v. Bailey, 251 Kan. 527, 531, 834 P.2d 1353 (1992), two codefendants were convicted of identical crimes. One defendant received three consecutive sentences while the other received only two. As a result, one defendant’s parole eligibility date was 15 years later than the other. The defendant receiving the harsher sentence appealed, making an argument similar to the one made by defendant here. The Supreme Court vacated the harsher sentence and remanded for reconsideration because the trial court had failed to give its reasons for the disparate sentences:
“In sentencing a convicted felon, a second trial judge is not restricted to imposing a sentence no greater than the sentence another judge previously imposed upon a codefendantfor the same crime. The second judge, however, must consider the sentence given to the codefendant and, if a longer sentence is given, the reason for doing so should be set forth on the record.” (Emphasis added.) State v. Bailey 251 Kan. 527, Syl. ¶ 2.
On appeal, defendant relies on Bailey. We conclude that this reliance is misplaced. In Bailey, the two defendants were convicted of the same crime. In this case, defendant was convicted of a class B felony while his brother was convicted of a class E felony. A similar factual situation was before the Supreme Court in State v. Castoreno, 255 Kan. 401, 874 P.2d 1173 (1994). In that case, the defendant had been convicted of aggravated criminal sodomy and one count of rape, both class B felonies. The codefendant had entered into a plea agreement and pled guilty to one count of aggravated sexual battery and one count of attempted aggravated criminal sodomy, class D and class C felonies, respectively. Cas toreno argued that the trial court erred in giving him a more severe sentence than his codefendant without stating the reasons for that sentence. Castoreño, in his appeal, relied on Bailey. The Supreme Court distinguished Bailey, saying:
“Bailey is not controlling in the present case because Teetzel and Castoreño were not sentenced for the same offenses. Their different convictions were a result ofTeetzel’s entering into a plea agreement. Neither party cites any authority which offers guidance where, due to one defendant’s entering pleas and one defendant’s going to trial, codefendants were convicted of very different offenses for veiy similar conduct and culpability.” 255 Kan. at 413.
In State v. Davis, 256 Kan. 1, 34, 883 P.2d 735 (1994), the Siipreme Court in a factual situation similar to the one at bar, said: “Davis clearly received a much harsher sentence than his codefendants. The disparity between Davis’ and Roddy’s sentences really cannot be compared because the defendants were convicted of different crimes.”
We adopt the reasoning set forth by our Supreme Court in Bailey and Davis. In the instant matter, the defendant and his brother were convicted of different crimes, and there is no rational means of comparing their sentences. It follows that we do not consider that the trial court was required to give reasons for pronouncing different sentences for the different crimes.
Defendant argues that Glenn is “more culpable” than he. Glenn is only more culpable if we accept defendant’s version of the events. If we accept Glenn’s version, we reach an entirely different conclusion. We cannot tell and do not intend to judge the credibility of these witnesses. We do not know who is more culpable. For our purposes, the record shows that the two defendants were convicted of entirely different crimes. Under those circumstances, the trial court was not required to give any reasons for imposing a greater sentence on defendant than it did on defendant’s brother.
Defendant’s sentence is within the statutory guidelines. The record indicates the trial court considered the required sentencing factors. There is no argument that the sentence was a result of partiality, prejudice, oppression, or corrupt motive. We affirm the sentence imposed.
Affirmed. | [
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Knudson, J.:
The defendant, Garry L. Sammons, appeals the district court’s denial of his motions to modify sentence and for conversion under the Kansas Sentencing Guidelines Act (KSGA).
Sammons contends that the district court erred in refusing to consider his second motion to modify his sentences, ostensibly filed under K.S.A. 21-4603(d)(2). However, Sammons subsequently filed a third motion to modify sentence, which was heard and decided by the court on its merits. Consequently, this issue has been rendered moot.
Sammons next contends that the district court erred in denying his motion for conversion of sentence under the KSGA. We agree and remand for additional proceedings under K.S.A. 21-4724 consistent with the reasoning expressed in this opinion.
Sammons was convicted in the underlying Johnson County District Court proceedings, case number K71083, of three counts of burglary, three counts of felony theft, and two counts of misdemeanor criminal damage to property. The district court imposed appropriate indeterminate sentences for each felony conviction, and Sammons was incarcerated. After the enactment of the sentencing guidelines on July 1, 1993, the Department of Corrections (DOC) submitted a sentencing guidelines report, indicating Sammons was not eligible for retroactive application of the KSGA. That report stated Sammons was currently serving sentences for the following convictions:
Offense Case Severity Level
1. Theft K71083 9NP
2. Burglary (3 cts) K71083 7P
3. Drug 85CR2004 4Drug
4. Burglary 87CR1220 7NP
5. Theft 87CR1220 9NP
6. Burglary 87CR1358 7NP
The DOC concluded that each of the above severity levels did not preclude retroactive application of the KSGA. The DOC’s determination is entirely consistent with K.S.A. 21-4724(b)(l) and (c)(1).
The DOC then determined Sammons’ current total criminal history and intersected that history with the highest ranking criminal offense for which he was incarcerated to determine the appropriate sentencing grid box and whether he was eligible for conversion. It is at this juncture we believe that the DOC miscalculated.
For the severity level axis of the sentencing guidelines grid, the DOC used the base offense with the highest severity level ranking, “Drug” level 4. With the exception of the drug case, all of the above offenses and an earlier burglary offense were then used to determine criminal history on the horizontal axis. Thus, the DOC concluded that Sammons had one prior person felony and three nonperson felonies, which placed him in the noneligible drug grid box 4D.
The obvious difficulty with that approach is that a substantial part of Sammons’ criminal histoiy did not exist when Sammons committed the drug offense. Thus, the DOC’s determination of eligibility was erroneous.
We hold that in determining an inmate’s eligibility for conversion, the DOC must first determine the most serious guidelines severity level for each sentencing event under which the offender is incarcerated and then determine the offender’s criminal history existing at the time of each sentencing event.
To illustrate, based solely upon the information provided in the record, Sammons’ eligibility would be determined as follows:
Conviction Event Severity Level Criminal History Eligibility
K71083 7P 5NP (E) Yes
85CR2004 4(Drug) 0 (I) Yes
87CR 1220 7NP 1NP (G) Yes
87CR1358 7NP 2NP (F) Yes
We emphasize that the above chart is merely illustrative. Upon receipt of the mandate from this court, both parties are to be afforded reasonable opportunity under the KSGA, consistent with this opinion, to supplement pleadings and begin anew to consider Sammons’ eligibility for sentence conversion.
We have reviewed the supplemental brief filed by Sammons pro se. We do not find any additional issues he raises to have merit.
Reversed and remanded with instructions that a hearing be held pursuant to K.S.A. 21-4724(d)(2) and consistent with this opinion. | [
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|
Elliott, J.:
The Kansas Department of Health and Environment (KDHE) revoked the permit of Tire Disposal Facilitators, Inc., (TDF) to transport waste tires and ordered removal of tires at an unpermitted site. On review, the district court reversed KDHE’s order, reinstated TDF’s permit, and set aside the order to remove the waste tires.
KDHE appeals and we reverse.
KDHE argues the district court erred in reversing the KDHE Secretary’s final order. The district court ruled that the KDHE Secretary acted arbitrarily and capriciously under K.S.A. 77- 621(c)(8) by disregarding the presiding officer’s determination regarding witness credibility.
K.S.A. 1995 Supp. 77-527 governs agency review of initial orders. That statute provides, in part:
“(d) In reviewing an initial order, the agency head or designee shall exercise all the decision-making power that the agency head or designee would have had to render a final order had the agency head or designee presided over the hearing, except to the extent that the issues subject to review are limited by a provision of law or by the agency head or designee upon notice to all parties.”
We read this statute to allow the agency to exercise de novo review on the record.
The KDHE Secretary listed several reasons for disagreeing with the presiding officer’s determination of witness credibility. Those reasons are supported by substantial competent evidence in the record. Because the KDHE Secretary’s standard of review was de novo, and because he fully explained his reasons for disagreeing with the presiding officer’s witness credibility determination, the KDHE Secretary did not act arbitrarily or capriciously.
We reverse the district court and reinstate the KDHE Secretary's final order. The Secretary found that the farmer/rancher exemption of K.S.A. 1995 Supp. 65-3424a and K.S.A. 65-3424b did not apply because the property owner never intended to use the waste tires as silage covers. Therefore, we need not reach TDF’s argument regarding the presiding officer’s interpretation of those statutes.
Reversed. | [
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|
GREEN, J.:
This litigation involves a claim for underinsured motorist coverage by the insured, James M. Eidemiller. Eidemiller claimed that he was entitled to underinsured motorist coverage under three separate insurance policies with State Farm Mutual Automobile Insurance Company (State Farm). State Farm moved for summary judgment, arguing that the stacking of the insurance policies is prohibited by K.S.A. 40-284(d). The trial court agreed and granted summary judgment in favor of State Farm. On appeal, Eidemiller contends that the trial court erred in holding that the statute prohibited the stacking of the policies. We agree.
On December 26, 1988, Eidemiller was a passenger in a car driven by Edward T. Musick After Musick lost control of his car, he slammed into another car. From that impact, Musick collided with a second car. The second car was operated by John M. Guzan II. Eidemiller suffered injuries from the collisions. Later, Eidemiller settled his liability claim against Musick for Musick’s policy limits of $25,000. He also settled his liability claim against Guzan for $5,500.
State Farm insured Eidemiller under three separate automobile insurance policies. The underinsured motorist limits of each policy matched exactly the liability limits contained under Musick’s and Guzan’s policies.
Eidemiller notified State Farm that the liability settlements from Musick and Guzan had failed to adequately compensate him for his injuries. As a result, Eidemiller told State Farm that he was making an underinsured motorist claim based on the combination of the three State Farm policies. When State Farm denied Eidemiller’s claim, Eidemiller filed this breach of contract suit on August 24, 1994.
Anti-Stacking Statute
Eidemiller argues that the trial court improperly granted summary judgment because the anti-stacking provisions of K.S.A. 40-284(d) do not prevent the stacking of his insurance coverage under the three State Farm policies. Eidemiller argues that because State Farm failed to include the anti-stacking language in its three insurance contracts, the language should not automatically be read into the contracts.
•On the other hand, State Farm argues that the statutory language of 40-284(d) is unambiguous and that the legislature clearly prohibited stacking in all circumstances.
Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). Here, the facts are not in dispute. We are asked to determine whether the anti-stacking provisions of 40-284(d) are automatically read into an insurance contract when an insurance company fails to include such provisions in the contract. Because this is a question of law, the trial court correctly determined that this issue is ripe for summary judgment.
The 1981 amendments to 40-284 addressed “stacking” of underinsured motorist coverage. Stacking is “the right to recover on two or more policies in an amount not to exceed the total of the limits of liability of all policies up to the full amount of the damages sustained.” Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 608, 549 P. 2d 1354 (1976). K.S.A. 40-284(d) prohibits the stacking of insurance coverage:
“Coverage under the policy shall be limited to the extent that the total limits available cannot exceed the highest Emits of any single appEcable poEcy, regardless of the number of pohcies involved, persons covered, claims made, vehicles or premiums shown on the poEcy or premiums paid or vehicles involved in an accident.”
Whether 40-284(d) is automatically read into an insurance policy when anti-stacking provisions are not included in the contract has riot been addressed by the Kansas appellate courts. But the Eighth Circuit Court of Appeals addressed this issue in Walker v. State Farm Mut. Auto. Ins. Co., 973 F.2d 634 (8th Cir. 1992). In Walker, the appellants sought underinsured motorist benefits from State Farm. They argued that their underinsured motorist coverage should be the aggregate of the total amount of the underinsured motorist coverage they had on six different vehicles. The court noted that “stacking of underinsured motorist coverage, prior to 1981 amendments, was presumed under Kansas law. Davis v. Hughes, 229 Kan. 91, 622 P.2d 641, 648 (1981); Welch v. Hartford Casualty Ins. Co., 221 Kan. 344, 559 P.2d 362, 367 (1977).” 973 F.2d at 637.
In summarizing the arguments, the Walker court stated:
“The Walkers admit that the 1981 amendment eEminated automatic stacking in Kansas, but claim that the amendment only gave insurance companies the right to eEminate stacking. Because nothing in their insurance pohcies specifically ehminates stacking, the Walkers argue that § 40-284(d) should not automatically be read into their insurance contracts. The Walkers argue that because this new provision is for the benefit of insurance companies, State Farm must expEeitly add anti-stacláng language to their pohcies for § 40-284(d) to have effect. The Walkers claim that their interpretation prevents insurance companies from ‘sand bagging’ their customers by not adding the anti-stacking language to the policies, but then forbidding stacking.
“State Farm argues that Kan. Stat. Ann. § 40-284(d) forbids stacking even where the policy is silent on the issue. State Farm argues that the language ‘shall be limited’ means that § 40-284(d) is not an optional provision, but a mandate.” 973 F.2d at 637.
The Walker court agreed with State Farm. Concluding that the Kansas legislature intended that 40-284(d) apply to all insurance contracts, the court stated:
“Section 40-284(d) clearly states that underinsured motorist coverage ‘shall be limited’ to the maximum of one policy. This mandatory language contrasts with Kan. Stat. Ann. § 40-284(e) (emphasis added) which states that ‘[a]ny insurer may provide for the exclusion or limitation of coverage’ and then provides a list of terms. Section 40-284(e) is clearly optional and for the exclusions to apply, the exclusion must be written into the insurance policy. Therefore, the Kansas legislature clearly intended § 40-284(d) to be mandatory or the legislature would have used the optional language used in § 40-284(e).” 973 F.2d at 637-38.
Although the Eighth Circuit’s analysis of K.S.A. 40-284(d) is consistent with Kansas rules of statutoiy construction, the court’s analysis ignores Kansas precedent. That precedent requires that insurance contracts be strictly construed against insurance companies which prepare insurance contracts and in favor of the insured. Brown v. Combined Ins. Co. of America, 226 Kan. 223, 232, 597 P.2d 1080 (1979). This general rule and a Kansas case support Eidemiller’s contention that statutory provisions for the benefit of the insured are read into insurance contracts, while those for the benefit of insurance companies must be expressly included.
In Howard v. Farmers Ins. Co., 5 Kan. App. 2d 499, 619 P.2d 160 (1980), rev. denied 229 Kan. 670 (1981), an insurer failed to include favorable statutoiy provisions involving subrogation rights in the insurance contract. The trial court reasoned that the statute providing the statutory benefit was clear and unambiguous and granted the insurer summary judgment. In determining that the insurance policy did not necessarily incorporate the statutoiy provisions at issue, we reasoned that file policy as written was ambiguous. As a result, we reversed the trial court, concluding that the inconsistency of contract language should be resolved in favor of the insured because the insurer was the preparer of the policy; The Howard court stated:
“ ‘It is true that, where the statute makes a provision for the benefit of the insured, the parties to the insurance contract cannot contract away that right, since that would enable the insurer, by properly drafting its policy, to nullify the statute. But the proviso in question was enacted for the benefit of the company which it can insist upon or waive as it chooses. . . . When . . . the insured and defendant entered into this contract, the statute wrote itself into and formed a part of the contract, and the cause of action is not strictly created by the statute, but by the contract containing the statute as one of its provisions. No law or rule of public policy requires the company to be protected to the extent that it cannot waive a requirement imposed on the insured as to the time in which notice is to be given. A statutory right or benefit given for its protection can be waived the same as any other right.’ ” 5 Kan. App. 2d at 504 (quoting Chandler v. Insurance Co., 180 Mo. App. 394, 398-99, 167 S.W. 1162 [1914]).
The Howard court also quoted liberally from Conte v. Yorkshire Ins. Co., 5 Misc. 2d 670, 163 N.Y.S.2d 28 (1957). This case held that when a statutory provision limiting the institution of an action against an insurer to a 12-month period after an accident was omitted from a policy due to a printer’s error, the insurer was estopped from relying on that statute of limitations. The Conte court stated:
“The history of statutory insurance clearly indicates that standard policies were made obligatory upon insurance companies to protect ingenuous insureds against the refinements and legalisms devised by the companies. Whenever the Legislature stepped into this area its purpose was to afford the insured more protection and less obfuscation [citation omitted]. We are on firm ground then when wé say that primarily, standard policies are for the safeguarding of policy holders.
“Of course, if for any reason at all, apparent or ulterior, an insurer chooses to waive benefits conferred by the statutes providing for uniform policies, this may be done.” Conte, 5 Misc. 2d at 671.
See Fredericks v. Farmers Rel. Ins. Co. of N.J., 80 N.J. Super. 599, 194 A.2d 497 (1963); Homestead Invest., Inc. v. Foundation Reserve Ins. Co., 83 N.M. 242, 490 P.2d 959 (1971); Becker-Fineman Camps, Inc. v. Public Service Mut. Ins. Co., 52 App. Div. 2d 656, 382 N.Y.S.2d 122 (1976).
Adopting the reasoning of the Chandler and Conte courts, the Howard court stated:
“This line of cases is an example of a statute not being read into a policy because the statute conferred a benefit on the insurance company, rather than the insured.
“As was stated in 44 C.J.S., Insurance § 302, pp. 1219-20:
‘The parties to the insurance contract cannot waive an applicable statutory provision, that is, a statutory provision for the benefit of insured cannot be contracted away, but it is held that a provision for the benefit of the company may be insisted on or waived by it as it chooses.’ ” 5 Kan. App. 2d at 505.
The Howard court noted that the applicable statutory provisions used the mandatory “shall” language, as does 40-284(d). But the court found that insurance contracts, which are drafted by the insurer, should be strictly construed against the insurer. Therefore, despite mandatory language, statutory provisions benefiting the insurance company that are not included in the contract are not automatically read into an insurance contract.
State Farm, however, argues that Howard is distinguishable from the present case. It argues that the language used in the automobile liability policy in Howard arguably waived the insurer’s subrogation rights. State Farm argues that its policies lacked this kind of ambiguity. Finally, State Farm argues that had it expressly included in its policies language that an insured could recover under multiple uninsured motorist coverages for a single accident, Eidemiller might be able to argue that State Farm waived K.S.A. 40-284(d).
Nevertheless, the reasoning of the Howard court, as well as the cases and secondary authority cited therein, belie such a limited application. Both Chandler and Conte involve statutory benefits created for the insurer which were absent from the contract. The Chandler and Conte courts held that an insurer by its actions could either waive or be estopped from claiming those statutory benefits.
Finally, Eidemiller argues that the State Farm policies do not expressly warn an insured that recovery under multiple uninsured motorist coverages is prohibited. Eidemiller further argues that had he known he could not stack his multiple coverages and could only collect under one of the policies, he might have purchased additional coverage under one policy. As a result, he argues that State Farm should not be permitted to receive and keep premiums for coverage it is now trying to bar through the use of 40-284(d). We agree.
Although distinguishable from our case, the Third Circuit Court of Appeals decided a case which is helpful. In West American Ins. Co. v. Park, 933 F.2d 1236 (3d Cir. 1991), the insurer, West American, argued that its insured, Park, was prohibited by Pennsylvania statute from stacking coverage under two separate car insurance policies. As in the instant case, West American had drafted the policy and collected premiums for the statutorily prohibited coverage. Notably, West American’s policy was more egregious than in the present case, as it not only failed to refer to the statutory prohibition on stacking but expressly provided for the prohibited coverage. Although the Pennsylvania statute differs from K.S.A. 40-284(d), it is similar in some respects to K.S.A. 40-284(a). The Pennsylvania statute reads:
“The [uninsured/underinsured motorist] coverages provided under this subchapter may be offered by insurers in amounts higher than those required by this chapter but may not be greater than the limits of liability specified in the bodily injury liability provisions of the insured’s policy.” (Emphasis added.) 75 Pa. Cons. Stat. Ann. § 1736 (Purdon Supp. 1990).
However, the West American court’s analysis is uniquely applicable to the instant case because the court applied the principles of equitable estoppel.
Borrowing from other Pennsylvania courts, the West American court defined equitable estoppel as “ ‘a doctrine of fundamental fairness intended to preclude a party from depriving another of a reasonable expectation, when the party inducing the expectation knew or should have known that the other would rely to his detriment upon that conduct. [Citation omitted.]’ ” 933 F.2d at 1239 (quoting Straup v. Times Herald, 283 Pa. Super. 58, 71, 423 A.2d 713 [1980]).
The court then found that by collecting premiums for underinsured motorist coverage under both policies, West American had led Park to believe that she could recover under both policies. Expressly recognizing that allowing recovery might “provide Park with more underinsured motorist protection than the legislature intended her to have,” the court held that West American was estopped from arguing that the statute prohibited the stacking of Park’s coverage. 933 F.2d at 1239. In its conclusion, the court stated: “We are confident that the Pennsylvania Supreme Court would not allow an insurer to challenge the legality of a policy which it wrote, for which it collected premiums, and on which it gave the insured every reason to rely.” 933 F.2d at 1240.
Finally, one should consider the insurance policy in the light of a layperson. Unlike a layperson, an insurance company is fully aware of statutory restrictions on coverage:
“Laypersons cannot be expected to know of statutory limitations or exclusions on coverage not contained in their insurance policies. Trusting the language of their policies, laypersons will not seek coverage they think they have. . . . [U]nlike laypersons, insurance companies are fully capable of knowing about statutory restrictions on coverage and of incorporating the restrictions in the language of their policies.” Utah Property & Casualty Ins. Etc. Assn. v. United Services Auto. Assn., 230 Cal. App. 3d 1010, 1021, 281 Cal. Rptr. 917 (1991). (Emphasis added.)
We conclude that because State Farm declined to incorporate the anti-stacking language of40-284(d) into its policies, State Farm is equitably estopped from using that statute to bar Eidemiller from stacking the three State Farm insurance policies.
Offset Provisions
Next, although State Farm concedes that its policies did not contain any express anti-stacking clause, it argues that each policy contains language that would preclude underinsured motorist coverage in this situation.
First, State Farm argues that its policies’ definition of an “underinsured” motorist is identical to the statutory definition under the underinsured motorist statute. See K.S.A. 40-284(b). This provision limits the victim’s recovery through underinsured motorist coverage to the amount by which the victim’s underinsured motorist coverage exceeds the tortfeasor’s liability coverage. For example, if the victim’s underinsüred motorist coverage is $50,000 and the tortfeasor’s liability coverage is $50,000, the victim is ineligible for underinsured motorist benefits.
Second, State Farm argues that its policies state that the maximum “underinsured” motorist benefits it will pay any one insured is the lesser of:
“(1) the difference between the ‘each person’ limit of liability of this coverage and the amount paid to the insured by or for any person or organization who is or may be held legally liable for the bodily injury; or
“(2) the difference between the amount of the insured’s damages for bodily injury and the amount paid to the insured by or for any person or organization who is or may be held legally liable for the bodily injury.”
State Farm argues that because the difference between the $25,000 underinsured motorist coverage under each of its policies and the $25,000 that Eidemiller received from the tortfeasor Mu-sick is zero, Eidemiller is not entitled to any underinsured motorist benefits under any of the State Farm policies.
Those policy provisions, however, described in the preceding two paragraphs, are called offset provisions. These offset provisions prohibit the stacking of the tortfeasor’s liability coverage onto the victim’s underinsured coverage. But because neither offset provision expressly prohibits Eidemiller from stacking the three State Farm policies, State Farm’s arguments must fail.
Finally, State Farm argües that any underinsured motorist coverage furnished by its policies was secondary to the primary coverage. It further argues that the vehicle driven by Musick furnished the primaiy coverage. As a result, State Farm argues that its coverage, at most, was excess to the primaiy coverage, but only in the amount which exceeded the primary coverage. Next, State Farm argues that because the primary underinsured motorist coverage was identical to the underinsured motorist coverage furnished by State Farm under each of its policies, no additional underinsured motorist coverage existed under any of the State Farm policies. This argument, however, is flawed. Eidemiller never made an underinsured motorist claim against Musick’s insurance company. As a result, this argument must also fail.
In summary, we conclude that because the preceding offset provisions do not clearly and unambiguously preclude stacking of coverages, Eidemiller should be permitted to stack the three State Farm insurance policies.
Statute of Limitations
Finally, we must consider a statute of limitations question which the trial court declined to address. Both parties agree that the 5-
year contract statute of limitations period of K.S.A. 60-511(1) applies to claims for underinsured motorist insurance benefits. See Van Hoozer, 219 Kan. at 611. But the parties disagree as to when the limitations period commences.
In general, a cause of action accrues, so as to start the running of the statute of limitations, as soon as the right to maintain a legal action arises. The test to determine when an action accrues is when the plaintiff could have first filed and prosecuted the action to a successful conclusion. Lindenman v. Umscheid, 255 Kan. 610, Syl. ¶ 3, 875 P.2d 964 (1994).
State Farm contends that “the most logical accrual date for statute of limitations purposes is the date of the accident.” State Farm relies upon Brown v. USAA Cas. Ins. Co., 17 Kan. App. 2d 547, 840 P.2d 1203, rev. denied 252 Kan. 1091 (1992), where we concluded that an insured seeking underinsured motorist benefits was not precluded from seeking such benefits by policy language requiring exhaustion of other policies. In Brown, the insured failed to sue the tortfeasor before the 2-year statute of limitations had run. State Farm denied a claim for underinsured benefits based upon the “exhaustion clause” of the policy. On appeal, this court found that the exhaustion provision was unenforceable and contrary to the public policy because it sought to limit coverage mandated by statute. The court emphasized that Brown did not have to sue the tortfeasor as a prerequisite to recovery of underinsured motorist benefits. Brown needed only to establish fault on the part of the tortfeasor and the extent of damages. Brown offers tenuous support, at best, for the commencement of the statute of limitations at the time of the accident.
EidemiUer argues that the statutory period is triggered by breach of the insurance contract. He argues that such an interpretation is consistent with a contract statute of limitations. He also argues that before an insured can determine if he or she has an underinsured motorist claim, the insured must first determine if his or her damages exceed the liability coverage of the tortfeasor. In Haas v. Freeman, 236 Kan. 677, 682, 693 P.2d 1199 (1985), our Supreme Court, in noting the differences between uninsured and underinsured coverage, stated that underinsured coverage is an unresolved issue until the amount of damages is finally determined. .On the other hand, the lack of insurance is known soon after the accident. This case lends support to Eidemiller’s contention for when a claim for underinsured motorist benefits becomes ripe.
Although neither party directs this court to any particular case law, support for both positions exist. In Blutreich v. Liberty Mut. Ins. Co., 170 Ariz. 541, 826 P.2d 1167 (1992), the sole issue on appeal was: “When does the statute of limitations begin to run on a cause of action for benefits under an underinsured motorist provision of an automobile insurance policy?” 170 Ariz. at 542. In that case, the' Blutreichs sued their insurer for underinsured motorist benefits. The trial court ruled that the statute of limitations had run and entered judgment in favor of the insured. Citing to a leading treatise, the Blutreich court stated:
“ ‘There is no clear basis for stating when a statute of limitations begins to run in regard to uninsured motorist insurance claims. In most insurance policies, there are no relevant provisions and there has been almost no discussion of this matter in either the appellate cases or the secondary literature. It seems likely that in many instances the date of the accident will be used by the courts. However, it also seems probable that in some contexts courts will use an event related to the insurance relationship, such as a demand for payment, the rejection of a claim, or the rejection of a request for arbitration. Given the almost uniform view among the applicable judicial precedents that uninsured motorist insurance claims are subject to the contract statute of limitations, it would be reasonable for courts to focus on the occurrence which constitutes a “breach of the contract” by the insurer (rather than the occurrence of the event giving rise to the contractual claim for insurance benefits).’ ”
A. Widiss, Uninsured and Underinsured Motorist Insurance § 7.12 (2d ed. 1990) (footnotes omitted). “. . . [T]he overwhelming majority of courts that had addressed the question had concluded that the limitations period begins to run upon some event constituting a breach by the insurer. See, e.g., Allstate Ins. Co. v. Spinelli, 443 A.2d 1286 (Del. 1982) (no justiciable controversy until insurer denied insured’s claim for coverage benefits and so informed insured); Norfleet v. Safeway Ins. Co., 144 Ill. App. 3d 838, 98 Ill. Dec. 598, 494 N.E.2d 720 (1986) (cause of action for uninsured benefits accrued when insurer failed to comply with arbitration demand); Yingling v. Phillips, 65 Md. App. 451, 501 A.2d 87 (1985) (breach of contract action against insurer accrued when insurer denied coverage — statute of limitations began to run when insured had notice that insurers disclaimed liability); Jacobs v. Detroit Auto. Inter-Insurance Exchange, 107 Mich. App. 424, 309 N.W.2d 627 (1981) (where demand for arbitration is condition precedent to right to sue for uninsured motorist benefits, cause of action accrued when insurer refused to submit to arbitration); Spira v. American Standard Ins. Co., 361 N.W.2d 454 (Minn. App. 1985), [rev. denied March 29,1985] (absent express limitation in policy restricting time for bringing uninsured motorist claim, contract statute did not begin to run until plaintiff’s identifiable claim for uninsured benefits was rejected); but see O’Neill v. Illinois Farmers Ins. Co., 381 N.W.2d 439 (Minn. 1986) (where action is to imply underinsured motorist benefits in an insurance policy and to recover those benefits under the policy as amended, six-year contract statute begins to run on date of accident). See also Allstate Ins. Co. v. Altman, 200 N.J. Super. 269, 491 A.2d 59 (1984) (action for breach of contract accrued when insurer breached by denying claim for uninsured motorist coverage); Alvarez v. American Gen’l Fire & Casualty Co., 757 S.W.2d 156 (Tex. App. 1988) (claim for uninsured motorist coverage accrued when insurer denied liability, for claim and not at time of accident giving rise to claim); Safeco Ins. Co. v. Barcom, 112 Wash. 2d 575, 773 P.2d 56 (1989) (contract statute of limitation begins to run against an insured on the date of the breach of the contract of insurance by the insurer).” 170 Ariz. at 543-44.
The Blutreich insurer argued that the statute of limitations should begin to run at the time of the accident to maintain “certainty and uniformity.” However, the court rejected this argument, observing that “the insurer is in a position to protect itself against uncertainty and variability by including appropriate time limitations in the insurance contract.” 170 Ariz. at 545.
As stated above, Kansas follows the majority of states in holding that the limitations period that applies to an action for benefits under an underinsured motorist provision is the period for actions founded upon written contracts. Therefore, contract principles should be used to determine when the statutory period begins to run. Although there is support for commencing the statute of limitations period either at the time of the accident or at the time of some breach by the insurer, the current trend is to look to a breach of the contract to determine when the statute begins to run.
In Waugh v. American Casualty Co., 190 Kan. 725, 731, 378 P.2d 170 (1963), our Supreme Court, discussing the difference between a liability and an indemnity policy, stated: “The policy under consideration is one insuring against liability, rather than one of indemnity, and the coverage attaches when the liability attaches. A cause of action accrued to the insured when the insurer denied liability.”
Eidemiller settled his personal injury claim against tortfeasor Musick by accepting the $25,000 policy limits from Musick’s insurance carrier in November 1990. He settled his personal injury claim against tortfeasor Guzan by accepting a payment of $5,500 from Guzan’s insurance carrier in May 1992. Eidemiller made several claims for underinsured motorist benefits from State Farm. State Farm sent letters denying the claim dated November 6,1990; April 3, 1992; April 15, 1993; and July 25, 1994. Therefore, as Eidemiller argues in his brief, the earliest conceivable date that the statute could begin to run is November 6, 1990, when State Farm first denied recovery of underinsured motorist benefits. We agree. Eidemiller filed this action against State Farm on August 24,1994. Consequently, the suit was filed within the 5-year limitation period under K.S.A. 60-511(1), after State Farm had first denied coverage.
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LEWIS, J.:
John R. Bryant was injured in a construction accident in 1992. At the time of his injury, he was employed by Pioneer Electric (Pioneer) and was a statutory employee of Foley Company (Foley).
Bryant filed suit against All Temperature Insulation, Inc., (All Temp), alleging that its negligence was one of the causes of his injuries. He also sued APAC-Kansas, Inc., (APAC), claiming that a crane owned by APAC was negligently operated, thus contributing to his injuries.
APAC joined Foley as a third-party defendant, alleging that Foley was contractually bound to hold APAC harmless from the suit by Bryant. Foley was the general contractor on the project Bryant was working on at the time of his injuries.
After suit had been filed, Bryant died. His estate and his surviving spouse were substituted as parties plaintiff. The crane which was involved in the injuries to Bryant had been leased by Foley from APAC under a written lease agreement. APAC also furnished, under the lease, the operator of the crane, David Powell. The lease agreement between APAC and Foley contained an indemnification clause, which is the focus of this appeal.
The jury returned a damage verdict in favor of Bryant in the amount of $397,534.87. It found All-Temp to have been 92% percent at fault in causing Bryant’s injuries and APAC to have been 7% percent at fault. The 7% percent apportionment of fault to APAC caused the trial court to enter judgment against APAC in the amount of $29,815.12. The entire judgment in favor of Bryant has been paid. Consequently, neither Bryant nor All-Temp are parties to this appeal.
After the judgment was entered, APAC sought judgment against Foley for the amount of the judgment and attorney fees and costs associated with its defense of the action. The claim of APAC against Foley is based upon the lease and indemnification agreement referred to earlier. Both sides filed motions for summary judgment, and the trial court granted summary judgment to Foley and against APAC. APAC appeals.
We reverse, direct that judgment be entered in favor of APAC, and remand for further proceedings.
The trial court’s decision was based on uncontroverted facts agreed to by the parties. Foley filed a statement of uncontroverted facts along with the memorandum supporting its motion for summary judgment. APAC conceded all of the material facts set out by Foley in its motion with the-exception of Foley’s assertion that the crane operator, David Powell, was an employee of APAC at the time of the accident. APAC has continued to deny that Powell was its employee at the time of the accident and argues that question can be decided as a matter of law.
The trial court concluded that the indemnification agreement between APAC and Foley did not require Foley to indemnify APAC. It reached this conclusion citing two basic reasons: (a) the “exclusive remedy” provisions of K.S.A. 44-501; (b) the fact that the agreement itself prohibited APAC from recovering for damages occasioned by reason of its “sole negligence.”
The pertinent provisions of the indemnification agreement between APAC and Foley read as follows:
“2. INDEMNIFICATION [sic]: Lessee agrees that the equipment and all persons operating such equipment, including Lessor’s employees, become employees of, and are under Lessee’s exclusive jurisdiction, supervision and control and agrees to indemnify and save Lessor, its employees and agents harmless from all claims for death or injury to persons, including Lessor’s employees, and from all loss, damage or injury to property, including the equipment arising in any manner out of Lessee’s operation. Lessee’s duty to indemnify hereunder shall include all costs or expenses arising out of all claims specified herein, including all court and/or arbitration costs, filing fees, attorneys fees and costs of settlement.
“Lessee shall not be required to indemnify Lessor for its sole negligence, but, Lessor’s liability for damage caused by the sole negligence of Lessor, its agents and employees, hereunder shall be limited to the amount of Lessor’s liability insurance.
“3. COMPETENT OPERATION BY LESSEE: Lessee agrees to provide competent and experienced personnel to direct the operation of the equipment and Lessors [sic] employees.
“8. PRINCIPAL AGENCY RELATIONSHIP: Unless otherwise provided, personnel furnished by Lessor, shall be employees of customer and the laws of the state wherein this agreement is executed shall govern the principal and agency relationship hereby created.”
STANDARD OF REVIEW
Our standard of review in an appeal wherein summary judgment has been granted in favor of the appellee is as follows:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).
Although the standard set forth above appears to apply to trial courts, the appellate courts apply the same standard. Security Benefit Life Ins. Corp. v. Fleming Companies, Inc., 21 Kan. App. 2d 833, 836, 908 P.2d 1315 (1995).
The facts on which this case is to be decided were agreed upon by the parties with the one exception set forth above. “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).
BY WHOM WAS POWELL EMPLOYED?
David Powell was operating the crane at the time Bryant was injured. There is no question but that Powell came with tire crane when it was leased by APAC to Foley. Under ordinary circumstances, Powell was a regular everyday employee of APAC. However, as shown above, the lease agreement between the parties clearly provided that the individual operating the crane would become an employee of Foley and would be under Foley’s exclusive “jurisdiction, supervision and control.”
The provisions of the indemnification agreement transferring supervision and control of Powell to Foley appear to be clear and without ambiguity. We see absolutely no reason why they should not be enforced.
“The policy of law in general is to permit mentally competent parties to arrange their own contracts and fashion their own remedies where no fraud or overreaching is practiced. Contracts freely arrived at and fairly made are favorites of the law. (Kansas Power & Light Co. v. Mobil Oil Co., 198 Kan. 556, 426 P.2d 60.) None of the parties here involved were neophytes or babes in the brambles of the business world. Both companies, it would appear, dealt in projects involving considerable sums of money; both operated substantial business enterprises; and there is no suggestion that their businesses were not capably managed and profitably operated.” Kansas City Structural Steel Co. v. L. G. Barcus & Sons, Inc., 217 Kan. 88, 95, 535 P.2d 419 (1975).
We view the contract between APAC and Foley in much the same manner as the Supreme Court in the Barcus case. Absent some very strong indication to the contrary, we believe their agreement should control.
It is true, as Foley argues, that a clause transferring control of one’s employee to another employer must be strictly construed against the transferring employer. Belger Cartage Serv., Inc. v. Holland Constr. Co., 224 Kan. 320, Syl. ¶ 3, 582 P.2d 1111 (1978). At the same time, it is clear that unless such a clause is against public policy, unconscionable, or the result of fraud or overreaching, it will be strictly, construed and enforced. See Carson v. Geis Irrigation Co., 211 Kan. 406, 411, 507 P.2d 353 (1973); In re Estate of Shirk, 186 Kan. 311, 326, 350 P.2d 1 (1960).
We perceive no violation of public policy which would come from the enforcement of the contract in the instant matter. The victim of the negligence has been paid his damages, and his rights are not affected in any way by the dispute between APAC and Foley. The question is whether we will enforce an unambiguous clause in an unambiguous agreement entered into between two consenting parties. In Belger Cartage Serv., Inc., 224 Kan. 320, the Supreme Court considered a clause very similar to the one involved in this appeal. The court suggests that the following tests be employed:
“In determining the enforceability of any such exculpatory clauses, the trial court may consider the totality of the circumstances surrounding the execution and performance of the contract including, but not limited to, whether the employer to whom the employees were purportedly transferred had knowledge of the clauses by having them pointed out to him or the clauses themselves being conspicuous in the contract; the nature of the work to be performed including the degree of skill required and the degree of risk of harm involved; and the actual performance of the parties.” 224 Kan. 320, Syl. ¶ 4.
As we view it, there are two issues to be resolved in determining the enforceability of the agreement:
(1) Did APAC and Foley contemplate the indemnification terms when the agreement was signed?
(2) Does the agreement, strictly construed, transfer the employee status of Powell from APAC to Foley?
There is little in the record concerning the execution of the agreement. The provision in question is on the reverse side of the lease agreement. It is not hidden nor is its value depreciated or accentuated by the size of the type used to print the clause. There are handwritten notations changing the work hours printed in the agreement. Foley does not assert in its pleadings that it did not understand the agreement or that the agreement was procured by fraud or overreaching. Foley does not claim that the clause in question was in any way unconscionable.
Foley was certainly not a “babe in the brambles.” It has been in the contracting business for 75 years doing heavy industrial construction. One indication of its business savvy is reflected in the fact that it has filed a cross-claim against All Temp. In that claim, Foley seeks indemnification from All Temp under a clause similar to the one involved in the instant matter.
There is no evidence to indicate that the parties were not fully aware of the agreement transferring control of employees when the agreement was signed. If Foley contended the agreement was unconscionable or that it was not contemplated by the parties, it had the burden to so prove. See TMG Life Ins. Co. v. Ashner, 21 Kan. App. 2d 234, 250, 898 P.2d 1145 (1995). It did not do so. We cannot conclude that the indemnification clause was not contemplated by the parties.
The agreement very specifically and unambiguously provides that Powell is to be an employee of Foley. In the agreement, Foley is to assume “exclusive jurisdiction, supervision and control” over Powell. It is questionable whether a transfer of employee status could be said with more clarity or detail. Under the most strict construction we can employ, we conclude that the agreement provides for Foley to be the employer of Powell. Any other construction of that agreement would reduce its terms to an absurdity, which is a situation we seek to avoid. See Gore v. Beren, 254 Kan. 418, Syl. ¶ 7, 867 P.2d 330 (1994).
There are no valid reasons not to enforce the agreement as written. Under its clear and unambiguous terms, Powell, at the time of the accident, was the employee of Foley, not of APAC.
SOLE NEGLIGENCE
The agreement provides that Foley has no obligation to reimburse APAC for damages caused “by the sole negligence of lessor, its agents and employees.” The trial court concluded that APAC’s liability to Bryant was caused by its “sole negligence.” We hold this to have been error, and we reverse that determination.
We are at a loss to understand the reasoning of the trial court. Bryant was injured by the negligence of All Temp and of the crane operator, Powell. At the time of the accident, Powell was the employee of Foley, not of APAC. We cannot divine any theory under which it can be concluded that the damages suffered by Bryant were caused by the “sole negligence” of APAC.
Foley relies on Baker v. City of Topeka, 231 Kan. 328, 644 P.2d 441 (1982), to support the trial court’s decision. That reliance is misplaced. In Baker, the City of Topeka had an independent liability to the plaintiff and settled that liability. In this case, the only basis for liability on the part of APAC is respondeat superior. We already concluded that Powell was neither the employee nor agent of APAC at the time of the accident. In fact, the doctrine of respondeat superior makes Foley vicariously liable for the negligence of Powell and not APAC. In this regard, we note that the jury, in assessing the liability of the defendants, was not concerned with the indemnification agreement now at issue before this court.
Under no construction that we can determine could this accident have been the result of the “sole negligence” of APAC. We hold that the trial court erred in holding that Bryant’s injuries were due to the “sole negligence” of APAC. Foley cannot escape its contractual obligation of reimbursement, under that clause of the agreement.
EXCLUSIVE REMEDY
The trial court held that APAC’s claim against Foley was barred by the“exclusive remedy” provisions of K.S.A. 44-501(b), which provides:
“Except as provided in the workers compensation act, no employer, or other employee of such employer, shall be hable for any injury for which compensation is recoverable under the workers compensation act nor shall an employer be liable to any third party for any injury or death of an employee which was caused under circumstances creating a legal liability against a third party and for which workers compensation is payable by such employer.” (Emphasis added.)
We disagree with the trial court’s decision on this issue and reverse that decision.
To begin with, there is no dispute that Foley was the “statutory employer” of Bryant under K.S.A. 44-503. In the proper context, Foley could have legitimately sought protection under K.S.A. 44-503. The question we must resolve is whether in the context in which we now deal, that statute is applicable.
“Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). ‘When determining a question of law, this court is not bound by the decision of the trial court.” Memorial Hospital Ass’n v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
We do not believe that K.S.A. 44-501(b) was intended to abrogate contractual rights and duties between consenting parties under a contract entered into with full knowledge of its provisions. This seems to be particularly true when the issue arises in a context which has nothing whatsoever to do with the Workers Compensation Act.
This is not a workers compensation case. Bryant has not pursued any action of any nature against Foley, let alone one for workers compensation. The harm which the statute was designed to prevent simply does not exist in this case.
Our research indicates thát a majority of the states which have addressed this issue have held that the “exclusive remedy” provisions of their workers compensation acts did not bar third-party claims against an employer when those claims were based upon an express indemnification agreement. See Annot., 100 A.L.R. 3d 380.
In McCleskey v. Noble Corp., 2 Kan. App. 2d 240, 244, 577 P.2d 830 (1978), this court indicated that a common-law indemnity “can be had by the third party against the employer when the employer has breached an independent duty owed the third party.” We also indicated in that decision that the majority rule would deny indemnity "unless based on an independent contractual duty or a special legal relationship.” (Emphasis added.) 2 Kan. App. 2d at 245. In this case, the claim of APAC against Foley is based on an independent contractual duty voluntarily assumed by Foley.
In Beach v. M & N Modem Hydraulic Press Co., 428 F. Supp. 956, 961-62 (D. Kan. 1977), the federal district court noted that an independent legal duty owed by an employer to a third party would be enforced despite provisions of the Workers Compensation Act.
Foley argues that the “third party” language was added to the statute to prevent all third-party liability of any kind or nature whatsoever. There is no legislative history to support such a proposition, and the statutory language employed does not compel such a conclusion. If the legislature had intended to prevent all third-party liability under any circumstances whatsoever, it could have said so; it did not.
In Kimzey v. Interpace Corp., 10 Kan. App. 2d 165, 169, 694 P.2d 907, rev. denied 237 Kan. 887 (1985), we said that “where the employer’s liability is alleged to arise solely by reason of its independent assumption, by contract or operation of law, of the obligations of a third-party tortfeasor, the exclusivity provisions of the workers’ compensation law do not bar a common law action by an employee.” We went on to discuss the so-called “dual capacity doctrine”:
“The doctrine should not be used for the purpose of simply evading the exclusivity provision of the Workmen’s Compensation Act. When properly applied, it will be limited to those exceptional situations where the employer-employee relationship is not involved because the employer is acting as a second persona unrelated to his status as an employer, that confers upon him obligations independent of those imposed upon him as an employer. As such, it will not defeat the purposes or policies of the act. Nor, in our view, will it erode the employer’s immunity under the exclusivity provision of the act where the claim of liability is properly within the purview of the act. [Citations omitted.]” (Emphasis added.) 10 Kan. App. 2d at 170.
We believe that the philosophy expressed in Kimzey, McCleskey, and Beach is compelling. We join the majority of our sister states in resolving this issue.
We hold that APAC’s claim for indemnification against Foley is an independent contractual obligation voluntarily assumed by Foley and completely independent of Foley’s status as the statutory employer under the Workers Compensation Act. Accordingly, the claim by APAC for indemnification is not barred by the “exclusive remedy” provisions of K.S.A. 44-501(b). That statute is intended to protect employers from liability while operating under the provisions of the Workers Compensation Act. In this case, neither the claim of Bryant nor the claim of APAC against Foley has any relationship whatsoever to the Workers Compensation Act. Under these circumstances, there is no basis to conclude that the legislature intended to prohibit an employer and a third party from entering into binding enforceable contracts calling for indemnification.
We conclude that the indemnification provisions of the agreement between Foley and APAC should be enforced as written.
We reverse the decision of the trial court and direct that on remand judgment be entered in favor of APAC and against Foley for APAC’s share of the Bryant judgment plus costs and fees incurred by APAC in defending the Bryant action. The precise amount of attorney fees and costs incurred by APAC must be determined on remand.
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Rogg, J.:
Home Builders Association of Greater Kansas City, et al., (Home Builders) filed an action for declaratory judgnient arid injunction against Johnson County-Water District No. 1, et al. (District). The trial court gránted suirimary judgment for Home Builders, and District appealed. We reverse and remand for further proceedings.
The issues raised on appeal concern the propriety of granting summary judgment. The trial court determined that no genuine issue of material fact was in controversy. This conclusion was based on the court’s interpretation, of K.S.A. 19-3514 and K.S.A. 19-3516(d). District is the only existing improvement district to which these statutes apply.
The core issue between Home Builders and District is the bidding practices of District on private developer-initiated water main extensions. Home Builders asserts drat District utilizes bidding practices which violate the two statutes previously noted. The claim is that substantially higher costs result and, aré passed on to the patrons of District. . :
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and. admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving'party is entitled to judgment as a matter of law.” Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). Simply put, “[s]ummary judgment is proper where the only question or questions presented are questions of law.” Fletcher v. Nelson, 253 Kan, 389, 391, 855 P.2d 940 (1993). The trial court is required to resolve all ,facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Upon review, this court applies the same test. See Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306, 756 P.2d 416 (1988).
Does KS.A. 19-3516(d) require each line extension under KS.A. 19-3514 to be bid competitively as a separate “contract”?
K.S.A. 19-3514 provides in part: “Upon application for water main extensions and full compliance with the rules and regulations by the applicant, the board shall cause to be constructed such extensions which shall become the property of the water district.” K.S.A. 19-3516(d) provides in part:
“All contracts for any construction of all or part of the water system, or for repairs, extensions, enlargements or improvements to any such water supply and distribution system created under this act, the cost of which exceeds $25,000 shall be awarded on a public letting by the water district board to the lowest responsible bidder . . . .”
Resolution of this question hinges on the interpretation of the foregoing statutory provisions. Statutory construction is a question of law, Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992), over which this court’s review is unlimited. See Memorial Hospital Ass'n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). When ascertainable from the statutory language, the intent of the legislature governs. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). Further, “[w]hen a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expresed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
Rather than publicly bid each individual project as a separate contract, District’s practice is to submit one contract per year for public bid, having estimated what its needs will be for water main extensions and other pipe installations over the one year. District then awards the annual contract to one contractor. Whatever private developer applications are made for extensions are then dealt with as part of that single annual contract. Home Builders contends that each line extension should be separately bid and that K.S.A. 19-3516(d) does not permit aggregation of line extension projects in one contract for construction.
The trial court found that District’s bidding practice of aggregating projects was prohibited under the statute and granted summary judgment. We come to a different conclusion than the trial court. The court should give such an interpretation as gives the legislature’s intended effect. U.S.D. No. 279 v. Secretary of Kansas Dept. of Human Resources, 247 Kan. 519, 524, 802 P.2d 516 (1990). We interpret the words “contracts for any construction” to mean the contract made with the construction firm doing the contracted work. That contract can be for one or more separately identified and initiated projects. Aggregation of several projects into one “contract for any construction” is not prohibited by statute.
Because aggregation of projects into one construction contract can occur, a public bid-letting to the lowest responsible bidder under District’s rules, regulations, and practices could legally occur. There remains a disputed factual question as to whether the present practice of District in granting an annual contract for all construction to one firm results in substantially higher costs to consumers than a different bidding practice might. The stipulations and undisputed facts leave in question a genuine issue as to what could be a material fact. The trial court did not reach this issue because of its reliance on its interpretation of the statute prohibiting the aggregation of projects. We reverse the granting of summary judgment based on our interpretation that K.S.A. 19-3516(d) does not prohibit the aggregation of projects.
We will address other disputed legal issues raised by the parties to assist the parties and the district court in the resolution of this matter upon remand.
Does KS.A. 19-3516(d) apply to developer-initiated line extension contracts?
District argues that 19-3516(d) applies only to contracts initiated by the water district board. It contends that the bid-letting requirements do not apply to private developer-initiated extension contracts. The first sentence in 19-3516(d) provides:
“The water district board, by a majority vote of the members thereof, may contract for repairs, alterations, extensions or improvements of the water supply and distribution system and issue revenue bonds to pay the cost thereof without submitting to a vote of the electors of such water district the proposal to contract for the making of such repairs, alterations, extensions and improvements and to issue revenue bonds to pay the costs thereof.”
The second sentence in 19-3516(d) establishes the bidding requirement. District’s argument is essentially that because this bidding requirement is contained in a provision with the above sentence, it necessarily only applies to board-initiated construction contracts. This interpretation might be reasonable if not for the clear language of the statute.
K.S.A. 19-3514 provides that when an applicant applies for a water main extension, “the board shall cause to be constructed such extensions which shall become the property of the water district.” The section does not set out the way in which the board must cause the extensions to be constructed. Presumably, the extensions can be constructed by crews of the water district or the district may contract with an independent contractor to construct the extension. While the first sentence of 19-3516(d) does permit the issuance of revenue bonds to fund the project, it does not require it. The projects can be funded by a private developer. Under the second sentence, all contracts (regardless of whether they are board- or developer-initiated) must be submitted for public bidding. If the legislature had intended to limit the public bidding procedure to board-initiated contracts, it could easily have replaced the term “all” to attain that result. The clear language of the statute should govern over the placement of the bidding requirement language. The bidding requirement contained in 19-3516(d) applies to board- and developer-initiated contracts alike.
Do the words “cost” or “costs” used in KS.A. 19-3516(d) and.in K. S.A. 19-3514 include materials as opposed to only labor expense?
“Cost” or “costs” are not defined by the legislature in this context.
Defining “cost” as encompassing expense for both labor and materials seems to be in consonance with the Kansas definition of “costs” in other contexts. See Mallon v. City of Emporia, 11 Kan. App. 2d 494, 496-97, 726 P.2d 1354 (1986); K.S.A. 12-6a01(d) (“cost” is defined to include “materials, labor and other lawful expenses”). In addition, pursuant to 19-3514, the applicant is responsible for the “cost” of the construction. District’s expectation it would be reimbursed for the costs of materials as well as labor seems to support a definition of “cost” which includes both material and labor expenses. To conclude that “cost” contemplates all expenses when payment on the contract is concerned, but only labor for the purpose of applying the bidding requirement,' runs counter to the principle that statutory provisions be interpreted consistently. See Guardian Title Co. v. Bell, 248 Kan. 146, 151, 805 P.2d 33 (1991) (several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing diem to workable harmony and giving effect to the entire statute if it is reasonably possible to do so).
The result that follows from the bid letting requirement of 19-3516(d) applying to 19-3514 is to require materials to be included when determining the necessity of a public letting of a construction contract. A public bid letting for stockpiling material purchases is not required by the statute.
Reversed and remanded for further proceedings. | [
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Marquardt, J.:
This is a personal injury action arising from a discus hitting Marcus J. Lanning during track practice. Jeff Anderson and ihe Board of Education of Unified School District No. 447 (School District) appeal from the district court’s refusal to grant a directed verdict on the grounds there was not sufficient evidence upon which a reasonable jury could base a finding of gross and wanton negligence as required for liability under the recreational use exception of the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq. See K.S.A. 1995 Supp. 75-6104(o). Coach Anderson and the School District also appeal from the district court’s rulings on exclusion of evidence, refusal to give an instruction, juror/attomey misconduct, and a confusing verdict form. Lanning cross-appeals the application of the recreational use exception.
On May 12, 1993, Lanning was struck in the head by a discus. The accident occurred during a track practice at Cherryvale Middle School. The practice was supervised by two coaches, Jeff Anderson and Chuck Stockton.
Lanning was a member of the relay team that had practiced on the day of the accident. After running laps at the end of practice, Lanning and the other members of the relay team walked toward the school, taking a sidewalk that went through the middle of the playground.
The discus throwers were practice throwing from home plate of the baseball field toward the remainder of the playground. The sidewalk that Lanning and the other members of the relay team took leads to the end of the basketball court nearest the baseball field. Lanning was hit approximately 80-90 feet from where the discus was thrown.
Randy Hugo, the student who threw the discus that hit Lanning, used the “spin” technique when throwing. With the spin technique, the thrower is facing away from where the discus is going prior to the time of release. While others were throwing, the remaining discus throwers were to keep a watch out to ensure that people were not within range of the throw.
There was conflicting testimony over whether the discus participants were instructed to throw the discus or just practice technique on the day of the accident.
After Hugo released the discus, he and the other discus throwers noticed the group on the sidewalk. The discus throwers yelled “duck” or “heads up.” The yelling alerted the group of relay runners on the sidewalk; however, Lanning was hit on the head by the discus.
Lanning had been a gifted athlete. As a consequence of the accident, Lanning suffered various cognitive deficits, and his neuro logical surgeon recommended that he never again play football or other heavy contact sports.
At the time of Lanning’s injury, Coach Stockton was working with the girls’ relay team. When the boys’ relay team finished their practice, Coach Anderson told them to run two laps and go to the locker room. Coach Anderson did not direct the relay team to take any particular sidewalk or route to the locker room. Coach Anderson then went to help Coach Stockton with the other runners. Coach Anderson did not see the students walking down the middle sidewalk prior to the accident.
The middle school track practice was normally held at the high school. The high school track is bigger than the middle school playground. Coach Anderson decided to have track practice at the middle school playground instead of the high school track because the high school track was muddy and was being fined in preparation for a meet the next day.
In the spring of 1993, the coaches had held discus practice at the middle school playground approximately 10 times without incident.
Gordon McBride, principal of Cherryvale Middle School, and Roy Griffin, athletic director, testified that they did not know that the coaches held discus practice at the middle school playground.
At the close of Lanning’s evidence, defense counsel moved for a directed verdict on the grounds that there was not sufficient evidence to go to the jury on the question of gross and wanton negligence. The district court denied the motion.
The jury returned an 11 to 1 decision, finding both Coach Anderson and the School District guilty of gross and wanton negligence. The jury attributed 10 percent of the fault to Lanning, 40 percent of the fault to Coach Anderson, and 50 percent of the fault to the School District. The jury found Lanning’s total damages to be $252,731.94. The district court entered judgment in favor of Lanning and against Coach Anderson in the sum of $101,092.78 and against the School District in the sum of $126,365.97. Costs of the action were also entered against the defendants.
Coach Anderson and the School District moved for a judgment notwithstanding the verdict, or in the alternative, for a new trial. Many of the arguments that are now the subject of this appeal were raised in this motion and the accompanying memorandum. Judge David L. Thompson orally denied the motion. Judge Thompson’s judicial term was over the following Monday, and Judge Jack L. Lively entered a journal entry reflecting Judge Thompson’s decision. Coach Anderson and the School District filed a motion for reconsideration, which was denied. The district court noted in its decision that a copy of the trial transcript was not provided for its review.
Coach Anderson and the School District argue that the district court erred in refusing to grant a directed verdict and that there was insufficient evidence for a finding of gross and wanton negligence.
The standard for review in either granting or denying a directed verdict is well established:
“In ruling on a motion for directed verdict pursuant to K.S.A. 1992 Supp. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and, where reasonable minds could reach different conclusions based on the evidence, the motion must be denied and the matter submitted to the jury. This rule must also be applied when appellate review is sought on a motion for directed verdict.” Hurlbut v. Conoco, Inc., 253 Kan. 515, 524, 856 P.2d 1313 (1993).
Generally speaking, the presence or absence of negligence in any degree should be left to the trier of fact. “Only when reasonable persons could not reach differing conclusions from the same evidence may the issue be decided as a question of law. [Citation omitted.]” Gruhin v. City of Overland Park, 17 Kan. App. 2d 388, 392, 836 P.2d 1222 (1992) (evaluating the appropriateness of summary judgment on a gross and wanton negligence issue); see Vaughn v. Murray, 214 Kan. 456, 459-60, 521 P.2d 262 (1974).
Under the KTCA, governmental liability is the rule and immunity is the exception. Nichols v. U.S.D. No. 400, 246 Kan. 93, 94, 785 P.2d 986 (1990). The general rule, subject to exceptions, is that governmental entities and governmental employees acting within the scope of their employment are liable for damages to the same extent as a private person. K.S.A. 75-6103(a); Nichols, 246 Kan. at 94-95.
K.S.A. 1995 Supp. 75-6104 provides an exception for public property used or intended for recreation:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be hable for damages resulting from:
' “(o) any claim for injuries resulting from the use of any public property intended or permitted to be used as a park, playground or open area for recreational purposes, unless the governmental entity or an employee thereof is guilty of gross and wanton negligence proximately causing such injury.” (Emphasis added.)
Cases interpreting the recreational use exception have stated the elements of gross and wanton negligence as follows: “ ‘To constitute wantonness the [actor] must indicate a realization of the imminence of danger and a reckless disregard or a complete indifference or an unconcern for the probable consequences of the wrongful act.’ ” Boaldin v. University of Kansas, 242 Kan. 288, 293, 747 P.2d 811 (1987) (quoting Lee v. City of Fort Scott, 238 Kan. 421, Syl. ¶ 1, 710 P.2d 689 [1985]); see PIK Civ. 2d 3.02.
Proof of a willingness to injure is not necessary because a wanton act is something more than ordinary negligence but less than willful injury. Boaldin, 242 Kan. at 293. Similarly, “mere negligence on the part of a governmental entity is not sufficient to establish a compensable claim under the statute.’’ Bonewell v. City of Derby, 236 Kan. 589, 593, 693 P.2d 1179 (1984).
Both coaches testified that they did not believe they were exposing the students to danger.
Thus, if the coaches are taken at their word, and the requirement of the realization of the imminence of danger is given a subjective definition, the element is not met.
The question then becomes, does the conclusion that the coaches should have known of the imminence of danger constitute gross and wanton negligence sufficient to create a jury issue? Kansas case law provides support for both positions, depending on the specific facts of each case.
In Friesen v. Chicago, Rock Island & Pacific Rld., 215 Kan. 316, 323, 524 P.2d 1141 (1974), the court stated that “it is the mental attitude of the wrongdoer, rather than particular negligent acts, that tends to establish wantonness.”
Coach Anderson and the School Board argue that “[fjor a governmental entity to have a ‘consciousness of danger/ it must have sufficient notice of that danger.” Coach Anderson and the School Board suggest that Lee, 238 Kan. at 424-25, and Willard v. City of Kansas City, 235 Kan. 655, 658-59, 681 P.2d 1067 (1984), illustrate that in evaluating whether a governmental entity has met the element of realization of the imminence of danger, the most important factor is whether the entity has received notice of a prior injury.
Notice is a factor. In Lee, the Kansas Supreme Court stated:
“In Willard, we suggested the character of evidence which a plaintiff must offer to give rise to an inference of gross and wanton negligence: ‘No evidence was offered that the City violated any standards or other municipal ordinances governing the installation of fencing in public areas, or that the City had notice of the potentially dangerous condition of the fence, which might give rise to an inference of gross and wanton negligence on the part of the City.’ 235 Kan. at 659.” (Emphasis added.) 238 Kan. at 424.
In the instant action, there had been no prior accident or close call that might have given the coaches notice of the imminence of danger. Cf. Gruhin, 17 Kan. App. 2d at 392 (holding that summary judgment was inappropriate where employees of a golf club had knowledge of a prior accident occurring at the same location). Discus practice had been held at the middle school playground approximately 10 times in the spring of 1993 without incident. There was no notice of imminent danger.
Arguing that actual knowledge is required and whether the coaches should have known of the imminence of danger is not the question, Coach Anderson and the School Board point to language from Elliott v. Peters, 163 Kan. 631, 634, 185 P.2d 139 (1947):
“[W]antonness involves a state of mind indicating indifference to known circumstances. There is substantial difference when wantonness is asserted between what a man actually knows and what he should have known. There is a potent element of consciousness of danger in wantonness. A man cannot realize something he does not know because he should have known it.” (Emphasis added.)
In contrast, Lanning argues that a prior accident or admission of knowledge of danger is not required to show wantonness, pointing to Mathes v. Robinson, 205 Kan. 402, 406-07, 469 P.2d 259 (1970), where the court noted:
“The defendant knew of the existing condition of the unvented heaters, which is sufficient under the facts and circumstances to support the inference she knew or should have known they created a dangerous condition from which injury or death would likely or probably result from her failure to install proper vents. Moreover, knowing of the dangerous condition created on the property, her indifference to the consequences was established by the evidence.” (Emphasis added.)
The keys to a finding of gross and wanton negligence are the knowledge of a dangerous condition and indifference to the consequences. The facts presented in this case show no knowledge of a dangerous condition. Without knowledge of a dangerous condition, indifference to the consequences does not become a consideration.
In a recent case, the Kansas Supreme Court stated: “For an act to amount to wantonness, the actor must have reason to believe that his act may injure another and commit the act anyway, with indifference to whether it injures another. Frazier v. Cities Service Oil Co., 159 Kan. 655, 157 P.2d 822 (1945).” (Emphasis added.) Smith v. Printup, 254 Kan. 315, 358, 866 P.2d 985 (1993) (holding that the district court did not err in submitting the claim of wanton conduct to the jury where the defendant truck driver “testified that he knew it was reckless and could lead to an accident if he worked 17-18 hours a day,” yet he worked over approximately 19 hours before the day of the accident).
In Prosser and Keeton, Law of Torts § 34, pp. 213-14 (5th ed. 1984), the authors provide some insight into how courts treat the requirement of a known or obvious risk:
“The usual meaning assigned to ‘wilful,’ ‘wanton,’ or ‘reckless,’ according to taste as to the word used, is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. Since, however, it is almost never admitted, and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied. The ‘willful’ requirement, therefore, breaks down and receives at best lip service, where it is clear from the facts that the defendant, whatever his state of mind, has proceeded in disregard of a high and excessive degree of danger, either known to him or apparent to a reasonable person in his position.” (Emphasis added.)
In 57A Am. Jur. 2d, Negligence § 284, pp. 312-13, the authors draw the line as follows:
“The knowledge element of wantonness, although crucial, need not be shown by direct evidence; rather, it may be made to appear by showing circumstances from which the fact of knowledge is a legitimate inference. . . . Although circumstantial evidence may be used to prove the element of knowledge . . . the question may not be left to the conjecture or speculation of the juiy.”
Kansas courts have noted that whether a case meets the definition of gross and wanton negligence “is so dependent upon the particular circumstances of each case as not to be susceptible of general statement.” Weber v. Southwestern Bell Telephone Co., 209 Kan. 273, 285, 497 P.2d 118 (1972) (evaluating premises liability where owner of airstrip was held to have met his duty to warn those he had invited to the airstrip of the danger of telephone lines).
The coaches’ testimony indicates that if they had realized the imminence of danger, they would have proceeded differently. The coaches did not foresee that the group of runners would cut across the middle of the field. The coaches did not foresee that the discus throwers would fail to see the group on the sidewalk to alert them in time as they had practiced at the same field 10 times that spring without incident.
This court finds that there is no evidence to support a finding that the coaches realized the imminence of danger or that the coaches had reason to believe that someone would be injured at track practice. There is no evidence of the coaches’ disregard of a known or obvious risk that was so great as to make it highly probable that harm could follow. The facts do not support a conclusion that practice was held in disregard of a high and excessive degree of danger known or apparent to a reasonable person in the position of either coach. We find that reasonable persons could not reach a different conclusion. Allowing the gross and wanton negligence question to go to the jury with the facts in this case was error. We reverse the district court.
Because we are reversing the district court decision on other grounds, the issues of exclusion of evidence, failure to give an in struction, the verdict form, and juror/attomey misconduct will not be decided.
Lanning cross-appeals from the district court’s decision that the recreational use exception of the KTCA applied to this action.
Because this issue involves statutory interpretation, it raises a question of law. Thus, this court’s review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
Lanning argues that K.S.A. 1995 Supp. 75-6104(o) does not apply to school-sponsored, supervised activities, regardless of where the injury occurs.
“The KTCA is applicable to school districts and their employees. See K.S.A. 75-6102(b), (c), (d).” Greider v. Shawnee Mission Unified School D. 512, 710 F. Supp. 296, 298 (D. Kan. 1989).
In Nichols, the court held that the recreational use exception applied where a high school student was injured after the football coach had instructed the student athletes to run in darkness to the locker room through a grassy waterway. 246 Kan. 93-94. The Nichols court specifically rejected the argument that the KTCA did not apply to supervised activities. 246 Kan. at 94-95. Though the court did not specifically address the issue, Nichols also involved a school-sponsored activity.
“ ‘This court is duty bound to follow the law as established by Kansas Supreme Court decisions, absent some indication the Supreme Court is departing from its previously expressed position.’ [Citation omitted.]” Gruhin, 17 Kan. App. 2d at 391. This court concludes that K.S.A. 1995 Supp. 75-6104(o) applies to school-sponsored, supervised activities.
Lanning also argues that the middle school playground is not a public recreational area as contemplated by K.S.A. 1995 Supp. 75-6104(o).
The plain language of the KTCA indicates that the middle school playground is a recreational area covered by K.S.A. 1995 Supp. 75-6104(o). K.S.A. 1995 Supp. 75-6104(o) provides that the recreational use exception applies to “any claim for injuries resulting from the use of any public property intended or permitted to be used as. a.. . . playground ... for recreational purposes.”
“Where a statute is plain and unambiguous, [an appellate] 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.]” Nichols, 246 Kan. at 95.
In order to adopt the position desired by Lanning, it would be necessary to create an exception to K.S.A. 1995 Supp. 75-6104(o). A court may create an exception to a statute only if such an exception “clearly appears to have been intended by die legislature. [Citation omitted.]” Ballweg v. Farmers Ins. Co., 228 Kan. 506, 510, 618 P.2d 1171 (1980) (evaluating exceptions to awarding attorney fees for personal injury protection payments made under K.S.A. 40-3113a[e]). Here, no such intent has been shown.
Lanning attempts to distinguish Nichols in that Nichols did not expressly address the argument of whether school property falls within the area the legislature intended to protect. Lanning is correct that Nichols does not expressly address this issue. However, the conclusion that school property is a recreational area covered by K.S.A. 1995 Supp. 75-6104(o) is certainly implicit in that holding. The identical conclusion is supported by the plain language of the statute. Thus, this court concludes that a school playground is a recreational area covered by K.S.A. 1995 Supp. 75-6104(o).
Lanning also argues that “[t]eachers and school districts owe a duty of ordinary care to properly supervise students and provide a safe environment while under their care.” For support, Lanning cites Greider, 710 F. Supp. 296, and Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993). In the instant action, the exception of K.S.A. 1995 Supp. 75-6104(o) removes the School District and its employees from the standard of ordinary care. Neither Nero nor Greider involved the recreational use exception of the KTCA.
In Nero, the court held that KSU did not qualify for an exception to governmental liability. 253 Kan. at 588 (holding that KSU did not qualify for the discretionary function exception of K.S.A. 1995 Supp. 75-6104[e]). In Greider, the court similarly held that the school district did not qualify for the discretionary function exception. 710 F. Supp. at 298-99. These cases are, thus, inapposite to the instant action.
Lanning also cites Acosta v. Los Angeles Unified School Dist., 31 Cal. App. 4th 471, 479, 37 Cal. Rptr. 2d 171 (1995), rev. denied April 13, 1995, where the court held that the hazardous recreational activities exception did not include school-sponsored, extracurricular, athletic activities under the supervision of school personnel. Acosta involves a different statute from a different state and is not persuasive because of controlling authority from this state.
Finally, Lanning makes the conclusive argument that because he was injured by a discus thrown from 80 feet away, his injury did not result from the use of the playground. Lanning provides no authority or cognizable argument. This point lacks merit.
We hold that K.S.A. 1995 Supp. 75-6104(o) applies to this case.
Affirmed in part and reversed in part. | [
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The opinion of the court was delivered by
Burqh, J.:
The action was one to enjoin the city from passing an ordinance vacating an alley. A demurrer to the petition was sustained, and the plaintiffs appeal.
The alley privileges of the plaintiffs and the effect of the proposed ordinance are indicated by the sketch on following page.
Topeka avenue and Harrison street run north and south. Sixth street and Seventh street run east and west, and reach the principal business street of the city three blocks east of Harrison street. Topeka avenue is a boulevard, from which trucks, ice wagons, huckster wagons, and other delivery wagons are excluded. The lots designated on the plat by the name, “Bomgardner,” are occupied by the Bomgardner funeral home. This establishment includes a salesroom for funeral and burial supplies, a morgue, and a chapel, and uses from four to six motor vehicles of various kinds, which enter the funeral home garage from the alley on the south. The Foster lots are occupied by apartment houses which front Topeka avenue, and which are supplied with coal, ice, and deliveries generally, from the alley. The plaintiffs allege they purchased and improved their lots depending on continuation of the then-existing alley facilities. As indicated by the sketch, the elbow in the unvacated alley prevents a view of its entire length between Sixth and Seventh streets, a condition not affected, however, by the proposed vacation. The petition contained general allegations that passage of the ordinance would deprive the plaintiffs of vested rights to alley privileges, would unduly restrict their alley privileges, would depreciate the value of their property, and would congest traffic in the unvacated alley to an extent rendering it inadequate for public and private use and making such use dangerous. The petition to the mayor and council requesting passage of the ordinance was signed on behalf of the Methodist church, and by Bomgardher and Wallace, and the plaintiffs allege the city lacks corporate power to respond to the request.
The city has been empowered by the legislature to vacate streets and alleyk When exercising this power, the city acts in a legis lative capacity, and the judicial department of the government was not instituted to forbid in advance action by the legislative department. Should the city pass an unauthorized or oppressive ordinance, the courts may deal with consequences to property owners, but they may not sit in judgment on proposed legislation before enactment. There are some exceptions to this rule. If mere passage of an ordinance would necessarily produce instant harmful results beyond the power of equity to redress, legislative action might be restrained. (Duggan v. Emporia, 84 Kan. 429, 439, 114 Pac. 235.) In this instance the plaintiffs would be able to protect themselves should the ordinance be passed.
The city has announced its purpose to pass the ordinance, and the parties have argued and submitted the cáse on its merits. To obviate the necessity of commencing another action, the court has considered the case on its merits, and what follows may be regarded as essentially declaratory.
The plaintiffs assert the ordinance is designed, not to accomplish a public purpose, but to confer a private benefit. The plaintiffs are not guardians of the public welfare. The state corrects abuses of corporate power, and unless the plaintiffs disclose a special private interest, distinct from that of members of the general public, they may not interfere.
The plaintiffs could not create for themselves vested interests in maintenance of public ways beyond this: that they have reasonable means of ingress to and egress from their lots; and. no closing of ways produces special private injury of which equity takes note until ingress and egress are unreasonably impaired.
In this instance the plaintiffs complain because there will be but two ways of getting to and from the rear of their premises, instead of three. The general allegations of the petition are in the nature of conclusions which are controlled by the facts alleged, and the facts disclose no more than the cutting off of a convenience.
The judgment of the district court is affirmed.
MARSHALL, J., not sitting. | [
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The opinion of the court was delivered by
BuRCH, J.:
The action is one of mandamus, to compel delivery to the plaintiff of two executed, registered, and numbered warrants, based on approved and audited vouchers, for the final portion of the contract price for the erection of a public' building at Emporia.
Originally the construction company sued the board of administration for the money now sought to be obtained through medium of the warrants. It was held the suit was against the state without its authority. (Construction Co. v. Board of Administration, 105 Kan. 291, 182 Pac. 386.) The construction company then brought this action, and the board of administration answered'the alternative writ. A statement of the issues thus made may be found in Construction Co. v. Mason, 109 Kan. 373, 374, 198 Pac. 966. A demurrer to the answer made the point that the answer must be established, if at all, by parole evidence, which would contradict the records made by the board of administration, the state auditor, and the state treasurer. In response to the demurrer, the court said:
“While these officers probably cannot dispute any statement contained in the record made by them, the state is not concluded by that record if it does not recite the facts. The state, on the relation of the attorney-general, in this or in an action commenced for that purpose, may question the correctness of - the record, and may procure a judgment preventing the delivery of the warrants if the facts alleged in the answer are true. The court therefore suggests that the state on the relation of the attorney-general intervene in this action and file such pleadings as may be necessary to enable the court to determine the truth of the matters alleged in the answer filed by the defendants.” (Construction Co. v. Mason, 109 Kan. 373, 375, 198 Pac., 966.)
The state on the relation of the attorney-general intervened. The intervening petition set up substantially the facts contained in ■the answer of the board of administration, and prayed for cancellation of the warrants. The Honorable Oscar Raines was appointed commissioner to take the evidence and report findings of fact and conclusions of law. Findings of fact favorable to the state were returned, together with a conclusion of law that the warrants should be canceled. The plaintiff excepted to the findings and the conclusion, and the case is now before the court for determination on the pleadings, the evidence, the commissioner’s report and the exceptions.
The plaintiff renews the contention made in support of the demurrer to the answer of the board of administration, and asserts the state is in no better position to resist delivery of the warrants than the board itself. The court decided the matter when it suggested intervention by the state, and does not propose to debate it further. The plaintiff can get an order from this court for payment to it, out of the state treasury, of $5,472.28, in just one way, and that is by proof of performance of contract entitling it to the money. A rule of evidence will not be accepted as a substitute for a cement floor in the building the plaintiff undertook to erect.
The specifications on which the plaintiff made its bid, and which became a part of the contract, contained the following provisions:
“Floor Finish.
“The floors of the front entrance corridor, first floor rotunda, platform at entrance to auditorium on first floor, side corridors on first floor back to east and west sides of pilasters at main stairways, and the first stair landing, are to be of tile. In these parts the top of the concrete slab is to be leveled off to lVi" below the finished floor level.
“The floors of all other corridors, stair halls, loggia, toilet and wash rooms, and wherever else cement floors are shown or marked on the plans, are to be' of cement put down by the Master Builders’ process as hereinafter specified; and in these parts the concrete is to be floated down to a level %" below the finished floor level.
“Cement Floors.
“This includes all parts before specified to have cement floors, also the balcony and stair treads. This cement finish is to be made and put on as follows:
“Application of Topping. — The topping, which shall consist of one part fresh cement to two parts coarse, gritty, clean sand, mix (1:1%), shall at no time be made sloppy. Lay and straight-edge the topping to a true and even surface. The topping shall then be well floated with wooden floats to close all voids and hollows.
“The finish. — Then a dry mixture of one (1) part Master Builders’ Concrete Hardener and one (1) part of tested Portland cement (by weight), mixed to an even color, shall be sprinkled evenly over the surface. This shall be floated in thoroughly and troweled. A second troweling shall be given surface when it has set sufficiently to take a hard, smooth , finish. Under no circumstances shall the finish be applied when there is any sign of surplus water on the floated surface.
“The finish consumes approximately 15 pounds Master Builders’ Concrete Hardener and 15 pounds cement per 100 square feet.
“Coloring.
“The finish shall be colored to a dark red by troweling the coloring material into the finish before it is set up, applying as many coats as may be necessary to produce a thoroughly even, dark color.
“Workmen.
“This topping and finish are to be applied by workmen skilled in this kind of work, furnished by the Builders’ Material Supply Co., of Kansas City, Mo., or by some other company recommended by and under the directions of the manufacturers of this concrete hardener.
“Safeguarding the Floor. — After the topping has set up, the contractor shall cover it with a uniform layer of soft wood sawdust, shavings, or other suitable covering. This covering must not be applied until experiment shows surface hard enough to prevent covering from scratching or injuring the finish. Surface shall be kept wet for at least five days. Floors, if protected as above, will be ready for light traffic in a week, and for heavy traffic in three weeks, under favorable weather conditions.”
Workmen furnished by the Builders’ Material Supply Company applied topping and finish to the floors indicated. While the work was in progress, Lewis, superintendent of construction for the state, objected to Tate, superintendent of construction for the plaintiff, that the topping and finish were not being applied according to specifications. Lewis’ recollection is that both Tate and Heman were present when objection was made to the workmen who were doing the work. The workmen persisted. Lewis, doubtful of his authority to stop the work, notified Tate, Heman, and the workmen, that it would be a question whether they would get the floor off their hands.
The departure from the specifications consisted in this: The specifications required topping and finish -to be one-half inch thick, in order to bring the floor up to the floor level from the top of the cement slab. Instead of this, the topping was merely a “skim,” in some places thicker than others, but generally of eggshell thickness. The result was that when finished the floor was uneven and full of waves, cracked and broke through when tapped or stepped on, and had holes in it from one-half to three-quarters of an inch deep. Besides that, the color of the floor was mottled red and white. It looked as though plaster had fallen on the surface, and presented a very unsightly appearance.
The defeats in the floor became manifest while construction of the building was going on. The subject was discussed with the plaintiff many times, and it said it would remedy the defects, but never did. The Builders’ Material and Supply' Company was appealed to, and it promised to rectify the work, but never did.
On July 1, 1917, the board of administration which had let the contract went out of office, and was succeeded by a new board. The affairs of the old board were not fully closed up until July 10, and that day was largely spent in discussing with the plaintiff what should be done about finishing and paying for the building. The board understood the appropriation to pay for the building would lapse unless warrants were issued as of June 30. The recollection of the president of the old board as to what took place at the meeting is given in his testimony, as follows:
“I think there were three men there representing the Heman Construction Company. . . .
“We talked it over from every conceivable angle. They wanted their money. They expressed a desire to fix the floor in some way. They were sure that the Builders’ Supply Company were going to fix the floor, and urged us to pay over money. It was after the year, and after the money had really lapsed, and they were anxious to have this all closed up.- We had an all-day session. They made many promises, and after going over the matter very fully— probably ten or twelve conversations — we finally told them we would do this: We believed they wanted to do the right thing about the building — fix it up. We thought it could be done. They were to go ahead and get the building fixed and get the floors fixed; do what there was on the outside, which was a comparatively small matter, and when they got it fixed they were to have their pay; and it was decided at that time we should issue this warrant. And we should issue the warrant and hold the warrant until such time as they should get this floor fixed up and complete the other things outside. And under that understanding, we did issue the voucher, and the warrant came back— my understanding was that the warrant was to be deposited in the state treasury until the building was in proper shape. The plaintiff said the floor was not right, and they asked the board to help get the Builders’ Supply Company to make it right, and said they were trying out various ways of clearing it up.”
Thereupon, vouchers in due form were approved and ordered paid, the approved vouchers were audited, and the warrants were issued and registered as of June 30.
The plaintiff paid the Builders’ Material Supply Company for its material and work, and in all the discussions between state offi- ciáis and the plaintiff and its representatives concerning the defective floors the plaintiff made no claim that the work was not its work but was that of the Builders’ Material Supply Company.
As far back as Construction Co. v. Board of Administration, 105 Kan. 291, 182 Pac. 386, the court indicated that the plaintiff ought to be paid if its work was well and faithfully done, but not otherwise. In Construction Co. v. Mason, 109 Kan. 373, 198 Pac. 966, the court indicated it wanted to know the truth about the merits of the case. With the exception of a witness whose testimony will be discussed presently, the plaintiff confined its evidence to proof of records about which there was no dispute. It did not see fit to produce as a witness before the court’s commissioner a single one of all its representatives, and the presumption is, there is nothing which they can say to its benefit about the construction of these floors, their condition, the causes of their condition, and all that has taken place since Lewis protested the manner in which the floors were being put down. Indeed, the court would be warranted in presuming that whatever the plaintiff might say would be to its detriment.
The defendant offered in evidence the answers to interrogatories sent to W. N. Rynerson, now of New York City, who was president of the Builders’ Material Supply Company when it furnished the material and workmen to lay the floors in controversy. His testimony is abstracted as follows: •
“Witness . . . was acquainted personally with Charles H. Chandler, state architect^ and had some dealings personally with Mr. Chandler concerning the construction of the Plumb memorial building. Mr. Chandler came to see the witness prior to the time when he, as state architect, prepared the plans and specifications for this building, and talked to witness concerning their floor material, and made personal investigation of several buildings in Kansas City, the flooring of which had been constructed by the Builders’ Material Company, and particularly a building erected by the Moriarty Bros., in Kansas City, Mo., and Mr. Chandler said he wanted that kind of a floor installed in the Plumb memorial building, and by witness’ company. Witness testified that he cautioned Mr. Chandler particularly that red cement floors could not be depended on to be a uniform red, for' the simple reason that free or hydrated lime in the cement, together with the alkali in the water and cement, would produce more or less efflorescence, and that no guaranty could be made as to the result of such flooring .being a dark-red color.”
When this testimony was given, Mr. Chandler was dead, and his voice may not be heard on the subject. It is a matter of common knowledge that many fine public buildings in different parts of the state stand as enduring monuments to his ability as an architect. If the admonition which the witness says was given, were given, the state architect is convicted of stupidly or stubbornly going forward and preparing specifications for a building, itself a memorial to one of the great men of the state, calling 'for floors of thoroughly even dark-red color; and Rynerson undertook to produce such floors, using his own material and men. The conversation may have taken place, but the court declines to find that it did take place. A reasonable inference is that the floors were mottled because Rynerson’s men did not properly trowel in the coloring matter, and did not apply a sufficient number of coats to produce the desired effect. (Specifications, “Coloring,” supra.)
Although he had his money, it was to Rynerson’s interest to relieve himself from responsibility for the condition of the floors, and the remainder of his testimony was devoted to showing that the defects were the necessary result of the architect’s plans and specifications — use of Joplin flints or chats and metal domes. It is significant, however, that the witness omitted all reference to “skim” topping and finish of eggshell thickness. His testimony is not very consistent with the promise he made to Plackney and Hoch, members of the old board of administration, to rectify the work and put the floors in good condition, and his testimony is contradicted by testimony warranting the inference that the waves and cracks and holes in the floor resulted from disregard of specifications in completing them.
The court finds that the floors were not topped and finished according to the specifications forming a part of the construction contract, and that, as a result, the floors are materially defective.
The contract plainly required that the floors be finished according to the Master Builders’ process, with material and by workmen furnished by the Builders’ Material Supply Company. The plaintiff says its hand was held and guided in this respect by the hand of the state architect, and that the results are the work of the holding and guiding hand. Some cases are cited in support of this principle. One of them is, Kansas Pacific Rly. Co. v. McCoy, 8 Kan. 538, in which the court said:
“Where one party to a contract, in executing it, follows the direction of the other, the latter cannot complain of the manner of the performance.” (Syl. H4.)
Another case cited is that of United States v. Spearin, 248 U. S. 132. Spearin agreed to build a dry dock, according to plans and specifications, and, among other things, to reconstruct a sewer which intersected the site. After reconstruction according to plans and specifications, the sewer broke, and flooded the dry dock. The question was, who was responsible for the consequences? In the opinion the court said:
“The sewer, as well as the other structures, was to be built in accordance with the plans and specifications furnished by the government. The construction of the sewer constituted as much an integral part of the contract as did the construction of any part of the dry dock proper. It was as necessary as any other work in the preparation for the foundation. . . . The risk of the existing system proving adequate might have rested upon Spearin, if the contract for the dry dock had not contained the provision for relocation of the 6-foot sewer. But the insertion of the articles prescribing the character, dimensions and location of the sewer imported a warranty that, if the specifications were complied with, the sever would be adequate. This implied warranty is not overcome by the general clauses requiring the contractor to examine the site, to check up the plans, and to assume responsibility for the work until completion and acceptance.” (pp. 136, 137.)
Another case cited is that of Bentley and others v. The State, 73 Wis. 416. The plaintiff contracted to build two wings of the state capitol, according to plans and specifications furnished to him. The headnote of the case tells the remainder of the story:
“After the plaintiffs had in good faith constructed a large portion of one wing, and the materials and work had been approved by the architect, accepted by the board, and paid for by the state, the wing fell by reason of latent defects in the plans. At the special request of the state the plaintiffs restored the wing according to amended plans and specifications furnished by the board. Held, that the state warranted the sufficiency of the original plans, and was liable to the plaintiffs for the expense of restoring the portion of the building so destroyed.”
In the opinion it was said:
“Under the contract, it is very manifest that, had the plaintiffs departed from such plans and specifications and refused to follow the directions of the architect, there could have been no recovery for the building of the south wing, even had they in the first instance built it as they were finally directed by the architect to do. (p. 431.)
Another case cited is that of MacKnight Flintic Stone Co. v. The Mayor, 160 N. Y. 72. The syllabus reads as follows:
“Where a municipal contract provides that the contractor shall furnish the materials and labor for the purpose, and accomplish a certain result, such as to make an underground room water tight, ‘in the manner and under the conditions set forth in the annexed specifications,’ and the specifications were prepared by the municipality and contain a detailed plan from which the contractor had no right to depart, the contractor, in the absence of express terms or necessary implication, is not to be deemed a guarantor of the sufficiency of the plan and specifications to produce the result desired, and his contract is performed if he has furnished the materials and done the work according to the plan and specifications, and thus made the room as watertight as the plan and specifications permitted.”
Other cases cited by the plaintiff are of the same tenor. In all of them, plans and specifications were strictly followed, and the unhappy consequences resulted from building with fidelity to them. In this instance, the plaintiff’s hands were tied in just two respects: material, because of its peculiar properties; workmen, because of expert knowledge and skill in manipulation of the material. Depth of topping and finish were specified. That specification bore no relation, either to peculiar nature of the material, or to peculiar manner of handling in order to produce the desired quality of flo.or. With the designated material, manipulated by the designated workmen, the contractor engaged to bring the floor up from the concrete slab, a distance of one-half of an inch, to the prescribed floor level. To that extent, the plaintiff had full control of the workmen, and sanction might have been had from the architect, who had power to enforce obedience to specifications.
The state cites a case which makes the distinction between observance of specifications and utilization of prescribed material under prescribed superintendence quite clear. In Fitzgerald v. Moran, et al., 141 N. Y. 419, the plaintiff sought to foreclose a mechanic’s lien for plastering, and was defeated because he had failed to perform his contract. In the opinion the court said:
“It is not claimed that the plaster was mixed with equal parts of sand and cement as required by the specifications. But the plaintiff claims that in pre-paringHhe mixture he followed the directions of the agent of J. B. King & Co., the manufacturers of the cement, and that by his direction the mixture was made of two parts of sand to one of cement. The specifications in respect to the plastering, after providing that King’s Windsor cement should be used, and that the work should be done under the direction of a superintendent of J. B. King & Co., in the next specification directed that the cement should be mixed ‘with equal parts good, sharp and dry sand.’ There is some evidence tending to show that the variation from the specifications in the proportions of sand and cement was directed by the superintendent of King & Co. But it is plain that the provision that the plastering should be done under the direction of the superintendent of King & Co. had relation to the manner of applying the plaster, and gave him no authority to change the component parts of the mixture specifically prescribed.” (p. 420.)
So here. Responsibility for failure to comply with the specifications rests, not on workmen who were designated merely for their understanding of material and skill in applying it, but on the contractor.
The evidence discloses promises by the plaintiff to fix the floors, and the commissioner finds that a promise to fix the floors formed one of the conditions under which the warrants were made'ready for delivery. The court does not regard the subject as important, because the plaintiff expressly warranted against defects arising from departure from specifications. The contract reads as follows:
“Imperfect work, such as settlement, shrinkage, etc., of any description, resulting from the use of material of poorer grade than provided for in the specifications, or from a deviation from the construction as set forth by the pláns, without authority and occurring within three months after the building is completed, shall be made good by the contractor at his own cost.”
Elsewhere it was provided that plans and specifications taken conjointly were descriptive of the work necessary to be performed. Settling and shrinkage were mentioned by way of inclusion, and the reference did not restrict the meaning of the following words, “of any description.” The expression, “occurring within three months "after the building is completed,” did not mean occurring after the building was completed and within three months from that time. It meant, occurring at any time but not later than three months after completion of the building.
“Imperfect work, .. . . of any description, resulting from . . . a deviation from the construction as set forth by the plans, without authority,” embraces these floors. The plaintiff might have guaranteed the plans and specifications. It did not do so, and is not liable for defects resulting from faulty plans. Material furnished by the Builders' Company, and fashioned into a floor by Builders’ Company workmen, were part of the specifications, and the plaintiff was not responsible if the result were, disappointing, so far as it depended on these factors. Another specification, however, was that the floor should meet a requirement which did not depend on nature of material or manner of fashioning into a floor. Compliance with that specification the plaintiff did guarantee, and it ought to have made good the defective work, at its own cost, long ago.
The court finds for the state, and against the plaintiff. The judgment is that the warrants be canceled, and that the plaintiff pay /the costs of the action.
HoPKiNS, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
The question in this case is whether an insolvent judgment debtor may be deprived of the right of possession of his farm and of the rents and profits thereof during the period of redemption after the farm has been sold under a mortgage foreclosure.
The plaintiff was a judgment creditor of defendant. On her application a receiver was appointed to take charge of defendant’s property, which included an 80-acre farm. The receiver took charge of the farm, and while he was in possession, a bank which held a deed to the farm in the nature of a mortgage, as security for a loan, foreclosed its lien, and the farm was sold by the sheriff on October 17, 1921, to satisfy the bank’s claim, and the sale was confirmed subject to defendant’s right to redeem within 18 months, a period which will expire on April 17, 1923.
After this sale, although there was no question of waste involved, the receiver was continued in possession of the farm, and the court made an order that the receiver sell the defendant’s right of re demption and that the defendant keep away from the property. Defendant moved to vacate this order on the ground that the equity of redemption was not subject to sale. (Gen. Stat. 1915, § 7396.) The court set aside the order of sale, but continued in force, and formally repeated, its order restraining defendant from interfering with the receiver’s possession, and decreed that the receiver should have the possession and rents and profits for the redemption period—
“And said receiver is hereby ordered and directed to rent said premises for the period of said redemption, or to sell the right of possession of said premises for the period of said redemption for the highest and best price obtainable.”
Defendant appeals, relying on the statute:
“The defendant owner may redeem any real property sold under execution, ... at any time within eighteen months from the day of sale as herein provided, and shall in the meantime be entitled to the possession of the property; ...” (Gen. Stat. 1915, § 7380.)
“Real estate once sold upon order of sale, special execution or general ex--'ecution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, and under which the holder of such lien had a right to redeem within the fifteen months hereinbefore provided for.” (Id. § 7401; see, also, Gen. Stat. 1915, §§ 7396, 7397, 7402, 7403; Case v. Lanyon, 62 Kan. 69, 61 Pac. 406; Moore v. McPherson, 106 Kan. 268, 187 Pac. 884.)
The claims of the plaintiff, and of other judgment creditors in whose behalf the receiver was appointed, were necessarily inferior to the bank’s first-mortgage lien, and certainly they have no greater right to dispossess or abridge the judgment debtor’s interest in the property during the redemption period than the principal judgment creditor; and general rules governing receiverships and similar procedure in equity cannot be invoked to invade a province covered by positive statutes. (Bank v. Grain Co., 63 Kan. 343, 347, 65 Pac. 676; Sigler v. Phares, 105 Kan. 116, 181 Pac. 628; Moore v. McPherson, supra, syl. ¶ 3.)
That the right to the rents and profits of property foreclosed and sold is in the execution debtor during the redemption period has always been recognized. (Nolte v. Morgan, 86 Kan. 823, syl. ¶ 1, 122 Pac. 886; Schultz v. Stiner, 97 Kan. 555, 558, syl. ¶ 4, 155 Pac. 1073; Bank v. Dikeman, 98 Kan. 222, syl. ¶ 2, 157 Pac. 1177.)
Such right of redemption cannot be subjected to forced sale, nor can the debtor be dispossessed or deprived of the fruits of possession during that interval, and the necessary corollary thereto is that the debtor’s interest cannot otherwise be abridged or impaired without his free assent.
In Howard v. Tourbier, 98 Kan. 624, 625, syl. ¶ 4, 160 Pac. 1144, it was held that where a receiver of real property was appointed before foreclosure, he. should be discharged when the foreclosure sale is confirmed, and that the execution debtor, or the party holding under him, was entitled to the income during the redemption period, and that the expenses of the receivership during its wrongful extension should be charged to the plaintiff.
On behalf of the appellee it is first urged that the order is not appealable. We hold otherwise. It was a final, order, and it certainly did affect a substantial right of the appellant. (Civ. Code, §§ 565, 566.)
It is also urged that the question has become moot because “the period of the lease executed by the receiver ends in March, 1923.” This fact is not shown by the record, but assuming its truth the ap-. peal is far from being a mere academic question. The defendant has been and still is being deprived of a very substantial right, and one which always has been the object of very great solicitude by the legislature; and the nature of the order and of its logical consequence shows the imperative necessity for appeal and its correction at this time. Moreover, under the record here, the redemption period will not expire until April 17, 1923, so the question is not moot.
Still another objection is that the notice of appeal was not served on other parties. But the original plaintiff in the court below in the action in which the receiver was appointed and in which the illegal order complained of was issued is here by proper service. So, too, is the receiver. The “other parties” we must assume to be those who were made parties and interveners at their own request or upon their own initiative, and their absence here is of no substantial importance.
It is also argued that the execution debtor acquiesced in the order because he obeyed it to the extent of staying away from the farm and because he asked and obtained leave from the court to go upon the farm as a hired servant for the receiver’s tenant. We hold that these facts did not constitute acquiescence in the order here appealed.
As to other points urged by appellee, it is sufficient to say “that after sale in foreclosure the right of possession (except for waste) and of the fruits of possession (waste or no waste) are exempt bylaw for the redemption period, and the New York case, Farnham v. Campbell, 10 Paige, 598, 600, relied on, cannot avail against our own statutes, our own decisions, and the age-long policy of this state to give the execution debtor liberal time, liberal opportunity and liberal means to redeem. If these privileges may be 'abridged or taken from him by any order or process in invitum, then the redemption period becomes a useless superfluity and the right of redemption a vain thing.
It follows that the judgment of the district court must be reversed and the cause remanded with instructions that all orders and parts of orders abridging the rights of the defendant to the possession, rents, and profits of the farm during the redemption period and for renting of the farm by the receiver during that interval be set aside, and that the defendant be .restored to the possession of the farm, and that the rents and profits arising from the farm since the confirmation of the sale in foreclosure, on October 27, 1921, be delivered to him without deduction for receiver’s costs and charges accruing after that date, and for further proceedings consistent therewith.
It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was jointly brought by the Prairie Oil and Gas Company, The Prairie Pipe Line Company and the Monarch Cement Company, against the board of education of the city of Humboldt and the county clerk and treasurer of Allen county, to enjoin them from levying upon or subjecting the property of the plaintiffs to a school tax imposed by the board of education, and the ground for the action is that the property had been illegally annexed to the city school district. Afterwards Oakland school district number seventeen, from which the territory was detached, intervened, and upon permission of the trial court was made a defendant. The Oakland district as well as the plaintiffs alleged that the action of the board of education in its attempt to transfer territory from that district to the city district was in violation of the statutes, fraudulent and without effect. The trial court found that the attempted annexation was illegal and void and all steps towards the imposition of the tax on the territory in question were enjoined. The defendants other than the Oakland school district appeal.
It appears that in 1914 effort was made to annex the territory to the city district, and after a trial it was there held that the annexation, was done collusively and fraudulently, and a permanent injunction was granted. That judgment was affirmed. (School district v. Board of Education, 100 Kan. 59, 163 Pac. 800.) In 1919 proceedings for annexing the territory were renewed and the order in question was 'made. The application for the order was signed by Sylvan B. Miller and his wife, who were the only electors in the territory sought to be annexed, and their two children are the only children of school age in this territory. The integral territory which adjoined the city district was not all included in the proposed annexation, but there was cut out of it an irregular shaped tract of two acres on which there were electors opposed to the annexation. This tract was surrounded on the northwest and south sides by the property of the cement company which was included in the territory proposed to be annexed. On a part of the property of the cement company, there were between fifteen and twenty children of school age, but as the parents of these children were opposed to the annexation that part was also cut out of the integral territory, and thus, by excluding all on this adjoining integral territory, except Miller and his wife, the required statutory majority was obtained. It appears that the two children of the Millers have never attended school in the Oakland district in which they lived but have been attending the city schools of Humboldt, staying with their grandparents, and have been educated there without payment of tuition. It appeared and the court found that there were no children living in the territory proposed to be annexed who had ever attended school in the Oakland district and that the Miller children had always attended school in the city and were not intending to attend school in district number seventeen. In his evidence Miller admitted that the Beatty tract was cut out because the resident owners were opposed to annexation, and further that if they were taken in the petitioners would not have had the necessary majority. He also admitted that they did not take in the part of the cement company’s property on which people resided because they were employees of the cement company who would not sign the application. It appears too that the petition which was presented by Miller was handed to him, prepared for signatures, by the president of the board of education, and was signed by himself and wife on the same day the board made its order annexing the territory to the city of Humboldt for school purposes.
The trial court found upon the testimony that a majority of the electors of the adjacent and integral territory did not sign the application for the annexation for the reason that the electors on a part of the territory were purposely prevented from exercising their rights under the provision of the statute that the board of education was aware of the opposition of those living on the cut-out territory, were opposed to the order, and denied these electors a right to have a voice in the matter, and that having notice of the wrong and participating therein, they violated the statute under which the order was made.
The first and controlling question presented in the appeal is as to the capacity of the plaintiffs to maintain the action. The annexation has been made and the reorganization of the district completed under a valid law. May private parties attack the validity of the district as formed, where its validity is the main issue and the turning point in the case? On the part of the plaintiffs it is contended that the organization is illegal and that any tax which the defendant might impose upon it was necessarily illegal, and hence taxpayers were entitled to maintain injunction under the provisions of section 265 of the civil code. This section gives any taxpayer a remedy by injunction against public officers who are doing anything that will result in an illegal charge or assessment. That provision, however, was not intended to authorize private parties to challenge the existence or validity of the municipalities of the state. Surely it was not the legislative purpose that the existence of a county, a city or other municipality might be assailed by private parties who sought to enjoin a tax. These municipalities would stand in a precarious position if every complaining taxpayer might attack their existence. From the beginning it has been held that questions of this kind can only be considered in a direct proceeding brought at the instance of the state, by the attorney-general or county attorney. In an action by a private party to enjoin a tax levied by a school district on the ground that the district did not have a legal existence, it was held that the action could not be maintained. The court said:
“The legality of the organization cannot be questioned in a collateral proceeding, nor at the suit of a private party. The organization cannot be attacked, nor any action taken affecting the existence of the corporation, except in a direct proceeding prosecuted at the instance of the state by the proper public ofíicér. . . . What we do decide is, that there exists a valid law under which the organization can be made; that a corporation has been created thereunder, and is in existence; and that if there were any irregularities or illegal action in its organization, either by reason of the boundaries established or otherwise, it must be determined by a quo warranto proceeding brought by the state.” (A. T. & S. F. Rld. Co., v. Wilson, 33 Kan. 223, 228, 6 Pac. 281.)
In the Wilson case there was a quotation from another authority saying that:
“It would be dangerous and wrong to permit the existence of municipalities to depend on the result of private litigation. Irregularities are common and unavoidable in the organization of such bodies, and both law and policy require that they shall not be disturbed except by some direct process authorized by law, and then only for very grave reasons.” (p. 228.)
Other eases of similar import are: Voss v. School District, 18 Kan. 467; Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417; Railway Co. v. Lyon County, 72 Kan. 13, 82 Pac. 519, 84 Pac. 1031; Leavitt v. Wilson, 72 Kan. 160, 83 Pac. 397; Horner v. City of Atchison, 93 Kan. 557, 144 Pac. 1010; Miely v. Metzger, 97 Kan. 804, 156 Pac. 753; Bealmear v. Hildebrand, 107 Kan. 419, 191 Pac. 263.
It is argued that the amendment of the code provision found in Laws of 1905, chapter 334, which is section 265 of the civil code, warrants a different view than was expressed in the earlier cases. It will be observed that a number of the cases cited above, where the right of taxpayers to bring an action of injunction was directly drawn in question have been determined since the amendment was made. In Miely v. Metzger, supra, decided in 1916, a taxpayer brought an action under code section 265 to enjoin a school district from issuing bonds and buying a site for a school building, and it was said:
“The code provision cited did not authorize the plaintiff to question the legality of the corporate organization. The state alone can question the existence of the district as a corporate entity and its right to exercise corporate power.” (p. 805.)
In Bealmear v. Hildebrand, supra, an injunction was sought by a taxpayer who questioned the organization and boundaries of a rural high-school district, and he asked that an election of officers be enjoined. It was held that:
“Private persons have no standing to question the legality of the organization of a rural high-school district, by an action to enjoin election of rural high-school district officers.” (Syl.)
The late case of Schur v. High School District, ante, p. 421, 210 Pac. 1105, involved'a question as to the validity of the organization of the district and another as to the validity of the proposed issue of bonds. On the first proposition it was held:
“The state has provided its own officials, an attorney-general and a county attorney, to challenge the validity of corporate or quasi-corporate organizations in this state like cities, counties, townships, and school districts; and ordinarily it is no justiciable concern of private individuals that these public subdivisions and organizations of the state may have some infirmity in their organization. So, too, the exercise of official powers and the ousting of official usurpers are matters "of which the state alone may complain at the suit of its authorized legal representatives. And the fact that the state’s proper officers decline to act does not give authority to private individuals to institute litigation on such matters of public concern.” (p. 422.)
On the second branch óf that litigation it was held that private parties might challenge the validity of the proposed bonds and obtain an injunction against the issue of them upon the ground that the election at which the bonds were voted was based upon an insufficient and illegal notice.
Plaintiffs • place much reliance upon the ruling in Patrick v. Haskell County, 105 Kan. 153, 181 Pac. 611, but there the right of the plaintiff to maintain the action was not directly challenged. The principal question determined as to the form of the action was that where a right of action under the statute is given to the taxpayer, he is not required to plead or show that he has no other adequate remedy at law or that he will suffer irreparable injury if the remedy of injunction is not available to him. With boundaries extended, the district was a corporate entity. The law provides that territory may be lawfully annexed to a school district. The officers having authority to extend the boundaries and take in adjoining territory have acted and made the order of annexation. Whether the steps taken were regular and legal and the district reorganized into a valid municipality may be challenged by the state in an appropriate proceeding, but the corporate entity cannot be dissolved or destroyed at the suit of a private party, nor can the extent of its boundaries be determined in such an action. A tax-payer may avail himself of the injunction remedy to question the right to levy or enforce a tax because it is unequal or is excessive or that the levy was for an unauthorized purpose or because.of irregularities in making the levy or assessment, but he cannot use it to test the existence of a municipality either de jure or de facto, which is functioning as a corporate entity under a valid law. It is said that the right to employ the remedy was recognized in the earlier case of School District v. Board of Education, supra, but there the capacity of the plaintiff to bring the suit ,was not pressed upon the attention of the court, and at any rate the right of the plaintiff to sue was not considered or determined. It was directly raised in the present case, and the demurrer of the defendant should have been sustained.
The judgment is reversed, and the cause remanded with direction to dismiss the action. | [
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The opinion of the court was delivered by
PokteR, J.:
Gertrude Holland brought suit to recover for injuries resulting from a collision between a Ford car in which she was riding and a switch engine of appellant. The trial resulted in a verdict in her favor for $4,000. The railroad company appeals.
The accident happened in the town of Liberal, Barton county, Missouri, on December 28, 1920, at about 8; 30 o’clock in the evening. Defendant’s railroad runs north and south through the town. A highway, which is the main street of the town, runs east and west, and crosses the railway tracks 60 or 80 feet north of the depot which is on the east side of the tracks. The Ford car was driven by Thomas E. Bell, a young man about the age of the plaintiff. The car in which they were riding belonged to the young man’s father. The young people had taken rides in the car as often as once every two weeks for a year, and during that time they had been keeping company. On the evening in question they were returning from a picture show, and were driving west. From a point 200 feet east of the crossing there was an unobstructed view of the track for a mile. There was a street light which hung over .the center of the street about 60 or 70 feet east of the crossing, and this light illuminated the north end of the depot 60 or 80 feet to the south.
Plaintiff’s testimony showed that just before the Ford reached the crossing it was moving at from five to six miles per hour; that a light freight engine was approaching from the north with no cars or caboose attached and moving at a speed of between four and five miles per hour. The Ford car was not turned over but was picked up "on the pilot and with its occupants carried 300 feet south of the crossing. The rear right wheel of the Ford car was broken. The plaintiff and her escort testified that they were keeping a lookout for trains when they approached the crossing, saw no headlight, and would have seen it had there been one. They heard no whistle sounded or signal given, and both testified that there was no headlight on the engine. When the engine was stopped a man in the engine got out and removed the occupants of the car, and with some assistance plaintiff walked back to the depot, and from there, with assistance, she walked to the home of A. B. McIntosh, about 300 yards, where a physician was called.
The cab of the engine was occupied by the engineer, who was on the right-hand side of the engine, the fireman and conductor Roup. They all testified that the headlight of the engine was burning and that the usual signal was given for the crossing, and that they were running very slowly. They also testified that on each side of the engine there was a marker consisting of a red light surrounded by a wire screen. Bell testified that he looked first at a point 200 feet east of the crossing; again about 20 feet from the track; looked in both directions; looked to the north last.' Within 12 or 15 feet from the crossing he looked for the last time; that the first time he knew of a train'being anywhere around “it had hit the car and was shoving us down the track.” The jury made the following findings of fact:
“1. Did the street light at the crossing interfere with the plaintiff seeing the headlight on the locomotive? Answer: No.
“2. Did the noise of the automobile engine and the high wind interfere with the plaintiff hearing the approaching locomotive? Answer: Yes.
“3. Was the street light burning brightly enough to outline an approaching locomotive? Answer: No.
“4. Did the plaintiff look for trains before attempting to cross the track? Answer: Yes.
5. If you answer the last question ‘Yes,’ then state why you did not stop? Answer: Did not see or hear train.
“6. For what purpose were the plaintiff and her companion riding in the automobile? A. Going home.
“7. If you find the plaintiff listened for an approaching train before going upon the crossing, then state why she did not hear it? Answer: Because of high wind and noise of engine.
“8. If plaintiff had stopped before going, upon the track and looked and listened for an approaching train could she have heard it? Or seen it? Answer: No.
“9. If you answer the last preceding question 'No/ then state why not? Answer: Because of no headlight or signal given.
“10. If you find the issues here in favor of the plaintiff, then state what negligence, if any, you find against the defendant? Answer: No lights or signals given.”
The defendant’s motion to set aside findings Nos. 8 and 9 as contrary to the evidence was overruled; also a motion for judgment in favor of defendant and a motion for a new trial were overruled.
At the time of the trial, a little more than a year after the accident, plaintiff appeared to be without any bruises or scratches. The physician who was called to the McIntosh home after the a'cci-. dent testified that the plaintiff had a slight abrasion over the right eye, which was puffed and swollen, and a bruise on her shin the size of one’s hand; she complained of severe pains in her abdomen; he saw her the next day when she complained of the same pains. He testified that at the time of the trial there were no discolorations on her body.
Her mother testified, in substance, that prior to the accident the plaintiff was in good health; was attending business college at Pittsburg; that when she returned home after the accident there was a bruise above the eye; her hip and shin were injured. Plaintiff became very sick at her stomach and was placed in bed, where she remained for two weeks; for three or four months she wasn’t able to be up all day. After the injury she kept complaining, and continued up to the time of the trial.
A physician who had examined her shortly before the trial testified to a small scar on her hip, on her knee and over her eye. He made an X-ray examination, which did not show anything. He thought the injuries she sustained might be more or less permanent.
One of the main contentions is, that conceding the truth of the plaintiff’s evidence to the effect that there was no headlight on this engine and no signal given, nevertheless her own evidence established that she was guilty of contributory negligence. It is argued that this is true even without the imputation of the negligence of her escort. The cases- relied on are those which hold that it is not enough for a traveller to look where an approaching train cannot be seen or to listen when it cannot be heard. (Railroad Co. v. Holland, 60 Kan. 209, 56 Pac. 6; Railroad Co. v. Entsminger, 76 Kan. 746, 92 Pac. 1095.) These and other cases, which hold that there is a presumption that a person failed to exercise due care to avoid injury, where the undisputed evidence shows that if he had looked and listened before driving upon the crossing, he must have seen and heard a train approaching. Plaintiff and her escort were travelling faster than the engine, and if they had looked just before going upon the crossing it is insisted they must have seen and heard the approaching engine which was necessarily within a few feet from them. In Gaffney v. Railway Co., 107 Kan. 486, 192 Pac. 736, it was held that one who could see and learn of the danger if he looked is held to have knowledge of the danger even if he does not look.
The plaintiff, on cross-examination, was asked, if it were not a fact that the street light illuminated the north end of the depot 150 feet away and answered in the affirmative. This did not bind her to the fact that the depot was that far away; especially in view of the evidence on both sides to the effect that it was 60 or 80 feet away. We do not believe her answer can be considered as a “genuine admission.” ■
It was the contention below, that the plaintiff and her escort were engaged in a joint enterprise, and complaint is made because the court submitted that question to the jury in place of deciding it as a question of law. In Bush v. Railroad Co., 62 Kan. 709, 64 Pac. (not cited in the brief), plaintiff, a young woman, was invited by a young man to take a buggy ride. They drove over a railway crossing in the nighttime and were struck by a train, killing the horse, demolishing the buggy and seriously injuring the plaintiff. It was held that because they were out riding for the-mutual pleasure of both, they were engaged in a joint enterprise; and because they had equal opportunity to see and ability to appreciate the danger, and plaintiff was in fact looking out for herself but made no effort to avoid the danger, she was chargeable with contributory negligence. The ruling of the trial court sustaining a demurrer to the evidence was affirmed.
We think it cannot be said that the court erred in refusing to sustain a demurrer, in view of the fact that there was evidence tending to show that there was no headlight on the engine; no signal for the crossing; that the wind was blowing hard from the southwest; the precautions taken by the driver and by the plaintiff to ascertain whether the crossing was clear; the noise made by their own car; some evidence to the effect that the switch engine was coasting without making much noise. Under all the facts and circumstances of the case, it was for the jury to determine whether she exercised the care for her safety that a reasonably prudent person would have exercised under the same conditions. (McClain v. Railway Co., 89 Kan. 24, 130 Pac. 646, and authorities cited in the opinion.) In that case the principal facts which the court had in view were that the gates were open, the watchman was absent, and there was noise of a passing freight train and a strong wind blowing. On the theory of the demurrer, in the present case, there was an absence of headlights, and no signals. A traveller in approaching a railway crossing in the darkness naturally expects that an approaching train will have a headlight, which can generally be seen at night more readily than an approaching train in the daytime. It was not error to overrule the demurrer nor to refuse to render judgment on the findings.
The plaintiff’s case rested to a great extent upon the contention that there was no headlight on this engine. The three employees of defendant, the engineer, fireman and conductor testified that it was fully equipped with an electric headlight which was lighted at the time of the accident. As defendant contends, any evidence, though the slightest, tending to corroborate plaintiff’s claim that, there was no headlight became of vital importance. After the collision, the conductor Roup went to the. house of A. B. McIntosh, several hundred feet distant, and requested him to send ■ for a physician. On the cross-examination of Roup during the trial he denied making to McIntosh the following statement:
“We run into a couple down there with a car. We had a damn poor headlight. We have been having trouble with that light ever since we left Nevada.”
The defendant next offered in evidence the deposition of McIntosh, taken at Liberal, Mo. Gn cross-examination by the attorney for plaintiff'he was asked:
“Q.. Do you remember when you went down there to this engine with the trainmen that you have referred to, what, if anything, was said by the trainmen with reference to the headlight?
“By Mr. Challis: We object — no part of the res gestee and hearsay.
“The Court: Overruled.
“A. Well, the trainman, when he came up on the porch and come into the house, he said, ‘We run into a couple down here in a car,’ and he said, ‘They didn’t see the car,’ and he said, ‘We had a damn poor headlight.’ That is the expression he give me and he said, ‘We have been having trouble with this light ever since we left Nevada.’ ”
The contention is that the objection to the testimony was well taken; that it called for a statement which was not part of the res gestee and was hearsay. It often happens that a question, apparently incompetent at the time the deposition was taken, becomes relevant and competent during the trial. It cannot be doubted that if McIntosh had been in attendance at the trial he could have been called and asked, for the purpose of impeaching conductor Roup, the same question which the court admitted in the form of a deposition. There was no error in overruling the objection.
As a question of law, plaintiff and her escort were engagéd in a joint enterprise. (Bush v. Railroad Co., supra.) The error in submitting that question to the jury was not prejudicial, since the case was one for the jury on the question of contributory negligence.
There was some inconsistency in the findings, but not sufficient to justify the granting of a new trial.
The verdict for $4,000 seems, at least, to border on the excessive in view of the comparatively slight injuries which the plaintiff sustained. It was approved by the trial court and we are unable to see that it is so far excessive as to justify the court in ordering its reduction or in directing a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Maude Yargus was charged with committing murder in the first degree by means of poison. She was convicted of murder in the second degree, and appeals.
In her behalf it is contended that murder by the administration of poison is necessarily murder in the first degree and cannot constitute murder in the second degree; that the trial court erred in instructing the jury that the defendant might be found guilty of second degree murder; and that for these reasons a motion in arrest of judgment should have been sustained, or at all events a new trial should'have been granted.
1. Only two grounds for a motion in arrest of judgment are recognized by our statute — a lack of jurisdiction in the court over the offense charged, and a failure of the facts stated to constitute a public offense. (Gen. Stat. 1915, § 8193.) The sufficiency of the information as one for murder in the first degree is not challenged, and it is obvious that neither statutory ground exists here. If the defendant is entitled to have the verdict set aside this can be done only by the granting of a new trial.
2. The two degrees of murder are thus defined:
“Every murder which shall be committed by means of poison or*by lying in wait, or by any kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of an attempt to perpetrate any arson, rape, robbery, .burglary, or other felony, shall be deemed murder in the first degree.” (Gen. Stat. 1915, § 3367.)
“Every murder which shall be committed purposely and maliciously, but without deliberation and premeditation, shall be deemed murder in the second degree.” (Gen. Stat. 1915, § 3368.)
There is some difference of judicial opinion as to whether, under these or similar statutory provisions, the jury in a prosecution for murder by means of poison should be given the opportunity to return a verdict of murder in the second degree. The cases on the subject have been collected and classified in a note on the “Effect of statutory declaration that murder committed by certain means, or while engaged in commission of felony, shall be murder of the first degree, upon the right of jury to pass upon the degree.” (12 L. R. A., n. s., 935.)
In a prosecution for murder in the first degree by the administration of chloroform, where the jury were told that in order to convict on that charge they must find that the poison was given with the intention of causing death, this court held that it was unnecessary to give an instruction concerning deliberation and premeditation, saying: “The act described, and in fact, any murder committed by means of poison, as well as by lying in wait, involves and presupposes the elements of malice, premeditation and deliberation, and hence it was needless for the court to state that they are prerequisites to a conviction.” (The State v. Baldwin, 36 Kan. 1, 19, 12 Pac. 318.) That case was rightly decided if, under the facts presented, there was no room for believing the poison to have been given murderously but without deliberation or premeditation, even supposing such situation to be possible, as some courts have held (Lane v. The Commonwealth, 59 Pa. St. 371; The State v. Dowd, 19 Conn. 387; Eytinge v. Territory, 12 Ariz. 131), although the contrary view has been taken. (State v. Wells et al., 61 Iowa, 629.) Some of the decisions bearing on the general subject are based upon the statutory requirement that the jury shall state in the verdict of " conviction the degree of the offense, and some upon the theory that by the definition of murder by poison the elements of deliberation and premeditation are eliminated. Some also are .affected by the use of the word “other” in the definition of first degree murder between the words “any” and “kind” in the clause “or by any kind of willful, deliberate and premeditated killing.” In some states, although the trial court properly instructs that the evidence shows the defendant to be guilty of first degree murder, if guilty at all, the jury can nevertheless return a valid verdict of second degree murder. (Shaffner v. Commonwealth, 72 Pa. St. 60; Adams v. The State, 29 Ohio St. 412.)
Here no transcript of the evidence has been made, the reason assigned for this omission being the defendant's poverty. For present purposes it will be assumed that the evidence did not admit a finding that the defendant was guilty of murder by poison but without deliberation and premeditation, even if murder by that means can ever be accomplished without the existence of these elements. On that assumption we hold the error in submitting to the jury the issue of second degree murder not to have been prejudicial to the defendant. Verdicts of murder in the second degree have been set aside on appeal upon the .ground that the defendant should have been found guilty of murder in the first degree or acquitted. (Dresback v. The State, 38 Ohio St. 365; State of Iowa v. Bertoch, 112 Iowa, 195.) And on the other hand it has been held that the defendant cannot effectively complain of a ruling which results in his being convicted of second instead of first degree murder. (State v. Phinney, 13 Idaho, 307; State v. Lindsey, 19 Nev. 47.)
In the first of the two cases just cited it was said:
“We therefore conclude that although the defendant was charged with the crime of murder perpetrated by means of poison, and that it was the duty of the court to instruct the jury as to the law in such cases, and the grade of ' offense that they might find defendant guilty of; still, it was within the prov ince of the jury to find the degree of the offense, and that even though the evidence might fully disclose that the defendant was guilty of a higher degree than that found against him, still the verdict could not be disturbed for that reason. It is not an uncommon thing for a jury, out of sympathy, or what they conceive to be extenuating circumstances, to find a defendant guilty of a lower degree or grade of offense than that of which the evidence clearly cod victs him, but the fact that they do so is not a ground of reversal of the vei diet and judgment.” (p. 316.)
And in the second:
“If the jury fix the crime at murder in the second degree, in a case where the law and the facts make it murder in the first degree, it is an error in favor of the prisoner, of which the law will not take any cognizance, and of which the prisoner ought not to complain.” (Syl. ¶ 2.)
In returning a verdict of guilty of murder in the second degree the jury in the present case necessarily found beyond a reasonable doubt that the defendant administered poison with the purpose and effect of destroying human life. The trial court" gave them the opportunity to describe her offense as second degree instead of first degree murder if they should entertain a reasonable doubt as to her deliberation and premeditation, thus lessening the penalty to which she was subject. The greater offense included the less — it had in any view all the elements of the less and possibly two which it lacked — deliberation and premeditation. In that situation substantial justice does not require that at the instance of the defendant a new trial should be had. She is benefited instead of injured by the failure of the court to instruct that the verdict must be first degree murder or acquittal, because, assuming, as we must do, that the jury followed the instructions that were given, they must have reached conclusions that would have required a verdict of first degree murder if, as is now claimed in her behalf, the use of poison to accomplish murder necessarily involves deliberation and premeditation.
An entirely different situation was presented in The State v. Knoll, 72 Kan. 237, 83 Pac. 622. There the defendant was charged with murder in the first degree and convicted of manslaughter in the second degree under a statute making it essential to the latter offense that the killing should be done in an unusual manner. The conviction was set aside because there was no evidence showing the existence of that element of the offense. There the less offense was not included within the greater. It to some extent differed from it in kind as well as degree. It involved a new, distinct, affirmative ingredient — an element of aggravation not necessarily present in the graver crime — that of unusualness in the means employed.
The view that the defendant cannot be heard to complain because, under evidence which really justified only a conviction of the offense charged or an acquittal, she was convicted of a less serious charge included within it, is supported by the following cases: Price v. State, 82 Ark. 25; People v. Washburn, (Cal.) 201 Pac. 335; State v. Dimmitt, 184 Iowa, 870; State v. Rodgers, 91 N. J. L. 212; Ryan v. State, 8 Okla. Cr. 623; Hunter v. State, 6 Okla. Cr. 446; Wyatt v. The State, 55 Tex. Cr. 73; Jenkins v. The State, 60 Tex. Cr. 465; Gatlin v. The State, 86 Tex. Cr. 339. See, also, Johnson v. State, (Tex.) 45 S. W. 901.
The contrary rule obtains in Georgia (Kendrick v. The State, 113 Ga. 759) and was in force in Missouri (The State v. Mahly, 68 Mo. 315) until changed by statute (State v. Mittner, 247 Mo. 577).
The weight of judicial opinion seems to favor the conclusion we have reached, but we base it not upon authority but upon the soundness of the principle that the defendant should not be allowed to derive an advantage from an error from which she suffered no injury, but on the contrary derived a benefit. The same principle was applied by this court in an appeal from a conviction of petit larceny, where complaint was made that the only evidence of the value of the property stolen was far in excess of $20, and in the opinion it was said.
“This disparity between the evidence and the verdict resulted in a conviction of defendant of petit larceny on one count when the evidence seemed to show that the value was over $20 and that a conviction for grand larceny should have followed. But that is certainly not prejudicial error.” (The State v. Mall, ante, pp. 63, 65, 209 Pac. 820.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This is an action to recover for certain building materials furnished by plaintiff and used in the construction of an elevator at Allen, Kan. Trial was to a jury. Plaintiff recovered, and the defendant appeals.
On May 25, 1919, defendant entered into a contract with one F. W. Lehrack, under the terms of which Lehrack was to build an elevator for the sum of $8,234.55. The contract contained these provisions: “Payments are to be made by the owners as bills for materials and labor become due, upon presentation of bills for ma terials and vouchers for labor. It is further understood, in addition thereto, the owners will pay all freight and express charges upon presentation of freight bills and express bills.”
Immediately after making this contract Lehrack visited the office of plaintiff; told of the contract and its terms; and ordered a bill of materials for use in constructing the elevator. Relying on said statements plaintiff shipped and billed the materials to defendant at Allen, Kan. The materials were received by defendant and used in the construction of the elevator, defendant paying the freight. Invoices covering the materials were sent by plaintiff to defendant on the first day of the following month (July) again on July 15, and again on August 1. Defendant made no reply on receipt of said statements, but afterwards refused payment.
Defendant contends that no contract, either express or implied, existed between it and plaintiff, and that, as it paid the full contract price for constructing said elevator to Lehrack, it was not liable to plaintiff. It "also contends that this case grows out of the same transaction as the case of Fairbanks, Morse & Co. v. Elevator Co., 110 Kan. 772, 205 Pac. 367; wherein it was held defendant was not liable.
This case is distinguished from the Fairbanks, Morse case. In that case the Fairbanks company sent Lehrack to defendant and recommended him. After he made his contract with defendant, Fairbanks, Morse & Co., before shipping materials to defendant, endeavored to procure a statement from defendant that it would be responsible for such material. The defendant declined to acknowledge any liability.
In this case defendant received the materials, paid the freight, permitted the use of the materials in the construction of its building, and made no disclaimer of responsibility. In addition thereto plaintiff, sometime in July, sent to defendant a statement of the account approved by Lehrack.
It was admitted in the trial of the case that of the contract price of $8,234.55 defendant had, on July 1, $4,789.62, and on August 1, $2,428.18.
Complaint is made of the introduction in evidence of certain conversations between plaintiff and defendant and agents of Lehrack relative to the approval of plaintiff’s statement of account. Defendant contends that such conversations tended to convey to the jury an inference of a duty on the part of defendant to notify plaintiff that it was not responsible for the bill or to have plaintiff’s statement approved by Lehrack. The court said:
“Any conversation which. Lehrack had with these parties regarding this matter is not binding upon the defendant in this case. The evidence is introduced merely to explain plaintiff’s conduct and why plaintiff was induced to ship this material. It is not binding upon the defendant as varying the terms of that contract in any respect.”
The defendant, in our opinion, was not prejudiced. Whether defendant should have notified plaintiff that he would not accept the materials and not be responsible for the bill therefor was a question of fact for the jury. (Bartholomae & Co., v. Paull, 18 W. Va. 771.)
It was admitted by appellant that on August 1, it still had sufficient balance of the contract price with which to pay this account, and the jury, found that sometime during the month of July a statement of the account, approved by Lehrack, was transmitted by plaintiff to defendant.
It is a reasonable rule that one who, in good faith, ships goods to another may acquire the right to treat the other as a buyer, when the other, without disclaiming liability, receives and uses the goods, thereby receiving the benefit.
In 23 R. C. L. 1263 it is stated:
“A contract of sale may be implied from the facts and circumstances of the case creating an obligation on the part of the buyer-to pay for goods received from another, and ordinarily when one person receives goods or merchandise from another the law implies a contract on his part to pay therefor, which will support an action of assumpsit for goods sold and delivered. One cannot ordinarily accept goods from another and use them and then refuse to pay for them on the ground that he never ordered them.”
When the defendant chose to accept plaintiff’s goods and use them in its elevator, knowing that plaintiff was looking to it for payment, the law implied a contract on its part.
In Manufacturing Co. v. Mausoleum Co., 103 Kan. 236, 173 Pac. 302, it was held: “The builders of a mausoleum are liable to those who furnish the material for the erection thereof, in a sum equal to the amount unpaid on the contract, where the contractor becomes insolvent and is unable to perform his contract, and the owners agree with the contractor to complete the mausoleum and to pay for all materials and labor not already paid for, not exceeding, in all payments, the contract price.” (Syl.)
We perceive no reversible error. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This proceeding was brought to obtain a declaratory judgment as to the interpretation and validity of chapter 88 of the Laws of 1921, “An act relating to bridges.” The trial court adjudged the act to be unconstitutional, and the defendants appeal.
The action was brought by the board of county commissioners of Wyandotte county, naming Kansas City, Kan., and several railway companies as defendants. It alleged that Kansas City is a city of the first class with a population in excess of 75,000 inhabitants, lying wholly within Wyandotte county, through which the Kansas river, a navigable stream, flows, and that one of the public streets of the city is Seventh street, and others are Fifth and Twelfth streets, which run north and south across the river. In 1916 the city granted a franchise to the Kansas City Terminal Railway Company which provided for the construction by that company of- viaducts within 1,500 feet of the Kansas river over its tracks at Fifth, Seventh and Twelfth streets in the city. The Atchi-son, Topeka & Santa Fe Company owns and operates tracks along the south bank of the river between the harbor lines and below the level of any bridge that may be constructed across the river at Seventh street. Seventh street, on which the proposed bridge was to be built, is a traffic way from Kansas City, Kan., to Rosedale, Kan., which it is alleged is about to be incorporated with Kansas City, and since the filing of the petition has been made a part of that city, and the proposition of constructing a bridge on that street is to afford convenient travel and expedite communications between the two vicinities. The act passed, under which the bridge is proposed to be built, provides:
“Section 1. Where a franchise has been granted a railroad company by any city under the provisions of sections 1315 and 1316, General Statutes of Kansas for the year 1915, which franchise contains provisions for the construction or partial construction by such railway company of a viaduct or viaducts within fifteen hundred feet of a navigable river, the board of county commissioners in which such city and river are located may locate, erect, construct, or reconstruct in connection with and joining such viaduct or viaducts a bridge or bridges over such river, and for the purpose of paying the cost and expense of the erection, construction or reconstruction of such bridge or bridges, may issue the bonds of such county, without the same being authorized by any election called or held for such purpose, not exceeding in amount the' sum of one million dollars for each bridge, and subject only to the limitations contained in this act: Provided, That nothing contained in this act shall preclude the application to any bridge constructed or reconstructed thereunder of the provisions of chapter 215, Session Laws of 1905, and acts amendatory thereof or supplemental thereto.”
The act is assailed on the ground that it is obnoxious to section 17 of article 2 of the constitution, which inhibits special legislation where a general law can be made applicable. There is the further contention that the act contravenes section 1 of article 12 of the constitution, which prohibits the conferring of corporate power by a special act. General laws for the building of bridges with provisions for the issuance of bonds to pay for them have been enacted. There can be no real difficulty in providing for the building of bridges through the means of general laws. Acts which have been passed for that purpose, fix limitations on the bonds to be issued, or the amounts expended for the erection of bridges. One of the requirements is that the question of whether such a bridge shall be built must be submitted to a vote of the qualified electors. The act in question, if valid, would take a county in which certain conditions exist out of the operation of existing general laws applicable to counties throughout the state, and permit it to issue bonds to the amount of a million dollars for each bridge without a vote of the electors, and regardless of the limitations as to the extent of its present indebtedness. It is argued that the act is not only general in form but that it applies to all cities of the state which come within the prescribed class, and that there was a valid basis for the classification made by the legislature. The act is general in form, but the conditions of the classification are obviously local and special. It applies to a city in which a franchise has already been granted under sections 1315 and 1316 of the General Statutes of 1915. Those sections provide that any city having a population of 75,000, for the purpose of aiding in obtaining terminal, switch and depot facilities, is authorized to grant a franchise to a railway company to build and maintain railways across, over and along any street, alley or public grounds for a period not to exceed 200 years. Under these provisions a franchise had been granted by Kansas City, in Wyandotte county, which provided for the laying of tracks over and álong streets and public grounds for elevated tracks and the building of viaducts at the approach of the Kansas river over Fifth, Twelfth, and also Seventh streets where the million dollar bridge is proposed to be erected. It is the only franchise which has been granted under the provisions named. There was the further restriction that the railway company should have been authorized and required under the franchise to construct viaducts within 1,500 feet of a navigable river. The conditions prescribed all fit the situation as it' existed in Kansas City, in Wyandotte county, and it can hardly be conceived that such peculiar conditions would exist in any other location. The classifications were almost as restrictive and special as if the application of the act had been expressly limited to Wyandotte county. The viaducts were to be erected within 1,500 feet so as to connect with the bridges to be built by the county. The prescribed distance from a navigable river was adapted to the local situation, and was so arbitrary in character that it could not well apply to any other location. It is said that there are two navigable rivers in the state, and that the cities of Wichita and Hutchinson on the Arkansas river at some time might grant a franchise to build viaducts within 1,500 feet of that river, but the specific conditions are so restricted as to point directly to Wyandotte county and indicate that the legislature was passing a special act under the guise of a general law. While the Kansas and Arkansas rivers in this state have been declared and treated for some purposes as navigable, all know that neither of these rivers is scarcely in fact navigated, except for a few miles at the mouth of the Kansas river in Wyandotte county. If the provision relating to a navigable river should be interpreted as referring to a river navigable in fact, that is, one susceptible of being used in its ordinary condition as a highway for commerce, over which trade and travel may be conducted in the customary modes of trade and travel on water as decided by the United States supreme court in Brewer-Elliott Oil & Gas Co. et al. v. United States (43 Sup. Ct. Rep. 60), it must still be held that the act could hardly ever have any application outside of Wyandotte county. But apart from this consideration the act is so plainly local and special in its application as to be obnoxious to, and evasive of, the limitation in section 17 >of article 2 of the constitution. Being special in character, it also offends section 1 of article 12 of the constitution, inasmuch as it takes corporate rights from Kansas City in respect to the control of the highways within the limits of the city. Special laws in some instances may be enacted, but this may 1 only be done where a general law cannot be made applicable. In the first instance the legislature must determine that question, but under the amendment of the constitutional provision the determination of whether an act is repugnant to the limitation in that its purpose may be accomplished by a general law, is one for the judiciary.
In the recent case of Patrick v. Haskell County, 105 Kan. 153, 181 Pac. 611, wherein many cases are cited, it was said:
“While it is the duty of the courts to uphold laws passed by the legislature, yet it is just as much the duty of the courts to uphold the constitution. If the statute now under consideration be approved, and the principle followed in declaring that approval is observed in the future, the amendment concerning special laws will be of no effect, for the reason that any school district, any township, any city, any county in the state, desiring to accomplish anything not authorized by the general law, can, by the system that has been followed in framing the present act, secure the enactment of a law, general in form, but special in effect, enabling it to accomplish its purpose. Special laws, instead of being direct, will become general in form, but indirectly special, and all the evils of special legislation that brought about the amendment to section 17 of article 2 will be revived.” (-p. 159; see, also, The State, ex xel., v. High-school District, ante, p. 616.)
Holding the act to be in conflict with the constitution, it follows that the judgment of the district court must be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Henry Wilhelm was convicted of the offense of statutory rape upon Susie Ochs, and he appeals.
The information contained three counts, charging acts of intercourse on August 1, August 8, and September 19, 1920. He was found not guilty of the earlier offenses charged, but was convicted on the third count, which alleged that an offense was committed on September 19, 1920.
The only contention made in defendant’s brief is that the evidence is insufficient to sustain the verdict and judgment. He frankly concedes that testimony tending to support the conviction was received, but he insists that it rests alone upon the testimony of the prosecutrix, and that it was contradictory, uncorroborated and incredible. The testimony of the prosecutrix was given in detail and tended to prove the illicit act, but the defendant earnestly argues its insufficiency because of contradictions in it and its conflict with that given in behalf of the defendant, as if this court was the trier of the facts and should settle the conflicts in the testimony and weigh its force. In regard to the lack of corroboration it may be said that corroboration of the testimony given by the prose-cutrix is not essential to the conviction. We have no statute in this state as there is in others that the testimony of the prosecutrix must be corroborated by other evidence, and hence it has been held that her testimony alone as' to the illicit act, if it fairly tends to prove the offense and is believed by the jury, is sufficient to sustain a conviction. (The State v. Brown, 85 Kan. 418, 116 Pac. 508.) There was other evidence supporting some of the circumstances related by the prosecutrix. For instance, the defendant positively denied that he was in the company of the defendant at the time it is charged the offense was committed, while several witnesses testified that the defendant did take the prosecutrix home from a dance in a buggy on the night she testified that the offense was committed. Again it was shown that a child was born to her on May 5, 1921.
Against the credibility of her testimony it is argued that as the jury did not convict on the counts in which defendant was charged with illicit acts on August 1 and August 8, in support of which she testified, the inference must be that the jury regarded her testimony to be unworthy of belief. Whether the jury determined that those charges were not sufficiently established or concluded that a single penalty would serve the purposes of the law, is no longer a matter of concern. The question now is whether there is sufficient evidence to sustain the finding that an offense was committed on September 19. Substantial supporting testimony was produced and the verdict is an-assurance that the jury regarded it to be worthy of belief. Her evidence is further said to be incredible because of inconsistences in it, and also because the offense- was said to have been committed in the narrow limits of a single buggy while the horse was trotting along. But these and other circumstances attending the commission of the offense were all matters for the consideration and finding of the jury. They were men of years and experience, who decided not only what portions of the testimony were credible, but also whether in the situation and circumstances related by the prosecutrix the offense could have been committed.
Although some other errors are-assigned in the abstract, the only one argued in the brief is the insufficiency of the evidence, and hence the others do not require consideration.
No reason is seen for reversing the judgment, and hence it will be affirmed. | [
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The opinion of the court was delivered by
MasoN, J.:
Kasmir Korzuszkiewicz (whose family name appears to be pronounced Shusky, and is sometimes written in. that way) died May 24, 1920, survived by nine children. On November 6, 1917, he had executed to his son Nicodemus a deed to a quarter section of land, reserving a life interest. On November 5, 1918, Nicodemus executed a quitclaim for this tract to his sister Mary. On November 8, 1918, Kasmir executed to Mary two deeds covering four additional quarters, and a bill of sale for 54 head of cattle, she signing an agreement to give him one-third the crops on the land during his life. On July 8, 1920, this action was brought against Mary, Nicodemus and three other children, Martha, Felix and John, by the remaining four children, Tim, Mrs. B. C. Winkler, Mrs. Lizzie Tookert and Mrs. Lena Zorn, alleging among othej things that the deeds and bill of sale referred to were obtained by Mary from their father, who was of weak mind, by false pretenses, coercion and duress and under a promise to him that she would distribute the property equally among all the children. The plaintiffs claimed, and asked to recover, four-ninths of the land. A trial resulted in a judgment for the defendants, and the plaintiffs appeal.
1. The plaintiffs complain of the refusal of their demand for a jury. The original petition merely alleged that their father died intestate owning the land, that the plaintiffs as heirs owned each a 'one-ninth interest in it, and that the defendants unlawfully kept them out of possession. Doubtless because of the requirement of the present code (§ 619) that in ejectment if the claim is based upon an equitable title the facts upon which it is founded must be pleaded, an amended petition was filed setting out the execution of the deeds referred to and alleging their invalidity upon the grounds already stated. The situation is the familiar one in which the petition contains the allegations essential in ejectment but discloses that the defendants hold the legal title by deeds the effect of which must be nullified or modified by the interposition of a court of equity before the plaintiffs can be entitled to any relief, and the action is therefore an equitable one in which a jury is not a matter of right. If the case had come to trial under the original petition, doubtless upon the face of the pleadings the plaintiffs would have been entitled to have a jury impaneled, but as soon as the character of their claim was developed by the evidence the court would have been authorized to discharge it. The amended petition discloses that the actual purpose of the suit is to have the deeds set aside or the title under them impressed with a trust in favor of the defendants, and that therefore the controversy was one to be determined without a jury. -In the opinion in a similar case the fact was mentioned that some of the familiar characteristics of a petition in ejectment were wanting, but any inference that the insertion of the omitted allegations would have justified the demand for a jury was conclusively negatived by the following language:
“The plaintiffs’ right to possession and enjoyment.of the land as owners depended on their right to have the deed canceled. What they desired was the verdict of a jury on their right to cancellation. That was a subject of equitable cognizance, and the request for a jury trial as in an action at law was properly denied. . . . The facts stated in the petition did not disclose an equitable title. They disclosed a legal title, derived by operation of the statute of descents and distribution,' enjoyment of which was frustrated by a deed procured by undue influence exercised over the mind of their ancestor. The purpose was not to settle disputed claims of heirship, but to remove an impediment to the enjoyment of inherited property. While the answer contained a general denial, and so as a matter of form put in issue the capacity of the plaintiffs'to challenge the deed, the substantive issue was the voidable character of the deed, and the right to invoke the equitable remedy of cancellation. If the statutory form of petition in ejectment had been used, and a jury had been called on the theory the action was one at law, no doubt the court, when the statement of the case or the production of evidence disclosed the true equitable nature of the suit, would have exercised the power to determine the controversy for itself, as the court did in the replevin action under review in the case of Akins v. Holmes, 89 Kan. 812, 133 Pac. 849.” (Houston v. Goemann, 99 Kan. 438, 441, 442, 162 Pac. 271.)
In another case, where the plaintiffs sought to have a trust imposed upon real estate, it was said that if the action had been merely to recover possession it would have been in the form of ejectment. But, as the context appears sufficiently to show, no suggestion was intended that by ingrafting the allegations characteristic of ejectment upon a petition setting out an equitable cause of action its essential nature would be so changed that a jury trial would be a matter of right. (Rayl v. Brown, 108 Kan. 385, 195 Pac. 611.)
2. The deeds were without valuable consideration, and the plaintiffs contend that it was conclusively shown that the grantees occupied a fiduciary relation toward their father, and therefore a pre sumption of undue influence, coercion and fraud arose, which the defendants were required to overcome by affirmative evidence. Such a presumption does not arise from the mere relation of parent and child. (Clester v. Clester, 90 Kan. 638, 135 Pac. 996.) At the time the deeds were executed the grantor was living alone at Ellinwood and the defendants occupied the land conveyed to Mary, situated some twenty miles south of there, as tenants, paying a crop rent, and looked after the stock on the place belonging to their father for a share of the increase. They marketed his share of the crops. They went to see him at considerable intervals. These conditions continued for several years. We do not regard these circumstances as resulting in such fiduciary relationship as to create a presumption of bad faith or undue influence in connection with the making of the deeds. Nor in our judgment is there anything in the admissions and undisputed facts having that effect. A letter written by Mary and urged by the plaintiffs as having an important bearing on this matter will be referred to later. The father of the parties was about eighty years old at the time of his death. The court found that “for a man of his age and the strenuous life he had lived, he was in rare good health and physical condition, and he himself made infrequent visits to his children on the farm and to Mrs. Winkler at Hutchinson, and up to within a few hours of his death he was possessed of full mental vigor, fully capable of understanding his surroundings and condition and of what disposition had been made of his property.”
3. In the course of the detailed findings of fact it was said that there was no evidence of want of mental capacity on the part of the grantor or of any undue influence, false statements, threats, coercion or duress on the part of the defendants, or of any promises by Mary to recover or hold the property in trust. The plaintiffs interpret these findings as meaning literally that no evidence was introduced having any tendency to support their allegations in relation to these matters — as indicating the same attitude of the court as though a demurrer to the evidence had been sustained. We regard them, however, as merely having the effect of a determination against the plaintiffs on these issues — deciding that the allegations of the petition were not proved. In the findings of juries, statements that there was no evidence of a fact have been held to mean that there was “no persuasive evidence, no preponderance of the evidence (Jolliff v. Railway Co., 88 Kan. 758, 760, 129 Pac. 1178) — "that under all the evidence the jury were not satisfied that such was the case.” (Burks v. Railway Co., 83 Kan. 144, 109 Pac. 1087.)
4. This correspondence took place between Mary Shusky and Mrs. Winkler, at the dates indicated:
“Dear sister Bohena: “Stafford Kansas September 24th 1918.
“I will take the pleasure this lovely fall morning and write you a few line in regard of business concerning pa. Now you remember while you were at Bllinwood & we were telling you we wanted higher wages and you said it wasent right fore us to colleck such wages & so on.
“Now we have not been there sence that time as we said we want all you to go and doe the work fore pa’s. Now I am writing this letter to you & you & Lena & the rest must go & see after pa & see his house is clean & that his horses & everything if you dont go & doe it your mouths are close.
“Now we haven’t never charge one red cent, but if you all wont doe it we will set our price & you all doe without.
“Now his house hesent ben cleaned his clothes seen to sence we were there in the early spring.
“Now those that clame their seifs children to that old man doe your part as John Martha & myself have done & all will be dealed even.
“Otherwise you all must be satisfied if you dont get nothing. Some one must go once a month during the winter fore he is old he is all your children father as well as he is mine.
“Give me a ans. if you will go ore if you wont go & you ask Lena if she .will doe the work fore pa fore nothing as we heve so it will be dealed even otherwise it wont.
“Give me a answer at once so I can make arrangements.
“Mary Shusky.”
“Dear Sister “Hutchinson Kan Sept. 26. 1918.
“I was very much surprised to have you write me such a letter and will answer it right back. I am willing to go over and take care of father now and you keep your mouth shut from now on. I went over and saw the Judge and he tells me I can collect wages if X wish what ever I think reasonable and the children that wont take their share of taking care of father must pay the one that does.
“Either you or John come over soon and let me talk to you & know how things are going to be. You forget sister — that I took care of you both — when you were little and did not ask pay as you want to take care of your father. You can write to Lena yourself I wont What do you mean by setting your price and the rest do without explain if you can soe I goed to clean the cettle today I goed to father to more and take care of him and I have is the back to more soe good bye to all of and write to me soe and say come to see me and it is nice to day. __ “Balbena Winkler.”
The plaintiffs contend that Mary’s letter shows conclusively that she occupied a fiduciary relation with respect to her father, that she exercised undue influence over him, and that she assumed an obligation to see that his property was equally divided among all the children. We are unable to give it these effects. It seems possible that what was said about all being “dealed even” may have meant merely that, inasmuch as Mary and Martha had rendered services for their father without charge, if Balbena and Lena did the same this would result in equal or even dealing — otherwise it would not: “doe your part as John Martha & myself have done and [then] all will be dealed even;” “ask Lena if she will doe the work fore pa fore nothing as we have so it will be dealed even otherwise it wont.” Balbena herself did not know what Mary meant by saying — “Now we haven’t never charge one red cent, but if you all wont doe it we will set our price & you, all doe without.” It may have meant that the price would be the whole estate, leaving nothing for the other children, or it may possibly have meant that if the services were to be paid for at all Mary and Martha would perform them and get the whole amount paid and Balbena and Lena would get none of it. We will assume, however, that Mary’s purpose in writing the letter was to lead her sister to believe that the participation of Balbena and Lena in their father’s estate would depend upon whether they assisted in caring for him without pay. The fact that she undertook to foretell what her father would do with his property is not proof of her having power to control the matter, and the letter was written more than a month before the deeds to her brother and herself were made. Even if this sisterly interchange of letters could otherwise be given effect as a contract it will be noted that the equal distribution of the property was promised or prophesied upon the basis of the work in caring for the father being done for nothing, while the answer clearly contemplated a charge for the services to be rendered.
5. The motion for a new trial included newly discovered evidence as one of the grounds. Affidavits were filed tending to show that grain on the farm, conceded by the defendants’ attorney in May, 1921, to belong to the estate of their father, was not turned over to the administrator; that no personal property was listed in the father’s name for March 1, 1920, but corn and wheat were listed by several of the defendants; that Mary had testified in the probate court that her father lived on the rent of the farm and that she did not know how it was all accounted for and did not know of any property or money that he had around the farm; and that an at torney of two of the plaintiffs, accompanied by them, called upon the defendants for information concerning property of the estate, Mary denying that there was any and the others refusing to answer questions, in response (according to the affidavit of Mrs. Tim Shusky) to a signal from Mary made by placing her fingers on her lips. It is not shown that due diligence was used to obtain this evidence at the trial. The district court obviously did not regard it as requiring a reopening of the case — as likely, if admitted, to change the result — and we see no sufficient ground for interfering with its disposition of the matter.
In view of the general and special findings in favor of the defendants we deem a further discussion of the evidence unnecessary. The discrimination on the part of the father between his children is extreme and striking, but the distribution of his property among them was a matter in which his discretion was absolute, and we find no ground for disturbing the decision of the district court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Maeshall, J.:
S. A. Goble appeals from a judgment rendered against him by default on an injunction bond.
To the original petition, Goble filed a demurrer, which was sustained. An amended petition was then filed, to which Goble did not plead, and judgment was rendered against him by default. Af terward, he filed a motion to set aside the judgment in which he, in substance, stated that he had supposed that, when his demurrer to the original petition was'sustained, he was released from further attention to the case and therefore paid no further attention to it. With his motion, he tendered an answer containing the following allegations :
“1. That he denies that he ever by his mark or by his signature or otherwise made, executed or delivered the pretended indemnity bond instrument or obligation set out in plaintiffs’ Amended Petition at ‘Exhibit A/ either as principal or surety, or otherwise;
“2. That he denies that he ever authorized or directed anyone to sign, make, execute or deliver said instrument for him or on his behalf, or for any purpose, or in any manner whatsoever;
“3. That he denies that he ever admitted, acknowledged or otherwise recognized the execution of the validity of said instrument to the plaintiffs, or to any other person or persons whomsoever; and denies that he ever acknowledged the execution thereof before John Adams as Notary Public, or otherwise, or before anyone in any capacity whatsoever; and denies that he ever at any time or in any manner stated, admitted or acknowledged to the plaintiffs, or to any other person or persons whomsoever, that he had signed or made or executed said instrument in any manner whatsoever, or that he was in any manner liable thereon.”
On the presentation of the matter to the court, the defendant admitted that he signed the verified qualification of the sureties oh the bond. That verification, so far as he is concerned, read;
‘‘State of Kansas, County of Sedgwick, ss.:
“I, S. A. Goble, surety on the above undertaking, do testify on oath, that I am worth Six Hundred Dollars, over and above all my liabilities, debts and exemptions and that I am a resident and citizen of Sedgwick county, Kansas.
“x — S. A. Goble.
“Subscribed in my presence and sworn to before me this — day of-, a.d. 1918.
“My commission expires-, 191 — .
(seal.) John W. Adams, Notary Public.”
The bond was approved by the judge of the district court.
In ruling on the motion to set aside the judgment, the court said:
“That the judgment, which the defendant Goble seeks by his said motion to have vacated and set aside, was rendered herein on June 18, 1921, against said defendant by default; and that said motion of said defendant is duly verified by him, and that said motion was filed and heard during the same term of this Court in which said judgment by default was so rendered, and that said defendant in said motion and upon the hearing thereof tendered for filing his verified Answer to the plaintiffs’ Amended Petition; and the Court further finds that the defendant, S. A. Goble, the surety on the injunction bond in the ease of George Blakeman vs. The City of Wichita, Number 38752, is liable as surety on said bond, for the reason that he signed the qualification on said bond, and that said bond is a valid bond against the defendant, S. A. Goble; if the Court were of the opinion that the defendant, S. A. Goble, was not liable .on said bond as surety, it would exercise its discretion and vacate the judgment; the Court further finds that this case was regularly set for trial and came on for trial at 'the time when it was set for trial.”
With the signature to the verified qualification of sureties admitted, there was nothing pleaded in the answer of S. A. Goble to avoid the consequences of his signature, nor to contradict the statements contained in his affidavit. He signed the qualification and in it stated that he was surety on the undertaking. For,what purpose could the defendant have signed the qualification, if it were not to become surety? In Elliott v. Bellevue, 82 Kan. 78, 107 Pac. 794, the court said:
“Persons who have signed an affidavit indorsed on an appeal bond, describing themselves as sureties thereon, must be deemed, in the absence of some showing to the contrary, to have intended thereby to bind themselves in that capacity, and therefore to have executed the bond, although their signatures are not otherwise attached to it.” (See, also, 9 C. J. 14.)
The court correctly concluded that the answer did not state a defense.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This was a workmens compensation case. The workman has appealed from a judgment of the district court reducing the amount of the examiner s award as approved by the Workmens Compensation Director from 70 per cent permanent partial general disability to 10 per cent.
It is now made to appear that the respondent, appellee here, failed to make any payment of compensation pending its appeal to the district court although the employee had made written demand for such payment as provided by K. S. A. 44-512a. An appeal to this court from a judgment of the district court in that controversy has been determined and an opinion filed. See Griffith v. State Highway Commission, 203 Kan. 672, 456 P. 2d 21.
In the above case we held:
“Where an employer is a self-insurer as defined in K. S. A. 44-532, and perfects an appeal to the district court from the award of the director of workmen’s compensation and thereafter fails to comply with the requirements of K. S. A. 44-556, including the payment of compensation to the workman and the filing of a bond, the Legislature intended that the workman be authorized to serve a written demand under K. S. A. 44-512a, and maintain an action to recover the entire amount of compensation matured by the employer’s default, and subsequent review by the district court of the amount of compensation awarded by the director’s award may not be had, since service of the written demand and the employer’s default supersede the director’s award.” (Syl. 5.)
The district court was directed to enter judgment for the employee for the entire amount of the award, in a lump sum, based on 70 per cent permanent partial general disability.
As appellant is to receive full payment of his original award found by the examiner and approved by the director, as requested in appeal No. 45,613, no further relief can be granted in the appeal now under consideration. The issue has become moot and the appeal should be dismissed.
This court will not review a case on its merits where a judgment of reversal would be wholly ineffectual. (Andeel v. Woods, 174 Kan. 556, 258 P. 2d 285; Shirk v. Shirk, 190 Kan. 14, 372 P. 2d 556.)
The appeal is dismissed.
APPROVED BY THE COURT.
Price, C. J., Schroeder and Fromme, JJ., dissenting. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an action against the members of the Board of Regents of the State of Kansas, and others not involved in this appeal, for damages for personal injuries sustained by plaintiff while hospitalized at the University of Kansas Medical Center.
As the petition was dismissed as to the members of the State Board of Regents, on their motion, for failure to state a claim on which relief could be granted, the facts must be gleaned from the allegations of the petition and the plaintiff’s deposition of John Howard Feldman, assistant to the provost, the administrative officer of the Medical Center.
Plaintiff, a 51 year old oil field worker of Great Bend, Kansas, caught his left arm in a drilling rig on November 19, 1964, severely injuring it. He was rushed to the University of Kansas Medical Center where a team of doctors replanted the partially severed' arm which remained viable and the plaintiff’s recovery was progressing satisfactorily post operatively.
In the early morning of November 27, 1964, the eighth day after surgery, plaintiff was still hospitalized. Due to the effects of the medicine, drugs or other treatment given plaintiff and as a result of a changed mental condition caused by the effects of his injury and the natural effects resulting therefrom, appellant was rendered confused, mentally disoriented and out of contact with his surroundings. While in this confused state he ripped off the heavy bandages and splints from the injured arm. The night resident surgeon on duty rewrapped the arm and replaced the splints.
The above incident was known to the defendants since it was. officially recorded and noted in the hospital record chart of plaintiff. Nevertheless, the defendants took no action or precaution and did' nothing to place a watch over the plaintiff to protect him, or prevent him from reinjuring himself. Approximately 48 hours later at 12:45 a. m. on November 29, 1964, the patient was discovered sitting on the edge of his bed having again ripped off all of the bandages and this time tearing open the repaired arm causing the wound to be-reopened. The damage done was so extensive that the arm had to-be amputated.
It is alleged that the self-inflicted injury resulting in the loss of plaintiff’s arm was directly and proximately caused by the negligence and carelessness of the defendants, their agents, servants; and employees who joined and concurred to cause his injuries.
Plaintiff was a private patient occupying a single room and paying; the full rate — $22.00 per day in 1964. His employer’s insurance-carrier, Royal Globe Insurance Company, paid the University of Kansas Medical Center $1,567.25 for his hospitalization for the-period. This did not include the doctors’ bills.
The University of Kansas Medical Center is a general hospital offering a highly and specially trained service to the public, including private, semi-private, charity and semi-charity patients. The-defendant Kittle, plaintiff’s doctor, was not only a staff physician-at the University of Kansas Medical Center but conducted a private-practice there treating private patients. All of the hospital facilities,, personnel, nurses, residents, interns, medical students and other-staff personnel were made available to Dr. Kittle in performing his; duties as a private practitioner and as a staff member of the Medical Center in the care and treatment of his private patients.
At all times mentioned the defendant Kittle was acting as the agent, servant and employee of the University of Kansas Medical Center within the scope of his authority, and he, with the aid of his assistants, was in charge of the care of plaintiff and handled the treatment for the repair of his injured arm.
Pursuant to a resolution passed by the Board of Regents on November 9, 1956, a method was set up for compensating the staff doctors, including plaintiff’s doctor, which permitted them to engage in the private practice of medicine at the University of Kansas Medical Center. The plan provided that the fees from the private practice of medicine would be collected by the individual doctor. He would remit seven percent of his fees over $2,500.00 to the Medical Center for general budget use and, in addition, he would make a “voluntary contribution” of eleven percent to a department development fund.
On April 27, 1961, the method of compensating the clinical faculty members was amended slightly but the amendment is not material here.
John Feldman, controller and assistant to the administrative head of the Medical Center was deposed by plaintiff. He testified in substance:
The sums paid by the doctors to the Medical Center, as provided in the Board of Regents’ minutes, represented compensation to the University for the use of space and certain personnel. Certain hospital personnel would perform secretarial, clinical and clerical work for the doctors both in their capacity as teachers and in connection with their activities as private practitioners. For the most •part, the salaries of these clerical personnel were paid by the state.
As of June 20, 1965, the close of the fiscal year which included the period during which plaintiff was at the Medical Center, the "balance sheet of the Medical Center reflects that the plant facilities ■represented an investment of $30,706,732.90. During the fiscal year -ending June 30, 1965, care and hospitalization of patients accounted -for income of $5,444,733.30 and other services produced $528,228.02, for a total revenue from sources other than appropriations, grants :and gifts of approximately $6,000,000.00. In addition, by making the hospital and its facilities available to the doctors for private -patients, services of 97 doctor professors were obtained for the nominal sum of $3,600.00 per year. This figure does not include interns or resident physicians.
In 1964, the Medical Center admitted 18,674 patients. Of this number 9,700 were private paying patients.
Count one of the petition was based on negligence. Count two of the petition was in the nature of an action on an implied contract.
As previously indicated, the members of the Board of Regents filed a motion to dismiss stating as their grounds that the court lacked jurisdiction of the subject matter and of the persons, and that the petition fails to state a claim on which relief could be granted against the defendants, the members of the Board of Regents. The motion stated:
“In support of this motion defendants show that the immunity of the State Board of Regents was established in McCoy v. Board of Regents, 196 Kan. 506 (1966). Such immunity extends also to an action on an implied contract as alleged in Count II of the petition under Miller v. Kansas Turnpike Authority, 193 Kan. 18 (1964).”
The trial court sustained the motion. The plaintiff has appealed.
The only issue presented by the parties in their briefs and arguments is whether tihe doctrine of sovereign immunity is applicable.
The appellant states his position as follows:
“We wish to make it clear at the outset that appellant asks the Court to do only one thing and that is to declare that the State of Kansas and its agencies shall be held liable for the torts committed by its employees and agents in the operation of government business or commercial enterprises in the same manner that it has held cities responsible in this sphere of activity. We are not asking the Court to remove the immunity of government officials for acts within the scope of their authority or for the consequences of their acts flowing from the performance of their duties imposed by law. For the concept of immunity from suit in the performance of the officials’ duties inherent in the operation of government springs from an entirely different source than does the rule of immunity from liability of the government for the negligence of its employees.”
The appellant is fully cognizant of our former cases, but maintains those cases were wrongfully decided in the first instance, have no logical support in reason and should be overruled.
Perhaps we should first give some attention to the basic theory of sovereign immunity and its application to the present controversy. We do not propose to make the common error of attempting to write a treatise on the troublesome problem of sovereign immunity but we should delve into the subject far enough to disclose the basic philosophy which has governed the thinking of the majority of the members of the court in deciding the question before us.
We do not subscribe to the theory that sovereign immunity in the United States, and in the individual states, is traceable to the medieval concept that “the king can do no wrong.” Our forefathers did not fight the Revolutionary War because they were of that opinion. Their reasoning was quite to the contrary. It is difficult for us to believe that they would carry over into their common law a principle so opposed to their basic belief. (See Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265.)
No doubt the absolute monarchs of the past, and the dictators of today, refused and still refuse to be charged with wrong, but that is no reason why our representative and democratic forms of government should be so classified. We think the rule was adopted in this country as a convenience to a sovereign people. Under our form of government the legal sovereignty is in the people, and the people, in the exercise of their governmental power, through the states, did not wish to be sued and harassed in carrying out their governmental functions. We, therefore, depart from the term “sovereign immunity.” We prefer and will use the more applicable term “governmental immunity.”
We have refrained from voluminous citations and quotations of authorities from other states. It will suffice to say that in the avalanche of authorities cases can be found supporting absolute immunity, absolute abrogation of immunity and all possible degrees of restrictions between the absolutes. The cases may be found compiled in most any legal treatise on sovereign or governmental immunity, and there are many.
We must go back 200 years to determine what the term “governmental” encompassed when it was first introduced into our law, or 100 years when the Kansas law was being molded. At those times the states and their governmental agencies devoted their energies to governing. Now government engages in many things that are not governmental. At the time the rule of governmental immunity was adopted the courts could not have come close to imagining all of the proprietary functions in which the government and its agencies are now engaged. However, the courts failed, at least we did in this state, to draw a line of demarcation limiting governmental immunity to governmental functions.
The appellees argue that the decision to abrogate the doctrine of governmental immunity is that of the legislature. We recognize that our previous opinions have stated exactly that. (McCoy v. Board of Regents, 196 Kan. 506, 413 P. 2d 73.) However, we have not been consistent in applying the rule to governmental agencies. Note what we said in Wendler v. City of Great Bend, supra, at page 759:
“Regardless of the origin and development of the principle of governmental immunity, it is clear that our courts have almost from the beginning denied tort immunity to municipal governments performing ‘proprietary’ or ‘permissive’ functions. [Citations omitted.]
“The State is usually deemed immune regardless of the kind of function it is performing. What justifies the difference between the State and its municipal subdivisions is baffling. The decisions seem to result from accident rather than from reason, and tend to make one question the entire rationale of the principle. . . .” (Emphasis supplied.)
We have held that a county is not liable for damages for negligence in any capacity unless such liability is expressly imposed by statute or necessarily implied therefrom. (Caywood v. Board of County Commissioners, 194 Kan. 419, 399 P. 2d 561.) We have held that a city is liable for its negligent acts when acting in a proprietary capacity, particularly in hospital cases. (Stolp v. City of Arkansas City, 180 Kan. 197, 303 P. 2d 123.)
Both counties and municipalities are agencies of the state for governmental purposes. (Harling v. Wyandotte County, 110 Kan. 542, 204 Pac. 763; State v. Lawrence, 79 Kan. 234, 100 Pac. 485.) The Board of Regents is also a governmental agency created by the legislature. (Murray v. State Board of Regents, 194 Kan. 686, 401 P. 2d 898.) It is difficult for the majority of the court to see why one governmental agency performing precisely the same acts — e. g., operating a hospital for profit — should be liable for negligence and others should not.
The majority of the court are of the opinion that the responsibility of the various governmental agencies should be equalized by the elimination of all governmental immunity from negligence when the state or its agencies are engaged in a private or proprietary function.
The governmental immunity doctrine has judicial origin in this state. Our constitution does not touch on the subject and the legislature adopted no general rules but rather left the matter to the courts for a determination of policy. While the legislature has touched upon isolated features of immunity, which has been stressed in previous decisions, it has never considered the general policy to be applied even in the face of our great economic and social changes. We do not have a comprehensive legislative enactment designed to cover the field. What is before us is a series of sporadic statutes, operating on a separate area of governmental immunity. Appellees would have us say that because the legislature has removed governmental immunity in these areas we are powerless to remove it in others. We read the statutes as meaning only what they say: that in the areas indicated there shall be no governmental immunity. They leave to the court whether it should adhere to its own rule of immunity in other areas. We have suggested to the legislature in practically every opinion written on the subject that the extent to which the doctrine is to be applied is within their province, but the application of the doctrine has largely been left to the discretion of the courts.
After careful consideration a majority of the court is now of the opinion that it is appropriate for this court to abolish governmental immunity for negligence, when the state or its governmental agencies are engaged in proprietary activities, in the absence of the legislature’s failure to adopt corrective measures.
However, in abolishing governmental immunity to the extent suggested, we want it clearly understood that we recognize the authority of the legislature to control the entire field including that part covered by this opinion. We would suggest that the legislature is in a much better position than this court to restrict the application of the doctrine because it can supplement the restriction with proper legislation in the form of provisions for insurance, etc., as stated in 61 Columbia Law Review, Judicial Lawmaking, p. 839:
“There is however, a limitation of judicial law making inherent in the nature of the judicial function. Courts can and indeed are called upon to adjust rights and liabilities in accordance with changing canons of public policy. But because they develop the law on a case-by-case basis they can not as can the legislature, undertake the establishment of a new legal institution, ‘an elaborate procedure of investigation and consideration eventuating in the approval of a particular form of words as law.’ ”
It is suggested that we are violating the rule of stare decisis. We are insofar as we are eliminating discrimination between certain governmental agencies. Although we have great respect for the rule and recognize its desirability from the standpoint of certainty and stability, it does not follow that we are required to perpetuate a doctrine that is no longer applicable because of changes in economic and social conditions. The rule should not be followed to such an extent that errors be perpetuated or grievous wrongs result. We are of the opinion that when the reason for a rule no longer exists, the rule itself should be abandoned. We had a somewhat comparable problem in Noel v. Merminger Foundation, 175 Kan. 751, 267 P. 2d 934, when this court removed immunity for torts from charitable institutions. It was held:
“Fact that court may have at an early date in response to what appeared good as a matter of policy created immunity from wrongdoing is not a sound reason for continuing rule when under all legal theories rule is basically unsound, especially when reasons upon which rule was built no longer exist.
“When the reason for the existence of a declared public policy no longer obtains, courts should without hesitation declare that such public policy no longer exists.” (Syl. 5 and 6.)
The immediate issue before the court is the removal of governmental immunity for tort from the hospital at the University of Kansas Medical Center. This abrogation of immunity, however, raises numerous questions as to the breadth of our determination.
We would simply state in the way of clarification that abrogation of the doctrine applies to all governmental bodies of the staté when engaged in private or proprietary activities as distinguished from governmental functions.
We now come to the most troublesome problem of what constitutes a proprietary function. We are mindful of what was said in 60 A. L. R. 2d at page 1204:
“The general tests provided by the courts for determining whether a particular municipal [governmental] function may be regarded as governmental or proprietary have not proved adequate for the resolution of particular questions; and as a result the courts have frequently treated such questions on their individual merits, often reaching at least superficially conflicting results.”
It should be stated as elementary that each case must be governed by its own particular facts. However, we may reach a rather broad understanding to which a particular set of facts may be applied. It may be said that when a state by itself, or through its corporate creations, embarks on an enterprise which is commercial in character or which is usually carried on by private individuals or private companies, it is engaged in a proprietary enterprise (Stadler v. Curtis Gas, Inc., 182 Neb. 6, 151 N. W. 2d 915).
We have also laid down a rule for determining whether in operating a hospital, cities or towns are engaged in proprietary or governmental functions. In Stolp v. City of Arkansas City, 180 Kan. 197, 303 P. 2d 123, it is stated:
“It is also included in the general rule covering the dual capacity of cities and towns that when there is an activity or function in a private or proprietary capacity for the special or immediate profit, benefit, or advantage of the city or town, or the people who compose it, rather than for the public at large, then the city or town is in competition with private enterprise and is accountable for the torts of its employees the same as any other private corporation or individual. . . .” (p. 202.)
We see no reason why the rule applied to city hospitals in the Stolp case should not now be given general application.
We have no hesitancy in concluding that in the operation of the hospital at the University Medical Center the Board of Regents was engaged in a proprietary rather than a governmental function. The operation of a hospital is usually carried on by private individuals or private companies; private patients in the University hospital paid rates comparable to those which were charged in private hospitals; the hospital was receiving an annual income of approximately $6,000,000.00 a year from private patients, and obtained 97 doctors for the medical school’s faculty at a nominal salary of $3,600.00 a year because of the hospital facilities furnished them for their private patients.
It is not necessary that an actual net profit result. (Wendler v. City of Great Bend, supra.)
We are forced to conclude that the rule of governmental immunity from liability for torts committed while engaged in proprietary functions is today without rational basis and hence there is no logical compulsion to extend it because there is a voluntary mingling of governmental and proprietary functions. Reason suggests that a patient who pays for professional services ought to be entitled to the same protection and the same redress for wrongs as if the negligence had occurred in a privately owned and operated hospital. If the government is to enter into businesses ordinarily reserved to the field of private enterprise, it should be held to the same responsibilities and liabilities.
The courts of our sister states are not in accord on the question of the character of a hospital operation. It would serve no useful purpose to review the decisions of other states in this opinion. Those wishing to compare such cases should see 25 A. L. R. 2d 203 and A. L. R. 2d Later Case Service, volume 3, page 757.
McCoy v. Board of Regents, 196 Kan. 506, 413 P. 2d 73, and all other cases holding that the state and its agencies are not liable for tortious acts committed while engaged in a proprietary function, are overruled.
It will be understood that we are not passing on the merits of appellant’s case. He may not be able to prove the allegations in his petition but, after the defendant answers, he has the right to try. The Board of Regents is not an insurer of the safety of patients in the hospital. It is responsible only for hazards reasonably to be foreseen and only for risks reasonably to be perceived. Neither is it responsible for an honest error of professional judgment made by qualified and competent doctors employed by them at the hospital.
It will also be understood that we are not criticizing the Board of Regents for maintaining and operating the hospital. It is no doubt of great academic and financial benefit to the medical school. We are only holding that if it operates the hospital, receiving paying patients, it should be held to the same responsibility and liabilities as privately owned hospitals.
There remains the consideration of the time when the abrogation of the immunity as herein stated shall take effect. We are of the opinion that reasonable time should be given the various public bodies to meet the new liabilities implicit in this decision. We find ample authority for the proposition that in departing from the rule of stare decisis, the court may restrict application of a newly established rule to the instant case, and cases arising in the future, where it is clear that the retrospective application of the new rule will result in a hardship to those who have relied upon prior decisions of the court. (See Molitor v. Kaneland Com. Unit Dist., 18 Ill. 2d 11, 163 N. E. 2d 89; Holytz v. City of Milwaukee, 17 Wis. (2d) 26, 115 N. W. 2d 618, and cases cited therein.)
Except for the instant case, the effective date of the abolition of the rule of governmental immunity as applied to proprietary enterprises shall be August 30, 1969. Except for the instant case the new rule shall not apply to torts occurring prior to August 30, 1969. In applying the new rule to the instant case we are impressed with what was said in Molitor v. Kaneland Com. Unit Dist., supra. We quote:
“. • . At least two compelling reasons exist for applying the new rule to the instant case while otherwise limiting its application to cases arising in the future. First, if we were to merely announce the new rule without applying it here, such announcement would amount to mere dictum. Second, and more important, to refuse to apply the new rule here would deprive appellant of any benefit from his effort and expense in challenging the old rule which we now declare erroneous. Thus there would be no incentive to appeal the upholding of precedent since appellant could not in any event benefit from a reversal invalidating it.
“It is within our inherent power as the highest court of this State to give a decision prospective or retrospective application without offending constitutional principles. Great Northern Railway Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 77 L. ed. 360.” (p.28.)
The judgment is reversed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action to enjoin the Director of Revenue from any further attempts to collect sales tax from the plaintiff herein. The sales tax was imposed during the year 1950 against the plaintiff, and no action was taken by the Director of Revenue from August 1, 1958, until June 29, 1966, a period of seven years, ten months and twenty-nine days. By reason thereof the plaintiff contends the Director is barred from collection of the tax by the pro visions of K. S. A. 60-2403 — the dormant judgment statute. The district court of Sedgwick County entered judgment against the plaintiff and appeal has been duly perfected.
The underlying question is whether the Director of Revenue is barred from further attempts to collect sales tax owing by the plaintiff when more than seven years have passed since any attempt was undertaken to collect the tax.
The facts are not in dispute, the same having been admitted by the pleadings and stipulations of the parties.
James H. Riggan (plaintiff-appellant) operated a food market in Great Bend, Kansas, and incurred a sales tax liability of $1,100.88. This resulted in a sales tax warrant filed July 2, 1952, with the clerk of the district court of Sedgwick County, Kansas, where the appellant was then residing.
Thereafter, various garnishments and collections reduced the amount due and owing the state of Kansas to tire sum of $629.30. On August 1, 1958, an alias sales tax warrant was filed with the clerk of the district court of Sedgwick County, Kansas, for the collection of this sum. The original of this warrant was returned unsatisfied to the Director of Revenue of the state of Kansas.
Thereafter, no further action of any nature was taken until the 29th day of June, 1966, at which time an alias tax warrant was filed with the clerk of the district court of Sedgwick County — this being a period of seven years, ten months and twenty-nine days after the alias sales tax warrant of August 1, 1958, was filed.
After the 1966 alias tax warrant was filed, the appellant filed a petition in the district court of Sedgwick County, Kansas, praying for an injunction to bar the Director of Revenue of the state of Kansas from the collection of such sales tax on the ground that the original warrant of August 1, 1958, became a judgment, and because no action was taken thereon for a period of more than five years the judgment became dormant by virtue of K. S. A. 60-2403, and so remained for a period of more than two years thereafter, no revivor having been undertaken pursuant to the provisions of K. S. A. 60-2404.
The trial court after hearing the matter denied the injunction, holding that although a period of more than seven years "elapsed without any further action or attempt to collect the sales tax liability, that after a tax warrant has been timely filed, additional tax warrants may be filed thereafter without any limitation as to time and without any regard to any applicable statute of limitations.”
It must generally be conceded the methods of collecting taxes are statutory, and that statutes of limitation do not run against the state unless specifically provided by statute. The rights of a state are not lost through laches, estoppel or inaction of public officials. (In re Moseleys Estate, 100 Kan. 495, 164 Pac. 1073; Rucera v. State, 160 Kan. 624, 164 P. 2d 115; and Board of County Commissioners v. Lewis, 203 Kan. 88, 453 P. 2d 46.)
The issue presented herein must be resolved by a construction of the various statutes touching the subject.
K. S. A. 79-3617 provides in part:
“Whenever any taxpayer liable to pay any sales or compensating tax, refuses or neglects to pay the same, the amount, including any interest or penalty, shall be collected in the following manner: The director of revenue shall issue a warrant under his hand and official seal directed to the sheriff of any county of the state commanding him to levy upon and sell the real and personal property of the taxpayer found within his county to satisfy said tax, including penalty and interest, and the cost of executing the warrant and to return such warrant to the director of revenue and pay to him the money collected by virtue thereof not more than ninety (90) days from the date of the warrant. The sheriff shall, within five (5) days, after the receipt of the warrant file with the clerk of the district court of his county a copy thereof, and thereupon the clerk shall enter in the judgment docket in appropriate columns, the name of the taxpayer mentioned in the warrant, the amount of the tax or portion thereof, interest and penalties for which the warrant is issued and the date such copy is filed. The amount of such warrant so docketed shall thereupon become a lien upon the title to, and interest in, the real property of the taxpayer against whom it is issued in the same manner, as a judgment duly docketed in the office of such clerk. The sheriff shall proceed in the same manner and with like effect as prescribed by law toith respect to executions issued against property upon judgments of a court of record, and shall be entitled to the same fees for his services.
“The court in which the warrant is docketed shall have jurisdiction over all subsequent proceedings as fully as though a judgment had been rendered in said court: Provided, however, ... If a warrant be returned, unsatisfied in full, the director shall have the same remedies to enforce the claim for taxes as if the state of Kansas had recovered judgment against the taxpayer for the amount of the tax. . . . The director shall have the right at any time after a warrant has been returned unsatisfied, or satisfied only in part, to issue alias warrants until the full amount of said tax is collected: . . .” (Emphasis added.)
It should be noted the last italicized sentence in 79-3617, supra, above quoted, also appears in K. S. A. 79-3235, which provides for the collection of income tax.
The appellee contends this case necessarily involves an interpretation of the language in the last italicized sentence. It is argued, unless the language in this sentence is interpreted literally, the provision is “null and void and of no force and effect and constitutes a gratuitous and unwarranted legislative pronouncement.”
This provision is a distinguishing characteristic of the tax warrant authority vested in the Director of Revenue by the Kansas legislature with respect to the collection of sales tax and income tax, and it is in direct contrast to the tax warrant provision contained in K. S. A. 79-2101 which establishes the procedure for the collection of unpaid personal property taxes, vesting the authority for the issuance of tax warrants for the collection of personal property taxes in the county treasurer of the several counties.
The material portions of 79-2101, supra, pertaining to the collection of unpaid personal property taxes, read as follows:
“The sheriff as soon as he shall collect the tax warrant shall make a return thereof and shall make a return of all tax warrants delivered to him on or before the first day of October of the year following the year in which said tax was levied. If the warrant so returned shall show that the tax has been collected, the sheriff shall pay the same to the county treasurer; but if such return shall show that such tax has not been collected, then the county treasurer shall file with the clerk of the district court of his county an abstract of the total amount of unpaid taxes and interest due plus penalties and costs, accompanied by the last tax warrant, and said clerk shall enter the total amount thereof on his judgment docket, and said total amount, together with interest thereon at the rate of ten percent (10%) per annum from the date of filing thereof, until paid, shall become a judgment in the same manner and to the same extent as any other judgment under the code of civil procedure and shall become a lien on real estate from and after the time of the filing thereof.
“. . . If execution shall not be sued out within five (S) years from the date of the entry of any such judgment, or if five (5) years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the real estate of the delinquent taxpayer. Such dormant judgment may be revived in like manner as dormant judgments under the code of civil procedure.” (Emphasis added.)
By comparison K. S. A. 79-3617 and 79-3235 each provides in part:
“. . . The director shall have the right at any time after a warrant has been returned unsatisfied, or satisfied only in part, to issue alias warrants until the full amount of said tax is collected: . . .” (Emphasis added.)
It is readily apparent that once an abstract of unpaid personal property taxes and interest due plus penalties and costs, together with the last tax warrant, have been filed under 79-2101, supra, subsequent proceedings for collection are substantially in accord with the code of civil procedure. It is further apparent the filing of a tax warrant under 79-3617 and 79-3235, supra, avails the Director of Revenue of the remedies of the civil code for the collection of unpaid taxes, but is the Director of Revenue limited thereto? This must be determined by a construction of the language above quoted in 79-3617, supra, in conjunction with K. S. A. 60-2403, the dormant judgment statute. It provides:
“If execution shall not be sued out within five (5) years from the date of any judgment, including judgments in favor of the state or any municipality in the state, that has been or may hereafter be rendered, in any court of record in this state, or within five (5) years from the date of any order reviving such judgment, or if five (5) years have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor. When a judgment shall become dormant as herein provided, and shall so remain for a period of two (2) years, it shall be the duty of the clerk of the court to release said judgment of record, and the clerk shall make an entry on the appearance and judgment dockets wherein the judgment appears of record, reciting, ‘this judgment including all court costs and fees therewith is barred under provisions of section 60-2403 and is hereby released of record.’ ” (Emphasis added.)
The appellant relies upon the language, “including judgments in favor of the state,” in 60-2403, supra, for the proposition that all judgments in favor of the state are encompassed within its provisions.
Both parties rely upon State v. Gamble, 164 Kan. 288, 188 P. 2d 935, to support their respective positions. The Gamble case involved the construction of G. S. 1945 Supp., 79-2101, pertaining to the collection of personal property taxes. A review of Gamble will not be undertaken herein, but further discussion will proceed on the assumption the reader has familiarized himself with the case.
The appellant concedes 79-3617, supra, providing for the collection of sales tax, is worded somewhat differently from 79-2101, supra, pertaining to the collection of personal property taxes by the county treasurer, but relies on Gamble for the proposition that when the sheriff files the tax warrant with the clerk of the district court who enters it on the judgment docket, the procedure thereafter is the same as if a judgment had been entered in the district court. In Kucera v. State, supra, it was said the entry of the tax warrant on the judgment docket for delinquent personal property taxes was intended by the legislature to have the characteristics and attributes of a judgment — to have the same force as a judgment. By analogy it is argued once the sales tax warrant is filed with the clerk of the district court who enters it on the judgment docket, it becomes a judgment in favor of the state and is clearly governed by the language of 60-2403, supra. The appellant further takes comfort from 79-3617, supra, which authorizes the issuance of alias warrants once a warrant is returned unsatisfied. He argues it is identical to the provisions relating to the collection of personal property taxes and the provision for alias tax warrants as indicated in K. S. A. 79-2101 and 79-2104.
The appellant also calls our attention to the language in K. S. A. 79-3235, with reference to the collection of income tax, wherein the Director of Revenue is given the right at any time after a warrant is returned unsatisfied, or satisfied only in part, to issue alias warrants until the full amount of the tax is collected. He argues this language completely ignores the provisions of K. S. A. 1968 Supp. 79-3230 (a) placing a specific limitation on the collection of income taxes to a four-year period after a return is filed or tax paid, as well as ignoring K. S. A. 60-2403 on judgments.
Admittedly, the question before us is close, and the court has divided on the decision. Legislation is needed to clarify the situation relative to the collection of unpaid sales or compensating tax and income tax. Hie majority of the members of the court, however, think the legislature did not intend to impose a limitation period upon the state for the collection of unpaid sales or compensating tax, thus giving a literal interpretation to the language in 79-3617, supra, authorizing the issuance of an alias warrant at any time after a warrant is returned unsatisfied, or satisfied only in part.
The following reasons are assigned for the court’s decision:
(1) The legislature has established one procedure for counties to collect unpaid personal property taxes (79-2101 and 79-2104, supra) and a wholly distinguishable procedure for the Director of Revenue to collect unpaid sales or compensating tax. (79-3617, supra.)
(2) Contrary to the appellant’s assertion 79-2104, supra, omits the expression “at any time” in the proviso authorizing the issuance of alias tax warrants after a warrant has been returned unsatisfied relative to unpaid personal property taxes.
(3) K. S. A. 60-2403, the dormant judgment statute in the code of civil procedure speaks of “any judgment, . . . that has been or may hereafter be rendered, in any court of record in this state.” (Emphasis added.) This includes “judgments in favor of the state” rendered in any court of record. Prior decisions holding that the filing of a tax warrant for unpaid personal property taxes has the characteristics and attributes of a judgment, and the same force as a judgment, nevertheless, do not fulfill the requirement that the judgment be “rendered” in a court of record. Thus, by the peculiar-language employed in 60-2403, it has no application to a tax warrant for unpaid sales tax filed with the clerk who dockets it on the judgment docket of the district court.
(4) The procedure outlined in 79-3235, supra, providing for the issuance of tax warrants to collect unpaid income tax liabilities, was initially adopted by reference in 79-3617, supra. (See L. 1937, ch. 374, § 17.) Thereafter, subsequent to the enactment in 1945 of the language in 79-2101, supra, upon which the appellant relies so heavily, the legislature in 1953 adopted the present form of 79-3617, supra, and again employed the language “at any time.” (See L. 1945, ch. 360, § 2; and L. 1953, ch. 448, § 1.) In the light of the sequence of these legislative enactments, had the legislature intended to employ the language of the personal property tax dormant judgment provision, 79-2101, supra, in 79-3617, supra, it would have been a simple matter to do so.
(5) In evaluating the legislative intent herein the liability the appellant seeks to avoid paying represents money which he, as a registered retailer under the Kansas Retailers’ Sales Tax Act (K. S. A. 79-3601, et seq.) collected or was required to collect from his customers and remit to the state. In other words, this was state money, and why should the legislature impose a limitation period on the state in collecting such tax?
The conclusion to be drawn, that there exists one procedure for the collection of unpaid personal property taxes and another for the collection of sales or compensating tax, is entirely harmonious with the court’s statement in Sherman County Comm’rs v. Alden, 158 Kan. 487, 148 P. 2d 509, where it said:
“In the first place, the methods prescribed for the recovery of delinquent taxes are wholly statutory, no methods exist apart from the statute, and what ever procedures, whatever remedies are available are to be found in the tax statutes. . . .” (p.492.)
The judgment of the lower court is affirmed. | [
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|
'The opinion of the court was delivered by
Harman, C.:
This is an action to set aside a deed to real estate .and for relief auxiliary thereto.
The deed conveying more than four hundred acres of land near Severance, Doniphan county, Kansas, was executed by Grace Lyons in favor of her niece, Marie Corcoran. Plaintiff in the action to set it aside was Paul K. Libel, a nephew of Grace and a cousin to Marie. Also named as defendants in the action were Louise Burke and Ruth Moyer, sisters of Marie. The parties are Grace’s sole heirs at law. Louise supports Marie’s position in this lawsuit and Ruth is neutral.
Issues in the case as determined by the pleadings and pretrial conference order were Grace’s competency to make a deed, undue influence, lack of independent advice, and delivery of the deed and of a small amount of personal property.
Trial to the court resulted in a judgment for the defendant Marie. Plaintiff has now appealed.
The trial court made the following findings of fact and entered judgment thereon:
“1. This is a suit to set aside a deed made by Grace Lyons to one of the defendants, Marie Corcoran.
“2. This deed was executed on July 2, 1962, and recorded on April 12, 1963 in the office of the Register of Deeds in Doniphan County, Kansas.
“3. This deed conveyed all the real estate owned by Grace Lyons, and the grantor, Grace Lyons reserved a life estate.
“4. Grace Lyons died intestate on April 1, 1963, leaving as heirs, Paul K. Libel, the plaintiff, a nephew, Marie Corcoran, a niece, Ruth Moyer, a niece, and Louise Burke, a niece, defendants.
“5. The deed was prepared by C. L. Burke, president of the Bank of Denton, Denton, Kansas at the request of Grace Lyons.
“6. Mr. Burke took the deed to the home of Marie Corcoran, where Grace Lyons was staying on July 2, 1962, at which time Grace Lyons signed the deed. Mr. Burke took the deed back to the Bank and a few days later Marie Corcoran came into the Bank and received the deed from Mr. Burke. Marie Corcoran had the deed in her possession at the time of the death of Grace Lyons.
“7. Grace Lyons had done her business at the Bank of Denton for many years and C. L. Burke, the President of the bank had acted as her financial advisor. Grace Lyons conducted her business up until the time of her death as shown by her borrowing money at the bank and signing her checks.
“8. Grace Lyons was indebted to the Bank of Denton at the time of her death and this indebtedness was paid by Marie Corcoran after the death of Grace Lyons.
“9. Grace Lyons stayed at the residence of Pearl Corcoran, mother of Marie Corcoran from December 1961, until February 16, 1963, the date of the death of Pearl Corcoran and continued to live at this residence with Marie Corcoran until her death on April 1, 1963.
“10. Grace Lyons was in poor health during this period of time and Marie Corcoran attended to her.
“11. Grace Lyons was a strong will person and was never influenced by C. L. Burke, Marie Corcoran or any other person.
“12. Grace Lyons was never at any time an incompetent person.
“13. Grace Lyons also gave tifie defendant, Marie Corcoran a small amount of personal property that she had; except the stock in The Federal Land Bank of Hiawatha, Kansas, and the dividends thereon.
“14. The deed was duly executed by Grace Lyons and was duly delivered to the defendant, Marie Corcoran.”
This is essentially a fact case. Appellant’s principal contentions upon appeal in effect ask us to reweigh those facts in the light of any conflict or inconsistency shown in the evidence. This, of course, is beyond the scope of our review, which is simply to ascertain whether the trial court’s findings are supported by substantial competent evidence. In making this determination we are required to consider the evidence in its most favorable aspect to the party who prevailed in the court below (Frame, Administrator v. Bauman, 202 Kan. 461, 468, 449 P. 2d 525).
Although we are confronted with a voluminous record, there was actually little conflict in the evidence and we do not propose to •detail it much beyond that set forth in the trial court’s findings.
In December, 1961, Grace, who had been in poor health many years and was then seventy-three years of age, went to live with her sister Pearl Corcoran, mother of Marie, at Pearl’s home in Severance. Marie made her home with her mother and also maintained an apartment in nearby St. Joseph, Missouri, where she was employed as a school teacher. Frequently throughout the years during the winter Grace would be hospitalized at St. Joseph and upon leaving would go to Marie’s apartment to stay for several weeks before returning to her farm home. Many times she had discussed disposition of her property with her banker and business •adviser at nearby Denton, Kansas, saying she wanted it to go to Marie. The banker told her if she was going to leave it all to one niece she could Just as well do it by deed. She told the woman preparing her income tax return she was going to deed the farm to Marie, and at one time requested this woman to prepare the deed. At Grace’s request the banker prepared the deed for her, conveying the property to Marie with reservation of a life estate. He was to come to the Corcoran home for her to sign it on June 30, 1962. On that date Ruth Moyer came to visit at the Corcoran home. As a result Grace telephoned the banker not to come at that time. He was asked to come on July 2, 1963, and did so, at which time Grace signed the deed in the presence of Marie, the banker and also Grace’s farm tenant who was called in to witness the transaction. A housekeeper and Marie’s mother were also in the house but apparently did not witness the actual signing of the deed.
Touching the question of Grace’s mental competence the record reveals appellant offered only the testimony of a nurse that it was her “vague opinion” there were times during one period of Grace’s hospitalization when she was irrational in her conversation and difficult to understand. Arrayed against this was a mass of testimony, including that of the banker and Marie, two medical doctors, the housekeeper, two bank employees, her minister, and other disinterested relatives and friends, to the effect that during the period in question Grace was mentally competent and able to, and in fact did, transact her own business right up to the day of her death. She was variously described throughout as competent, intelligent, bright, alert, very determined, strong-willed, having decided opinions, not easily influenced, one who made her own decisions, having an independent mind, having a definite idea of what she was going to do, understanding her business affairs and as always knowing what she was doing.
It might also be said the evidence does not indicate Marie assumed any position of fiduciary relationship with Grace, that she brought any influence to bear on Grace, that she conducted any business for Grace except to assist upon Grace’s request, or that she conspired in any way with the banker or anyone else toward having the deed executed. Moreover, although not essential here, Grace did have independent advice as to the disposition of her property.
Appellant’s only contention having semblance of substance is that there was no evidence of delivery of the deed, rendering the instrument testamentary in character. The banker handling the deed (who had been in the banking business since 1912) testified at the trial. His memory was somewhat vague as to certain details of the transaction. However, he did testify that Grace signed the deed and returned it to him. In answer to a question as to whether Grace said anything about whom the deed was to be delivered to, the banker responded: “Oh, except she had me to make it out to Marie and give it to me.” Marie testified that Grace gave the deed to the banker and that he left with it. She also testified Grace said at the time of signing she “wanted me to see her sign it and the farm was mine and she wanted me to know it.” The banker took the deed back to his bank where he notarized it and in a few days gave it to Marie. Marie kept the deed in her possession until after Grace’s death. Marie testified: “She [Grace] knew when I brought it home and wanted to be sure that the descriptions were correct and all that, yes, and she knew I was to keep it in my possession and I did.”
The tenant on Grace’s farm upon his direct examination as a witness for appellant gave a different version of events after the signing of the deed. He testified the banker stated to Grace that now she couldn’t borrow any more money on the farm as she had given it to Marie, whereupon Grace said she didn’t want it that way and she put the deed in her dress and then put it in her “locker box” and kept it. Both Marie and the banker denied this occurred. Upon cross-examination the tenant gave contradictory answers in that he said the banker took the deed and went downstairs with Marie. The housekeeper at the Corcoran home testified that after the signing of the deed she had had long discussions with Grace alone in which Grace told her she had deeded the farm to Marie.
It is well established that in order for a deed to operate as a valid transfer of title it must be delivered. Delivery is largely a matter of the grantor’s intention to divest himself of title, as shown by all the surrounding facts and circumstances (In re Estate of Hulteen, 170 Kan. 515, 227 P. 2d 112) and is ordinarily a question of fact (Hoard v. Jones, 119 Kan. 138, 158, 237 Pac. 888). In Wuester v. Folin, 60 Kan. 334, 56 Pac. 490, it was said that the “usual test [of what constitutes sufficient delivery] is, Did the grantor by his acts or words, or both, manifest an intention to . . . divest himself of title?” (p. 337.) The same case held it is not necessary that a deed be delivered personally by the grantor to the grantee, and that an unconditional delivery to a third person for the use and benefit of the grantee, where the grantor intends to divest himself of the title and to part with control of the instrument, is ordinarily a sufficient delivery. And it has been stated that in a deed conveying gifts to children or relatives, the reservation by the grantor of the property during his lifetime is evidence of an intention to deliver the instrument before his death, for there could be no purpose in placing such a reservation in the deed if it were not delivered in his lifetime. (Hoard v. Jones, supra, p. 156.) This principle was most recently stated approvingly in Cole, Administrator v. Hoefflin, 187 Kan. 66, 69, 354 P. 2d 362).
Had an astute legal technician engineered this transaction doubtless the trappings of delivery would have been more explicitly portrayed. However, delivery need not take any specific form and we think it clear from the evidence Grace knew what she wanted and what she was doing and that she sufficiently manifested that intention so as to effect a present transfer. We hold there was sufficient evidence, including the character of the instrument itself, to support the trial court’s finding the deed was duly delivered to Marie.
Appellant complains the trial court improperly placed the burden of proof upon him as to nondelivery of the deed. In view of the trial court’s finding the deed was duly delivered, this complaint is of no consequence. A party may not assign as reversible error that which is not prejudicial to him. Hence a litigant may not complain upon appellate review that the burden of proof was erroneously cast upon him where the trial court after full hearing made affirmative findings of fact contrary to his position (see Stunkel v. Stahlhut, 128 Kan. 383, 387-388, 277 Pac. 1023). The findings show the decision was made without regard to the state of evidence as to casting or shifting of burden of proof. Appellant did not lose because of any misconception by the court as to burden of proof but because the court affirmatively found from the evidence that Grace was an intelligent, strong-willed woman of sound mind who conducted her business without being influenced by anyone and who knew what she was doing in the disposition of her property and that she made delivery of the necessary instrument conveying title to her property in accord with her desire and intention. Moreover, in view of the fact the deed was in Marie’s possession, appellant’s position as to burden of proof could not in any event be sustained (see Rohr v. Alexander, 57 Kan. 381, 46 Pac. 699; Hoard v. Jones, supra; Bowen, Administrator v. Hathaway, 202 Kan. 107, Syl. f 1, 446 P. 2d 723).
Although appellant says the amount is small he complains the trial court erroneously found that Grace gave Marie her personal property. The evidence is somewhat meager but we cannot say as a matter of law it is insufficient to support the trial court’s finding. The testimony was that Grace had her furniture and other personal property in her house on the farm. Grace had upon previous occasions told the banker she wanted to leave everything to Marie. At the time of signing the deed the banker told Grace that if she made a gift of everything in his presence that would be all that would be necessary. Grace orally gave her personal property to Marie, at the same time handing Marie the key to the house.
Manual delivery of personal property is not essential to the validity of a gift. Constructive or symbolic delivery may suffice where the property is not present or is incapable of manual delivery (38 C. J. S., Gifts, §§21-22). Under all the circumstances we think transfer of the key, coupled with words showing a donative intent, sufficient to constitute constructive or symbolic delivery.
Other matters urged in derogation of the judgment have been considered but do not warrant further discussion. No error being shown in the judgment, it is affirmed.
APPROVED BY THE COURT. | [
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|
The opinion of the court was delivered by
Kaul, J.:
In this action plaintiff-appellant seeks to recover upon an oral agreement a reasonable commission and/or value of his services in procuring a purchaser for the printing business of defendants-appellees.
A trial to the court concluded in a judgment for defendants and plaintiff brings this appeal.
The controlling question on appeal is whether the trial court, after finding the parties agreed that if plaintiff found a qualified purchaser some compensation might be paid, erred in not allowing compensation on a quantum meruit basis for plaintiff’s services.
The evidence discloses that plaintiff and Frank A. Shaffer, during a luncheon conversation, discussed the sale of defendants’ business, the possibility of plaintiff finding a purchaser, and the payment of some kind of compensation.
The fact of the conversation, the procurance of a buyer by plaintiff’s efforts, and the agreement that plaintiff would be paid “something” are admitted. The dispute concerns the amount of compensation. Plaintiff claims defendants agreed to compensate him with a “substantial check.” Shaffer contends he only agreed to give plaintiff a “case of whiskey” if a buyer were found.
At the conclusion of the trial, the court orally announced its findings and conclusions from the bench. Plaintiff complains the trial court failed to comply with K. S. A. 60-252 and Rule No. 116 of this court (201 Kan. xxxi) in not clearly defining its findings of fact, conclusions of law and reasons therefor. We must agree with plaintiff that the ruling announced is not in the best or most understandable form. However, no effort was made by plaintiff to secure a clarification.
Since disposition of this appeal depends upon a determination whether the trial court properly applied the law to the facts as found, the trial court’s ruling is recited in full:
“The Court: The parties in this case have had a misunderstanding which is quite obvious and which is how these situations arise. But it must remain a misunderstanding for the reason that the contentions of one side or the other have not been corroborated sufficiently for a Finder of Fact to be convinced what was said about compensation for finding a buyer for this business.
“The parties do agree that they discussed selling of the business and a possibility of one finding a buyer for the business and that some compensation of some kind might be paid. But there is where we have to say we don’t know the answers from there on. We simply don’t know what they said. So when we don’t know what was said we are in the position of not being able to decide what was said.
“What that means in law is the law requires a party who is making a claim to prove his claim by a preponderance or greater weight of the evidence, and when one witness said, 1 did say such and such,’ and the other witness said, 1 didn’t,’ — there is no preponderance of evidence — just a contradictory statement.
“This is often true in oral contracts. When one person says, ‘Yes,’ and another person says, ‘No,’ the Courts are not likely to accuse one or the other of perjury or falsifying unless there is corroboration on one side or the other. That is lacking here. It just is one man’s word against the other which is not enough to carry a lawsuit. There is no preponderance of the evidence in favor of the party asserting the claim. We just have a difference of opinion or a misunderstanding. So, we are not going to label either of these gentlemen with having falsified and if we said that one or the other should prevail, then we would be labeling the one who did not prevail with the stigma of not having told the truth — and we don’t know.
“So the parties will have to be left where they are and will be left where they were when they came into Court. They will be left with their misunderstanding.
“Without corroboration there is no way to weigh what people say when they contradict each other. We can’t simply look at people and decide who is telling the truth. That is not justice and we won’t do so and the law says we don’t have to do so unless the evidence preponderates — and it didn’t in this case. The claim cannot prevail.
“I think there should be a second finding and that is the claim concerning commission has not been made since the parties did not agree on that. In fact, didn’t even discuss commission.
“As far as quantum meruit is concerned — the evidence is not sufficient for a Court to pick a standard upon which to determine what the value of services might be. The only evidence we have here is that on commissions charged by specialists and we can take common knowledge that commissions include overhead expenses of the office, traveling expense. And commissions of this kind, also include as everyone knows, the spinning of the wheels or the time it takes for a salesman to make contacts which do not materialize. Real Estate Brokers’ commissions are standard commissions based upon an estimate of the time it takes in making contacts which do not develop into a consummated sale, so we can’t use commissions to determine quantum meruit. And since there is no other evidence here it wouldn’t be possible.
“Mr. Koemer says the Courts may not guess and that is certainly true. We must not give judgments based on guess work. And for this Court to try to determine outside of the commission efforts what the value of these services has been would be a guess — a speculation you see. I haven’t the slightest idea what the services would be outside of the commission theory. Oh, I have an idea but I am not permitted to speculate. My idea is merely speculation.
“Therefore, judgment must be rendered in favor of the defendants in this case and plaintiff must pay the costs. The exhibits in the case may be withdrawn.”
In reviewing this case our problem is not in ascertaining whether the trial court’s findings are supported by the evidence, as suggested by defendants, but rather in determining whether the findings, as we interpret them, support the legal conclusions applied.
Construing the trial court’s findings, as best we can, we believe a fair analysis to be that the parties agreed that if plaintiff procured a buyer “some compensation of some kind would be paid,” but since the precise terms of compensation were not agreed upon quantum meruit could not be resorted to in order to fix compensation.
We cannot agree with the trial court’s disposition of the case in this manner.
The trial court found the parties agreed “that some compensation of some kind might be paid,” then further in its ruling contradictorily stated the parties, “In fact, didn’t even discuss commission.”
Further, it is to be noted, the trial court failed to find that plaintiff’s services were to be gratuitous.
Plaintiff testified he was engaged generally in selling interests in oil properties and operations and his business activities were such that he was in contact with investors qualified to make sizable investments. Plaintiff had been acquainted with Frank A. Shaffer for about twenty years and had done business with defendants’ printing shop.
Plaintiff is not a licensed real estate broker and there is no suggestion that his activities necessitated a license; nevertheless, his description of his activities places him within the general definition of a broker. (12 Am. Jur., 2d, Brokers, § 1, p. 772.)
The undisputed evidence discloses that plaintiff contacted a number of qualified purchasers and that the eventual buyer, who purchased the business for $55,000.00, was procured solely by the efforts of plaintiff.
Further, it appears from the trial court’s findings and evidence found in the record that the conversation between plaintiff and Shaffer was had with a contractual intent and gave rise to’ a contract to pay a reasonable compensation to be determined under evidence relevant and admissible on the point. There is no evidence suggesting that plaintiff’s services were to be gratuitous.
As we understand plaintiff’s case, from his petition and evidence submitted at the trial, he does not attempt to establish an express contract as to compensation, but merely claims an agreement was made between the parties, that the defendants benefited therefrom, and that he is entitled to reasonable compensation for his services. In other words, although both remedies might have been pursued in the same action (Berry v. Craig, 76 Kan. 345, 91 Pac. 913), plaintiff is seeking recovery only on the theory of quantum meruit, rather than on an express contract full and complete in and of itself.
Apparently, the trial court adopted the view that plaintiff’s failure to establish an express agreement as to compensation entirely barred his right of recovery.
Where there is no evidence showing that the services were to be gratuitous the law implies a promise to pay for services performed by one person for another which are known to and accepted by the latter. While some authority may be found to the contrary, we believe the prevailing rule is stated in 58 Am. Jur., Work And Labor, § 36, p. 540:
“. . . The generally recognized doctrine is that although there was no contract, because the minds of the parties did not meet as to some of the essential terms thereof, a party thereto who furnishes material or renders services to the other party, relying on the terms as he understood them and thinking there was an express contract, is entitled to recover what the labor furnished was reasonably worth, even though that is in excess of the specified price. This is true where the minds fail to meet as to the compensation to be paid, and it is not material that property on which the labor was expended is not benefited to the extent of the worth of the labor. . . .”
For many years in this jurisdiction the doctrine quoted has been adhered to and quantum meruit applied in factual circumstances similar to those existing here. In the early case of Turner v. Webster, 24 Kan. * 38, written by Justice Brewer, it was held:
“Contact: Quantum Meruit. Where the parties contract for the doing of certain work, and the work is done and accepted, and it appears that there was a misunderstanding as to the price to be paid for it, the law' rejects the understanding of each, and awards reasonable compensation.” (Syl. fl.)
In Williams v. Jones, 105 Kan. 282, 182 Pac. 391, plaintiff recovered for services in the absence of an agreement as to compensation, on review of the case this court said:
“. . . The findings in question were not that the defendant had said in so many words that he would pay for the plaintiff’s services, but that in the situation the jury found to exist an agreement to that effect was reasonably to be implied. A mere request or direction to the defendant to do the work would be enough to warrant an inference that it was to be paid for, in the absence of evidence that it was to be gratuitous, or that the plaintiff was to be compensated in some other manner. . . .” (pp. 283, 284.)
In Millspaugh v. McKnab, 134 Kan. 579, 7 P. 2d 51, the plaintiff sought to recover on a basis of quantum meruit for his services in obtaining an oil and gas lease. The positions taken by the parties and applicable rules of law are set out in the opinion as follows:
“Appellants urge that the contract pleaded is an express contract whereby appellee agreed to perform certain services, but that the part of the contract which deals with the compensation appellee is to receive is so vague and indefinite that no court can enforce it. He argues that recovery cannot be had on quantum meruit because the petition does not in any way ask a recovery on the reasonable value of the services rendered.
“Plaintiff did plead an express contract of employment, but the compensation was not fixed in dollars and cents. Does this prevent him from recovering what the services turned out to be reasonably worth? The rule is stated in 6 R. C. L. 649, as follows:
“ ‘However, after services or materials have been furnished and accepted, the fact that no price had been agreed on or that the compensation mentioned in the contract is too indefinite does not prevent the recovery of reasonable compensation.’
“This rule is followed in Scott v. Wilson, 185 la. 464, 170 N. W. 761. This, case says:
“ ‘It often happens that there is an express contract as to the employment, but no agreement as to the amount of compensation, in which case the law implies a promise to pay reasonable compensation.’
“In Hunter v. Ryan, 109 Cal. App. 736, the contract was to pay a ‘bonus.’ The court held that this was really a contract to pay ‘further reasonable compensation’ and upheld a judgment. This view of the law has been adopted by this court and further citation of authorities is not deemed necessary. (See Mitchell v. Derby Oil Co., 117 Kan. 520, 232 Pac. 224, and cases there cited.) In that case the contract was to ‘make it right’ with the person claiming for services. In the case at bar the record is full of the phrases ‘be well paid," ‘make it right and satisfactory,’ and others. We think this case comes within, tire principles laid down in the above cases.” (pp. 581, 582.)
In the instant case plaintiff alleged and testified that the amount of commission was not discussed; that Shaffer merely stated he-would award plaintiff a substantial check if a buyer were obtained. In his petition plaintiff asked for a reasonable commission and value-for his services. We think the language used clearly falls in line-with the phrases set out and discussed in the Millspaugh case. See-also Lambertz v. Builders, Inc., 183 Kan. 602, 331 P. 2d 559.
Shaffer’s assertion that he agreed to pay only a $65 case of whiskey for a $55,000.00 sale, admittedly brought about by plaintiffs sole efforts apparently, and understandably, did not impress-the trial court since no finding was made to that effect. This leaves-the case with services fully performed by plaintiff and no agreement as to compensation.
The trial court found a misunderstanding between the parties: as to compensation and that the contentions of neither party was-“corroborated sufficiently for a finder of fact to be convinced what: was said about compensation for finding a buyer for this business.” Defendants pick up this statement of the court and argue that it should be construed not as a finding that the terms of compensation were uncertain, but that plaintiff had failed to persuade the court that his version of the conversation was true and, therefore, his right to recovery was barred.
Regardless of which interpretation is given to the trial court’s ruling, defendants are not benefited. If compensation was uncertain the doctrine of quantum meruit is applicable under the rules already noted; if a misunderstanding exists as to compensation and neither party succeeds in establishing his version with the court, the law rejects the understanding of each and awards reasonable compensation. (Brown v. Quinton, 86 Kan. 658, 122 Pac. 116; Turner v. Webster, supra.)
We are compelled to view this case as one in which plaintiff fully performed a valuable service to defendants which was known to, and accepted by, them. The absence of a definite agreement as to compensation does not bar recovery by plaintiff. It follows plaintiff is entitled to recover on a basis of quantum meruit. (Lambertz v. Builders, Inc., supra; Millspaugh v. McKnab, supra; Stewart v. Fourth Nat’l Bank, 141 Kan. 175, 39 P. 2d 918.)
In its ruling the trial court suggested no evidence was offered sufficient “to pick a standard upon which to determine what the value of services might be.” On this point it is to be noted plaintiff testified the reasonable value of his services to be ten percent of the sale price. Plaintiff was competent to give this testimony. (Millspaugh v. McKnab, supra.) The competency of a plaintiff to testify under these circumstances is the subject of an annotation in 5 A. L. R. 3d p. 948, where we find at page 949:
“The rule is well settled that ordinarily a person who performs services for another is competent to testify as to the reasonable value of his own services after they have been described with reasonable particularity.”
If there is no agreement fixing compensation or if recovery is sought on the basis of quantum meruit any evidence tending to show the reasonable value of the services rendered by a broker or an agent is admissible. (12 Am. Jur. 2d, Brokers, § 253, p. 995; 3 Am. Jur. 2d, Agency, § 248, p. 615.) Factors to be considered and standards of measurement in determining reasonable compensation are enumerated in 58 Am. Jur., Work and Labor, § 10, p. 518.
In view of what has been said the judgment must be reversed and the case remanded with directions that reasonable compensation for the services rendered by plaintiff to defendants be determined in harmony with the views expressed in this opinion.
It is so ordered. | [
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The opinion of the court was delivered by
Harman, C.:
Thomas Kelly appeals from his conviction and sentence for robbery in the first degree following jury trial.
Appellant Kelly was charged and tried jointly with one Virgil Jenkins for the commission of this offense. The latter’s conviction is dealt with in State v. Jenkins, 203 Kan. 354, 454 P. 2d 496.
Appellant Kelly presents two questions for our determination. First, he contends evidence obtained through an illegal search and seizure was admitted against him over his objection.
The testimony reveals the following background: At about 2:40 a. m., July 26, 1967, two Negro men aroused the night clerk of a motel located at 1230 North Broadway in Wichita and by use of a sawed-off shotgun compelled him to admit them to the motel. They informed him a third man was standing outside with a shotgun. They demanded money. One of the men slapped the clerk, knocking off his glasses, without which he could see very little. The men took money from the cash drawer as well as a quantity of coins from a box under the counter. The men were in the motel about ten or fifteen minutes. As they were leaving the clerk thought he glimpsed a third person outside but he saw no car. Prior to the time his glasses were knocked off the clerk noticed that one of the two men inside the motel was wearing a yellow shirt and a yellow straw hat and the other a black shirt and a black hat. Immediately after the robbers, left, the clerk telephoned the Wichita police, informing the dispatcher of the robbeiy and describing the shirts and hats of the two-robbers. A police radio call about the robbery was broadcast at 3:02'. a. m. Police officer Anderson heard the call as he was cruising along Kellogg Avenue. He understood the two robbers were two colored males in a 1966 Chevrolet, one wearing a yellow shirt and a yellow straw hat and the other a black shirt and hat. Officer Anderson noticed a 1965 metallic green Mustang automobile going east on Kellogg Avenue containing three Negro males. He observed the occupants while the car was stopped at a traffic light at Kellogg and Hillside streets. The driver was wearing a black hat. A passenger in the front seat was wearing a yellow shirt and the passenger in the' rear seat was wearing a black shirt. The driver was later identified as a Mr. Burney Henderson Smith (he also was charged with the-robbery). The person in the front seat was shown to be Virgil Jenkins and the one in the rear was identified as appellant Kelly. At 3:05 a. m. officer Anderson stopped the Mustang near Kellogg and Bluff by using his red light. He asked the driver for his driver’s license and auto registration, stating there had been an armed robbery and that the passenger on the right front seat “kind of fit the descrip tion.” He then asked the passenger in the front seat (Jenkins) to step outside the car and to produce identification papers, which request was complied with. The officer also asked the passenger in the rear seat (appellant) for identification, which was given. As Jenkins got back into the auto Anderson noticed a yellow straw hat tucked under the right front seat. Anderson told the occupants of the automobile they could not leave. He went back to his patrol car and by radio requested help. Another policeman, officer Norman, arrived at the scene. Norman asked the three if it would be all right to search them “for our own protection” and was told it would be all right. Officer Norman started searching them and found a quantity of money in the pockets of one of the men. Norman then “placed them under arrest for armed robbery.” Another officer searched Jenkins and found in his pockets a large quantity of coins. Some currency was found in appellant’s pockets. Officer Norman opened the left front door of the automobile. Between the door and the driver’s seat there was a sawed-off shotgun. On the rear floor of the car another sawed-off shotgun, covered with a shirt, was found. Approximately ninety-three dollars in currency was •found in a crack in the rear seat of the automobile. In the yellow •straw hat under the front seat there was one roll each of quarters, ■dimes, nickels and pennies.
The items found in the automobile and on the persons of the three occupants were testified to and received as exhibits and constitute the challenged evidence. At this point it may be noted appellant does not question the sufficiency of the evidence; hence it has not been fully abstracted. The record does indicate certain ■of the items were highly incriminating, not only the sawed-off shotguns, but rolls of coins whose wrappers contained handwriting ■of the owner of the motel and were thus shown to be taken in the robbery. Their crucial nature stems from the inability of the motel ■clerk to make positive identification of the robbers.
Appellant relies on our state and federal constitutional guarantees •against unreasonable searches and seizures and the now familiar •exclusionary rules barring evidence obtained in violation thereof. He recognizes the rule a search without a warrant is, within limits, ■constitutionally permissible if incident to a lawful arrest; that an arrest without a warrant, to support an incidental search, may be made upon probable cause, and probable cause exists if the facts .and circumstances known to the officer justify a prudent man’s believing that at or before the time of arrest the person to be arrested has committed a felony. It is also true that when a lawful arrest is made of a person who is the driver or in control of an automobile, the interior of the automobile may be searched incident thereto. Whatever is found in the automobile, or upon such person or in his control that is unlawful for him to have and which may be used to prove the offense, may be seized and used as evidence in the prosecution (State v. Brown, 198 Kan. 473, 426 P. 2d 129). Where probable cause for their arrest exists, the foregoing applies as well to occupants of the automobile.
Appellant contends there was no arrest until after officer Norman reached into their pockets in an intensive search and discovered the incriminating coins. He states, and correctly, that an arrest, otherwise unlawful, may not be justified by what the subsequent search discloses. He argues there was no ground for a legal arrest prior to officer Norman’s search. Specifically he says officer Anderson knew of no facts or circumstances to give him probable cause to arrest appellant. We cannot agree with appellant’s interpretation of the evidence.
The victim of the robbery had promptly reported it to the police. Officer Anderson was alerted to its commission, its time and place, and a partial description of the two robbers. Almost immediately thereafter he noted a vehicle bearing three men, two of whom fitted the description of the robbers, two colored males, one wearing a yellow shirt and the other a black shirt. The third, of whom he had not been notified, was driving the vehicle. It is well known to police that a vehicle is frequently used to make a fast getaway from the scene of a robbery with a driver (wheelman) remaining in or near the vehicle during commission of the robbery. The place where officer Anderson spotted the vehicle was about three and one-half or four miles from the scene of the holdup, with the vehicle moving in a direction away from the scene, at an early morning hour. His information as to the place and time of the holdup was consistent with the presence of robbers where he spotted them. Singly, none of these circumstances could amount to much— together, we think they were sufficient to justify officer Anderson at the time he stopped the automobile in believing the occupants had committed the robbery at the motel. We regard as inconsequential any discrepancy in the description of an automobile. Officer Anderson stopped the vehicle under a show of authority, in which action he was fully warranted. Although not necessary to justify his stopping of the vehicle he did in the course of his initial investigation see the yellow hat inside the vehicle. Obviously, the hat was visible from outside the car. Officer Anderson told the occupants they could not leave. All this occurred prior to the later intensive search by officer Norman, who came in response to Anderson’s call for assistance, and, for purposes of this case, the arrest was complete prior to Norman’s arrival (see Henry v. United States, 361 U. S. 98, 4 L. ed. 2d 134, 80 S. Ct. 168; Terry v. Ohio, 392 U. S. 1, 20 L. ed. 2d 889, 88 S. Ct. 1868; State v. Brown, supra). We think it of no controlling significance that it was officer Norman who made the first formal pronouncement of arrest and that a full physical custody arrest of the three occupants of the car may not have been accomplished until after his arrival. Certainly officer Anderson was justified in the precautionary measures he took in securing assistance in order to deal effectively with three persons who he had good reason to believe were dangerous and armed. This can only be characterized as good police practice under the circumstances then confronting the officer. We conclude the arrest was valid and the search was reasonably incidental thereto. The evidence seized was properly admitted in evidence.
Secondly, appellant complains the court erred in excluding testimony offered by him. Appellant called his codefendant Virgil Jenkins, as his witness to testify as to where Jenkins and appellant were at the time of the motel robbery. The trial court ruled the proffered testimony constituted an alibi and excluded it because statutory notice of alibi had not been given. K. S. A. 62-1341 provides that where an information specifically charges the time and place of an offense, a defendant is required to give the state at least seven days’ notice of his intention to introduce evidence establishing an alibi; that in the event the time and place are not specifically stated, the court, on defendant’s application, shall direct the county attorney to state the time and place as accurately as possible; after this has been done, the defendant shall give the required notice; and that unless notice has been given, the defendant may not be permitted to offer evidence that he was at some other place at the time of the offense charged. The statute then provides:
“. . . In the event the time or place of the offense has not been specifically stated in the complaint, indictment or information, and the court directs it be amended, or a bill of particulars filed, as above provided, and the county attorney advises the court that he cannot safely do so on the facts as he has been informed concerning them; or if in the progress of the trial the evidence discloses a time or place of the offense other than alleged, but within the period of the statute of limitations applicable to the offense and within the territorial jurisdiction of the court, the action shall not abate or be discontinued for either of those reasons, but defendant may, without having given the notice above mentioned, offer evidence tending to show he was at some other place at the time of the offense.”
The information here charges the offense occurred on or about the 26th day of July, 1967. Appellant argues this language does not specifically state the time of the offense so that notice of intention to introduce alibi testimony was obviated. He relies upon State v. Taylor, 198 Kan. 290, 424 P. 2d 612. There the information charged the offense was committed “on the __ day of August, A. D. 1964”. The state’s evidence disclosed the offense was committed in July, 1964. This court held that inasmuch as the offense was shown to have occurred at a time other than alleged, notice of alibi was not required. That ruling, being based on a difference in dates rather than lack of specificity, is inapplicable here where the date alleged was in accord with the evidence. Appellant made no application to have the time more specifically stated in the information. Moreover, he was afforded a preliminary examination and a hearing on his motion to suppress evidence at both of which the victim testified as to the time of the offense. In State v. Rider, 194 Kan. 398, 399 P. 2d 564, it was held:
“Where defendant in a criminal case intends to rely upon an alibi as a defense, compliance with the provisions of K. S. A. 62-1341 with reference to notice is a prerequisite to the admissibility of testimony of the defendant or any other witness as to the alibi.” (Syl. f 2.)
We adhere to this rule. The proffered testimony was properly excluded.
The judgment and sentence are affirmed.
approved by the court.
Fontron, J., concurs in the result. | [
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|
The opinion of the court was delivered by
Harman, C.:
Andrew Star Logan was convicted by a jury of the offense of possession of burglary tools (K. S. A. 21-2437). By reason of two previous felony convictions he was sentenced under the habitual criminal act to imprisonment for fifty years. He now appeals to this court.
We briefly highlight the evidence. For the prosecution it was shown that the Yard Store is a business place on East Central Avenue in the city of Wichita. It is surrounded by a six foot high fence with barbed wire on top. The property is protected by a burglar alarm system which is activated when a light beam approximately thirty feet inside the fence is broken. The business was closed about 5:30 p. m. on June 13, 1967. At 12:45 a. m. on June 14, 1967, the burglar alarm was activated. A police officer on patrol less than two blocks away was notified by radio of the location of the alarm and he responded immediately, arriving at the Yard Store virtually within seconds. As the officer approached the fence he heard a sound of metal upon metal. He stopped, then observed a slim object approximately two feet long coming over the fence. Appellant came over the fence right behind the object. A street light nearby illuminated the area. Appellant was dressed in coveralls and wore heavy gloves. The night was warm with temperature in the eighties. Appellant told the officer he had been over the fence defecating. A search of the immediate area where the object was seen to come over the fence and where appellant also landed revealed a crowbar of a type commonly used in burglary, and nothing else of a similar nature. When first apprehended appellant gave his name as Andrew Star. He was taken to the police station where the records revealed no information as to anyone of that name. A detective recognized appellant as Andrew Star Logan under which name he had twice been convicted of burglary and larceny in Sedgwick county. In reply to questioning appellant admitted his name was Andrew Star Logan. He denied ever having possession of the crowbar and stated he had previously been riding around in a car that night with a woman. Appellant’s burglary convictions were received in evidence.
Appellant testified in his own behalf. He said he had gone by the name of Andrew Star Logan, Logan being the name of his father with whom he traveled while his father was in the army; he had been told he was adopted but when he registered for the draft he was informed he couldn’t go under the name Logan; that his birth certificate shows his name to be Andrew Star, his natural father being Kaiser Star. He further testified that on June 13, the day before the incident in question, he had worked at his job at the Ark Wrecking Company until 5:30 p. m.; he had not gone home and still had his work gloves with him. He related various places he had been that evening; eventually he assisted a white lady change a tire on an automobile; after he left he was accosted by three white men who commenced throwing rocks at him; to escape these men he jumped over the fence in question; he had never seen the crowbar before the time the officer picked it up; he had his gloves in his pocket and was not wearing them at the time of his arrest.
In rebuttal the prosecution produced records of the Ark Wrecking Company indicating appellant had not worked there after May 27, 1967.
Appellant’s first two specifications of error relate to jury instructions. Over his objection the jury was told in one instruction that, from certain evidence, proof of intent to use, for burglarious purposes, tools which are commonly used in committing burglaries, could be inferred. One of the items of evidence referred to in the instruction was “concealment of true identity.” Appellant first complains there was no evidence he in fact concealed his identity. He argues his testimony as to his true name was uncontradicted and therefore there was no evidence to support the giving of such an instruction.
He also contends the instruction had the effect of the court telling the jury that appellant did in fact conceal his true identity. We do not so construe the instruction. The state did show appellant’s activities under the name Logan and his use of that name. His use of the name Star as a surname when he was first arrested may or may not have been spurious and a masquerade. Concealment of identity may be relevant on the element of criminal intent (see State v. Inzerillo, 191 Kan. 586, 383 P. 2d 546). The evidence raised a factual issue whether appellant did conceal his identity for a particular purpose, and the fair import of all the instructions left this question for the jury’s determination. The particular instruction as to the requisite intent before one may be convicted of possessing a burglary tool was based upon and agreeable to that recently approved in State v. Hart, 200 Kan. 153, 434 P. 2d 999, and we see no error in it.
Appellant also complains the trial court refused to give an instruction to the effect that circumstantial evidence must be so strong as to exclude every reasonable hypothesis except that of guilt. In one instruction the court did define circumstantial evidence as proof of one fact from which an inference of the existence of another fact may reasonably be drawn. Having done this, the court could well have supplemented the instruction as requested. However, in view of other instructions given, we cannot say failure to do so constituted prejudicial error. The jury was instructed as to each essential element of the crime charged, burden of proof, reasonable doubt and upon the necessity that each element of the alleged crime be proven beyond a reasonable doubt before appellant could be found guilty. This burden upon the state before a conviction could be had was reiterated throughout the instructions. The evidence was not of an involved or complex nature and, from both a legal and a practical standpoint, presented simple issues. We cannot see how, under the instructions, the jury could have been misled in its consideration of the evidence, to the prejudice of appellant.
Finally, appellant urges the evidence was insufficient to support the finding of guilt. Primarily he attacks the arresting officer’s credibility upon such matters as his ability to see the object coming over the fence immediately preceding appellant and the subsequent finding of the crowbar in that area. Such an argument doubtless was made to the jury whose business it was to determine such matters. Unfortunately for appellant the trier of the fact rejected appellant’s somewhat questionable version of events and accepted that of the prosecution, as it was entitled to do. As already demonstrated, this verdict of guilt had ample support in the evidence both as to possession of the proscribed instrument and the requisite intent with which it was possessed. This ascertainment is the limit of our function upon appeal. We find nothing to justify disturbing the judgment and sentence appealed from and they are affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the widow of a deceased fireman from an order of the district court upholding the action of the Roard of Trustees, Policemens and Firemens Retirement System of the city of Wichita, denying the widow’s pension.
The underlying question involves the construction of K. S. A. 13-14a07 — whether the widow’s right to a pension is dependent upon the right of her deceased husband, while living, to a pension.
Lawrence C. Goetz, the husband of Peggy J. Goetz (plaintiff-appellant) was employed by the Wichita Fire Department as a fireman from May 9, 1955, through April 21, 1961.
Lawrence filed his resignation as a fireman with the Wichita Fire Department, in writing, on the 22nd day of April, 1961, having filed his application for a disability pension on the previous day.
The Roard of Trustees of the Wichita Firemen’s Pension Fund, during the lifetime of Lawrence, denied his application for a disability pension on the 4th day of August, 1961.
Thereafter Lawrence filed a mandamus action in the district court of Sedgwick County, Kansas, and at the direction of the district court the Board of Trustees gave Lawrence a rehearing upon his application for a pension. As a result thereof the Board of Trustees denied Lawrence a pension. The district court in the mandamus action thereupon considered the record of the proceedings before the Board of Trustees, together with oral testimony of members of the Board, and on the 31st day of August, 1962, upheld the action of the Board denying the pension.
Thereafter Lawrence appealed to the Supreme Court where the decision of the district court was affirmed in Timmons, Administrator v. McGaughey, 193 Kan. 171, 392 P. 2d 835. Pending the appeal Lawrence Goetz died and the action proceeded in the name of his administrator, Timmons. Lawrence died at the age of thirty-six years and was survived by his wife, Peggy, and eight minor children.
The Supreme Court found there was substantial evidence to provide a rational basis for the conclusion of the administrative board denying Lawrence’s application for a pension. In the opinion the court said:
“. . . It is evident that the testimony obtained by the Board failed to supply the evidence upon which the plaintiff’s pension could have been allowed, but, on the contrary, apparently satisfied the Board that his disability was not service connected. In arriving at its conclusion that the plaintiff was ineligible under the statute for a pension, the record discloses that the Board took into consideration all of the medical evidence before it, including the letters of the three doctors submitted by plaintiff when he filed his application for a pension.” (p. 180.) (Emphasis added.)
Further in the opinion the court said in commenting on the Board’s findings:
“. . . The findings of the Board were supported by competent and substantial evidence and from our review of all the facts and circumstances, its denial of plaintiff’s application for his pension was not unreasonable, arbitrary or oppressive, and the district court did not err in denying the writ of mandamus. . . .” (p. 181.)
On the 4th day of March, 1964, the Board of Trustees met to consider the application of Peggy J. Goetz for a pension. Her application for a pension was in the form of a letter and dated January 21, 1964. This application was delivered to the Board of Trustees following the death of Lawrence, and while the appeal of Lawrence was pending in the Supreme Court of Kansas. The Board advised Peggy by letter that no action could be taken on her application pending the outcome in the Supreme Court of the case appealed by her husband, Lawrence, while he was living.
On the 6th day of May, 1964, one day after the appeal in the Timmons case was argued in the Supreme Court, Peggy in a separate cause of action filed a suit in the United States District Court alleging that she was entitled to a widow’s pension, her husband having died in the state of Missouri on the 31st day of December, 1963, following his change of residence from the state of Kansas to the state of Missouri.
The case in the United States District Court was tried to a jury, and the court found upon special questions answered by the jury generally in favor of Peggy. Thereupon the city of Wichita and the Board of Trustees appealed the decision of the United States District Court to the United States Court of Appeals for the Tenth Circuit on the 29th day of July, 1966, where the judgment of the district court was reversed and the cause of action dismissed. (Trapp v. Goetz, 373 F. 2d 380 [10th Cir. 1966].) The Court of Appeals found in effect that the United States District Court lacked jurisdiction to hear the matter, and among other reasons, stated the Board of Trustees had never made a determination based on Peggy’s application and the action was premature.
The Board of Trustees then notified Peggy her application would be considered by the Board on the 14th day of September, 1966.
At the hearing before the Board on the 14th day of September, 1966, Peggy presented her evidence. In addition to introducing the application and the various letters between the secretary of the Board and Peggy, counsel for Peggy read a narrative statement which consisted of the testimony given in the United States District Court for the District of Kansas. All of this evidence was favorable to Peggy in that the doctors who testified all connected the disability and death of Lawrence Goetz to his work as a fireman for the Wichita Fire Department. The Board of Trustees was furnished a complete transcript of the record in the United States District Court, as well as a copy of the opinion reversing that court by the United States Court of Appeals for the Tenth Circuit.
At the healing on the 16th day of November, 1966, the chairman of the Board of Trustees announced that the attorneys for the Board had presented no testimony or evidence since the meeting of September 14, but the secretary of the board stated:
“Mr. Lauchland: The board does not have in its possession the file of Mrs. Goetz’s application, the related file, and the board, of course, has referred to that file.”
The related file included the application of Lawrence, the original mandamus action in the Sedgwick County district court, and tire appeal therefrom to the Supreme Court of Kansas.
On the 1st day of December, 1966, Peggy was notified that her application had been denied, the notice reading:
“The Board of Trustees has concluded that:
“1. Your husband, Lawrence C. Goetz, was not an employee of the City of Wichita at the time of his death on December 31, 1963; and
“2. Mr. Lawrence C. Goetz was not retired from the City of Wichita within the meaning of the statutes.
“Based on the aforesaid information, the Board of Trustees of the Policemen’s and Firemen’s Pension Fund has further concluded that you, Mrs. Peggy Goetz, are not eligible to receive a widow’s pension under the provisions of the statutes, and therefore, deny your application.”
Thereafter on the 30th day of December, 1966, Peggy appealed to the district court pursuant to K. S. A. 60-2101.
Counsel for the appellant, upon joinder of issues, filed and served notice to take depositions, which the trial court stayed pending a pretrial conference.
At the pretrial conference the district court heard the statements and arguments of counsel and thereupon entered judgment for the Board of Trustees.
The district court made reference to the Timmons case wherein it was determined that Lawrence C. Goetz was not entitled to a pension based upon a heart condition from which he later died, and upon which Mrs. Goetz now claims to be entitled to a pension. The court further stated:
“Also, as I remember in the other case, Mr. Goetz was at that time not a member of the fire department, nor was he retired from the fire department.
“Based upon the findings in the prior case, it is the opinion of this Court that the present plaintiff, Mrs. Goetz, can not now come into court and ask for a pension based upon the death of Mr. Goetz as a result of a heart condition. Therefore, the Court will render judgment for the Defendants herein.”
The appellee contends the facts and issues involved in this case were before the Kansas Supreme Court on a previous occasion in Timmons, Administrator v. McGaughey, supra. There the Board of Trustees found Lawrence C. Goetz, husband of the appellant herein, was ineligible under the statute for a pension and that his disability was not service connected, and its action was affirmed as heretofore indicated.
The appellant’s claim for pension benefits is recited in her application to the Board of Trustees. It states:
“. . . Claim is made pursuant to G. S. Kan. 1949, § 13-14a07 on the ground that Lawrence C. Goetz died ‘of any disease contracted by reason of his occupation as a . . . fireman’, and died ‘after having retired and (left) a widow.’ ”
K. S. A. 13-14a07 provides in part:
“(a) If any officer or member of such police or fire departments, while in the performance of his duties, be killed or die as a result of an injury received, or should die of any disease contracted by reason of his occupation as a policeman or fireman, or should die after having retired and leave a widow, said widow, so long as she remains a widow, shall receive, monthly, a pension in an amount equal to fifty percent of the monthly salary of the deceased: . . .
"(b) If any officer or member of such fire or police department, after having become eligible for retirement as is hereinafter provided, shall be killed while not in the performance of his official duties, or dies, then an amount equal to fifty percent of his monthly salary shall be paid to the persons classified in subsection (a) of this section and for the periods of time fixed in said subsection (a) and subject to all the limitations thereof.”
In view of the foregoing statute it is apparent, if the appellant is to prevail on her claim for pension benefits, she must establish that her husband, Lawrence C. Goetz, died of a disease contracted by reason of his occupation as a fireman or died after having retired.
The word “retire” or “retired,” as used in the Employees’ Retirement Systems Act, has a defined meaning. It denotes considerably more than resigning or terminating employment.
The word “retire,” as used in 13-14a07, supra, is defined in the next section of the act, K. S. A. 13-14a08. It reads in part:
“Any officer or member of any such police department or fire department having served twenty-two years or more on such department and having reached the age of fifty years may make application to be retired, and if such application is made the respective board of trustees shall retire such officer or member and shall pay him monthly payments in an amount equal to fifty percent of his monthly salary at the date of his retirement, . . .”
Thus, the word “retire” or “retired,” as used in the act, must be construed to mean termination of employment under the conditions specified which entitle the employee to pension benefits. Clearly, Lawrence C. Goetz was not entitled to pension benefits as a “retired” fireman under the act. He had only worked as a fireman six years, and he was only thirty-six years of age at the time of his death.
The only ground, therefore, under the statute upon which the appellant herein could possibly be entitled to a widow’s pension would be that her husband died of a disease contracted by reason of his occupation as a fireman.
The appellant takes the position that her right to a widow’s pension under 13-14a07, supra, is independent of any right which her husband may have had under the statute prior to his death.
Upon this theory the appellant contends the court erred in failing to review proceedings before the Board of Trustees in accordance with K. S. A. 60-2101 (a). It is argued the district court neither reviewed the proceedings before the Board nor considered anything de novo; that it summarily dismissed the matter at a purported pretrial conference based upon the court’s knowledge of a prior proceeding which was between different parties and concerned different issues. It is argued there was absolutely no attempt on the part of the district court to determine whether there was support in the record for the findings made by the administrative body.
An extended discussion of the appellant’s contentions relative to 60-2101 (a), supra, is unnecessary in this opinion. Construction of the appeal statute in our new code of civil procedure was recently before this court involving an appeal by a fireman claiming the right to relief under the Firemen’s Relief Act in Lauber v. Firemens Relief Association, 202 Kan. 564, 451 P. 2d 488. There the court held:
“Under the provisions of K. S. A. 2101 (a) an aggrieved party may appeal from a final order of an administrative agency or tribunal exercising quasi-judicial functions to the district court.
“The provisions of K. S. A. 60-2101 (a) are construed and it is held they do not authorize the district court to consider an appeal from an administrative agency or tribunal in a trial de novo, nor do they enlarge the jurisdiction of the district court to review administrative matters beyond limitations heretofore imposed by the law of this state. The application of the provision therein for expanded jurisdiction over appeals from judicial bodies lies only in cases where the district court would have had original jurisdiction in the first instance.
“A district court may not, on appeal, substitute its judgment for that of an administrative agency or tribunal, but is restricted to considering whether, as a matter of law: (a) the tribunal acted fraudulently, arbitrarily or capriciously; (h) the administrative order is substantially supported by evidence; and (c) the tribunal’s action was within the scope of its authority.” (Syl. ff 1, 2 and 3.)
Contrary to the appellant’s argument that the district court failed to review the record of the proceedings before the administrative tribunal, the district court took into consideration the denial of a pension to the appellant’s husband, as disclosed by the proceedings in Timmons, Administrator v. McGaughey, supra.
Counsel for the appellant in presenting the appellant’s case to the Eoard of Trustees reviewed the history of the proceeding commencing with the resignation (referred to by the appellant as “retirement”) of Lawrence from the Wichita Fire Department, substantially as the facts have heretofore been related. The file pertaining to the application of Lawrence C. Goetz for a pension was before the Board of Trustees when it considered the appellant’s application for a widow’s pension, and the same trial judge who heard the mandamus action in Timmons heard the appeal of Peggy in this case.
If, as a matter of law, the right of the appellant to a widow’s pension under 13-14a07, supra, is dependent upon her husband’s right to a pension following his termination of service with the Wichita Fire Department, then evidence on the question whether her husband died of a disease contracted by reason of his occupation as a fireman, independent of the proceeding wherein the husband’s application for a pension was denied, is immaterial.
On this point the appellant contends the trial court erred in relying upon the judgment in another action (the Timmons case) between different parties with different issues as a basis for the judgment herein. The appellant argues it is apparent from a reading of the journal entry of judgment of the district court that it relied on the determination by the Supreme Court in the Timmons case. Further arguing the appellant says:
“. . . Though there is no reference in the journal entry of judgment to the application of the doctrine of res judicata it is apparent that that principle served as the basis on which the district court rendered its judgment. The application of that doctrine was wholly inappropriate here.
“Fundamental to the utilization of the doctrine of res judicata is a prior action between the same parties determining the same issues. . . .”
The appellant relies upon the nature of the doctrine of res judicata as set forth in Jayhawk Equipment Co. v. Mentzer, 191 Kan. 57, 379 P. 2d 342, where the court said:
“The doctrine of res judicata is plain and intelligible, and amounts simply to this — that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal cannot afterwards be litigated by a new proceeding, either before the same or any other tribunal.” (p. 61.)
Here it is argued the words “between the parties” are significant; that the action on which the district court relied was one filed by a living ex-fireman succeeded by the administrator of his estate and the Board of Trustees of the Firemens Pension Fund of the city of Wichita concerning the fireman’s right to a pension under G. S. 1949 (now K. S. A.) 13-14a09; that this action is brought by the widow of that fireman against a different Board of Trustees on a different application for benefits under a different statutory provision; and that the matter is not between the same parties and res judicata has no application.
The appellant contends the issues are entirely different. It is said the findings in the Timmons case were that the administrative board had not acted arbitrarily and capriciously in denying the application of Lawrence C. Goetz for his pension, while the fact issues which required a determination in the case now on appeal were whether the fireman had died as a result of a disease contracted by reason of his occupation as a fireman, or whether he died after having retired and left a widow.
As heretofore noted, the appellant is not entitled to a pension on the ground that her husband had “retired.”
If the appellant’s right to a pension is dependent upon her husband’s right to a pension while living, the argument of the appellant that the trial court erred in rendering judgment before refinement of the issues and review of the facts, and in refusing to permit the appellant to take depositions, is inconsequential and has no merit.
The basic question before the district court, considering this matter on appeal from the administrative tribunal, and on the appeal to this court, is a point of law.
We believe the better reasoned cases support the proposition that a final determination made by an administrative agency, as in the instant case, rendered during the fireman’s lifetime upon his assertion that his disability was the result of a disease contracted by reason of his occupation as a fireman, thereby entitling him to a pension, is binding upon his widow when she raises the same issue after his death in the presentation of her claim for a widow’s pension.
It would be improper to say this results from an application of the doctrine of res judicata because we are dealing with administrative proceedings. The concepts of claims and causes of action are much less important in administrative proceedings than in court cases. Therefore, most problems of res judicata in administrative law involve collateral estoppel, for the operation of which the issues must be identical. Only rarely do the problems of identity of claims or causes of action arise.
The traditional doctrine of res judicata as applied in the judicial system is inexorable in making a judgment binding so as to shut off further inquiry no matter how clear the mistake of fact or how obvious the misunderstanding of law. The interest of the parties and of the public in ending litigation normally bars a party who has had his day in court from further pressing the same claims or the same defenses. Under the principles of bar and merger a judgment for the defendant bars the plaintiff from again asserting the same claim and a judgment for the plaintiff prevents the plaintiff from trying to get more, the theory being that the cause of action has merged in the judgment. When a cause of action is merged in or barred by a judgment, the judgment is binding no matter what issues were or were not actually litigated; it is binding even as to matters which might have been but were not actually litigated. The doctrine of collateral estoppel is different from the doctrine of res judicata. Instead of preventing a second assertion of the same claim or cause of action, it prevents a second litigation of the same issues between the same parties or their privies even in connection with a different claim or cause of action. (Davis, Administrative Law Text, § 18.04, p. 330.)
The foregoing principle was recognized in Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825.
A classical statement is that of the United States Supreme Court in Cromwell v. County of Sac, 94 U. S. 351, 24 L. Ed. 195, where it was said:
“. . . there is a difference between the effect of a judgment as a bar or estoppel against the prosecution of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action. It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose. . . .
“But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. . . .” (pp. 352, 353.)
Another distinction between the two doctrines, res judicata and collateral estoppel, is that collateral estoppel does not require mutu ality of parties. (State of Michigan v. Morton Salt Company, 259 F. Supp. 35, 65 [D. Minn. 1966] affirmed 377 F. 2d 768.)
Here it must be conceded the widow’s claim for a pension under K. S. A. 13-14a07 is a different claim or cause of action from her husband’s claim for a disability pension under K. S. A. 13-14a09, but her right to a pension is dependent upon a determination of the issue whether her husband’s death was the result of a disease contracted by reason of his occupation as a fireman. The Board found her husband’s disability was not service connected and it therefore denied him a pension. The same disability which the Board considered and found not to be service connected — a diseased heart condition — was the result of his death. The issue as to whether the husband’s diseased heart condition was contracted by reason of his occupation as a fireman is the same in the widow’s claim for a pension as it was when her husband made application for a pension as a fireman.
Under a statute such as 13-14a07, supra, the first consideration, of necessity, must be given to the question whether the injury or disease is compensable. Once this is determined the next question must be: Who is entitled to the benefits? If the first question is determined in the negative, then no one, neither the fireman nor his widow or dependents, is entitled to the benefits.
We think the doctrine of collateral estoppel applies here and precludes the widow from the benefits under the statute.
Under the doctrine of collateral estoppel the Board’s determination of the husband’s right to a pension in his lifetime adverse to him, which became final upon litigation in the courts, precludes the widow from relitigating the issue actually determined therein, regardless of whether it is based on a different claim or cause of action by the widow for a pension. (Lawlor v. National Screen Service, 349 U. S. 322, 99 L. Ed 1122, 75 S. Ct. 865.)
Without question the appellant herein derived any and all rights she may have had to pension benefits from and through her deceased husband. This being so, the appellant in this case is in privity with her deceased husband. They are identified in interest by their succesive relationship to the same rights in property, that is, pension benefits.
There is no generally prevailing definition of “privity” which can be automatically applied to all cases. A determination of the question as to who are privies requires careful examination into the cir cumstances of each case as it arises. It has been held that all persons are privies to a judgment who succeed to the estate, interest or right to the property thereby adjudicated or affected, where such succession was derived through or under one or other of the parties to the action, and accrued subsequent to the commencement of that suit or subsequent to the rendition of the judgment; and one is not a privy to a judgment where his succession to the rights of property thereby affected occurred previous to the institution of the suit. (50 C. J. S., Judgments, § 788, p. 324.)
There is no legal privity between husband and wife in the sense that a judgment for or against the one will conclude the other, where the action concerns their separate property, rights or interests not derived from each other. Consequently, judgments for or against one spouse have been held not to be binding on the other spouse where the latter is not a party to the suit. Under some circumstances, however, a judgment against one spouse is binding upon the other spouse. A wife will be concluded by a judgment in an action for or against her husband with respect to any right she claims through or under him. (50 C. J. S., Judgments, § 798, p. 342; Fischbach v. Auto Boys, 106 N. Y. S. 2d 416; see also, Stephens v. Snyder, 65 Ga. App. 36, 14 S. E. 2d 687; and Jess v. Great Northern Railway Company, 401 F. 2d 535 [9th Cir. 1968].)
In Kayler v. Gallimore, 269 N. C. 405, 152 S. E. 2d 518, the court said:
“It is also well settled that the privity, which will create an estoppel by judgment against one not a party to the former action, denotes a mutual or successive relationship to the same right. . . .” (p. 408.)
The Oklahoma Supreme Court in Acord v. West, 421 P. 2d 238 (Okla. 1966) quoted from Uphoff v. Meier, 184 Okla. 378, 87 P. 2d 960, as follows:
“ ‘Under the doctrine of estoppel by judgment, a fact, right, or question actually litigated and determined by a court of competent jurisdiction may not again be litigated in subsequent action between the same parties or their privies, even though involving a different cause of action.’” (p. 241.)
The binding effect of a judgment as to the parties to the action and those in privity with them was considered in Rost v. Heyka, 133 Kan. 292, 299 Pac. 969; and Lodge v. Order of United Commercial Travelers, 125 Kan. 26, 262 Pac. 598.
The doctrine of estoppel by judgment is analogous to the doctrine of collateral estoppel, but it would be improper in a technical sense to say this court is applying the doctrine of estoppel by judgment in the instant case. A situation may arise where an administrative board denies a fireman a pension during his lifetime, which the fireman accepts without appeal to the courts. Thereafter upon his death the widow may claim a pension based upon the issue previously determined by the administrative board, as here. Under these circumstances the doctrine of collateral estoppel would preclude the widow from asserting her claim based upon the same issue previously determined by the administrative board, no judgment ever having been rendered as a result of the prior determination.
The facts and circumstances upon which the Board of Trustees based its original determination — that Lawrence C. Goetz was not entitled to a pension because his disabling diseased heart condition (from which he later died) was not contracted by reason of his occupation as a fireman — had not changed. Therefore, the Board and the trial court properly found the same facts and circumstances could not thereafter be the basis for the allowance of a widow’s pension. She is collaterally estopped from relitigating the same issue which the Board previously determined. Her rights to a widow’s pension are dependent upon her husband’s right to a pension while he was living.
The real issue before the Board of Trustees in the original action by the appellant’s husband, as well as in this action, was simply: whether the diseased heart condition of Lawrence C. Goetz which disabled him was contracted by reason of his occupation as a fireman. When this question was determined in the negative by the Board during the lifetime of Lawrence, it was conclusive upon his rights to a pension and became equally conclusive of any rights which may have existed on behalf of his widow after his death.
The summary disposition of a cause may logically and properly follow a pretrial conference when the pretrial procedures disclose the lack of a disputed issue of material fact, and the facts so established indicate an unequivocal right to judgment favoring a party. (Wirtz v. Young Electric Sign Company, 315 F. 2d 326 [10th Cir. 1963]; and Lynch v. Call, 261 F. 2d 130 [10th Cir. 1958].)
The summary judgment procedure (K. S. A. 60-256) can be utilized to invoke the doctrine of collateral estoppel. This has been settled by applying the doctrine of res judicata in cases under Rule No. 56, Federal Rules of Civil Procedure (28 U. S. C. A.), which is identical to 60-256, supra, in Lester v. National Broadcasting Com pany, 217 F. 2d 399 (9th Cir. 1954), cert. denied 348 U. S. 954, 99 L. Ed. 746, 75 S. Ct. 444; and Gorski v. Commercial Insurance Co. of Newark, N. j., 206 F. Supp. 11 (E. D. Wis. 1962).
The issues to be determined in this case were fully before the trial court, and it correctly applied the law to the facts in upholding the decision of the Eoard of Trustees, the appellee herein.
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over the rights of an agent, who had defaulted by failing to account to his insurance companies for premiums he had collected, to the agency’s expiration records.
The trial court’s findings of fact and conclusions of law were in-favor of the plaintiffs on all issues.
The defendant, C. F. Scheufler, became an insurance agent for each of the plaintiffs at Hoisington, Kansas, by contracts dated July 11, 1956, each of which contract provides insofar as material here:
“The Agent agrees that all premiums reveived by the Agent shall be held by him as trustee for the Company until delivered to it; and the privilege, if granted, of taking commissions from the premiums shall not be construed as changing the relationship of the respective parties hereto.
“In the event of the termination of this Agreement, the Agent not being in default and thereafter promptly accounting for and paying over balances not in default for which he may be liable, the agent’s record, use and control of expirations shall be deemed the property of the Agent and left in his undisputed possession; otherwise the records, use and control of expirations shall be vested in the Company.”
In 1961 and 1962, C. R. Scheufler became delinquent from time to time in the remitting of premiums to the plaintiffs and “stop orders,” which are directives to write no more insurance, were issued to him on December 17, 1961, April 17, 1962, June 5, 1962, and October 31,1962. Scheufler brought his accounts to date following the first three stop orders but failed to do so following the stop order issued October 31, 1962.
On November 16, 1962, Leonard Williams, field representative of plaintiffs, called at the Scheufler Agency in Hoisington concerning the past due accounts and was then given five checks by Mrs. Scheufler drawn upon the Peoples State Bank of Ellinwood, Kansas. This transaction will be given more detailed attention when the pertinent issue is considered.
On December 4, 1962, Leonard Williams went to the Scheufler Agency at Hoisington, Kansas. Mrs. Scheufler was there. He told her he was cancelling the agency and that written notices of cancellation would be sent. Mrs. Scheufler and he then removed from the Scheufler filing cabinets the dailies and expirations of the Alliance Companies. The manila folders with the names of the insured were left. He also picked up the insurance supplies of the Alliance Companies such as unwritten policies, rate books, endorsements and other supplies furnished by the companies. The work was finished on December 5, 1962.
R. E. Vohs, of Iola, Kansas, had previously inquired of the Alliance Companies about being appointed an Alliance Agent. He was called about taking over the Alliance business in Hoisington, Kansas, and came to McPherson, Kansas, the main offices of the ■companies, on the afternoon of December 4, 1962. After some ■discussion the Alliance Companies offered to sell him their expirations in the Scheufler Agency for $11,231.77, which actually repre sented about what the Alliance Companies thought that Scheufler owed them. The sum of $500.00 was paid down to each company and the balance of the purchase price was paid on December 31, 1962. Vohs took over the Alliance business shortly after December 10, 1962.
Vohs testified that Scheufler told him he had reconstructed the expiration records of the Alliance Company policy holders; that Scheufler was calling upon Alliance policy holders whose policies were expiring and that he was unable to hold many of the expirations. He did keep more than $3,000.00 worth of renewal business but he had to work to keep it. The Alliance Companies amended their sales contract to Vohs and paid him back $5,500.00 in May, 1963.
Final audits of the Scheufler accounts showed that Scheufler owed Alliance Mutual Casualty $10,885.97 and Farmers Alliance Mutual Insurance Company $1,642.56, but they announced that they were waiving their claim for the additional $109.09 due Alliance Mutual Casualty Company and the additional $497.55 due Farmers Alliance Mutual Insurance Company.
On December 10, 1962, a letter was mailed to C. R. Scheufler, by the vice-president of the Alliance Insurance Companies, cancelling the agency agreement. The letter will be given detailed attention later.
With these abbreviated facts before us we consider appellants’ suggested grounds for reversal.
The appellants contend that there was payment of appellants’ debt to the Alliance companies by the payment of Vohs in the purchase of the expirations and, also, the agency contract should be so interpreted that the debt would be considered paid when the companies elected to sell the expirations; the contract should be interpreted as requiring the companies to credit the appellants with any payments received for the expiration records; the Alliance companies had no right to sell the appellants’ expirations .except as agent for the Scheuflers and must account for the proceeds, and there was accord and satisfaction between the parties.
We have detailed the rather cumbersome and overlapping contentions in order that it not appear that any of them had been ignored.. However, we believe that the contentions present but two simple issues — (1) what were the rights of the parties as to the expiration records under the terms of the contract, and (2) what was the effect of the letter of cancellation.
The contract provides in no uncertain terms that—
“In the event of the termination of this Agreement, the Agent not being in default . . . the Agent’s record, use and control of expirations shall be deemed the property of the Agent and left in his undisputed possession; otherwise the records, use and control of expirations shall be vested in the Company.”
The agent was, without a question of fact, in default in his remittance of premiums due the company. The language of the insurance contract left no uncertainty as to whom the expiration records would belong in case of default on the part of the agent. In the recent case of Mays v. Middle Realty Corp., 202 Kan. 712, 452 P. 2d 279, we held:
“When the terms of a lease [contract] are plain and unambiguous the meaning must be determined by its contents alone and words cannot be read into the agreement which import an intent wholly unexpressed when it was executed.” (Syl. 4.)
Although this court has not had occasion to pass on the matter, it would appear that the right to ownership and possession of an insurance agency’s expiration records are a proper matter for contract. Appellants call our attention to an annotation in 124 A. L. R. 1355 discussing the rights as between insurance companies and agents in respect to expirations and renewals. However, on page 1361 of the same annotation we find the following statement:
“The rule that expirations belong to the insurance agent upon the termination of the agency does not apply in the case of contract provisions to the contrary, and the agency contract need not expressly deny the right of the agent to expirations, but such denial may be implied from the provisions of the contract.” (See, also, 44 C. J. S., Insurance, § 148, p. 813.)
Appellants have a further suggestion as to the agency contract. They state:
“Before getting into specifics on this proposal, the appellant Scheufler urged that a contract such as Plaintiffs’ . . . which provide for the taking away of an independent agent’s most valuable asset, his expiration records, be declared to be against public policy and void. . . . These small businessmen spend their lifetime developing an agency so that their expiration records can sustain them and they can eventually retire by selling their expiration records. . . .”
We have already stated that the right to possession and control of an insurance agency’s expiration records are proper matters for contract. Such a contract is, therefore, not against public policy.
If appellants are attempting to stress the facts and circumstances in this particular case, we are not impressed. The appellant, C. R. Scheufler, had been in default with his remittance of premiums four times during the eleven month period from December, 1961, to October, 1962. His accounts were not brought to date following the stop order issued October 31, 1962, when he was some $12,000.00 in default. He gave the appellees five checks carrying different dates in satisfaction of the default. These checks were all returned after deposit marked “Insufficient Funds.” In December of 1962, the First National Bank of Hoisington, Hoisington, Kansas, of which C. R. Scheufler was president, obtained a judgment against him for unauthorized loans in the sum of $27,874.95. He also suffered a loss in 1962 of $17,000.00 in the trucking business. He was not a small insurance agent being subjected to persecution. The appellees had ample grounds to believe C. R. Scheufler was not a proper representative to contact their insureds.
The letter of cancellation on which appellants rely reads:
“This will confirm the cancellation of your agency . . .
“The fact that your agency is in default in paying agency balances of these Companies, the records and control of expirations are now vested in our Companies. We will appoint another agent to service this business.
“Whatever amount is obtained from the sale of these expirations will be applied to your past due account. This may take some time and you will be responsible for any balance of the account still due.
“We hope with your cooperation that this balance will be small.”
When the letter of cancellation of the agency was written the appellees were making a generous gesture under the assumption that C. R. Scheufler would not compete with Vohs, the new agent, and solicit such expirations. Instead, Scheufler reconstructed the expiration records and proceeded to solicit their business.
On this point the trial court found:
“Vohs said that Scheufler told him he had reconstructed the expiration records of the Alliance Company policy holders. Vohs also said that Scheufler was calling upon Alliance policy holders whose policies were expiring and that he was unable to hold many such expirations. He said actually the expirations which he purchased from the Alliance Companies were really not worth anything. He did keep more than $3,000 worth of renewal business but he had to work to keep it. He finally did develop a good agency but this was because of the new business he worked up.
“Defendants thereafter gave no cooperation to plaintiffs. Defendants later threatened suit against the Vohs and the plaintiffs. Defendants solicited the expirations of plaintiffs’ insurance policies sold to Vohs and caused many difficulties to plaintiffs and Vohs, their new agent. Defendants put plaintiffs to substantial expenses, work and trouble to save the business of the companies in the Hoisington area.
“Since no consideration was received for this unilateral promise, it could be withdrawn at any time and plaintiffs were under no obligation to perform.”
We are constrained to agree with the trial court.
In Coder v. Smith, 156 Kan. 512, 134 P. 2d 408, in discussing consideration, we stated at page 513 of the opinion:
“In this court the question argued is whether the petition alleges any consideration for the oral promise. In 17 C. J. S. 420, Contracts, § 70, it is said: ‘Consideration is a benefit to the promisor or a loss or detriment to the promisee,’ citing many cases, including Brinkman v. Empire Gas and Fuel Co., 120 Kan. 602, 245 Pac. 107; Farmers Equity Coop. Ass’n v. Tice, 122 Kan. 127, 251 Pac. 421; Rempel v. Shell Petroleum Corp., 134 Kan. 350, 5 P. 2d 1094. Also, p. 421, § 71: ‘A contract must be supported by consideration to be valid and legally enforceable,’ citing McGregor v. Bank, 114 Kan. 356, 219 Pac. 520, and many other authorities. See, also, 12 Am. Jur. 564, Contracts, § 72.
“In Restatement, Contracts, the pertinent portion of section 75 reads:
“‘Definition of Consideration: (1) Consideration for a promise is (a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification or destruction of a legal relation, or (d) a return promise, bargained for and given in exchange for the promise.’ ”
The appellants gave up nothing because of the suggestion in the letter of cancellation, the appellees received nothing of benefit, therefore there was no consideration and no binding and enforceable agreement. The conduct of C. R. Scheufler as related above certainly would not be indicative of any equitable claim.
Last — appellants contend that there is no basis in law or fact for the judgment rendered against Mrs. Scheufler.
On this issue the trial court found:
“On November 16, 1962, Leonard Williams, field representative of plaintiffs, called at the Scheufler Agency in Hoisington concerning the past due accounts and was then given checks by Mrs. Scheufler drawn upon the Peoples State Bank of Ellinwood, Kansas, as follows:
11-16-62 — FAI ..................... $705.36
11-16-62 — FAI ..................... 439.68
11-21-62 — AMC .................... 2,320.75
11-21-62 — AMC .................... 1,287.36
11-23-62 — AMC .................... 6,034.45
“Each check was signed on the lower right-hand side by C. R. Scheufler and across the left end by Mrs. C. R. Scheufler. Mrs. Scheufler said that she then knew and understood that by so doing she was making herself personally responsible for the payment thereof. Such debts were created through the defalcations of these defendants while acting in a fiduciary capacity.
“All of said checks were thereafter deposited and returned marked ‘Insufficient Funds.’
“Mrs. C. R. Scheufler testified that she had been appointed an insurance agent and that she knew that the collections of premiums were trust funds. She said she signed many policies as the agent for insurance companies, sometimes by signing her own name or else that of her husband and putting her initials underneath. She said the insurance premiums were placed in the Hoisington bank in the C. R. Scheufler account and that she wrote many checks. She said she wrote checks for rent, household expenses, living expenses and other matters. C. R. Scheufler said that she normally signed all the checks because she did the bookkeeping.” (Emphasis supplied.)
Based on the above findings, the trial court concluded:
“Mrs. C. R. Scheufler, having knowingly used trust funds for her personal benefit and for other than trust purposes and having signed the checks for $10,787.60 knowing and intending that she be liable for their payment, is personally liable along with her husband for such amount of money.”
The trial court’s findings were supported by substantial competent evidence and the findings support the conclusion of law. No further discussion of this issue would be justified.
What has been said disposes of appellant’s alleged counter claim.
A careful examination of the record discloses no justifiable reason for disturbing the judgment of the trial court.
The judgment is affirmed.
approved by the court. | [
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|
The opinion of the court was delivered by
Kaul, J.:
This was an action to recover on a promissory note and to foreclose a real estate mortgage given as security. The plaintiff was unsuccessful and appeals from a judgment rendered in favor of defendant on the ground the note was barred by the statute of limitations.
The plaintiff and defendant were married in September, 1961, and their marriage was dissolved on July 31, 1963, by divorce in the District Court of Sedgwick County. All property rights of the parties were settled in that proceeding.
The instant action was commenced on May 18, 1965. It has been in this court once before. (Schnug v. Schnug, 197 Kan. 174, 415 P. 2d 283.) There the trial court sustained defendant’s motion for summary judgment on the ground that the indebtedness, evidenced by the promissory note, was barred by divorce proceedings between the parties in 1963. On appeal we reversed, holding the divorce decree did not preclude plaintiff’s action. We also held that defendant’s answer raised genuine issues of material fact and remanded the case to the district court for trial of those issues.
On November 1, 1957, defendant-appellee, then named Pearl Hachtel — a single woman, executed and delivered to the plaintiff-appellant her promissory note in the amount of $1,631.09. As security for payment of the note, she executed and delivered to plaintiff a second mortgage upon real estate owned by her in the City of Wichita. The promissory note provided that it was ’’payable on demand after date.” The mortgage was on a short form and reads in pertinent part as follows:
“. . . to secure the payment of a promissory note in the amount of $1631.09 with interest thereon at 6% per annum from date payable on demand to George H. Schnug.
“This is a second mortgage to a $2000.00 mortgage previously executed to the Railroad Building Loan & Savings Association and said first mortgage is excepted from the warranty hereof. Dated this first day of November 1957.
7s/ Pearl Hachtel
“Pearl Hachtel.”
After remand of the case to district court, plaintiff amended his petition and alleged four reasons why his action was not barred by the statute of limitations, as pleaded by defendant in her answer. Plaintiff alleged in substance: (1) The defendant made three payments on the promissory note on October 11, 1960, December 15, 1962, and January 15, 1963, which tolled the statute of limitations; (2) the statute of limitations did not commence to run until March 21, 1965, when plaintiff demanded payment of the promissory note; (3) the promissory note and real estate mortgage contained am biguous language which should be construed to make the note payable only after a prior lien on the property had been liquidated; and (4) a mutual mistake of fact by the parties caused the promissory note to be “payable on demand” rather than after the prior lien on the property had been liquidated.
With issues thus framed the case went to trial and judgment was rendered in favor of defendant. After plaintiff filed a motion for a new trial, the trial court determined the case should be reopened to allow plaintiff to produce evidence concerning a mutual mistake of fact as to the note and mortgage. After hearing the evidence referred to, the trial court on June 5, 1967, made findings of fact and concluded that no mutual mistake of fact existed between the parties; that the note was barred by the statute of limitations, and the real estate mortgage could not be foreclosed since the note was barred by the statute of limitations.
Plaintiff again filed motions for a new trial and in the alternative to amend findings of fact and conclusions of law, both were overruled. Thereafter plaintiff perfected this appeal.
Plaintiff contends the statute of limitations did not commence to run on the promissory note until after a note and first mortgage on the real estate were paid in full. He argues that since the note and mortgage sued on were executed by defendant at the same time, in the course of the same transaction and because they concern the same subject matter, they must be construed together; and that the parties intended the promissory note was not to become due until after the first mortgage had been removed from the property.
Plaintiff s position appears to be that the court should look beyond the instruments because: (1) The note and mortgage construed together gave rise to an ambiguity or (2) in the alternative a mutual mistake of fact existed between the parties at the time the note and mortgage were executed.
In order to sustain his assertion of ambiguity, plaintiff must first mesh his case with rules governing the construction of a written contract. These rules are well summarized in Oliver v. Nugen, 180 Kan. 823, 308 P. 2d 132, where the court said:
“It is a judicial function to interpret a written contract which is free from ambiguity and does not require oral testimony to determine its meaning. Ambiguity in a written instrument does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning. (Klema v. Soukup, 175 Kan. 775, 267 P. 2d 501.) If a written contract is actually ambiguous concerning a specific matter in the agreement, facts and circumstances existing prior to and contemporaneously with its execution are competent to clarify the intent and purpose of the contract in that regard but not for the purpose of varying and nullifying its clear and positive provisions. (Maltby v. Sumner, 169 Kan. 417, 219 P. 2d 395.)” (pp. 827, 828.)
We are unable to find in the instruments in question the ambiguity asserted by plaintiff. The note contained an unconditional promise to pay $1631.09 to plaintiff and “payable on demand after date.” The mortgage refers to the promissory note as being “payable on demand.” Neither the note nor mortgage say anything about the note being payable after the liquidation of the first mortgage. The only mention of the first mortgage is the simple statement that this mortgage is second to the mortgage previously executed to the Railroad Building Loan & Savings Association. The law presumes that the parties understood their contract and they had the intention which its terms import. It is not the function of courts to make contracts but to enforce them as made (Springer v. Litsey, 185 Kan. 531, 345 P. 2d 669, and Gardner v. Spurlock, 184 Kan. 765, 339 P. 2d 65), nor is it within the province of the court to reform the instrument by rejecting words of clear and definite meaning and substituting others therefor. (Drilling, Inc. v. Warren, 185 Kan. 29, 340 P. 2d 919, and Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P. 2d 731.)
Even though the note and mortgage are construed together, the language of the note describing the debt controls and, if the debt is barred, the mortgage cannot be foreclosed. (Dickey v. Wagoner, 160 Kan. 216, 160 P. 2d 698; Timmonds v. Messner, 109 Kan. 518, 200 Pac. 270, and 9 Thompson on Real Property, Mortgages, § 4745, p. 384.) The promissory note being “payable on demand” was a demand obligation (K. S. A. 52-207 [repealed, Laws of 1965, Ch. 564, Sec. 416]) in effect on November 1, 1957. (See, also, K. S. A. 84-3-122.) The statute of limitations commences to run on a demand obligation on the date of its execution. (Golden Rule Oil Co. v. Liebst, 153 Kan. 123, 109 P. 2d 95; Cassity v. Cassity, 147 Kan. 411, 76 P. 2d 862, and Stone v. Barr, 111 Kan. 775, 208 Pac. 624.) The rule holds regardless whether the payee has made an actual demand for payment. (Stone v. Barr, supra, and Douglass v. Sargent & Bro., 32 Kan. 413, 4 Pac. 861.)
The phrase “payable on demand” has a commonly understood meaning in negotiable instruments law and since neither the note nor the mortgage contained other language, stating when the debt is to be paid, there is simply no indication that the phrase was used to mean something different from its commonly understood legal meaning. We find nothing in the instruments which could be construed to require payment of the debt only after the first mortgage had been removed from the property.
Furthermore, the proposition advanced by plaintiff in this regard actually suggests an omission from the instruments of a condition that the debt became payable only afer the first mortgage had been released, rather than an ambiguity. The omission of a statement does not create an ambiguity which authorizes the admission of parol evidence to vary the expressed terms of the instrument. In this connection we find the following statement in the recent case of Wood v. Hatcher, 199 Kan. 238, 428 P. 2d 799:
“. . . Ambiguity does not arise from total omission. It arises when application of pertinent rules of interpretation to an instrument as a whole fails to make certain which one of two or more meanings is conveyed by the words employed by the parties. . . .” (p. 242.)
In the absence of ambiguity, the only possible basis for the admission of parol evidence to vary the note’s time for payment is plaintiff’s claim that the note was drawn as a demand obligation, as a result of a mutual mistake of fact. In the absence of proof of fraud or mutual mistake in the procurement of an unambiguous written contract, the contract must be enforced according to its terms, and evidence of parol understanding at variance therewith cannot be considered. (In re Estate of Smith, 199 Kan. 89, 427 P. 2d 443.)
Plaintiff’s testimony to support his theory of mutual mistake was not admitted in the first instance by the trial court. However, as we have noted, the case was later reopened and plaintiff was allowed to submit his testimony in support of his allegation of the existence of a mutual mistake of fact. He testified in substance that regardless of the language used in the note, the parties understood it was not to become payable until the first mortgage was liquidated.
In her testimony, defendant denied any agreement such as that suggested by plaintiff. She testified that it was her intention to pay off both debts simultaneously. The trial court resolved the dispute in defendant’s favor.
In seeking to reform the instruments on the grounds of mutual mistake plaintiff had the burden of proving the mistake was made by both parties and not just one. (Palmer v. The Land & Power Co., 180 Kan. 492, 306 P. 2d 152; New York Life Ins. Co. v. Dickensheets, 165 Kan. 159, 193 P. 2d 649, and Algeo v. Employers Indemnity Corporation, 119 Kan. 186, 237 Pac. 879.)
Plaintiff’s theory of a mutual mistake of fact was refuted by defendant’s testimony which supported the trial court’s findings. When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the power of this court begins and ends in determining whether there is any competent substantial evidence to support the findings, and when they are so supported they are accepted as true and will not be disturbed on appeal. (Atkinson v. Herington Cattle Co., Inc., 200 Kan. 298, 436 P. 2d 816.)
Therefore, since the note and mortgage in the instant case are neither ambiguous nor the products of a mutual mistake, the expressed terms thereof cannot be varied by parol evidence. (In re Estate of Smith, supra.) It follows the statute of limitations commenced to run against plaintiff’s time as of November 1, 1957, the execution date of the promissory note.
Plaintiff next argues in the alternative that even though the statute of limitations commenced to run on November 1, 1957, it was interrupted by defendant making payments on the note. In this regard plaintiff claims the following payments were made by defendant:
“October 11, 1960 ................................ $50.00
“December 15, 1962 .............................. $24.00
“January 15, 1963 ................................ $39.00
The payments were noted on the back of the promissory note. According to plaintiff’s testimony he made the notations ‘When the litigation started.” Defendant contends that she made no payments on the note, secured by plaintiff’s mortgage, although she had tried twice and been refused. We pause to note, that only the alleged payment of October 11, 1960, would have interrupted the running of the five-year limitation statute, which commenced on November 1, 1957, and became a bar as of November 1, 1962. Plaintiff makes no reference concerning the effect of the alleged payments of December 15, 1962, and January 15, 1963, in either his statement of points or brief. Plaintiff testified that he had credited the amounts stated on the promissory note because defendant had failed to inform him what the payments were for when they were made. Plaintiff argues that, even though defendant owed sums in addition to the promissory note, since she failed to specify which of the debts a payment was for, plaintiff was at liberty to credit which account he chose. If supported by the facts plaintiff’s proposition is sound. (Neal v. Gideon, 157 Kan. 1, 138 P. 2d 419.)
However, here again the evidence is disputed and the conflict is resolved in favor of defendant by the trial court’s findings.
Plaintiff testified that when the $50 payment, of October 11, 1960, was made, a tenant occupied Mrs. Schnug’s house, which was covered by the mortgage. The tenant had threatened to move out since there was no drain for his automatic washer. Plaintiff contacted a plumber who helped him install a drain for the automatic washer. Plaintiff paid out $50 on the project. He testified that he had not been working and, about a week after the work had been completed, he asked Mrs. Schnug if she had any money. Plaintiff’s testimony is narrated as follows:
“. . . Mrs. Schnug reached in her purse and gave him $50.00. The plumber’s bill was $50.00. Mrs. Schnug knew that Mr. Schnug had spent the $50.00 for the plumber. Presumably she paid him the $50.00 after she found out that he had spent $50.00.
“Mrs. Schnug did not tell Mr. Schnug that the $50.00 was for the plumbing work. . . .”
Plaintiff further testified that defendant was not consulted before he made the credit on the note when the lawsuit was commenced.
Plaintiff’s testimony was contradicted by defendant who testified as follows:
“Q. At that time, had Mr. Schnug paid a $50.00 bill for the fixing of some part of the Newell Street property?
“A. He did. And I paid him the $50.00 back, and told him what it was for.
“Q. Did he tell you how much the cost of that operation was for?
“A. Yes, sir.
“Q. Let me ask you this, Mrs. Schnug, At the time you gave the $50.00 to Mr. Schnug, did you tell him what the $50.00 was for?
“A. I told him it was for the plumbing bill.”
After hearing the conflicting testimony of both plaintiff and defendant, the trial court found the $50 payment was intended by both parties to reimburse plaintiff for funds advanced as payment for the plumbing repairs. The trial court concluded that no payments were made by defendant on the note in question which would toll the statute of limitations.
We believe the testimony related clearly supports the trial court’s findings and therefore those findings will not be disturbed on appeal. (Atkinson v. Herington Cattle Co., Inc., supra.)
The question of tolling the statute by alleged payments on a note, under quite similar circumstances, was before us in Dickey v. Wagoner, 160 Kan. 216, 160 P. 2d 698. There we said:
“Appellant’s principal contention is that the judgment is contrary to law and not supported by the evidence. We turn to the record for the purpose of ascertaining whether there is sound basis for his position. When carefully examined it discloses testimony from which the trial court could have found payment as well as ratification of the credit endorsements. The difficulty is that it discloses other testimony to the contrary just as convincing. Mrs. Wagoner testified positively that she had made no payments on the note, also that on the date payments were endorsed she had given no authorization to anyone to place the endorsements thereon and that they were placed there without her knowledge and consent. It is apparent the trial court believed her testimony and placed little, if any, weight on that of witnesses for the appellant. This it had a right to do and its conclusion is binding on appellate review. It has been repeatedly held that questions pertaining to the credibility of witnesses and the weight to be given their testimony are for the trial court to determine and that so long as there is some substantial evidence to support its judgment, its decision is conclusive on appeal irrespective of whether there was other evidence which would have required it to reach a contrary conclusion had it seen fit to believe such evidence. (Killough v. Swift & Co. Fertilizer Works, 154 Kan. 113, 114 P. 2d 831; Gale v. Fruehauf Trailer Co., 158 Kan. 30, 33, 145 P. 2d 125, and cases there cited.” (p. 218.)
Lastly, plaintiff asserts that his cause of action against defendant did not accrue until the first mortgage lien was released simply because plaintiff’s mortgage was inferior to that of the Railroad building Loan & Savings Association. Plaintiff’s position in this regard appears to be that payments on the first mortgage enhanced the value of his second mortgage, thereby having the same effect as if payments had been made directly upon the second mortgage promissory note. Plaintiff makes the ingenuous argument that by reason thereof the statute of limitations as to the second mortgage note was tolled by each payment upon the first mortgage note. Under plaintiff’s assertion, as we understand it, a second mortgagee’s claim would not accrue until the prior lien was removed from the property. The application of plaintiff’s theory would permit a mortgagor to indefinitely forestall accrual of a second mortgagee’s claim on a demand note by refinancing or in some other manner extending the life of the first mortgage indebtedness. Plaintiff fails to cite authorities supporting his novel theory and we know of none. We believe plaintiff’s position in this regard to be untenable and clearly contrary to prior holdings of this court. The fact that land was mortgaged as security for the payment of the note does not affect the starting or running of the statute of limitations. The mortgage is only an incident of the note, and when the note is barred, the mortgage is likewise barred. (Timmonds v. Messner, 109 Kan. 518, 200 Pac. 270; Kulp v. Kulp, 51 Kan. 341, 32 Pac. 1118, and Schmucker v. Sibert, 18 Kan. 104.)
The trial court’s findings of fact are supported by competent evidence and the judgment rendered thereon is a proper application of the law.
The judgment is affirmed. | [
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The opinion of tibe court was delivered by
Fromme, J.:
Norris R. Fleury was tried and convicted by a jury of impersonating a highway patrolman (K. S. A. 21-1617) and of' forcible rape (K. S. A. 21-424). He was tried and found not guilty of first degree kidnapping.
This is a direct appeal from the judgment and sentence for forcible-rape. Defendant does not appeal from the charge of impersonating. a highway patrolman. He was sentenced as an habitual criminal =on the charge of forcible rape to not less than 10 nor more than 42 years as a second offender.
He specifies four errors. First, he questions the sufficiency of the evidence to establish forcible rape. Defendant admitted having sexual intercourse with the complainant on this occasion but testified it was accomplished with the woman s consent and cooperation. His testimony was in sharp conflict with the evidence introduced by the state.
In reviewing the sufficiency of the evidence the function of an appellate court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (See State v. Helm, 200 Kan. 147, 151, 434 P. 2d 796 and cases cited therein.)
The complainant, Mrs. Connie Wedel, testified generally as follows: On May 5, 1967, she accompanied her husband and a friend to a Wichita tavern, the Green Onion. The three of them were in the Green Onion from 9:30 p. m. until shortly after midnight. An argument between Mr. and Mrs. Wedel erupted over their beer and Mrs. Wedel, who was seventeen years of age, left the table for the purpose of calling her parents to have them come and get her. She was using a telephone. The defendant Fleury appeared, reached out, depressed the receiver and disconnected the line. He introduced himself as a Kansas highway patrol officer and offered to help. Mrs. Wedel had been crying. When she told him of her argument with her husband he seemed sympathetic and offered to take her home. At first she refused. In her presence he called her parents and told them he was Lieutenant Nick Satino of the Kansas Highway Patrol. He explained the situation to her parents and told them he was bringing their daughter home. Mrs. Wedel was concerned about his identity, so he produced his billfold which had a badge imprint on it. The defendant then talked with her husband. The husband asked the wife if she wanted to go to her parents’ home. When she said she did the husband told defendant to be sure and take her right home. The defendant told the husband not to make any trouble or follow them for he had a shotgun in his car.
Mrs. Wedel further testified the defendant drove north toward Benton, Kansas, where Mrs. Wedel’s parents lived, then he toned and drove south into the country. Mrs. Wedel became suspicious and asked to use a restroom. Defendant stopped his car beside the road. When she got back in the car he began to make improper advances. She resisted. Finally she feigned illness and got out of the car. The defendant got out of the car a little later and pushed her back into the car. He advised her to give in to his advances or walk. She got out of the car and walked down the road with the defendant following in the car. She reversed her direction and the defendant backed his car. She left the road and started to cross into an open field. The defendant left the car and forcibly returned her to ihe front seat and proceeded to rape her. Defendant drove Mrs. Wedel back to the outskirts of Wichita and let her out of the car. She called her parents and then waited at a nearby house.
The house was at 47th and Seneca in Wichita, Kansas. Mrs. Strandberg testified she was awakened early in the morning by a knock on the door. Mrs. Wedel asked Mrs. Strandberg if she might stay there until her parents came to get her. Mrs. Wedel was crying and shaking. Her hair and clothing were disheveled. She had mud on her shoes and clothing.
Mrs. We del’s parents and the police arrived at 3:30 a. m. Mrs. Wedel was taken to a physician for examination. Although the doctor found no marks of violence on her body, a pelvic examination was completed and revealed male sperm cells in her vagina.
The complainant’s husband and the friend who was with them at the Green Onion corroborated Mrs. Wedel’s testimony as to defendant’s impersonation of an officer. This corroboration included the reference to the shotgun in defendant’s car. Mrs. Wedel’s father confirmed the conversations with his daughter on the telephone. He testified as to her disheveled appearance and hysterical condition when he arrived to take her home.
There can be no doubt that there was a basis in the evidence for a reasonable inference of guilt. The state’s evidence, if believed by the jury, was sufficient to sustain the charge of forcible rape.
Defendant next contends that the state failed to prove that venue was properly laid in Sedgwick county.
As a general rule venue is a question of fact to be determined by the jury in the trial of the case in chief. (In re Stilwell, 135 Kan. 206, 10 P. 2d 15.) Venue may be established by proof of facts and circumstances introduced in evidence from which venue may be fairly and reasonably inferred. (State v. Joseph Little, 201 Kan. 101, 439 P. 2d 383.)
The evidence introduced by the state established that Mrs. Wedel was picked up by defendant in the city of Wichita, taken into the country near Haysville, raped and returned to the city of Wichita. Mrs. Wedel testified the crime was committed in a rural area shortly after passing through Haysville.
K. S. A. 60-409 in part provides:
“(b) Judicial notice may be taken without request by a party, of . . .
“(3) such fact's as are so generally known or of such common notoriety within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. . . .”
Judicial notice may be taken that both Wichita and Haysville are located within the boundaries of Sedgwick county by more than six miles. Although the complainant did not specifically testify the rape occurred in Sedgwick county, there is a basis in her testimony for a reasonable inference the crime was committed in Sedgwick county. Haysville is located therein.
The question of venue was properly submitted to the jury and their determination will not be disturbed by this court.
The defendant next specifies error based upon failure of a detective to give a full and complete Miranda warning. Defendant was not advised that if he was indigent he was entitled to the presence of court appointed counsel before being questioned.
In Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the high court specified the extent of the advice of rights required to protect the constitutional rights of an accused as follows:
“. . . Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. . . .” (16 L. Ed. 2d 706, 707.)
The Court in Miranda spelled out the extent and purpose of advising an indigent of his right to appointed counsel as follows:
“In order to fully apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent — the person most often subjected to interrogation — the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.” (16 L. Ed. 2d 723.)
Detective Werbin was permitted to testify of an interview with defendant at the sheriff’s office as follows:
“A. I advised him he may call an attorney at this time by using the telephone just outside of the interview room in the main office, which was the squad room of the Detective Division. He may have his attorney present at the time he was being interviewed, at this time, and he was also advised any statements he makes, oral or written, can be used — and will be used against him in a Court of law. He was also advised then that he did not have to make any statement. He was advised no threats or promises are being made to him. I also asked him if he knew these rights I just had advised him of. He stated yes.
“Q. Okay. And after that, did you talk to him some more?
“A. I did.
“Q. And what was the conversation?
“A. The conversation was in regard to a Connie Wedel who’d been—
“Q. What did you ask him and what did he say?
“A. I asked him if he knew Connie Wedel.
“Q. Okay.
“A. He stated he did not. I also asked him if he had impersonated a Lieutenant Nick Satino of the Kansas Highway Patrol and he stated no. After I talked with him for a few minutes, he then stated he did take some girl from the Green Onion club. However, he did not know her name. After two or three minutes, he did take a piece of paper from his wallet, which was a white piece of paper, and on the paper it had Connie Wedel of Benton, Kansas, with a phone number on it, which was her Dad’s phone number.
“Q. Uh-huh. Any further conversation?
“A. I also asked him how come he impersonated a Highway Patrolman. First again, he denied it. Then he stated that he was trying to impress her.
“Q. Are those his exact words, as best you can recall?
“A. That isn’t his exact words.
“Q. Can you more accurately quote what he did say?
“A. ‘You know, Syd, I was just trying to impress the girl a little.’
“Q. Is that what he said to you?
“A. Yes.”
Since Detective Werbin failed to advise defendant that if he was indigent he had a right to the presence of an appointed attorney, defendant urges a rule of automatic reversal upon this court and argues the Miranda warnings are an absolute prerequisite to admission in evidence of custodial statements elicited from a defendant. He contends no conviction can stand if a defendant’s statements are introduced at the trial and it is shown the defendant was not fully advised of his rights, for without such advice of his rights he cannot intelligently waive this constitutional right against self-incrimination.
On the other hand the prosecution points out the United States Supreme Court has recognized a harmless-error rule which does not require reversal of a conviction where the error or defect had little, if any, likelihood of having changed the result of the trial. In Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, it was said:
“We are urged by petitioners to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful. Such a holding, as petitioners correctly point out, would require an automatic reversal of their convictions and make further discussion unnecessary. We decline to adopt any such rule. All 50 States have harmless-error statutes or rules, . . . All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” (17 L. Ed. 2d 709.)
Later in that opinion, while commenting on Fahy v. Connecticut, 375 U. S. 85, 11 L. Ed. 2d 171, 84 S. Ct. 229, the high court said:
“. . . We, therefore, do no more than adhere to the meaning of our Fahy Case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. . . .” (17 L. Ed. 2d 710.)
Our Kansas harmless-error rule has been incorporated in the statutory law of this state. (See K. S. A. 60-261 and K. S. A. 62-1718.) Our harmless-error rule applies unless the error is of such a nature as to appear inconsistent with substantial justice. Our courts are directed to disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.
The federal harmless-error rule declared in Chapman requires an additional determination by the court that such error was harmless beyond a reasonable doubt in that it had little, if any, likelihood of having changed the result of the trial.
Other states have recognized and applied the federal harmless-error rule as declared in Chapman to instances where the Miranda warning was not fully and completely given. (State v. Gray, 268 N. C. 69, 150 S. E. 2d 1 (1966), cert. den. 386 U. S. 911, 17 L. Ed. 2d 784, 87 S. Ct. 860; Commonwealth v. Wilbur, (Mass.) 231 N. E. 2d 919, cert. den. 390 U. S. 1010, 20 L. Ed. 2d 161, 88 S. Ct. 1260; Commonwealth v. Padgett, 428 Pa. 229, 237 A. 2d 209 (1968).)
In State v. Phinis, 199 Kan. 472, 430 P. 2d 251, we considered the guidelines set forth in Miranda for the advice of constitutional rights and determined the guidelines had been substantially complied with in that case. In State v. Faidley, 202 Kan. 517, 450 P. 2d 20, a failure to comply with Miranda guidelines was again urged on this court and rejected on the ground the privilege against self-incrimination did not apply to nontestimonial acts, such as the result of a coordination or sobriety test. In neither of these cases was the federal harmless-error rule examined or applied. However, in Faidley this court cited both Chapman v. California, supra, and Commonwealth v. Wilbur, supra, with approval.
We are convinced our harmless-error rule has a sound basis in the jurisprudence of this state, and when our rule is to be applied to a federal constitutional error our courts should apply the same in the light of what was said in Chapman. By this we mean a court in applying our harmless-error rule must be able to declare the federal constitutional error had little, if any, likelihood of having changed the result of the trial, and the court must be able to declare such a belief beyond a reasonable doubt.
Let us examine the error complained of in the present case in light of this harmless-error rule. The error complained of is that defendant was not advised if he was indigent he was entitled to the presence of court appointed counsel and that later statements elicited from defendant were admitted against him.
At the time of his arrest defendant was regularly employed by Continental Bakers. The detective testified he had known the defendant for seven years. The detective’s personal knowledge of the defendant’s circumstances no doubt contributed to his oversight in the advice of rights given. The defendant was represented throughout the trial by retained counsel of his choice. The defendant took the stand in his own defense and admitted having sexual intercourse with Mrs. Wedel, but he denied the use of force. He testified she was a willing participant in the act. Defendant does not appeal from his conviction for impersonating an officer. The conversation with defendant at the sheriffs office largely related to the charge of impersonating an officer and we are not concerned with that conviction.
In the court below defendant was contesting the forcible rape charge on the ground no force was used to accomplish the act. There was little, if anything, in the testimony of Detective Werbin which defendant had not previously testified to in his own defense. At the trial the defendant raised only one question. Was force used to accomplish the sex act? The testimony of Detective Werbin which is quoted in this opinion did not bear upon that question.
Therefore, we determine the error in admitting the testimony of Detective Werbin concerning the statements of defendant at the sheriff’s office had little, if any, likelihood of having changed the result of the trial. We declare the error was harmless beyond a reasonable doubt and did not affect the substantial rights of the defendant.
The final specification of error relates to misconduct of the prosecutor in his closing argument. Only one objection was made during the entire closing argument. The objection was overruled by the court. The portion of the argument objected to at the trial reads:
“Because the defendant was so accomplished in raping Connie Wedel, you are asked to turn him loose? He did it without leaving a mark. That’s pretty good. Well, I wondered that, too. No signs of violence, I wonder how long this will be with her. Put that on your conscience.”
During argument on motion for new trial defendant contended and now contends the statement was prejudicial, not supported by evidence and the prosecutor was trying to imply that Mrs. Wedel had suffered mental impairment as a result of the rape. The defendant reads into these statements more than the words themselves connote. He does so in an attempt to bring the statement within the facts of State v. Wilson, 188 Kan. 67, 360 P. 2d 1092. The prejudicial error injected into the Wilson case arose from a newspaper article read to the jury by the county attorney. The newspaper article referred to the Chessman case in which the victim had lost her mental faculties. The Chessman case had received massive publicity. The court pointed out there was no evidence to indicate the complainant in Wilson was losing or had lost her mind. The use of the newspaper article was an attempt to introduce extraneous facts, not disclosed by evidence, which would prejudice the jury.
The argument in the present case cannot be considered as even approaching the misconduct disclosed in State v. Wilson, supra. We find no misconduct which would prejudice the substantial rights of the defendant.
The defendant singles out for comment on appeal three other portions of the prosecutor’s closing argument. These three portions of the argument were not objected to at the trial. No argument was presented on them to the trial court when the motion for new trial was heard.
It is well settled that reversible error cannot be predicated upon a complaint of misconduct of counsel in the closing argument to the jury where the defendant makes no objection to the misconduct and makes no request to have the court admonish the jury to disregard the objectionable statements. (State v. Latham & York, 190 Kan. 411, 437, 375 P. 2d 788; Roda v. Williams, 195 Kan. 507, 515, 407 P. 2d 471; State v. Wyman, 198 Kan. 666, 670, 426 P. 2d 26; State v. McDermott, 202 Kan. 399, 405, 449 P. 2d 545.)
The trial court included the following in his instructions to the jury:
"Statements, arguments, and remarks of counsel are intended to help you in understanding the evidence and in applying the law, but they are not evidence. You should disregard any such utterance that has no basis in the evidence.”
We must assume the jury followed this instruction and disregarded any remarks of counsel which had no basis in the evidence.
In conclusion we note the State justifies the nature of these remarks by explaining they were provoked by the argument of defense counsel. We do not wish to approve the remarks. They are examples of bad oratory. The primary purpose of closing argument is to enlighten the jury so they may render a correct verdict. Counsel should not go beyond fair comment on the law and the evidence in the case under consideration. (State v. Wilson, supra; State v. McDermott, supra.)
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The opinion of the court was delivered by
O’Connor, J.:
This appeal arose out of an in rem proceeding brought by the state of Kansas pursuant to K. S. A. 21-915, -925 and -927, requesting the confiscation and destruction of seven slot machines in possession of intervenor (appellant), the Fraternal Order of Eagles, Topeka.
The chronology of events leading up to the commencement of this action is as follows:
Harley E. Sparks, a special investigator for the county attorney’s office in Olathe, had been assigned to the attorney general’s office on December 1, 1967, to investigate the existence and operation of slot machines at the Eagles Lodge in Topeka. Sparks had been a member of the Eagles Lodge in Olathe in 1966 and still had in his possession his membership card to that lodge. On December 1, Sparks went to the lodge in Topeka, presented his 1966 membership card, and was admitted by the doorkeeper. Sparks signed his name to the Register of Visitors, filled in the number of his local club, his current home address, and proceeded into the lodge rooms where the slot machines were located. He saw a number of people playing the machines and observed the machines pay ofE in money to the players. Sparks played several of the machines, placed the money he obtained from each machine in separate envelopes on which he noted the amount received and the denomination of the machine, then marked each machine he played with fluorescent tracer paste, and later left the lodge.
On December 4, Sparks went to the attorney general’s office and, with the information gained on the night of the 1st, wrote his statement in longhand. The statement was then put in typewritten form by a typist in that office, in the presence of an assistant attorney general who inquired of Sparks, before a notary public, if the contents of the statement were true. Sparks stated they were, signed the affidavit, and the notary affixed her seal.
On December 8, the assistant attorney general presented the affidavit to a judge of the district court of Shawnee county who, after reading the affidavit, issued a search warrant for the above-mentioned premises. At approximately 7:00 p. m. agents of the Kansas Bureau of Investigation, along with other assistant attorneys general, entered the lodge and seized the slot machines. Subser quently, the state initiated this action by an information filed December 12.
On December 14, a motion to suppress the seven slot machines as evidence was filed on behalf of the Eagles, and a full evidentiary hearing was held January 3, 1968, at which time the matter was taken under advisement. On January 15, the Eagles moved to intervene, setting forth their possessory interest in the machines. Upon their motion being sustained they were joined as a party defendant, and throughout the course of this opinion will be referred to as appellant.
After examining the evidence adduced at the hearing, the trial court, on January 19, overruled the motion to suppress and issued its memorandum decision on the merits of the action, wherein it concluded:
“. . . that these slot machines seized on the premises of 920 Kansas Avenue, . . . occupied by the Fraternal Order of Eagles, were being operated while in the possession of said Fraternal Order of Eagles, and therefore since the operation of said slot machines is illegal under the law as it now exists, the court is ordering that said slot machines be destroyed.”
This appeal followed.
The three points raised here, as well as in the lower court, will be discussed in the order briefed.
Appellant urges the purported affidavit of Harley Sparks upon which the search warrant was issued was insufficient to establish probable cause under the Fourth and Fourteenth Amendments to the United States Constitution. The claim is based upon the argument that Sparks was in the position of an informer, and since the affidavit was the only evidence presented to the judge and contained nothing relating to Sparks’ credibility and reliability, there was an insufficient showing of probable cause. Appellant relies principally on Aguilar v. Texas, 378 U. S. 108, 12 L. Ed. 2d 723, 84 S. Ct. 1509, and United States v. Ventresca, 380 U. S. 102, 13 L. Ed. 2d 684, 85 S. Ct. 741, contending that before probable cause may be found for the court or magistrate to issue a search warrant, the court must have evidence before it concerning the credibility and reliability of the informant and the informant’s information; and absent this, the court is but a “rubber stamp” for law enforcement officers.
We believe appellant misconceives the import of the decisions cited in a situation where, as here, the information contained in the affidavit is based upon the affiant’s personal knowledge and observa tion, rather than hearsay statements or information gained from some unidentified or third-party source.
In the recent case of State v. Hart, 200 Kan. 153, 434 P. 2d 999, we discussed the precedent established by the federal decisions, including those cited by appellant in its brief, and said:
“It is essential to the validity of a search warrant that the issuing magistrate be provided with sufficient facts to enable him to make an intelligent and independent judgment that probable cause for its issuance exists; bald conclusions or mere affirmations of belief or suspicion are not enough.
“While an affidavit may be based on hearsay, there must be adequate affirmative allegation of the affiant’s personal knowledge of facts or of his informant’s reliability, or as to the informant’s personal knowledge of the information provided, to provide a rational basis upon which the issuing magistrate can make a judicious finding of probable cause.” (Syl. ¶¶ 10, 11.) (Emphasis added.)
(Also, see, State v. Aten, 203 Kan. 920, 457 P. 2d 89.)
Both of these cases make it abundantly clear that constitutional requirements are satisfied as long as the issuing magistrate has before him sufficient facts to enable him to make an intelligent and independent determination that probable cause exists from affirmative allegations based on the affiant’s personal knowledge or observation.
In Hart, the sheriff’s affidavit, which was the basis for the issuance of the search warrant, recited that the sheriff found defendant and his companions to be in possession of certain tools useful in committing burglary. This, we observed, was an averment of a positive fact which, together with other allegations based on information and belief, was held to be sufficient. Likewise, in Aten, there was considerable testimony by the county attorney which we said constituted positive averments based on his personal knowledge.
In the instant case the court found probable cause based upon the affidavit of Sparks wherein he recited in great detail the result of his firsthand observations and his actual operation of the slot machines on the appellant’s premises. Affiant made no reference whatsoever to any hearsay information or factual allegations based other than on his personal observation and participation. At the hearing on appellant’s motion to suppress, Sparks testified and fully supported the statements contained in his affidavit. No question is raised that the factual observations related by Sparks in his affidavit were insufficient as a matter of law for the magistrate to make a finding of probable cause.
K. S. A. 62-1830 provides in substance that a search warrant shall issue upon affidavit or upon oral testimony given under oath and recorded before the magistrate or judge. For the reasons stated, we hold the affidavit in question constituted a sufficient basis upon which the court could make a judicial finding of probable cause to issue the search warrant.
Appellant further questions the reasonableness of the search and seizure because the warrant was based on information secured through entry to the lodge premises by means of fraud, false representation and stealth. Appellant, unjustifiably in our view, attempts to equate the facts here with those in Fraternal Order of Eagles No. 778 v. United States, 57 F. 2d 93 (3d Cir. 1932). There, prohibition agents presented false membership cards in order to gain entrance to the lodge, which cards bore written names and signatures of bona fide members of distant lodges from which the cards had been surreptitiously taken. What had been seen by the agents after their entry into the lodge was used as a basis for making application for a search warrant. The search pursuant to the warrant was held illegal and unreasonable as being in violation of the Fourth Amendment.
Numerous cases relied on by appellant, including Fraternal Order of Eagles No. 778 v. United States, supra, were cited and discussed in United States v. Bush, 283 F. 2d 51 (6th Cir. 1960), where it was stated:
“. . . [A]n entrance by stealth upon a person’s property is equivalent to an entrance by force and, therefore, unreasonable.
“However, the distinction has been drawn between a search warrant obtained as a result of information secured through force, coercion and stealth, and one obtained by an officer’s concealment of his identity, and his posing as a member of the general public.
“Investigator Hahn, in his conversation with Mrs. Bush, told her his name was Ray, which was true since his full name was Raymond Hahn; and he further told her he worked in a foundry in Knoxville — which was not true.
“. . . Here, it is true, the government agent was a trespasser in the sense that he drove into the driveway of appellee’s premises. In like manner he would be a trespasser if he approached appellee’s front door and stood on his porch, ringing the doorbell. Whatever his status, as he drove into the driveway and stood on appellee’s premises, he secured no information upon which the warrant was based until he was told by Mrs. Bush, in replying to his request to buy liquor, that she would show him what she had, and ‘motioned’ him into her kitchen. This appears clearly to have been an invitation by Mrs. Bush to come into the house.
“As to misrepresentations made to Mrs. Bush, we are of the view that the only misrepresentation was that the agent hid his identity as an officer and posed as a member of the general public. Evidence obtained by law enforcement officers, using the subterfuge of hiding their identity in order to pose as members of the general public, has consistently been held to be admissible. . . .” (pp. 52,53.)
In People v. Walker, 30 Ill. 2d 213, 195 N. E. 2d 654, a similar question was presented, and the court distinguished the situation from that presented in the Eagles case, supra, and United States v. Mitchneck, (D. C. Pa.) 2 F. Supp. 225, saying:
“. . . [I]n those cases the police officers involved took affirmative steps to conceal their actual identity. . . .
“There is nothing in the record in the present case to indicate that the •officer presented himself at tifie defendant’s door as anything other than a member of the general public. The defendant did not allege nor offer any •evidence to the effect that the officer made any affirmative misrepresentations .as to his identity. And he was not, in our opinion, under any obligation to voluntarily identify himself as a policeman prior to entering the premises. (United Sutes v. Bush, (6 cir.) 283 F. 2d 51.). . . .” (pp. 215, 216.) (Emphasis added.)
The Bush case was cited with approval in Benson v. California, 336 F. 2d 791 (9th Cir. 1964), and Whiting v. United States, 321 F. 2d 72 (1st Cir. 1963), cert. denied, 375 U. S. 884, 11 L. Ed. 2d 114, 84 S. Ct. 158.
In the instant case, the most that can be said is that Sparks presented his own membership card, signed his true name with the name of his local lodge and home address, and was admitted to appellant’s premises without any affimative or unlawful steps being taken to conceal his identity as an investigator for the attorney ■general. Under the circumstances disclosed by the record, we have ■considerable difficulty in even saying the appellant was relying on the privacy of its club or its operation when it allowed Sparks to •enter in the manner in which he did and subsequently observe and use the slot machines. His entry, in our opinion, was gained neither "by force, fraud, stealth nor misrepresentation, such as proscribed in the cases relied on by appellant. Sparks was in the club by invitation under the mistaken belief that he was a current member in good standing of another lodge. The Fourth Amendment was designed to protect against the abuse of official authority (Fraternal Order of Eagles No. 778 v. United States, supra), but, as expressed in Hoffa v. United States, 385 U. S. 293, 17 L. Ed. 2d 374, 87 S. Ct. 408:
“Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects the wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” (p. 302.)
We agree with the district court’s conclusion that there is no basis for holding the search was illegal because of the means used by Sparks in gaining admittance to appellant’s premises and obtaining the information which led to the issuance of the search warrant.
Appellant finally urges that Sparks’ execution of the statement purporting to be an affidavit did not possess any minimal formality, or the intent of an oath, and hence, it did not constitute an affidavit which could be used as a basis for establishing probable cause under K. S. A. 62-1830. In support of its position appellant seizes on a bit of Sparks’ testimony at the hearing on the motion to suppress in which he was asked a question whether he intended to be sworn before Almighty God as to the truth and contents of the affidavit, to which Sparks replied, “No, sir.” This was followed by the question, “So the fact of the matter is that the affidavit you executed then was done so without benefit of the Almighty, is that correct?” Sparks replied, “If you are talking about raising my right hand and swearing, yes.”
Appellant overlooks other testimony of Sparks on redirect examination, wherein he stated that when he signed the affidavit he understood he was obligated to tell the truth, and he knew that he could be penalized for perjury if he told an untruth in the statement. He further testified as to the manner in which the affidavit was prepared and signed. When Sparks went before the notary to execute the instrument he was asked if its contents were true, and he stated they were. Thereupon, he signed the affidavit and the notary affixed her seal. Further, the affidavit recites, “I, Harley E. Sparks, of lawful age, being first duly sworn, do upon my oath state . . .” followed by the notary’s certificate, “Now on this 4th day of
December, 1967, came Harley E. Sparks before me and having been first duly sworn did subscribe to and execute the foregoing statement in writing.”
Although we have examined the cases from other jurisdictions cited by appellant to support its position that unless an oath was administered with formality and the affiant sworn before Almighty God, the affidavit is deficient, we are of the opinion the question is controlled by our own decisions of State v. Kemp, 137 Kan. 290, 20 P. 2d 499, and State v. Anderson, 178 Kan. 322, 285 P. 2d 1073.
The Kemp case dealt with a perjury conviction where the contention was made there was no proof an oath had been administered in connection with verification of an answer. The court, speaking through Mr. Justice Rurch, said:
“Besides what has been said, Kemp went to the notary with a blank form to be made into an affidavit with a certificate that the formalities of a solemn ceremony had been observed . . . The notary had before him the certificate to be executed, which if executed would declare Kemp was sworn. The notary executed the certificate. Manifestly, both parties intended that out of Kemp’s visit to the notary there should come what would have the effect of administration of an oath; and the court holds that in the absence of clear proof the ceremony, or lack of ceremony, was designed by the participants to leave Kemp unsworn, the legal effect of what occurred was the same as if Kemp was sworn according to formalities prescribed for administration of an oath. . . .” (pp. 292, 293.)
To similar effect is the Anderson case, which involved the crime of perjury, where it was stated:
“Notwithstanding the provisions of G. S. 1949, 54-102 as to the formalities to be observed in the administration of an oath, where a person appears before a judge of the county court who is authorized to administer oaths and makes statements as a result of which a complaint is prepared stating that such person, being duly sworn says certain specific things, and thereafter reads the prepared complaint and signs it and returns it to the judge who signs the jurat thereon and affixes his official seal, in the absence of clear proof to the contrary that the ceremony or lack of it was designed by the participants to leave the maker of the complaint unsworn, the legal effect of what occurred was the same as if the maker was sworn according to the formalities prescribed in the above statute.” (Syl. f 3.)
After examining the record, we find there was a complete absence of clear proof that the ceremony or lack of ceremony was designed by the participants to leave Sparks unsworn, and appellant’s contention in this respect is unmeritorious.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Beewer, J.:
The facts in this case as disclosed by the record are in substance as follows:
Sometime in the spring of the year 1875, L. N. Lyman, James T. Wright and James Birks formed a partnership for the purpose of buying and selling stock, under the firm-name of Lyman, Wright & Birks. The cattle in dispute in this action were purchased by said firm during the summer of 1875. On the 18th day of November, 1875, L. N. Lyman, on behalf of said firm, entered into a written contract with two parties by the names of Judson Brigham and Joseph Torpin. By the terms of the contract Brigham and Torpin were to take the cattle into their possession and full feed them until the 1st day of July, 1876, at which time they were to be sold, and out of the proceeds Lyman, Wright & Birks were to receive $2,384.02, and the balance to be equally divided. Whatever the proceeds of the cattle, L. W. & B. were to receive the said sum of $2,384.02, and B. & T. promised to make good that amount. The cattle were to be kept and fed in the neighborhood of Dry creek, in Wilson county. B. & T. were not to dispose or remove any of the cattle-without the consent of L., W. & B. The cattle were delivered to said Brigham and Torpin under this contract at the time of its execution. On or about the 7th day of February, 1876, L. N. Lyman, on behalf of the firm, conveyed the interest of the partnership in the cattle to H. C. French, defendant in error, in consideration of $2,551.50; and delivered him a bill of sale therefor; ,and also assigned French the-contract executed by Brigham and Torpin. On the 24th day of March, A. D. 1876, James Birks, the plaintiff in error, commenced an action of replevin in the district court' for Wilson county against Judson Brigham, who at the time had the cattle in his possession for himself and Torpin, to recover the possession of said cattle, claiming that he had purchased the cattle of the partnership of Lyman, Wright & Birks some time prior to the time the contract with Brigham and Torpin was entered into with L. N. Lyman. And on the same day the sheriff of Wilson county took- possession of the cattle by virtue of an order of delivery in the replevin action, and after holding the cattle for the space of twenty-four hours, he delivered the same to James Birks, plaintiff in error. Within about one half-hour after the cattle were delivered to Birks by the sheriff, H. C. French, the defendant in error, commenced this action against Birks allegitíg title in himself, right to the immediate possession and wrongful detention on the part of Birks. Birks filed a general denial. The cause was tried at the May term, 1876, of the court, the jury failing to agree upon a verdict. A second trial was had at the September term, 1876, of the court. Verdict and judgment for the plaintiff, defendant in error; and the defendant Birks, plaintiff in error, brings the case to this court on petition in error.
A great many questions are discussed by counsel in their briefs, with fullness and care. Perhaps as fundamental as any is, as to the effect of the alleged purchase of the cattle by Birks, one of the partners in the firm of L., W. & B., from his firm, prior to the time of the sale to French. In reference to this sale, all three partners testified, that in September, 1875, there was some negotiation had between them relative to a sale to Birks; and two of them, Wright and Birks, that such negotiations were completed and the sale consummated; while Lyman asserted that the proposed sale was conditional upon Birks paying a certain amount of money within two weeks, and never consummated by reason of Birks’s failure to make such payment. The testimony was conflicting, also, as to any change in the possession of the cattle, or in the manner in which they were held. Involved in this was the authority of Lyman to act for the firm in the feeding contract with Brigham and Torpin. Upon these facts, defendant asked the court to instruct the jury that if defendant, prior to the purchase by plaintiff from Lyman, in good faith and for a valuable consideration, purchased the ■cattle from the firm of which he was a member, then they must find for defendant. This instruction the court refused, and instructed the jury, in substance, that though the sale by the firm to one of its members was in good faith and upon ■sufficient consideration, yet if there was at the time no change in the possession, and plaintiff subsequently, without notice of such prior sale, or of facts sufficient to arouse suspicion and put him upon inquiry, in good faith and for a valuable ■consideration purchased the cattle of another member of the firm, then plaintiff was entitled to the cattle. Defendant ■claims that the case falls within the rule asserted in the case of Wolfley v. Rising, 8 Kas. 297, that a failure to change the possession will not avoid a sale made in good faith and upon sufficient consideration, even in favor of a subsequent purchaser without notice; while plaintiff insists that such rule does not apply here, but rather the principle that a party purchasing in good faith and in the ordinary course of business from one member of a firm, is protected in such purchase, without regard to any private arrangements between the members of the firm, and also providing he has had no notice of any dissolution, notwithstanding the partnership has in fact been dissolved, and thereby the entire property vested in some other member of the firm. In other words, does the case hinge upon the rule of sales established in the statute of frauds, or is it governed by the ordinary laws of partnership transactions? Is the question one simply of good faith in the prior sale, or of notice of a change in the rights and powers of the several members of the firm ? It will be noticed that the statute of frauds does not in terms affirm the validity of any sales, but asserts the invalidity of some, until certain facts are proved. When those facts are proved, the specified objection to their validity is removed. A sale without change of possession is- void until shown to have been made in good faith and upon sufficient consideration. The objection specified is a failure to change the possession. Proving good faith and sufficient consideration removes that objection. But does it follow that' all other objections to its validity are removed ? Does the proof of good faith and sufficient consideration settle all questions of authority or estoppel? Suppose the prior purchaser, who has never taken possession, sees his vendor making a second sale and does not assert his rights, or suppose he goes further, and assures the second purchaser that he has no claim upon the property: can he thereafter assert title as against such purchaser by proving his purchase to have been made in good faith and upon sufficient consideration? Will not the doctrine of equitable estoppel intervene in behalf of the second purchaser? And can anything further be said in reference to the proof of good faith and sufficient consideration than that it does away with the objection of a failure to change the possession? So, too, we think when a third party deals with one member of a firm in matters within the ordinary scope of the partnership business, other considerations intervene than the simple matter of good faith and sufficient consideration between the partners. A partnership being shown to exist, it is presumed, continues to exist. If any change is made in the partnership, or in its relations to the property belonging to it, notice should be given to those in the habit of dealing with it. This is the general law in relation to partnership, and we think is controlling in this case. A sale by the firm to one partner of any partnership property, certainly, when as here of the bulk of such property, works as to it a dissolution of the partnership. While the partnership may continue for other purposes, including as well the purchase and sale of similar property as anything else, yet as to that particular property it has ceased to exist. The property has been passed outside of the domain of partnership matter and authority. Yet is the authority of any member revoked, as far as customers without notice are concerned, so long as the property remains in the undisturbed possession of the firm?
“ Until due notice is given of the dissolution, each partner will remain liable for the acts and contracts of the others in relation to the partnership, so far as they respect persons who have previously dealt with the firm or have known the names of the partners, or have given credit thereto.” (Story on Part., §162.)
So, too, if' some private arrangement be made between partners with respect to the purchase or sale of property, or otherwise, it is not binding upon outsiders in ignorance of it. Full authority is presumed in each partner, and notice must be given of any limitation. Here it is claimed that the authority of two of the partners was revoked by a sale to the third. Was any notice given of any such revocation? By the sale the partnership was, as to this property, terminated. Had plaintiff any knowledge of such termination? Take a simple illustration: Two men are partners in a store; by agreement the stock of goods is sold by the firm to one member; no notice is given of such sale; and thereafter a former customer comes into the store, and seeing the partner who has sold out present, apparently in possession and attending to business, buys a bill of goods. Is not such purchase binding? — and may not the purchaser assert title to the goods? Will the good faith and full consideration of the sale by the firm to the single partner defeat the title acquired by the subsequent purchase in good faith from the other partner? And is not the principle controlling in such case, potent to dispose of this? There is in one view a change in the authority of the partners over the property, and in another view, a dissolution of the partnership as to such property. In either view, notice is essential to a revocation of the power of either partner. We think, therefore, that the court properly ruled, that notwithstanding the prior sale may have been valid inter partes, so long as the property remained in the possession and control of the firm, a purchase by one in the habit of dealing with the firm, from either partner in good faith and without notice, would convey the title.
Another matter referred to in the brief is the action of the district court in overruling a demurrer to the evidence. Inasmuch as the defendant, after the demurrer had been overruled, proceeded to offer testimony and continue the trial, instead of standing on his demurrer, the substantial question before us is, whether upon the entire case the judgment was erroneously rendered, and not whether at the time of the ruling on the demurrer there was a failure of proof of some essential matter. If any omission at that time was covered by subsequent testimony, that would be sufficient. (Simpson v. Kimberlin, 12 Kas. 579.) In the argument upon the ruling on the demurrer the question discussed is, as to the effect of the feeding contract with Brigham and Torpin, and it is insisted that plaintiff, to maintain his action, must show not only title, but also the right of possession, and that by the terms of such contract the right of possession was in Brigham and Torpin. Summing up on this question, counsel say:
“ To recapitulate: French cannot maintain this action, for the reasons — 1st, The absolute title to the cattle passed to Brigham and Torpin under their contract with Lyman; 2d, If the title did not pass by their purchase, they became bailees of the cattle, coupled with an interest in the same; 3d, They obtained a lien on the cattle which they did not waive; 4th, They became partners with French, or, at least, joint owners in the cattle.”
Before the case finally went to the jury, this fact appeared in evidence. After Birks had commenced his action of replevin and before French commenced his, Birks paid to Brigham $908. In reference to this Brigham testified that, “Birks told me that rather than have trouble with me, he would pay me for wintering, if we could agree upon the price. I told him I would take $908, which he paid me, and I sold him for that my interest in said cattle.” There was no different testimony as to this transaction. It is plain, then, that at the time French commenced his action Brigham and Torpin had ceased to have any rights of possession or otherwise in the cattle. And it may also be conceded that by the terms of their feeding contract, they were bailees with a lien and right of possession until July 1st, providing they on their part violated none of the terms of the contract. Upon these facts the defendant asked the court to instruct that, although plaintiff’s title might be good by virtue of his purchase, he had not the right of possession, and therefore the verdict must be in favor of the defendant. This the court refused, and charged the jury that, if Brigham and Torpin voluntarily gave up the possession of the cattle, or when taken from them without their consent, made no demand for their return, or complaint of their removal, when they had ample opportunity and declined to take legal means to recover them, then such change of possession was for the benefit of the owner, and he was entitled to the possession as against them. Counsel complain of this charge as ambiguous, erroneous in principle, and misleading. Whatever force there may be in this criticism or any part of it, we think the court rightly refused the instructions asked by defendant, and the jury rightly found for the plaintiff upon this branch of the testimony. All the interest which Brigham and Torpin ever had in the cattle was that of an agister in the cattle which they were feeding, and the right to retain possession until that feeding was paid for. The moment they received full payment for that feeding their interest and right of possession ceased. When Birks commenced his action their right of possession was good, and neither Birks nor French nor anyone else was entitled to the possession as against them. They could have made a successful defense against Birks’s action. But they preferred to receive pay for the feeding, and thereby waived all claims they had to the possession or other rights in the cattle. From that moment the contract was dead as to them, and they could no longer found any rights upon it. Neither can Birks invoke the aid of this contract to sustain his possession. It is unnecessary to inquire what would have been the rights of the various parties if Birks had not paid for the feeding, but had simply taken possession by his action of replevin. The contract would still have remained in force, and might have been an important factor in determining where was the right of possession. It may still have force, but its force tends in a different direction. Birks, by commencing his action of replevin, in effect sought to repudiate the contract, and deny the rights of possession granted by it. May he upon one day invoke the aid of the courts to repudiate a contract of his firm, and the next ask them to uphold it in his behalf? Again: the contract provided that Brigham and Torpin should have the 1 possession of the cattle, should keep them in the vicinity of Dry creek, and should not dispose of or remove them without the consent of the firm. Now, Birks’s payment may be regarded in two lights: first, as the act of the partnership in paying for the feeding, and in thus discharging any lien thereon, in which light it would operate to remove all limitations upon French’s title and right of possession; or, secondly, as the act of a stranger to the contract, in which event, as Brigham and Torpin voluntarily received their pay, and thus waived their right of possession and defense to the action, the contract was broken, because they abandoned the duty of keeping and feeding the cattle, and consented to their disposal and removal. The act of the officer in removing the cattle might not have been a breach of the contract, but when they elected to receive the money, and forbore to defend, they ratified his act, and put an end to the contract. The owner of the cattle had a right to insist that they should keep and feed the cattle; it was not a duty they could turn over to any one else. He had a ri^ht to insist that they should neither dispose of nor remove the cattle;, and while the act of the officer might not be in the first place their act, or one for which they were responsible, yet the settlement with Birks was their act, and operated to ratify and confirm the prior removal by the officer. In whichever light, then, we regard the act of Birks, it destroyed any adverse right ■ of possession arising from the contract. As a partner, his payment discharged the lieu and right of possession; as a stranger, his taking possession and removal of the cattle was forbidden by the contract.
These are the two substantial and fundamental questions in the case, and in their decision we see no error. Other matters will be briefly noticed.
The contract of sale, though made on Sunday, was valid. Our statute simply prohibits labor on that day. (Johnson v. Brown, 13 Kas. 529; Bloom v. Richards, 2 Ohio St. 387.) The testimony, however, seems to indicate that the sale was not finally consummated on Sunday, but still we think the question entirely immaterial.
So far as respects the question of the application of part-nership funds to the separate private account of one partner, the instructions of the court seem to have been full and explicit; and the testimony seems to show that while Lyman’s account with French was in his own name, it was really a partnership account, and simply kept in his name for convenience.
So far as the various errors alleged in the admission or rejection of testimony are concerned, it is enough to say that the rulings were correct, or the errors not of sufficient moment to justify a reversal of the judgment.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
W. H. Malony commenced an action against E. T. Eace in the district court of Elk county on two promissory notes, and caused an attachment to be levied on certain personal property. Defendant, being a non-resident, was served by publication. Chas. H. Eace, brother of the defendant, filed his interplea, claiming the property attached. On the trial of this interplea, judgment was rendered against him, and in the original action judgment was rendered by default against the defendant for the am hunt of the notes, and an order also entered for the sale of the attached prop erty. To reverse these two judgments this proceeding has been instituted, and to the one record two separate petitions in error have been attached. Waiving any question as to the regularity of this procedure, we have examined the record and are constrained to hold that no error is presented of which either plaintiff in error can avail himself. With i’egard to the trial of the interplea, we remark that the record discloses no exceptions to the rulings of the court concerning the admission or rejection of testimony, or in respect to the instructions. Any error therein is therefore to be taken as waived. A motion for a new trial was made and overruled, and to this ruling exceptions were taken. The only grounds open to our examination on this motion are, first, that the verdict was against evidence; and, second, accident and surprise which ordinary prudence could not have guarded against. An examination of the testimony satisfies us that the verdict of the jury must be sustained, so far as the first ground is concerned, upon the authority of K. P. Rly. Co. v. Kunkel, 17 Kas. 145; and Callison v. Smith, 20 Kas. 28. There was enough testimony to justify the jury in finding against the claim of the interpleader. Accident and surprise are claimed by reason of these facts. Two witnesses testified to certain statements made by the parties in charge of the property subsequently attached. These parties were residents of the county, and one at least had been consulted by the counsel for. the interpleader prior to the trial as to the facts within his knowledge. Neither was called as a witness on the trial, and so far as appears, no effort was made to secure their presence. No delay was asked pending the trial for the purpose of securing their attendance to contradict the testimony given of their statements. On the motion for a. new trial their affidavits were read in which they denied making the statements imputed to them by the witnesses, and also the affidavits of the interpleader and his counsel that they were surprised by such testimony. We think this is not a sufficient showing to justify the court in disturbing the verdict. The parties placed in charge of the property were parties likely to know of any change in the title, and the interpleader claiming to have purchased from the defendant several months before the attachment might well have anticipated testimony in that direction. Indeed, one of the parties, the interpleader testified, was sent out by himself, after his purchase, to take charge of the property. And whether the testimony of these statements was strictly competent or not, no exception was taken to its admission. Reasonable prudence could have guarded against any injury from this source.
With regard to the judgment by default^ it is urged that the affidavit and notice of publication are both defective. The affidavit states.the cause of action to be founded on two promissory notes. This is correct. Though not negotiable, .the instruments sued on are promissory notes.
Again say counsel: The publication notice does not describe the property taken, and say that a judgment in rem will be rendered against it. It seems that a description of the property is necessary, and a defective description would be fatal.
While a description of the property may be necessary when real estate is seized, it is not necessary when, as in this case, only personal property is attached. The no- . . n tice ini°rms the defendant that a personal judgment for the amount claimed will be rendered against him, and the property attached sold to satisfy such judgment. This was sufficient.
The only remaining question is this, Was the judgment prematurely rendered? The facts are these: The publication notice calls for the answer to be filed by or before the 13th day of October, 1877. The first day of the October term of the Elk county district court is fixed by law for the fourth Monday of October, 1877, which was the 22d day of October of that year. . That left only nine days between the answer- day and the first day of court. Judgment was entered by default, on October 26th. Was this error? It will be conceded, under the authority of Gapen v. Stephenson, 18 Kas. 140, that if an answer had been filed on October 13th, the case would not have stood for trial at the October term. Does the same rule obtain when the case is in default? We think not. Where no answer or demurrer is filed, no issue, either of fact or law, arises. (Gen. Stat., p. 679, §§262, 263.) A trial is a judicial examination of the issues in the case. (Gen. Stat., p. 680, §265.) Where there are .no issues, there can be no trial. Counsel relies upon §313 of the code, as amended in 1871, (Laws 1871, p.277,) which reads:
“A trial docket shall be made out by the clerk of court at least twelve days before the first day of each term of the court, and the actions shall be set for particular days, in the order hereinafter stated, and so arranged that the cases set for each day shall be tried as nearly as may be on that day, namely: First, Issues of fact to be tried by a jury. Second, Issues of fact to be tried by the court. Third, Issues of law. If the defendant fails to answer or demur, the cause, for the purpose of this section, shall be deemed to be at issue upon questions of fact; but in every such case, the plaintiff may move for and take judgment, as he is entitled to on the defendant’s default, on or after the day on which said action shall be set for trial.”
Only for the purpose of this section is a case on default deemed to be at issue, and at issue upon questions of fact. But the purpose of this section is merely the arrangement of a trial docket — the distribution of cases to particular days. It does not purport to determine what cases are triable, but only declares in what manner triable cases shall be distributed. And in such distribution, cases on default are to be considered cases at issue on questions of fact, and placed in the first or second class, according to the character of the cause of action alleged in the petition. That this section does not attempt to determine what actions are triable, is made more apparent from § 315, also amended in 1871, which reads:
“Actions shall be triable at' the first term of the court after the issues therein by the times fixed for pleading are or shall have been made up ten days before the term. When issues of law are made up either before or during a term of court, but after the period for preparing the trial docket of such term, the clerk shall place such actions on the trial docket of that term; and when any demurrer shall be adjudged to be frivolous, the cause shall stand for hearing or trial in like manner as if an issue of fact had been joined in the first instance. But the court may in its discretion fix specially the time when such causes shall stand for trial.”
By this, actions are triable although the issues are joined two days after the trial docket is made up. Indeed, as the trial docket is to be made up at least twelve days before the ■term, it may in fact be made up many days before it is settled what cases are triable; and where a frivolous demurrer is filed during the term, the court may order a trial at the same term. Evidently, if after overruling a frivolous demurrer, the court has power to order the trial to be had at the pending. term, it ought to have power to dispose of the case when no defense, not even a frivolous one,-is interposed; and turning to section 314, as amended in 1871, we think that gives this power. Such section reads:
“The trial of an issue of fact and the assessment of damages in any case shall be in the order in which they are placed on the trial docket, unless by the consent of the parties or the order of the court they are continued or placed at the heel of the docket, unless the court in its discretion shall otherwise direct.”
Now, as to issues of fact, this section is doubtless limited by the succeeding section heretofore quoted, but as to assessment of damages such section furnishes no limitation. And, indeed, in the absence of some statutory limitation we conceive the rule would be, that a judgment upon default might be rendered at any time during any teim of court. Court being in session, and the defendant in default, why may not judgment be entered .immediately ? There is no reason in the nature of things to the contrary, and no statutory restriction, except that when placed on the trial docket it should be on or after the day on which it is there set for trial.
On the whole case, therefore, we conclude that no error appears on which either plaintiff in error can avail himself, and the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The question in this case is as to the validity of a judgment in the circuit court of St. Louis county, Missouri, against the Pacific railroad. The facts as they appear from the transcript of that court are, that a petition in due form on certain promissory notes was prepared, and on the-back thereof this indorsement was written:
“The Pacific railroad of Missouri, defendant, here enters-its appearance to the above cause, this 21st day of January,. 1876, to the February term, A. D. 1876, of the circuit court of St. Louis county, and waives copy and service of the writ and petition in this cause. Samuel Hays,
“President Pacific Railroad of Missouri.”
February 16th, this petition, with its indorsements, was filed in that court, and the same day a judgment by default entered for $45,096.20. February 19th, the defendant appeared generally by its attorney, and moved the court to set aside the judgment, assigning in support thereof seven different grounds, three of which referred to the time and manner of entering the judgment; the fourth, to a want of opportunity to plead; and the remaining three, to an excess in the amount for which the judgment was entered. February 22d, the plaintiff appeared by its attorneys and remitted the sum of $3,000, and upon its motion a new judgment was entered for the balance, to wit, $42,096.20, and on February 26th, • the motion to set aside the judgment was overruled. This is all that the record shows touching the validity of the judgment. Its validity was attacked collaterally by plaintiffs in error, who were judgment creditors of the Pacific railroad. Did the district court err in holding it valid as against any such attack? We think not. The circuit court, as shown by the constitution of Missouri, offered in evidence, is a court of general jurisdiction. As such, it had jurisdiction of the subject-matter, to wit, a cause of action to recover money due on promissory notes. It had jurisdiction of the parties, for whether the indorsement or waiver on the petition by the president of the railroad company, defendant, was sufficient to bring the defendant into court, its appearance generally by attorney clearly was; and the judgment finally rendered, was not rendered until after such appearance. It may be said that this appearance was one simply to challenge the validity of the judgment, and therefore in fact only a special appearance; but it does not purport to be special. It challenges the judgment, not only on jurisdictional grounds, but also on the ground of excessive recovery. It claims that the judgment was erroneous, because rendered for too much, and also because prematurely rendered. Surely, a party who is not in court cannot litigate the question of error in the amount of the judgment. (Evans v. King, 7 Mo. 411; Cohen v. Trowbridge, 6 Kas. 385.) It appears that the defendant litigated the question of excessive recovery successfully, for $3,000 was remitted from the original amount.
The parties then being both in court, and the court having jurisdiction of the. subject-matter, its judgment is valid as against any collateral attack. If the judgment was prematurely rendered, and without giving defendant the full statutory time for pleading, that is a matter of error and not of jurisdiction; and error is corrected only by a reviewing court.
The authority of the president of the Citizens’ bank, the plaintiff in such judgment, to make the assignment thereof, was admitted, by a failure to deny the same under oath. (Gen. Stat., p. 650, § 108.)
The fact of the assignments was admitted by the answer, which alleged that they were without consideration and not made in good faith; and these allegations were wholly unsupported by the testimony.
Upon the whole case, then, we see no error, and the judgment must be affirmed.
All the Justices concurring. | [
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Gernon, J.:
Plaintiff Dana Bates appeals the trial court’s order prohibiting her from presenting evidence on the full value of her medical expenses and limiting the evidence at trial to the actual amounts paid. Bates also appeals the court’s ruling limiting the testimony of one of her expert witnesses and the court’s order eliminating the jury award for noneconomic damages.
Defendant Clinton Hogg and Bates were involved in an injury accident in January 1992. Hogg’s pickup truck, traveling at approximately 40 miles per hour, struck Bates’ vehicle from behind.
Prior to trial, Hogg filed a motion in limine to limit Bates’ evidence of economic damages to the amounts actually paid by Medicaid on her behalf. Hogg sought to prevent Bates from introducing evidence concerning the market value or list price of the services she received. The trial court granted the motion.
At trial, Bates presented medical evidence of her injuries. Included in her claim for damages were damages for a shoulder injury she claimed resulted from the accident. She testified that she initially only complained of pain in her neck, back, collarbone, and ankle. However, several months after the accident, her shoulder began popping out of joint. She eventually was diagnosed with a glenoid humeral tear and had to have two different surgeries on the shoulder. She has a scar on her right shoulder and has reduced range of motion due to the injury and surgery.
Hogg claimed that the shoulder injury was not caused by the accident. He attempted to discredit Bates’ claim that the wreck caused the shoulder injury by pointing out that she did not complain about her shoulder until 4 months after the accident.
• A jury returned a verdict, finding Hogg 100% at fault and awarding Bates $1,305.23 in medical expenses, $0 for future medical expenses, $3,310 in noneconomic loss to date, and $0 in future noneconomic loss.
After trial, the court found Bates had not met the $2,000 threshold for economic damages required by K.S.A. 40-3117 and eliminated the noneconomic damages, thus leaving total damages awarded to Bates of $1,305.23.
Limiting Evidence of Economic Damages
The first issue on appeal concerns the prohibition by the trial court of a presentation by Bates of the full value, or market value, of the medical treatment she received as a result of the accident and limiting her to presenting evidence of what Medicaid actually paid on her behalf after the statutory write-off or charge-down. She contends that the court’s limitation is a violation of the Kansas collateral source rule.
The question, simply stated, is whether an injured plaintiff can include, in a claim for economic damages, amounts that have been written off by the health care provider in conjunction with a Medicaid contract. This is a question of first impression in Kansas.
Both sides agree that whether evidence of such amounts is admissible for a determination of economic damages is a question of law. Therefore, this court’s scope of review is unlimited. See State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993).
“When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
“[T]he purpose of awarding damages is to make a party whole by restoring that party to the position he [or she] was in prior to the injury.” Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 352, 789 P.2d 541 (1990), overruled in part on other grounds 248 Kan. 824, 844, 811 P.2d 1176 (1991).
Generally, damages in a personal injury case are divided into economic and noneconomic damages.
“Economic damages include the cost of medical care, past and future, and related benefits, i.e., lost wages, loss of earning capacity, and other such losses. Noneconomic losses include claims for pain and suffering, mental anguish, injury and disfigurement not affecting earning capacity, and losses which cannot be easily expressed in dollars and cents.” 246 Kan. at 352.
The issue presented only involves economic damages, specifically medical expenses.
The fundamental principle of the law of damages is that a person who suffers personal injuries because of the negligence of another is entitled to recover the reasonable value of medical care and expenses for the treatment of his or her injuries, as well as the cost of those reasonably certain to be incurred in the future. 22 Am. Jur. 2d, Damages § 197, p. 169.
The question then becomes: What role does the collateral source rule play in the damage action before this court?
"The collateral source rule is generally recognized at common law. The rule is that benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.” Masterson v. Boliden-Allis, Inc., 19 Kan. App. 2d 23, 27, 865 P.2d 1031 (1993).
" ‘The collateral source rule permits an injured party to recover full compensatory damages from a tortfeasor irrespective of the payment of any element of those damages by a source independent of the tortfeasor. The rule also precludes admission of evidence of benefits paid by a collateral source, except where such evidence clearly carries probative value on an issue not inherently related to measurement of damages.’ 3 Minzer, Nates, Kimball, Axelrod and Goldstein, Damages in Tort Actions § 17.00, p. 17-5 (1984).” Wentling v. Medical Anesthesia Services, 237 Kan. 503, 515, 701 P.2d 939 (1985).
Clearly, benefits paid to a health care provider on behalf of an injured plaintiff are benefits from a collateral source. However, should the measure of benefits be limited to the amount actually paid or required to be paid?
It is our conclusion that the collateral source rule is not applicable under these circumstances. Nothing in the reasoning underlying the collateral source rule supports Bates’ position on this issue.
Presently, a medical provider, by agreement and contract, may not charge Medicaid patients for the difference between their customaiy charge and the amount paid by Medicaid. Therefore, the amount allowed by Medicaid becomes the amount due and is the “customary charge” under the circumstances we have before us. See K.A.R. 30-5-59(e) (1993 Supp.).
In Evanston Hosp. v. Hauck, 1 F.3d 540 (7th Cir. 1993), cert. denied 127 L. Ed. 2d 215, 114 S. Ct. 921 (1994), the hospital accepted $113,424 from Medicaid as payment in full of a $270,760.24 bill. When the patient received a $9.6 million personal injury award, the hospital attempted to return the payment and recover the former amount due. The Seventh Circuit stated:
“The hospital’s acceptance of the money from Medicaid was conditioned on the understanding that it would be payment in full — whatever claims the hospital might have had against Hauek were relinquished to [the Illinois Medicaid agency].
“Under Illinois law, when Medicaid pays money to a hospital on behalf of an individual, it ‘shall constitute payment in full for the goods or services covered thereby. Acceptance of the payment by or on behalf of the vendor . . . shall bar [the vendor] from obtaining, or attempting to obtain, additional payment therefor from the recipient or any other person.’ ” Hauck, 1 F.3d at 542 (quoting Ill. Comp. Stat. ch. 305, 5/11-1 [1991]).
Other cases have reached similar results. See Rybicki v. Hartley, 792 F.2d 260 (1st Cir. 1986); Holle v. Moline Public Hosp., 598 F. Supp. 1017 (C.D. Ill. 1984).
Under the facts before us, we agree with a statement made by a federal court in North Carolina, which stated in a similar case: “It would be unconscionable to permit the taxpayers to bear the expense of providing free medical care to a person and then allow that person to recover damages for medical services from a tortfeasor and pocket the windfall.” Gordon v. Forsythe County Hospital Authority, Inc., 409 F. Supp. 708, 719 (M.D.N.C. 1976).
Constitutionality
Bates next argues that the trial court’s ruling, and now this court’s ruling, on the Medicaid issue violates the equal protection provisions of the United States and the Kansas Constitutions.
As a threshold matter, for Bates to prevail on this issue, she must show that she is being treated differently from similarly situated individuals. This she cannot do.
Under this court’s ruling on the Medicaid issue, Bates is being treated no differently from any other injured person attempting to recover damages in Kansas. Therefore, her argument fails on this issue.
Directed Verdict
This issue is moot, since the jury found Hogg 100% at fault.
Expert Witness
Bates next argues the trial court abused its discretion by prohibiting Dr. Philip Mills from testifying as to her permanent impairment rating because the doctor had failed to provide his opinion concerning the rating prior to trial.
Both parties agree that the standard of review is abuse of discretion. See Marshall v. Mayflower Transit, Inc., 249 Kan. 620, Syl. ¶ 8, 822 P.2d 591 (1991).
The record shows that Dr. Mills was about to testify as to his opinion of Bates’ permanent impairment rating. Hogg objected to the opinion on the basis that the doctor’s report provided during discovery did not contain such an opinion and had stated that a rating was premature. Hogg argues that K.S.A. 60-226(b) supports the district court’s ruling.
K.S.A. 60-226(b) covers discovery facts known and opinions held by experts prior to trial. The statute reads in relevant part:
“(4) Trial preparation: Experts. Discovery of facts known and opinions held by experts, otherwise discoverable under the provisions of subsection (b)(1) and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows:
(A) (i) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion, (ii) Upon motion the court may order further discovery by other means, subject to such restrictions as to scope and such provisions, pursuant to subsection (b)(4)(C), concerning fees and expenses as the court may deem appropriate.
"(e) Supplementation of responses. A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the party’s response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement the party’s response with respect to any question directly addressed to (A) the identity and location of persons having knowledge of discoverable matters, and (B) the identity of each person expected to be called as an expert witness at trial, the subject matter on which the party is expected to testify and the substance of the party’s testimony.
(2) A party is under a duty seasonably to amend a prior response if the party obtains information upon the basis of which (A) the party knows that the response was incorrect when made, or (B) the party knows that the response though correct when made is no longer true and the circumstances are such that a failure to amend the response is in substance a knowing concealment.
(3) A duty to supplement responses may be imposed by order of the court, agreement of the parties, or at any time prior to trial through new requests for supplementation of prior responses.”
We conclude it was error not to allow Dr. Mills to testify as to Bates’ impairment rating. However, we find it was harmless error, since Bates produced evidence of the same impairment rating through the testimony of Dr. Jay Jones.
“Harmless error is error which does not prejudice the substantial rights of a party. It affords no basis for a reversal of a judgment and must be disregarded.” Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 701, 715 P.2d 2 (1986).
Reduction of Jury Award
Bates argues the court erred in finding that she did not meet the threshold requirement of K.S.A. 40-3117 because there were less than $2,000, in economic damages. She argues the evidence showed there was significant disfigurement and permanent injury and, therefore, she has met the statute’s requirements.
Hogg claims that the jury’s verdict matches the amount of damages that Bates claimed for expenses which were not related to her shoulder and, therefore, the court was correct because the only permanent disfigurement was to her shoulder.
The jury found Hogg at fault and awarded Bates medical expenses of $1,305.23 and noneconomic loses of $3,310. According to the trial court, the medical expense award coincided with only the expenses not associated with Bates’ shoulder injury.
The jury instructions directed the jury to determine the amount of damages sustained by Bates. Instruction No. 9 instructed the jury that it should consider:
“a. Pain, suffering, disabilities, or disfigurement, and any accompanying mental anguish suffered by plaintiff to date and those plaintiff is reasonably expected to experience in the future;
“b. The reasonable expenses of necessary medical care, hospitalization and treatment received and reasonable expenses of necessary medical care, hospitalization and treatment reasonably expected to be needed in the future.”
Our reading of the record and the jury’s award here leads us to conclude that the trial court was correct in eliminating the non-economic damages.
Bates agrees that any permanent injury or disfigurement was associated with her shoulder problems. The problem with the non- economic damage award is that, by whatever figures are used, the jury awarded Bates only damages for medical expenses not associated with the shoulder injury.
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Green, J.:
Raymond I. Myers III appeals from a decision of the Workers Compensation Board (Board). On appeal, Myers contends that the Board incorrectly determined that Indian Creek Townhomes Association I (ICTA) was not subject to the Workers Compensation Act (Act). We disagree and affirm the judgment of the Board.
Myers was severely injured in the spring of 1989 when a fence he was climbing collapsed. The fence was located on the property of his employer, ICTA. Myers’ work duties included trimming the bushes, picking up leaves and trash, watering vegetation, and general routine maintenance. At the time of his injury, Myers was a junior at Kansas University, majoring in chemistry.
When Myers filed a claim for workers compensation, ICTA denied that the Act covered Myers’ claim. ICTA argued that Myers was not an employee but rather that he was an independent contractor. Although the Administrative Law Judge (ALJ) found that Myers was an employee of ICTA, he determined that Myers’ injury was not covered by the Act because ICTA had not met the minimum payroll requirement under K.S.A. 44-505(a)(2) (Ensley 1986). When Myers appealed the ALJ’s decision to the Board, the Board also determined that the minimum payroll requirement had not been met.
For the Act to apply under the 1986 version of 44-505(a)(2), the employer had to have a total gross annual payroll for the preceding calendar year of at least $10,000 for all employees and had to reasonably estimate that it would have a payroll of $10,000 for the current calendar year. Both ICTA and the Kansas Workers Compensation Fund contend that the Act does not apply to ICTA because it did not meet the statutory payroll requirement. We agree.
The applicable portion of K.S.A. 44-505 (Ensley 1986) provided:
“(a) Subject to the provisions of K.S.A. 44-506 and amendments thereto, the workmen’s compensation act shall apply to all employments wherein employers employ employees within this state except that such act shall not apply to: . . . (2) any employment, other than those employments in which the employer is the state, or any department, agency or authority of the state, wherein the employer had a total gross annual payroll for the preceding calendar year of not more than $10,000 for all employees and wherein the employer reasonably estimates that such employer will not have a total gross annual payroll for the current calendar year of more than $10,000for all employees.” (Emphasis added.)
The current version of this subsection, K.S.A. 44-505(a)(2) (Furse 1993), reads substantively the same as the Ensley 1986 version, except that the threshold amount is $20,000 rather than $10,000.
Myers argues that ICTA met the $10,000 payroll requirement if the wages paid by ICTA’s contractors are considered. In support of his argument, Myers cites K.S.A. 44-503 (Ensley 1986), which provided:
“(a) Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under the workmens compensation act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workmen’s compensation act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.” (Emphasis added.)
The current version of this subsection, K.S.A. 1995 Supp. 44-503(a), reads substantively the same as the 1986 version.
“Under [44-503] coverage is extended to employees who would not ordinarily be considered within the common law definition of an employee. It is therefore often referred to as creating 'statutory employees/ ” Robinson v. Flynn's Ferry Service, Inc., 6 Kan. App. 2d 709, 712, 633 P.2d 1166 (1981) (citing Durmil v. Grant, 187 Kan. 327, 356 P.2d 872 [1960]). Myers argues that since the contractors’ employees are statutory employees of ICTA, the wages paid to the statutory employees should be included for purposes of satisfying the $10,000 payroll requirement. Myers concedes that there are no Kansas cases which have interpreted the statute in this manner.
Whether wages paid to contractors’ employees should be included in the computation of an employer’s annual wages for purposes of bringing the employer under the Act is a question of statutory interpretation and, therefore, a question of law over which this court has unlimited review. K.S.A. 44-556(a) states:
“Any action of the board pursuant to the workers compensation act, . . . shall be subject to review in accordance with the act for judicial review and civil enforcement of agency actions [K.S.A. 77-601 etseq.] by appeal directly to the court of appeals. . . . Such review shall be upon questions of law.”
This court has previously stated that in a workers compensation appeal, “the appellate court may substitute its judgment on questions of law.” Helms v. Pendergast, 21 Kan. App. 2d 303, 309, 899 P.2d 501 (1995) (citing Elder v. Arma Mobile Transit Co., 253 Kan. 824, Syl. ¶ 2, 861 P.2d 822 [1993]).
In Rodriguez v. John Russell Constr., 16 Kan. App. 2d 269, 273, 826 P.2d 515 (1991), this court stated:
“The purpose of K.S.A. 44-503(a) is set forth in Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P.2d 613 (1946):-
‘A prime purpose of section 44-503 of the workmen’s compensation act is to give to employees of a contractor who has undertaken to do work which is a part of the trade or business of the principal, such remedy against the principal as would have been available if they had been employed directly by the principal, and to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.’ 161 Kan. 345, Syl. ¶ 4.”
Although both the ALJ and the Board declined to address the purpose of44-503, we believe the purpose of the statute is germane to resolving the earlier stated payroll issue. Clearly, the statute was enacted to give an employee of an uninsured contractor protection. The statute does not, however, address the situation where an injured employee is a regular employee of the principal employer. Consequently, the legislature has afforded more statutory relief to an employee of a contractor than it has afforded to an employee of a principal. In Allen v. Mills, 11 Kan. App. 2d 415, 419-20, 724 P.2d 143 (1986), Judge Rees, in a concurring opinion, discussed the limits of judicial ingenuity, stating:
“The rule that the Act must be liberally construed does not permit the courts to exercise judicial ingenuity or to stretch the elasticity of language to the point of disregarding the Act’s simple unclouded provisions. Everett v. Kansas Power Co., 160 Kan. 712, 716, 165 P.2d 595 (1946). Neither can the courts go beyond the legislature and add what was omitted or change the limitations of the Act. Roberts v. City of Ottawa, 101 Kan. 228, 231, 165 Pac. 869 (1917). In short, the judiciary is not permitted to enlarge upon the plain terms of the Act. Leslie v. Reynolds, 179 Kan. at 427.”
Furthermore, under 44-503, a contract not only must exist between the principal employer and the contractor but also must exist between the contractor and the injured employee of the contractor. Moreover, the statute requires that the amount of compensation to be awarded to the injured employee be calculated by considering the wages the employee earned from his or her immediate employer, which would be the uninsured contractor. Here, Myers was not an employee of one of ICTA’s contractors. He was a regular employee of ICTA. Consequently, Myers could not be considered a statutory employee of ICTA. Because he is not a statutory employee, he has no statutory remedy under 44-503. Therefore, he should not be permitted to include the wages paid by ICTA’s contractors for the purpose of satisfying the payroll requirement of K.S.A. 44-505(a)(2) (Ensley 1986).
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Lewis, J.;
Defendant was convicted of possession of cocaine after a previous conviction for the same crime. It was further determined that defendant’s criminal history score was “B” and that his presumptive Kansas Sentencing Guidelines Act (KSGA) sentence was incarceration for a period of between 68 and 77 months. The trial court granted a downward durational departure and sentenced him to prison for a term of 65 months. Defendant appeals both his conviction and his sentence.
Defendant’s problems began when he was arrested on an outstanding warrant for an unrelated charge. Following that arrest, defendant was taken to jail, where he was strip searched prior to being placed in confinement. During the process of the strip search, the officer conducting the search asked defendant to unroll the cuff of his pants leg. When defendant did so, a small rock of cocaine fell from the cuff onto the floor. The cocaine was recovered by the police officer and forms the basis for the conviction now being considered.
The facts recited above constitute the testimony of Officer Keith Tate of the Wichita Police Department. There was, however, another story.
Defendant denies there was any cocaine on his person or in his pants cuff. He alleges that the cocaine found must have been planted by the police officers.
SUFFICIENCY OF THE EVIDENCE
Defendant first argues that his conviction is not supported by the evidence. Our standard of review is well established:
“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 rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Knighten, 260 Kan. 47, Syl. ¶ 1, 917 P.2d 1324 (1996).
The evidence as to whether defendant was or was not in possession of cocaine is conflicting. There were two scenarios painted, one by Officer Tate and one by defendant, and those are described above. The jury chose to believe the testimony of Officer Tate to the effect that cocaine fell from defendant’s pants cuff during his pre-jail search.
Defendant argues that Officer Tate’s testimony is unreliable, that we should not believe it, and that we should reverse his conviction on that basis. Unfortunately for defendant, this is an argument more properly made to a jury than to an appellate court. “When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses.” State v. Dunn, 249 Kan. 488, 491, 820 P.2d 412 (1991).
We have carefully reviewed the record in this case in the light of our standard of review, and we hold that defendant’s conviction is supported by the evidence to the degree required by law.
MOTION FOR A NEW TRIAL
Defendant argues that the trial court erred in denying his motion for a new trial on the grounds of newly discovered evidence.
The evidence at trial indicated that during the strip search of defendant, there was another detention officer present. Officer Tate testified that he did not know the name of that officer and did not know the whereabouts of that officer. The mystery officer was not called to testify at the trial.
After trial, defendant filed a motion for a new trial, alleging he had identified and located the mystery detention officer and that he should be entitled to a new trial for that reason. Defendant did not, however, provide any information on who the officer was, what he or she might testify to, why he or she was not located at the ■ time of trial, and why the mere location of the officer would change the results of the trial.
The relevant portion of K.S.A. 22-3501(1) provides: “The court on motion of' a defendant may grant a new trial to him if required in the interest of justice.” Our standard of review is set out in State v. Thomas, 257 Kan. 228, Syl. ¶ 3, 891 P.2d 417 (1995), as follows:
“The appellate standard for reviewing a trial court’s order under K.S.A. 22-3501(1) on a motion for new trial based on newly discovered evidence is abuse of discretion, regardless of whether a full hearing with live testimony is held. Under the' abuse of discretion standard, if a reasonable person could agree with the trial court’s decision it will not be disturbed on appeal.”
In addition, “[n]ew trials on grounds of newly discovered evidence are not favored, and such motions are to be viewed with caution.” 257 Kan. 228, Syl. ¶ 2.
Defendant had the burden of proving why he should be given a new trial. He was required to show that he had obtained new, credible, and convincing evidence which, if introduced, would raise a reasonable probability of a different outcome upon retrial. Defendant proved nothing more than that he had located the missing police officer. This was not sufficient to sustain his burden of proof, particularly in the absence of any indication that the mere location of that officer could raise a reasonable probability of a different outcome.
We hold that defendant failed to meet his required burden of proof and that the trial court did not err in denying his motion for a new trial;
CONSTITUTIONALITY OF K.S.A. 21-4711(a)
Defendant’s criminal history was found to be “B” because of three prior person misdemeanors, which are scored under the KSGA as one person felony for criminal history purposes. K.S.A. 21-4711(a) provides: “Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender’s criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes.”
In the absence of the additional felony conviction brought about by the three prior misdemeanor convictions, defendant’s criminal history would have been something other than “B” and his sentence may have been somewhat less than the sentence imposed.
Defendant attacks the constitutionality of K.S.A. 21-4711(a). He argues it is unconstitutional in that it violates his due process rights and the prohibition against ex post facto laws.
We disagree.
A constitutional challenge to a statute involves a question of law over which this court has unlimited review. See State v. Ponce, 258 Kan. 708, 709, 907 P.2d 876 (1995). “A statute is presumed constitutional, and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.” 258 Kan. at 709-10.
We consider this case to be controlled by the recent Supreme Court decision in State v. LaMunyon, 259 Kan. 54, 911 P.2d 151 (1996). In LaMunyon, the Supreme Court dealt with prior noncriminal juvenile adjudications being scored as felonies for criminal history purposes under the KSGA. The court found that such scoring did not violate the constitution. It held that “due process does not require that a juvenile be informed that an uncontested or stipulated adjudication could be used to determine the sentence for a future crime.” 259 Kan. at 62. The court recognized that in the context of giving a guilty plea, a defendant does not have a right to be informed of the possibility that a conviction may be used to enhance a sentence for a later offense because that possibility is merely a collateral consequence of the plea. 259 Kan. at 62; see City of Ottawa v. Lester, 16 Kan. App. 2d 244, 246-47, 822 P.2d 72 (1991).
As in LaMunyon, defendant in this case was not denied due process by not being informed at the time he committed the misdemeanors that the offenses would be classified as a felony for criminal history purposes under the KSGA. The manner in which his prior crimes affect his guidelines sentence is merely a collateral consequence of being convicted of the misdemeanors. On the basis of LaMunyon, we hold that the application of K.S.A. 27-4711(a) to defendant’s sentence did not violate his due process rights.
Defendant’s next argument is that the statute violates the prohibition of ex post facto laws. He argues that defendants are disadvantaged by its provisions because it treats prior nonfelony acts as a felony and uses those acts to impose a harsher punishment against a defendant.
“An ex post facto violation occurs when a new law is retroactively applied to events that occurred before its enactment and the new law disadvantages the offender affected by it.” LaMunyon, 259 Kan. at 65. In LaMunyon, the Supreme Court rejected an ex post facto challenge to the use of prior juvenile adjudications in scoring a defendant’s criminal history under the KSGA. The court noted the arguments were similar to the ones rejected in previous cases involving the habitual criminal statutes. 259 Kan. at 66-67; see State v. Jones, 214 Kan. 568, 570, 521 P.2d 278 (1974); State v. Campbell, 9 Kan. App. 2d 474, 477, 681 P.2d 679 (1984).
The reasoning in LaMunyon is controlling in the instant matter. Defendant is not being punished for his prior person misdemeanors. Those misdemeanors are merely being used to establish a sentencing classification for his conviction of possession of cocaine. Under the analysis of LaMunyon and those cases dealing with the Habitual Criminal Act, the guidelines classification of defendant’s three prior person misdemeanors as a felony for criminal history purposes does not violate the prohibition against ex post facto laws.
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Royse, J.:
Joseph Christopher Esher was convicted by a jury on multiple counts. He appeals, arguing: (1) two of the charges were multiplicitous and (2) the district court erred in refusing to instruct the jury that voluntary intoxication may be a defense to aggravated battery.
The State charged Esher with the crimes of kidnapping, aggravated battery, criminal threat, battery, and assault. At the conclusion of trial, the district court instructed the jury that unlawful restraint is a lesser included offense of the crime of kidnapping. The jury found Esher guilty of unlawful restraint, aggravated battery, criminal threat, battery, and assault.
Esher’s first argument on appeal is that the charges of kidnapping and criminal threat are multiplicitous and, therefore, the district court erred in trying him on both counts. Multiplicity is “the charging of a single offense in several counts of a complaint or information.” State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984). The problem with multiplicity is that it creates the potential for multiple punishments for the same offense, which is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992).
In Freeman, our Supreme Court commented that K.S.A. 21-3107 defines the right of a prosecutor to charge more than one offense based on the same act and to convict on an included offense not specifically charged. Freeman, 236 Kan. at 281. The court further noted: “The fact that an accused is charged with multiplicitous crimes is not in and of itself a violation of the double jeopardy clause. The clause merely prevents a defendant from being punished more than once for die same crime.” 236 Kan. at 282. See also Edwards, 250 Kan. at 329 (under K.S.A. 21-3107[1], a prosecutor is free to charge multiplicitous crimes, but a defendant cannot be punished more than once for the same crime).
In this case, Esher was not convicted of kidnapping and has not been punished for the crime of kidnapping. His claim that the charges of kidnapping and criminal threat were multiplicitous is witiiout merit.
At oral argument, Esher’s appellate counsel argued that multiplicity is a jurisdictional defect. Thus, counsel concluded, the district court was without authority to convict Esher of criminal threat. Esher provides no authority in support of this “jurisdictional” view of multiplicitous charges. Moreover, this argument is contrary to 21-3107 and the Kansas cases regarding multiplicity. For example, in Freeman, 236 Kan. at 282, the court discussed Arnold v. Wyrick, 646 F.2d 1225 (8th Cir. 1981), in which the defendant was charged with both armed criminal action and a lesser included offense of armed criminal action, first-degree robbery. Arnold was convicted only on the lesser included offense and punished only once. The court, therefore, rejected his claim that charging him with both offenses required reversal of his conviction on the lesser offense.
In Freeman, the court also quoted at length from Ohio v. Johnson, 467 U.S. 493, 81 L. Ed. 2d 425, 104 S. Ct. 2536 (1984). In that case, the United States Supreme Court held Ohio retained authority to continue its prosecution of Johnson on charges of murder and aggravated robbery, despite the fact that Johnson had pled guilty to lesser included offenses which were charged in the same indictment. “While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting respondent for such multiple offenses in a single prosecution.” 467 U.S. at 500, (quoted in Freeman, 236 Kan. at 285). See also State v. Kingsley, 252 Kan. 761, 784-87, 851 P.2d 370 (1993) (jury rendered guilty verdicts on charges of first degree murder based on premeditated murder and felony murder).
Two of the principal cases relied on by Esher also contravene the notion that multiplicity is a jurisdictional defect. In State v. Racey, 225 Kan. 404, 590 P.2d 1064 (1979), .the defendant argued his convictions for kidnapping and aggravated assault were multiplicitous because they arose out of one continuing unbroken act of force. The Supreme Court agreed and reversed Racey’s conviction for aggravated assault. The Supreme Court did not conclude that multiplicity deprived the district court of jurisdiction, however, because it affirmed Racey’s conviction for kidnapping. 225 Kan. at 408-09. Similarly, in State v. Lassley, 218 Kan. 758, 545 P.2d 383 (1976), the Supreme Court determined that Lassley had committed a continuing act of force. The act which constituted aggravated assault was part of the act which established kidnapping. The Supreme Court reversed Lassley s conviction for aggravated assault as multiplicitous. The court, nevertheless, affirmed Lassley s convictions for kidnapping and rape.
In this case, Esher was not convicted of kidnapping. He was not punished more than once for the same crime. For these reasons, his claim that the charges of kidnapping and criminal threat are multiplicitous is without merit.
Esher’s second argument on appeal is that the district court erred by refusing to instruct the jury that voluntary intoxication may be a defense to aggravated battery. Voluntary intoxication may be a defense to specific intent crimes, but not to general intent crimes. State v. Johnson, 258 Kan. 475, 485, 905 P.2d 94 (1995); State v. Sterling, 235 Kan. 526, 528-29, 680 P.2d 301 (1984).
General criminal intent is described in K.S.A. 21-3201(a):
“Except as otherwise provided, a criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless. Proof of intentional conduct shall be required to establish criminal intent, unless the statute defining the crime expressly provides that the prohibited act is criminal if done in a reckless manner.”
See State v. Gobin, 216 Kan. 278, 280, 531 P.2d 16 (1975).
Specific intent is distinguished from general intent where “in addition to the intent required by K.S.A. 21-3201, the statute defining the crime in question identifies or requires a further particular intent which must accompany the prohibited acts.” Sterling, 235 Kan. 526, Syl. ¶ 1; see State v. Bruce, 255 Kan. 388, 394, 874 P.2d 1165 (1994).
Crimes which require proof of a specific intent include: aiding and abetting, K.S.A. 21-3205 (intent to promote or assist in commission of the crime), State v. Hunter, 241 Kan. 629, 639, 740 P.2d 559 (1987); attempt, K.S.A. 21-3301 (intent to commit the underlying crime), State v. Shannon, 258 Kan. 425, 428, 905 P.2d 649 (1995); conspiracy, K.S.A. 21-3302 (intent to agree and intent to commit the underlying crime), State v. Campbell, 217 Kan. 756, 770, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975); solicitation, K.S.A. 21-3303(a) (intent that other person commit the crime solicited), State c. DePriest, 258 Kan. 596, 604, 907 P.2d 868 (1995); first-degree murder, K.S.A. 21-3401 (intent to kill), State v. Young, 253 Kan. 28, 33, 852 P.2d 510 (1993); second-degree murder, K.S.A. 21-3402 (“malice” includes specific intent to kill), State v. Hill, 242 Kan. 68, 82-83, 744 P.2d 1228 (1987); criminal threat, K.S.A. 21-3419 (intent to terrorize), State v. Knight, 219 Kan. 863, 866, 549 P.2d 1397 (1976); kidnapping, K.S.A. 21-3420 (intent to hold person to facilitate commission of a crime, for example), State v. Calderon, 233 Kan. 87, 93, 661 P.2d 781 (1983); aggravated incest, K.S.A. 21-3603 (intent to arouse or satisfy the sexual desires of the child or the defendant or both), see State v. Albert, 13 Kan. App. 2d 671, 676, 778 P.2d 386 (1989); contributing to a child’s misconduct, K.S.A. 21-3612 (intent to aid the child in avoiding detection or apprehension by law enforcement officers), State v. Ferris, 19 Kan. App. 2d 180, 183, 865 P.2d 1058 (1993); theft, K.S.A. 21-3701 (intent to deprive owner permanently of properly), State v. Wickliffe, 16 Kan. App. 2d 424, 426, 826 P.2d 522 (1992); forgery, K.S.A. 21-3710 (intent to defraud), State v. Giddings, 216 Kan. 14, 19, 531 P.2d 445 (1975); burglary and aggravated burglary, K.S.A. 21-3715 and K.S.A. 21-3716 (intent to commit a theft), State v. Chism, 243 Kan. 484, 488, 759 P.2d 105 (1988); criminal damage to property, K.S.A. 21-3720 (intent to injure or defraud an insurer or lienholder), State v. Sterling, 235 Kan. 526, 530-31, 680 P.2d 301 (1984); harassment by telephone, K.S.A. 21-4113 (intent to harass), State v. Thompson, 237 Kan. 562, 568, 701 P.2d 694 (1985); possession of a controlled substance, K.S.A. 1995 Supp. 65-4161 (intent to exercise control over the substance), see State v. Washington, 244 Kan. 652, 654, 772 P.2d 768 (1989).
Crimes which do not require proof of a specific intent include: involuntary manslaughter, K.S.A. 21-3404 (does not require specific intent to kill), State v. Seelke, 221 Kan. 672, 678, 561 P.2d 869 (1977); aggravated assault, K.S.A. 21-3410(a) (no particular intent required when aggravated assault consists of assault with a deadly weapon), State v. Cunningham, 222 Kan. 704, 707-08, 567 P.2d 879 (1977); rape, K.S.A. 21-3502 (no requirement that defendant’s specific intent to commit rape be shown), State v. Cantrell, 234 Kan. 426, 434, 673 P.2d 1147 (1983); robbery and aggravated robbery, K.S.A. 21-3426 and K.S.A. 21-3427 (intent to permanently deprive is not an element of crime), State v. Poulos & Perez, 230 Kan. 512, 515, 639 P.2d 477 (1982); child abuse, K.S.A. 21-3609 (“intentionally torturing” does not require specific intent to injure), see State v. Bruce, 255 Kan. 388, 394-95, 874 P.2d 1165 (1994); and carrying a concealed weapon, K.S.A. 21-4201 (knowingly carrying a weapon concealed on one’s person does not depend upon a specific intent to use it unlawfully against another person), State v. Lassley, 218 Kan. 752, 754-55, 545 P.2d 379 (1976).
Esher was charged with aggravated battery under K.S.A. 21-3414(a)(1)(C), which provides that aggravated battery is “intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” Whether aggravated battery under that subsection is a general or specific intent crime is a question of statutory interpretation, subject to unlimited review by an appellate court. See State v. Favela, 259 Kan. 215, Syl. ¶ 1, 911 P.2d 792 (1996).
The language of 21-3414(a)(l)(C) simply requires proof that the defendant intentionally caused physical contact with another person. The statute, thus, incorporates the general intent required by 21-3201. Notably, however, the statute does not identify or require a further particular intent which must accompany the prohibited acts.
Esher contends that 21-3414(a)(l)(C) should be read to require an “intent to injure.” This contention is without merit. Although the pre-1993 version of the aggravated battery statute required proof of “the unlawful touching or application of force to the person of another with intent to injure that person or another,” K.S.A. 21-3414 (Ensley 1988), the legislature deleted the “intent to injure” language when it adopted the current version of 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.” Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990). Moreover, when a statute is plain and unambiguous, an appellate court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994). The rules of statutory construction do not permit the courts to read a statute so as to add something which is not readily found therein. State v. Gamble, 20 Kan. App. 2d 684, 686, 891 P.2d 472, rev. denied 257 Kan. 1094 (1995).
Contrary to Esher’s contention that the current version of 21-3414(a)(1)(C) should be construed like the pre-1993 aggravated battery statute, the reference to “intentionally causing physical contact” in the current statute more closely parallels the language of the pre-1993 battery statute, K.S.A. 21-3412 (Ensley 1988). Battery under that statute was the “unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.” The Supreme Court has concluded that battery under the pre-1993 statute does not require proof of the specific intent to injure. See State v. Seely, 212 Kan. 195, 203, 510 P.2d 115 (1973).
Esher relies on State v. Ochoa, 20 Kan. App. 2d 1014, 895 P.2d 198 (1995), to support his argument that aggravated battery under 21-3414(a)(l)(C) is a specific intent crime. Esher’s reliance on Ochoa is misplaced because that opinion did not construe 21-3414(a)(1)(C) or address the question of general versus specific intent.
Finally, because K.S.A. 21-3414 now encompasses both intentional and reckless acts, Esher argues the subsections which refer to intentional conduct must include a specific intent element. Esher reasons the legislature must have intended that there be some difference between intentional aggravated battery under 21-3414(a)(1)(A),(B), and (C) and reckless aggravated battery under 21-3414(a)(2)(A) and (B). Esher concludes that this difference can be provided by requiring a specific intent to injure as an element of intentional aggravated battery.
Esher’s analysis of 21-3414 is not persuasive. First, the legislature has already determined the differences among the various types of aggravated battery: The statute assigns four different severity levels to the various subdivisions of aggravated battery. Second, Esher’s reasoning flies in the face of the clear language of 21-3201, which includes both “intentional” and “reckless” within the scope of general criminal intent.
In summary, K.S.A. 21-3414(a)(l)(C) is not a specific intent crime. Consequently, the district court did not err in refusing to instruct on voluntary intoxication as a defense to the charge of aggravated battery in this case.
Finally, both Esher and the State agree that the district court erred by using a criminal history score of B for both aggravated battery and criminal threat to calculate consecutive sentences. Under K.S.A. 21-4720, when imposing consecutive sentences, the sentencing judge imposes a base sentence for the crime with the highest severity rating, using the defendant’s total criminal history score. A nonbase sentence for the remaining conviction must be calculated using a criminal history score of I. State v. Bowen, 20 Kan. App. 2d 576, 890 P.2d 374 (1995). Because the district court failed to determine a base sentence and a nonbase sentence, the sentence is vacated and the case remanded for resentencing.
Conviction affirmed, sentence vacated, and case remanded. | [
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Gernon, J.:
Taylor Crane & Rigging, Inc., (Taylor) appeals from a final order of the Board of Tax Appeals (BOTA) determining that two forklift trucks and a hydraulic gantry were subject to an assessment of compensating use tax. At issue is whether the equipment used by the taxpayer to load and unload tractor-trailer trucks traveling from state to state is exempt from taxation as part of the interstate common carrier exemption found in K.S.A. 79-3704.
We affirm.
Pursuant to K.S.A. 74-2426(c), BOTA’s decision to deny the exemptions is subject to judicial review under the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. In re Tax Appeal of Derby Refining Co., 17 Kan. App. 2d 377, 380, 838 P.2d 354 (1992), rev. denied 252 Kan. 1092 (1993). The scope of review, set forth in K.S.A. 77-621, states in relevant part:
“(c) The court shall grant relief only if it determines any one or more of the following:
(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
(4) the agency has erroneously interpreted or applied the law;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
As summarized by the court in In re Tax Appeal of Derby Refining Co., 17 Kan. App. 2d at 380-81, a number of general rules apply to appeals of this nature:
“In Kansas, taxation is the rule and exemption is the exception. Assembly of God v. Sangster, 178 Kan. 678, 680, 290 P.2d 1057 (1955). The burden of establishing an exemption from taxation is on tire party claiming the exemption. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 454, 691 P.2d 1303 (1984). One who claims a tax exemption must bring himself clearly within the exemption provisions of the statute. Warren v. Fink, 146 Kan. 716, Syl. ¶ 1, 72 P.2d 968 (1937). Statutory exemption provisions are strictly construed against the party requesting exemption. Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 635, 694 P.2d 462 (1985). All doubts concerning exemption are to be resolved against the exemption and in favor of taxation. Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, 851, 473 P.2d 1 (1970).”
This case involves the Kansas Compensating Tax Act, K.S.A. 79-3701 et seq. K.S.A. 1994 Supp. 79-3703 provides: “There is hereby levied and there shall be collected from every person in this state a tax or excise for the privilege of using, storing, or consuming within this state any article of tangible personal property.”
K.S.A. 79-3704 states that the provisions of the Act shall not apply:
“(a) In respect to the use, storage or consumption of any article of tangible personal property brought into the state of Kansas by a nonresident who is within the state for not to exceed sixty (60) days for his or her use or enjoyment while within the state; or by a railroad or public utility for consumption or movement in interstate commerce.”
Taylor argues that subsection (d) of K.S.A. 79-3704 is also applicable to the present case. Subsection (d) states that the Act shall not apply to property that is not subject to tax under the provisions of the Kansas Retailers’ Sales Tax Act. The Retailers’ Sales Tax Act exempts from taxation “tangible personal property purchased by a railroad or public utility for consumption or movement directly and immediately in interstate commerce.” K.S.A. 1994 Supp. 79-3606(f). Taylor admits that because of the similarity of the statutes, the property in question is either exempt under both or neither.
K.A.R. 92-20-18 amplifies K.S.A. 79-3704 and provides in relevant part:
“Motor carriers authorized by the interstate commerce commission as common carriers and engaged in the transportation of persons or property shall be deemed to be a public utility within the meaning of the term public utility’ as used in section 79-3704(a) of the act.
“All tangible personal property purchased out of the state and brought into the state of Kansas for use, storage, or consumption by common carriers is subject to die tax in the same manner as is tangible personal property brought into the state by other firms, persons, or corporations, except as exempted herein.
“Rolling stock including buses and trailers, purchased by common carriers authorized to engage in interstate transportation by the interstate commerce commission, which tangible personal property is brought into the state of Kansas for movement direcdy and immediately in interstate commerce, is exempt.”
Taylor, as a motor common carrier authorized by the Interstate Commerce Commission, is a “public utility” within the meaning of K.A.R. 92-20-18 and K.S.A. 79-3704(a). Moreover, there is no question that Taylor’s two forklifts and hydraulic gantry are items of tangible personal property.
Are Taylor’s forklifts and hydraulic gantry “rolling stock”?
Taylor argues that its forklifts and hydraulic gantry are exempt from taxation pursuant to K.S.A. 79-3704(a). More specifically, Taylor contends that the equipment at issue is “rolling stock” as that term is used in K.A.R. 92-20-18.
The term “rolling stock” is not defined in the statute, the regulation, or Kansas case law. It is most often discussed in the context of railroad equipment, where the term seems to encompass a wide variety of items. 74 C.J.S., Railroads § 1, p. 341, defines rolling stock as “[a] definite and precise term, as to the scope of which there can be no misunderstanding, embracing the movable property belonging to a railroad. The term implies the reverse of annexation and a permanent fixture.” Rolling stock is defined in Webster’s Third New International Dictionary 1969 (1971) as “the wheeled vehicles (as locomotives, passenger cars, or freight cars) owned and used by a railroad” and as “the wheeled vehicles (as trucks or tractor-trailers) owned and used by a motor carrier.”
The comparable provision to K.A.R. 92-20-18 for railroads is K.A.R. 92-20-16, which provides:
“All tangible personal property purchased out of the state and brought into the state of Kansas for use, storage, or consumption by railroads is subject to the tax in the same manner as is tangible personal property brought into the state by other firms, persons, or corporations, except as exempted herein.”
The regulation exempts “[r]olling stock, including locomotives, engines and cars of all kinds purchased by railroads in another state and brought into Kansas for movement in interstate commerce.” (Emphasis added.) K.A.R. 92-20-16.
The policy of the Department of Revenue has been to not exempt forklift trucks, hydraulic gantries, and similar loading and unloading equipment under K.S.A. 79-3704 and K.A.R. 92-20-18. Neither the forklifts nor the hydraulic gantry are licensed as motor vehicles, although they do have wheels and are self-propelled. Neither is intended for highway use. The Department of Revenue views rolling stock as items such as straight trucks and tractor-trailers and argues that forklifts and gantries are no different than other equipment that is necessary for loading and unloading, such as pallets, ropes, chains, pulleys, and hand trucks.
The interpretation of a statute is a question of law, and it is the function of a court to interpret a statute to give it the effect intended by the legislature. Therefore, while the administrative interpretation of a statute should be given consideration and weight, it does not follow that a court will adhere to an administrative ruling where the statute is clear and the administrative ruling is erroneous. The final construction of a statute rests within the courts. Amoco Production Co. v. Armold, Director of Taxation, 213 Kan. 636, 647-48, 518 P.2d 453 (1974); see In re Tax Appeal of McKee, 19 Kan. App. 2d 43, 48-49, 861 P.2d 1386 (1993).
In 1985, Illinois had a regulation which defined “rolling stock” to include “transportation vehicles” used by a railroad, bus line, airline, or trucking company. The Illinois Court of Appeals considered the “rolling stock” issue in LeTourneau R.R. Serv. v. Dep’t of Rev., 134 Ill. App. 3d 638, 481 N.E.2d 864 (1985). At issue was a “LeTro Porter,” a rubber-tired, self-propelled machine which is operated from a cab located on the vehicle. It was used primarily to load and unload containerized freight from rail cars, much like a forklift, and could also be used to load and unload semi-trailer trucks. The machine was not affixed to the railroad tracks but operated in the rail yard alongside the tracks. The machine was not equipped for either rail or highway travel and had never left the rail yard after it was delivered in 1979.
In determining whether the machine should be considered rolling stock, the court found that there was no question that the machine aided the movement of goods in interstate commerce. 134 Ill. App. 3d at 642. However, the court denied the exemption, stating as follows:
“The LeTro Porter is not a transportation vehicle such as a railroad car or a semi-truck, for its movement is minimal and is merely incidental to its principal functions of loading and unloading freight. Moreover, it does not transport freight from one geographical location to another, but merely moves the freight within the confines of the rail yard. It is not property which ‘in its ordinary use is taken from one part of the fine to another [citation omitted], nor ‘goods which are mobile and which are of a type normally used in more than one jurisdiction.’ [Citation omitted.] The LeTro Porter is neither a transportation vehicle nor an instrument intended to be attached to a transportation vehicle.” 134 Ill. App. 3d at 642.
The emphasis in K.A.R. 92-20-16 and 92-20-18 is on vehicles that transport persons and property from one state to another in interstate commerce. To include items such as forklifts and hydraulic gantries that load and unload materials onto such vehicles would appear to stretch the intent of these regulations too far. In a sense, forklifts and gantries provide assistance to the vehicles which actually do the transporting of goods; they themselves do not transport goods or persons across state lines. Their movement is incidental to their principal function of loading and unloading goods for transport.
This conclusion is supported by the Kansas Supreme Court’s decision in United Parcel Service, Inc. v. Armold, 218 Kan. 102, 542 P.2d 694 (1975). In this case, United Parcel Service (UPS) sought a refund for taxes it had paid on several vans and tractor-trailers. UPS argued that the vehicles were exempt as rolling stock used by a public utility for “movement in interstate commerce,” pursuant to K.S.A. 79-3704(a). 218 Kan. at 104-06. The Supreme Court agreed, stating as follows:
“We agree with the Department [of Revenue] that ‘movement in interstate commerce’ requires the property to actually move and does not refer to those items of tangible personal property which are stationary. This interpretation is consistent with the Department’s regulations which construe the exemption to apply to rolling stock, and repair and replacement parts which become a part of robing stock. We have no doubt the legislature had rolling stock in mind when it used the word ‘movement’ in the exemption provision. However, we cannot concur with the Department’s contention that the rolling stock must actually cross state boundary lines to be moving in interstate commerce. The trucks in question were engaged exclusively in interstate commerce although they operated solely within the state.” 218 Kan. at 108.
This language suggests that “rolling stock,” as that term is used in K.A.R. 92-20-18, is equipment which moves materials in interstate commerce from one destination to another, like a bus or trailer, not just from the ground to a truck bed or vice versa. Taylor incorrectly reads this case to mean that transporting goods from the ground to a tractor-trailer is equivalent to transporting goods from one destination to another.
Statutory exemption provisions are to be strictly construed against the party requesting the exemption, and all doubts are to be resolved in favor of taxation. We find that BOTA did not err in determining that Taylor’s forklifts and hydraulic gantry were not rolling stock pursuant to K.A.R. 92-20-18.
Is K.A.R. 92-20-18 unduly restrictive of K.S.A. 79-3704?
K.S.A. 79-3704 exempts “any article of tangible personal property brought into the state of Kansas by a . . . public utility for consumption or movement in interstate commerce.” (Emphasis added.) K.A.R. 92-20-18 exempts “[r]oiling stock including buses and trailers, purchased by common carriers authorized to engage in interstate transportation by the interstate commerce commission, which tangible personal property is brought into the state of Kansas for movement directly and immediately in interstate commerce.”
Taylor argues that the wording of K.S.A. 79-3704(a) exempting any article of tangible personal property is clear and should be given its ordinary meaning. Had the legislature intended to limit the exemption to just rolling stock, the statute could have been so worded. Taylor contends that K.A.R. 92-20-18 is an attempt to broaden the authority to tax tangible personal property which has previously been declared exempt by the legislature.
K.A.R. 92-20-18 was expressly approved by the Kansas Supreme Court in 1975 in United Parcel Service, Inc. v. Armold, 218 Kan. at 108. The court held that the statute and the regulation do not conflict with one another and that the K.A.R. requirement that the equipment be rolling stock to receive the exemption is consistent with the statute and with legislative intent.
Absent some indication that the Supreme Court is departing from its previous position, this court is duty bound to follow the law established by the Supreme Court. Gruhin v. City of Overland Park, 17 Kan. App. 2d 388, 391, 836 P.2d 1222 (1992).
Is K.A.R. 92-20-18 constitutional?
As a final matter, Taylor argues that a tax on machinery that participates in the loading and unloading of goods shipped in interstate commerce violates the Commerce Clause. Taylor contends that in order to be constitutionally permissible, a compensating use tax must be on property or an event apart from the interstate common carrier service. Taylor maintains that the movement of freight onto and off of trailers is substantially a continuation of the transportation service and, therefore, is part of interstate commerce.
BOTA expressly held that the equipment at issue did not move in interstate commerce. BOTA reasoned that the forklifts and the hydraulic gantry provide services to the trucks which travel across state lines and do not actually “move” things in interstate commerce.
Even assuming that the forklifts and the hydraulic gantry are part of interstate commerce, this does not automatically mean that they are exempt from state taxation. Pursuant to Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, 51 L. Ed. 2d 326, 97 S. Ct. 1076 (1977), a state may tax some aspects of interstate commerce if a four-part test is met. This case overruled Spector Motor Service v. O’Connor, 340 U.S. 602, 95 L. Ed. 573, 71 S. Ct. 508 (1951), which held that a state tax on “the privilege of doing business” is per se unconstitutional when it is applied to interstate commerce. 430 U.S. at 288-89.
In choosing to focus on economic realities rather than the legal wording of tax statutes, the Court upheld a tax by the State of Mississippi on a motor carrier s transportation of cars manufactured outside the state to Mississippi dealers. 430 U.S. at 276. The Court found that the taxpayer did not allege that its activity which Mississippi taxed did not have a sufficient nexus with the state, that the tax discriminated against interstate commerce, that the tax was unfairly apportioned, or that it was unrelated to services provided by the State. 430 U.S. at 277-78.
In the present case, Taylor’s activity has a substantial nexus with Kansas; Taylor is a Kansas corporation with offices in Coffeyville. Taylor has been issued certificates of convenience and necessity by the Kansas Corporation Commission and is licensed as an interstate common carrier by the State. In 1991, approximately 17% of Tay lor’s gross revenue was derived from intrastate services within Kansas.
Nothing in the record suggests that this tax would unfairly discriminate against interstate commerce. Kansas law provides the same rate of taxation under the Kansas Retailers’ Sales Tax Act and the Kansas Compensating Tax Act — 4.9%. See K.S.A. 1994 Supp. 79-3603; K.S.A. 1994 Supp. 79-3703. Kansas taxes intrastate and interstate businesses at the same rate.
The fair apportionment prong of the test is satisfied, as the Kansas Compensating Tax Act allows a credit for sales or use taxes paid on the property to other states. K.S.A. 79-3705. Taylor admits that it paid no sales or use tax on the property at issue.
Finally, Taylor derives many aforementioned benefits from the State of Kansas, as well as other services, including use of Kansas roads and other infrastructure systems. The tax imposed on Taylor by Kansas on the equipment at issue is fairly related to the services provided by the State.
Complete Auto Transit, Inc. v. Brady, 430 U.S. 274, would, in theory, allow Kansas to tax all of the tangible personal property owned by a motor carrier involved in interstate commerce so long as the four above-described elements were met. However, Kansas chooses to exempt tangible personal property in the nature of rolling stock from any state taxation. Neither K.S.A. 79-3704 nor K.A.R. 92-20-18 is unconstitutional.
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Royse, j.:
Hole-in-One, Inc., and John and Margaret Nash (plaintiffs) brought this action against Kansas Industrial Land Corporation (KILC) and Stephen Schneider to recover on two promissory notes. The district court granted a motion allowing plaintiffs to amend their petition to correct a typographical error. The intervenors, Michael and Vicky Hudgeons, appeal.
This case requires an examination of the statutes requiring that a petition designate the code which governs the action. At stake is the extent of the judgment lien plaintiffs obtained in' this case.
On November 3,1992, plaintiffs filed this action to recover monies owed them by the defendants. Plaintiffs made numerous un successful attempts to serve KILC, and the case was dismissed without prejudice. In December 1993 plaintiffs obtained an order reinstating their lawsuit. They later obtained service on KILC, but Stephen Schneider was never served.
The petition filed by plaintiffs contained a request for judgment in the amount of $24,019.04, plus interest and costs, based on the two promissory notes. The petition contained the notation, “PETITION PURSUANT TO CHAPTER 61 KANSAS STATUTES ANNOTATED.” Despite the notation, subsequent actions taken in the case reflected an assumption that the case was a chapter 60 proceeding. The clerk docketed the case with a chapter 60 case number. The plaintiffs paid a chapter 60 filing fee. The numerous requests for service and summonses filed in the case showed service was to be accomplished under chapter 60.
After KILC was served it sold its only major asset, a parcel of real estate, to the Hudgeons. When the plaintiffs discovered the sale, they asked the district court to restrain KILC from disposing of the sale proceeds. The plaintiffs also issued subpoenas to the Hudgeons and the various title insurers for information concerning the sale. The Hudgeons obtained an order quashing the subpoenas on the grounds they were not parties to the action. Finally, the plaintiffs filed a motion to amend the petition, stating the designation “Chapter 61” was intended to be “Chapter 60.”
KILC opposed the plaintiffs’ request for a restraining order. It argued on the one hand that injunctive relief was not available if plaintiffs’ action was a chapter 61 proceeding. Alternatively, KILC argued plaintiffs were fully protected by the statutory hen on the property under K.S.A. 60-2202(a) if the action was a chapter 60 proceeding.
The district court denied the plaintiffs’ request for injunctive relief but granted the motion to amend the petition. The district court found “this case was actually filed as a Chapter 60 action, the plaintiffs intended to file this action pursuant to Chapter 60 and the Court had always viewed this action to be filed pursuant to Chapter 60.” The plaintiffs then filed an amended petition which carried the notation “AMENDED PETITION PURSUANT TO CHAPTER 60 KANSAS STATUTES ANNOTATED.” Plaintiffs obtained judgment against KILC on January 19, 1995.
After the district court granted the plaintiffs’ motion to amend the petition, the Hudgeons sought and obtained permission to intervene in the action. They asked the district court to reconsider its order allowing plaintiffs to amend the petition. The district court denied the motion for reconsideration, and the intervenors appeal.
The first issue on appeal is whether the district court erred in concluding this action was originally filed as a chapter 60 action. The district court found the designation of “Chapter 61” was a typographical error, plaintiffs intended to proceed under chapter 60, plaintiffs paid a chapter 60 filing fee, the clerk of the district court assigned a chapter 60 case number to the case, chapter 60 summonses were issued, and the case had always been on the district court’s chapter 60 civil docket. Intervenors acknowledge in their brief that none of these findings were disputed. They contend, however, that these facts are beside the point, because the designation of chapter 61 on the petition is controlling. This contention is not persuasive.
Intervenors rely on several statutes as support for their contention. K.S.A. 60-207 provides that any petition filed in the district court pursuant to chapter 60 “shall designate” that such petition is filed pursuant to chapter 60. Similarly, K.S.A. 61-1703a(a) provides that a plaintiff desiring to commence an action under the code for limited actions “shall state in the petition by which such action is commenced that the code of civil procedure for limited actions shall govern this action.” Both statutes allow the shorthand form “Petition Pursuant To Chapter” to be used on the petition.
Intervenors urge that these two statutes are mandatory, implying that once a designation is made it is unchangeable. Whether a statute containing “shall” is mandatory or directory is a question of legislative intent. Although no single test is controlling, the determination whether a statute is directory or mandatory depends on whether the thing directed to be done is of the essence of the thing required, or is a mere matter of form. Accordingly, a statute is directory if it relates to some immaterial matter so that compliance is a matter of convenience rather than substance. If the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of business, the statute is generally regarded as directory, unless the directions are followed bywords of absolute prohibition. See In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, Syl. ¶ 4, 913 P.2d 213 (1996). A statute may be regarded as directory
“where no substantial rights depend on it, no injury can result from ignoring it, and the purpose of the legislature can be accomplished in a manner other than that prescribed, with substantially the same results. On the other hand, a provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory. . . .” Wilcox v. Billings, 200 Kan. 654, 657, 438 P.2d 108 (1968).
When a fair interpretation of a statute shows that the legislature intended compliance to be essential to the validity of the act, the statute must be regarded as mandatory. Willcox, 200 Kan. at 657-58; see In re Guardianship and Conservatorship of Fogle, 17 Kan. App. 2d 357, 360, 837 P.2d 842 (1992).
In addition, a statute may be viewed as directory when it is “(1) not accompanied by negative words indicating the specific acts can be done in no other manner; or (2) no consequences of noncompliance are included.” White v. VinZant, 13 Kan. App. 2d 467, 473-74, 773 P.2d 1169 (1989).
The provisions for designating the applicable chapter on a petition found in 60-207 and 61-1703a were adopted in 1976. L. 1976, ch. 251, § 2; L. 1976, ch. 258, § 3. District court unification necessitated the adoption of some way to distinguish between chapter 60 and chapter 61 cases, since both would be filed with the same clerk. 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-207 (1979); 2 Gard’s Kansas C. Civ. Proc. 2d Annot. § 61-1703a (1979). Thus, these provisions concern a matter of form designed to facilitate the orderly conduct of the clerk’s duties. These statutes do not disclose an intent that a petition lacking the proper designation should be considered void, and no consequences for noncompliance are set forth. Certainly, 60-207 and 61-1703a contain nothing which would preclude correction of a typographical error in the chapter designation.
For these reasons, we conclude the statutes do not preclude a plaintiff from amending a petition to correct a typographical error in the chapter designation. See also In re Estate of Shaffer, 203 Kan. 264, Syl. ¶ 2, 454 P.2d 1 (1969) (petition which lacks verification as required by statute may be remedied by amendment); Lumber Co. v. Collinson, 97 Kan. 791, 156 Pac. 724 (1916) (amendment permissible to correct misnomer in pleadings); Butcher v. Bank of Brownsville, 2 Kan. 70, 79 (1863) (district court did not err in allowing plaintiff to amend pleading to add word “petition” after title of case, as required by code); Architectural & Engineered Products Co. v. Whitehead, 19 Kan. App 2d 378, 869 P.2d 766, rev. denied 255 Kan. 1000 (1994) (where pleading lacked signature of Kansas attorney, district court erred in dismissing the case before giving counsel an opportunity to correct defect).
Intervenors and amicus curiae Kansas Land Title Association argue that a plaintiff should not be permitted to correct an erroneous chapter designation on a petition. They contend such a rule will create confusion for land purchasers and title examiners. They contend that reversal of the district court decision is necessary so that those who conduct title searches may rely on the chapter designation on the face of the petition. This argument is not persuasive.
In the past, Kansas has imposed a duty of reasonable diligence on purchasers and title examiners. In Carnation Co. v. Midstates Marketers, Inc., 2 Kan. App. 2d 236, 577 P. 2d 827 (1978), the court addressed the effect of a typographical error on a lien under 60-2202. In Carnation, the plaintiff obtained a judgment against the defendant on September 20,1973. The judgment docket, however, incorrectly stated that judgment was entered on September 20, 1974.
In the meantime, the defendant conveyed real property to the Small Business Administration (S.B.A.) by deed dated August 31, 1973, and filed September 17, 1973. The S.B.A. later quitclaimed the property to Edward Detrixhe. When Carnation still later obtained an order to levy execution on the property, Detrixhe appealed. Detrixhe argued that, because of the error in the judgment docket, the judgment lien did not attach and the court records did not impart notice to a bona fide purchaser. In rejecting his arguments, the court said:
“The entry on the judgment docket is intended to serve as an index which alerts an interested party that judgment has been- rendered. Specific and detailed information regarding the action is located in the appearance docket and the court file. A reasonably diligent search of the records available to the appellant would have revealed that judgment was entered on September 20, 1973, for that was the date reflected in the appearance docket and the court file containing the journal entry of judgment.” 2 Kan. App. 2d at 238-39.
A similar issue was addressed in Wichita Great Empire Broadcasting, Inc. v. Gingrich, 4 Kan. App. 2d 223, 604 P.2d 281 (1979), rev. denied 227 Kan. 928 (1980), where a negligence action was brought against an abstracter. In Great Empire, an abstracter relied on a judgment docket notation which said, “Judgment released 6-21-71.” 4 Kan. App. 2d at 224. The abstracter failed to examine the original records which showed that the judgment creditor had released its judgment on only one of the judgment debtor’s properties and that the property being conveyed remained subject to the judgment hen.
The district court held the abstracter was negligent, and this court affirmed. In concluding as a matter of law that relying on a judgment docket is not a reasonably diligent search, this court quoted from an old Minnesota case:
“ ‘The record, and not a marginal reference to it by the register, (which is required merely for convenience in making such searches,) is what determines the character and legal effect of an instrument; and the duty of an examiner of titles is not fulfilled by merely assuming the accuracy of such a reference, without examining the instrument itself.’ ” 4 Kan. App. 2d at 225 (quoting Wacek v. Frink, 51 Minn. 282, 284, 53 N.W. 633 [1892]).
In this case a diligent search of the court records would have revealed a problem with the chapter designation on the petition. As the district court found, the plaintiffs paid a chapter 60 filing fee, they tried to obtain service under chapter 60, and the clerk of the court assigned a chapter 60 case number to the file. In addition, plaintiffs pursued discovery under chapter 60; they served a notice to take the deposition of KILC’s officers, and submitted interrogatories and a request for production to KILC, all without filing prior motions for court approval as required by K.S.A. 61-1710 and K.S.A. 61-l725a. In short, the chapter 61 designation did not square with other activity in the court file.
Notably, intervenors make no claim that they were misled or confused by the erroneous chapter 61 notation on the petition in this case. In fact, the record shows that KILC, the appellants, and the bank financing the real estate purchase contacted three tide insurance companies about the transaction. The first two companies refused to issue title insurance unless KILC placed funds in escrow to cover any judgment which might be entered in the case. A draft contract for sale was prepared which identified the district court case and required that KILC place $38,000 in escrow for 120 days after the closing to cover any judgment in the case.
KILC contacted a third title insurance company, Miami Title Company, which agreed to insure the property without exception for the present lawsuit. Miami Title agreed to act as the confidential agent of KILC in the transaction and promised not to inquire of plaintiffs about the lawsuit. Miami Title noted the lawsuit bore a chapter 60 case number and read the escrow provision that the other insurance companies had required. Miami Title, nonetheless, determined to proceed on the basis of the chapter designation on the petition.
The intervenors closed on the sale on November 1,1994, signing the draft contract with the escrow provision deleted by interlineation.
In short, contrary to the position urged by intervenors and amicus curiae, the parties to this sales transaction did not simply rely on the chapter designation contained on plaintiffs’ petition. All three title insurers recognized the possibility that “Chapter 61” was an erroneous designation. Intervenors knew long before closing that this action might affect their title. Despite possessing “[kjnowledge of facts sufficient to excite the suspicions of a prudent person,” City of Arkansas City v. Anderson, 15 Kan. App. 2d 174, Syl. ¶ 2, 804 P.2d 1026, rev. denied 248 Kan. 994 (1991), intervenors chose to proceed with the purchase without the protection of an escrow.
As noted earlier, under Kansas law purchasers of real estate and title examiners must use reasonable diligence in searching the pub- lie records for competing claims to the property. Reasonable diligence requires an investigation into the specific facts contained in She case file. See Carnation, 2 Kan. App. 2d at 238. The district court’s decision, allowing plaintiffs to amend their petition to correct a typographical error in the chapter designation, is entirely consistent with the duty of reasonable diligence.
Intervenors’ next argument is that a party claiming a statutory lien must strictly comply with the statutory requirements to create the lien. This argument focuses on the varying statutory provisions for judgment liens in civil cases. Under K.S.A. 60-2202(a), a judgment lien in an action commenced under chapter 60 is effective retroactive to the date the petition is filed, but not to exceed 4 months prior to the entry of the judgment. Under K.S.A. 60-2202(b), a judgment lien in a chapter 61 action is effective only when the fee required under K.S.A. 28-170 is paid and the clerk of the district court enters the judgment in the appearance docket. Intervenors argue that plaintiffs must strictly comply with the statutory requirements in order to claim a lien under 60-2202(a), particularly the statutory reference to “under chapter 60.”
This argument merely repeats intervenors’ earlier contention that the district court may not permit a plaintiff to correct a typographical error in the petition. Moreover, this argument overlooks the fact that the district court determined that this case was “filed as a Chapter 60 action.” Finally, this argument overlooks the fact that the rule of strict compliance with statutory requirements is intended in part to assure notice to affected parties. See Schwaller Lumber Co., Inc. v. Watson, 211 Kan. 141, 145, 505 P.2d 640 (1973). In this case, as noted above, intervenors and the title insurers were placed on notice by the court file that the property was subject to a judgment lien if plaintiffs obtained judgment against KILC and that the extent of that lien was in dispute.
Intervenors assert that K.S.A. 61-1729 provides the sole authority for an order allowing a plaintiff to convert a case from chapter 61 to chapter 60. Intervenors, however, acknowledge that K.S.A. 60-215, concerning amended and supplemental pleadings, is adopted by reference in the code of civil procedure for limited actions. K.S.A. 61-1725(a). Intervenors cite no authority for their claim that 60-215 was inapplicable here. Issues raised by an appellant with no supporting authority or argument need not be addressed. Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 744, 822 P.2d 617 (1991).
K.S.A. 60-215 directs that leave to amend “shall be freely given when justice so requires.” Amicus curiae argues the amendment to the petition should only operate prospectively in regard to persons who relied on the chapter 61 designation. While the argument of amicus curiae may be persuasive in some other case, the intervenors in this case do not claim they acted in reliance on the chapter 61 designation. Reasonable persons could agree with the district court’s decision allowing the plaintiffs to amend their petition to correct a typographical error. See King v. Pimentel, 20 Kan. App. 2d 579, 586, 890 P.2d 1217 (1995). See also James v. City of Wichita, 202 Kan. 222, Syl. ¶ 4, 447 P.2d 817 (1968) (amendment may relate back when amendment relates to conduct set forth in original pleading, adverse party has adequate notice of the conduct, and it will not be inequitable or unjust to relate the amendment back); Sundgren v. Topeka Transportation Co., 178 Kan. 83, 89, 283 P.2d 444 (1955) (“Great latitude is given to the trial court in the matter of amendment of pleadings with a view of curing defects, supplying omissions and preventing injustice.”)
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Elliott, J.:
Nancy Carol Beebe, mother of A.R., and Steven Sublett, special administrator of A.R.’s. estate sued, alleging the Kansas. Department of Social and Rehabilitation Services (SRS) workers Ann Mar-Mason and Rebecca Fraktman were negligent in their investigation of child abuse allegations involving A.R.’s father. As a result, they claim A.R. was killed by her father.
The trial court granted summary judgment in favor of defendants on the grounds defendants owed no legal duty to plaintiffs and that defendants were immune from liability under K.S.A. 75-6104(d) and (e) of the Kansas Tort Claims Act, K.S.A. 75-6101 et seq.
Plaintiffs appeal and we affirm.
Wichita SRS received two reports of suspected abuse and neglect involving A.R. and her father. The first was by a telephone call from A.R.’s maternal grandmother and the grandmother’s counselor. After reviewing the report, defendant Mar-Mason determined A.R. was at minimal risk and did not open a case for investigation.
Later, A.R.’s pediatrician contacted SRS regarding possible sexual abuse. The doctor reported A.R.’s father brought her in because of vaginal bleeding. While the doctor made the contact with SRS, the doctor did not find the vaginal bleeding to be conclusive evidence of sexual abuse. After reviewing this information, defendant Fraktman decided not to open a case for investigation.
A.R. died and her father was convicted of her murder; at the time of her death, A.R. was in the legal custody of her father and not SRS.
Plaintiffs first contend the trial court erred in ruling defendants had no legal duty to protect A.R. from abuse. In this regard, plaintiffs do cite to the pediatrician’s deposition for his testimony that he spoke with an SRS worker who told him his report would be passed on to a supervisor who would follow up on the report. On the other hand, plaintiffs do not provide any citations to the record to support their claim that SRS workers promised A.R.’s grand mother an investigation would take place. Accordingly, we disregard this allegation in plaintiffs’ brief. See Supreme Court Rule 6.02(d) (1995 Kan. Ct. R. Annot. 29).
Essentially, the Kansas Tort Claims Act provides that a governmental entity is hable for negligent acts where a private person would be hable under similar circumstances. See K.S.A. 75-6103(a). But to establish a negligence claim, a plaintiff must establish a duty, a breach of that duty, proximate cause, and resulting damages. P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 831, 877 P.2d 430 (1994).
Plaintiffs rely solely on P.W. to support their argument defendants owed them a legal duty. But in P.W., the court rejected ah of plaintiffs’ contentions. Only two need be mentioned here. First, the P.W. court examined § 324A of the Restatement (Second) of Torts (1964), and summarized Kansas case law thus:
“[I]n all cases where it was found that the parties undertook to render services to another, they agreed to or were obligated to perform services for another that were accepted and thus the initial requirement of § 324A was met; and, in all cases where liability was not imposed, the defendants had no agreement or took no affirmative action that could be construed as an intentional undertaking to render services to another.” ’ ” 255 Kan. at 834.
Second, the P.W. court considered whether SRS had a legal duty to plaintiffs under K.S.A. 38-1524. That statute provides in part:
“(b) Whenever any person furnishes information to [SRS] that a child appears to be a child in need of care, [SRS] shall make a preliminary inquiry to determine whether the interests of the child require further action be taken. ... If reasonable grounds to believe abuse or neglect exist, immediate steps shall be taken to protect the health and welfare of the abused or neglected child as well as that of any other child under the same care who may be harmed by abuse or neglect.”
The P.W. court held that K.S.A. 38-1524 creates a duly to the public at large. Under the public duty doctrine, a governmental entity is not liable for breach of a public duty, but only for breach of a special duty owed to an individual. 255 Kan. at 835.
In the present case, plaintiffs rely only on the Restatement (Second) of Torts portion of P.W., claiming this case is distinguishable from P.W. because here, SRS did undertake to render services for the protection of A.R.
Our question, then, is whether taking information and assuring the report would be “followed up” constitutes an undertaking to render services sufficient to create a legal duty on the part of SRS. A related question is whether an alleged failure to exercise reasonable care in following up on the report increased the risk of harm to A.R.
By Monday morning quarterback standards, SRS might have decreased the risk to A.R. had it opened a file and actively investigated; however, we cannot state that SRS’s failure to do so increased the risk of harm. A.R.’s father created the risk of harm, not SRS.
Another problem with plaintiffs’ argument is that any “promise” by SRS to follow up is merely a promise to comply with the requirements of K.S.A. 38-1524. As discussed previously, the P.W. court held that statute creates only a public duty and not a special duty to an individual.
Next; we must decide if defendants are immune from liability under the Kansas Tort Claims Act, which is a question of law. See Lamb v. City of Elsmore, 18 Kan. App. 2d 641, 643, 857 P.2d 1380, rev. denied 253 Kan. 859 (1993). The trial court ruled defendants were immune under two different exceptions of the Kansas Tort Claims Act.
Plaintiffs argue the defendants are not eligible for the discretionary function exception. We disagree. The decision whether to open a file for further investigation is a discretionary function. In G. v. State Dept. of SRS, 251 Kan. 179, 833 P.2d 979 (1992), the Supreme Court found the SRS decision to remove a child from foster care to fall within the discretionary function exception. The G. court reasoned that in undertaking the function, state employees are called on to make delicate and complex judgments involving the weighing of risks. The court concluded these decisions rank high on the discretionary tree and should not be the subject of hindsight scrutiny. 251 Kan. at 192.
The trial court also found defendants immune under K.S.A. 75-6104(d), which was added to the Kansas Tort Claims Act in 1987. That exception provides:
“A governmental entity or an employee acting within the scope of the employee’s employment shall not be liable for damages resulting from:
“(d) adoption or enforcement of, or failure to adopt or enforce, any written personnel policy which protects persons’ health or safety unless a duty of care, independent of such policy, is owed to the specific individual injured, except that the finder of fact may consider the failure to comply with any written personnel policy in determining the question of negligence.” K.S.A. 75-6104(d).
Plaintiffs do not address this portion of the trial court’s ruling. The amendment was clearly intended to negate at least part of the holding of Fudge v. City of Kansas City, 239 Kan. 369, 720 P.2d 1093 (1986). In any event, the SRS procedures manual states SRS “should” notify the reporter of abuse that SRS does not intend to open a file. This discretionary language does not create a special duty on the part of SRS, This case does not involve the failure to enforce mandatory guidelines.
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Lewis, J.:
From 1991 through 1994, defendant pled guilty to six various offenses in municipal court. On each occasion, the municipal court imposed a fine and a sentence but placed defendant on probation contingent on certain terms and conditions. In 1994, the municipal court revoked defendant’s probation. Defendant attempted to appeal this probation revocation to the district court, which dismissed the appeal, holding he had no right to appeal the revocation of his probation to the district court. Defendant appeals the order dismissing his appeal to the district court.
We affirm.
The right to appeal is purely statutory. No appellate review is required by the federal constitution or the Kansas constitution. Indeed, an appellate court has no jurisdiction to entertain an appeal by a defendant in a criminal case unless the appeal is provided for by statute. State v. Grant, 19 Kan. App. 2d 686, 689, 875 P.2d 986, rev. denied 255 Kan. 1005 (1994). K.S.A. 22-3609 authorizes appeals from municipal court to district court, K.S.A. 22-3609(2) specifies the time for appeal, and K.S.Á. 22-3609(1) defines judgments which may be appealed.
We hold this case is controlled by the express provisions of K.S.A. 22-3609(1), which states in part: “The defendant shall have the right to appeal to the district court of the county from any .judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas.” (Emphasis added.)
“Interpretation of a statute is a question of law: An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). When determining a question of law, an appellate court is not bound by the decision of the district court. See Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
K.S.A. 22-3609(1) is clear and unambiguous. It provides that one may only appeal from “any judgment of a municipal court which adjudges the defendant guilty of a violation of the ordinances of any municipality of Kansas.” This is the only right of appeal from the judgment of a municipal court provided by the legislature. Defendant seeks to appeal from an order revoking his probation. He is not appealing from an order adjudging him guilty of violating an ordinance, and under the clear and unambiguous language of the statute, his appeal is not permitted.
Defendant’s arguments all seek to ignore the simple and plain language of the statute. The statute plainly states that an appeal from a municipal court to the district court is limited to a judgment which adjudicates the defendant guilty of a violation of a city ordinance. It is a long-established rule that the plain meaning of a statute controls unless a contrary legislative intent can be shown. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992); Jackson v. City of Kansas City, 235 Kan. 278, 318-19, 680 P.2d 877 (1984).
It is also well established that several provisions of an act must be considered in pari materia. State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994). K.S.A. 22-3610(a) states in part: “When a case is appealed to the district court, such court shall hear and determine tire cause on the original complaint.” Interpreting this statute together with 22-3609 clearly indicates a legislative intent that appeals from municipal court will be limited to original adjudications of guilt and that post-trial decisions will not be appeal-able.
We hold that defendant had no right to appeal the decision of the municipal court revoking his probation.
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Rogg J.:
Thomas D. Hunter appeals the durational and dispositional departure he received on his sentence for aiding a felon, K.S.A. 21-3812. Hunter contends there were no substantial and compelling grounds for the court’s departure sentence and no independent reasons existed to support both a durational and a dis-positional departure. We affirm.
In February 1994, several people were gathered in Hunter’s apartment in Topeka. His brother, a juvenile, was playing with a gun and accidentally shot an adolescent girl in the head. The victim was immediately rendered unconscious, and Hunter contends that he believed that she was dead. The others in the apartment, with the exception of Hunter’s girlfriend, fled the scene. Hunter did not want the body to be found in his apartment, so he dragged the unconscious girl into the alley behind his apartment and left her there. The temperature outside was 11 degrees. Hunter made no attempt to aid the victim or seek aid for her.
The police, responding to a call, discovered the victim in the alley not far from Hunter’s apartment. She was still alive, although unconscious, when she was discovered but was pronounced dead at a hospital 3 days later.
In Hunter’s initial statement to the police, he told them that his brother had shot the girl and everyone ran. In a second statement, he admitted that after the girl was shot, he dragged her to the dumpster and left her there, but stated it was due to the coercion of another witness. In a third statement, he admitted to acting on his own initiative, as well as cleaning up the blood and instructing his girlfriend to do the same, in order to prevent the police from discovering where the victim had been shot.
District Coroner George Thomas testified at sentencing that the victim probably had no chance of survival after the wound was inflicted, but he could not testify that the type of injury would be fatal 100% of the time.
Hunter was initially charged with attempted second-degree murder and felony obstruction of legal process or official duty. After the girl’s death, the attempted murder charge was amended to second-degree murder. Hunter pled no contest to the obstruction charge and an amended count of aiding a felon, K.S.A. 21-3812, while the murder charge was dismissed. Aiding a felon is a severity level 8, nonperson felony. Hunter’s criminal history, two prior misdemeanors, placed him in grid box 8-H, with a presumptive sentence of 9 to 11 months’ probation on the controlling charge of aiding a felon.
At Hunter’s sentencing hearing, the court departed, both durationally and dispositionally, in sentencing defendant to 22 months in prison on the aiding a felon count. The basis for the district court’s departure was that, pursuant to K.S.A. 21-4716(b)(2)(A), the victim had been particularly vulnerable due to her age and reduced physical capacity and, pursuant to K.S.A. 21-4716(b)(2)(B), Hunter’s conduct was excessively brutal in a manner not normally present in that offense.
The court ruled that these were independent reasons which justified both a durational and a dispositional departure under K.S.A. 21-4719(c)(2). The court did not depart on Hunter’s obstruction charge and sentenced him to 7 months in accord with the presumptive guidelines sentence.
Although the evidence supporting the district court’s findings of fact is not controverted, Hunter contends that the facts of this case do not demonstrate substantial and compelling reasons for departure. The standard of review for sentencing departures is controlled by the language found in K.S.A. 21-4721(d):
“In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure:
(1) Are supported by the evidence in the record; and
(2) constitute substantial and compelling reasons for departure.”
See State v. Richardson, 20 Kan. App. 2d 932, 901 P.2d 1 (1995). “The term ‘substantial’. . . refers to something that is real, not imagined, something with substance and not ephemeral. The term “compelling” implies that a court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.” State v. Rhoads, 20 Kan. App. 2d 790, 799, 892 P.2d 918 (1995).
The reason for dispositional departure given by the district court was that the victim was particularly vulnerable due to her age and physical condition. She was incapacitated due to having suffered a gunshot wound to the head and was vulnerable due to her reduced physical capacity. She was unconscious and on the verge of death. Her condition w;as known by Hunter; this was the cause for his actions.
Integrally related to the victim’s reduced physical capacity, and mentioned by the court in a laundry list of factors, was defendant’s failure to aid the victim. Generally, there is no legal duty to rescue or render aid to another in peril. People v. Oliver, 210 Cal. App. 3d 138, 147, 258 Cal. Rptr. 138 (1989). Special types of relationships, however, have been found to create a duty to render aid, such as parent/child, employer/employee, common carrier/passenger, innkeeper/guest, possessors of land who hold it open to the public, etc. See Restatement (Second) of Torts § 314A (1964). No Kansas case seems helpful on this issue. In Hutchinson v. Dickie, 162 F.2d 103 (6th Cir. 1947), the Sixth Circuit ruled that a private shipowner did have a duty to rescue an invited guest upon his cruiser who had fallen overboard. The court reasoned that the ship was the only instrumentality that could prevent the guest from drowning. The court recognized that “[t]his was certainly a moral duty, universally recognized and acted upon.” 162 F. 2d at 106. This case seems similar to Dickie in that Hunter, as lessee or possessor of the apartment in which the victim was shot, controlled access to her after the others fled. Beyond this possible legal duty, the additional reasons given by the court of a moral nature provide a substantial and compelling reason for departure.
Although the moral duty to assist an injured and helpless victim is not listed among those factors in K. S.A. 21-4716 (b)(2), that statute provides that “the following nonexclusive list of aggravating factors may be considered,” indicating clearly that other factors may be considered for departure. The district court was correct in considering this factor as one of the grounds for departure.
Hunter argues that the district court erred in imposing both a dispositional and a durational departure. K.S.A. 21-4719(c) provides:
“When a sentencing judge imposes a prison term as a dispositional departure: ... (2) the term of imprisonment shall not exceed the maximum duration of the presumptive imprisonment term listed within the sentencing grid. Any sentence inconsistent with the provisions of this section shall constitute an additional departure and shall require substantial and compelling reasons independent of the reasons given for the dispositional departure.” (Emphasis added.)
Hunter believes the reason given by the court for the second departure was not independent of that given for the first departure.
We believe the Kansas Legislature intended for sentencing courts to provide separate reasons for both durational and dispositional departures. This intent can be discerned from the language of K.S.A. 21-4719(c), as well as an examination of the sentencing guidelines statutes of other states. The legislative history of the KSGA indicates that Kansas, in part, looked to the sentencing statutes of Minnesota, Oregon, and Washington in formulating our sentencing guidelines. Coates, Summary of the Recommendations of the Sentencing Commission, p. 6 (Report to the Senate Committee on Judiciary, January 14, 1992). The Minnesota Sentencing Guidelines similarly provide that making a dispositional and durational departure are two separate departures, both of which require separate substantial and compelling reasons. Minnesota Sentencing Guidelines, Minn. Stat. Ann. § 244 App., Comment II.D.02 (West 1995 Supp). Minnesota courts, however, have not yet addressed an issue similar to the present one.
The district court’s basis for durational departure was that Hunter’s conduct during the commission of the offense manifested excessive brutality. Under this general umbrella the court identified a number of factors, including that the girl was still alive at the time Hunter acted; Hunter’s conduct exhibited a callousness for the sanctity of human life; the girl deserved to be treated with dignity and respect in her death process; Hunter acted in a way which further injured the girl’s body, dragging her body down the stairs and through an alley; and by leaving the girl in the alley in freezing temperatures, he threatened to take from the girl’s family any comfort they were to receive from donating her organs.
Clearly, much of what the district court considered excessive brutality in this case was strongly tied to the fact that the victim had been rendered unconscious by a gunshot wound to the head. This does raise a legitimate question as to whether the two departure factors given by the court were "independent” of each other. We hold, however, that Hunter’s excessive brutality in his actions taken with the victim proved a substantial reason for departure independent of his failure to render aid to her. The record of the trial court’s sentencing hearing demonstrates that the court relied on and found sufficient “independent” factors to support both a dispositional and durational departure.
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The opinion of the court was delivered by
HopKINS, J.:
Plaintiff and defendant entered into a contract by which plaintiff agreed to drill an oil well to a depth of 3,000 feet “unless oil or gas is found in sufficient quantities at a lesser, depth.” When the drilling had reached a depth of 2,250 feet, and while 6%-inch casing was being run into the hole, the casing parted, letting all the pipe, except the top joint, fall into the hole. The parting of the casing was caused by a defective collar which was already screwed onto the joint of pipe when it came from the factory_ and was brought to the well. There was testimony showing that the collar had not been screwed on properly at’the factory; that there was rust between the threads of the collar and threads of the pipe, which indicated that the threads had not properly meshed.
The plaintiff spent fifty-six and one-half days fishing out the casing and getting the hole in condition to resume drilling operations. He sued to recover expenses of the fishing job. Judgment was for defendant, and plaintiff appeals.
The contract was, in part, as follows:
“Second party (plaintiff) agrees to drill said, well to a depth of three thousand (3,000) feet unless oil or gas is found in sufficient quantities at a lesser depth and in that case first party shall have the right to terminate this contract and stop drilling of said well at a depth where such oil or gas is found.
“Second party agrees to drill the said well for the sum of $2.50 per foot for the actual number of feet drilled, whether the same is drilled to the depth of three thousand (3,000) feet, or whether stopped by first party before such depth is reached, and second party agrees to furnish all labor, tools (except under-reamers) and perforin all acts in a good and workmanlike manner that is necessary to drill the above well, except such acts and conditions as first party hereinafter agrees to perform.
“Second party agrees to mud-off any gas or oil that may be found while drilling if same is unprofitable to operate, and when said well is completed said second party shall deliver the same to first party free and, clear of all incumbrances for labor, work or material used on or in connection with the drilling of said well.
“First party (defendant) agrees, besides performing its part of the foregoing conditions of this contract, to furnish all fuel and water for the drilling of said well, same to be furnished at the location where said well is drilled.
“First party further agrees to have casing on the location in sufficient quantities so that second party is not delayed in the prosecution of the drilling of said well.
“First party agrees to furnish any union under-réamers free of cost, that second party may use in drilling said well, and shall keep said under-reamers in good repair as to slips and other parts, but second party is to furnish the labor while using said under-reamers, free of cost to first party.
“First party agrees to pay to second party the sum of $50 per day of twenty-four (24) hours, for each day of delay in drilling said well caused by first party: Provided, That if said delay is caused by some act over which first party has no control, then said first party shall not be held liable for said payment.”
The casing was purchased by defendant from a manufacturing concern which sells casing extensively throughout the oil field. It was delivered to plaintiff on the ground without examination by defendant. It is admitted that the defect was not discoverable by inspection. It could not have been discovered except by use.
Plaintiff contends:
1st. That defendant having contracted to furnish the casing, there was an implied warranty, on its part, that the casing was suitable for the purpose for which it was intended.
2d. That the trial court erred in rejecting evidence to prove a custom in the oil field that the company, and not the contractor, must bear the expense of a fishing job caused by defective casing.
3d. That the trial court erred in rejecting certain testimony offered to show that the superintendent of defendant directed plaintiff to do the fishing job.
The trial court sustained defendant’s theory that, under the contract, it was not liable for the fishing job.
Plaintiff contends that the case of Hickman v. Union Oil Co., 106 Kan. 555, 189 Pac. 391, is controlling in his favor in this case. We do not concur in that view. In the Hickman case the contract provided that the contractor should inspect the machinery, rig, casing and other appliances furnished by the defendant (oil company) with which to drill the well; that if the contractor did not make such inspection or notify the owner (oil company) of any defect discovered in the machinery, rig, casing or other appliances, the contractor should be deemed to have assumed all risk and responsibility for any mishap, except that caused by any defect impossible to detect.
Construing this contract, the court said:
“Under this provision of the contract, the plaintiffs, if they failed to make the inspection required, were liable for the consequences, but if they did make such inspection and were unable to detect any defect, although one existed, the defendant was liable for the consequences of that defect.” (p. 557.)
The contract in the instant case contained no such provision. It did, however, contain this provision: “First party (defendant) agrees to pay to second party (plaintiff) the sum of $50 per day of twenty-four (24) hours, for each day of delay in drilling said well caused by first party. Provided, that, if said delay is caused by some act over which first party has no control, then said first party shall not be held liable for said payment.”
In the Hickman case the contract provided that the oil company should be liable for latent defects. Not so in the instant case. The question here seems to turn largely on the language of the contract as to whether the delay was caused by some act'over which the defendant had no control. The plaintiff urges, with great energy and ability, that there was an implied warranty on the part of the defendant that the casing would not be defective. Many authorities from various jurisdictions are cited to uphold its theory. It argues that, because defendant furnished the casing for use in the well, it should be bound by the same rule as is the manufacturer who manufactures machinery, or other articles, for a specified purpose. We cannot adopt its theory. The doctrine of implied warranty is grounded upon the assumption that the manufacturer has some means of knowledge, sources of information in regard to the article manufactured, and opportunities of inspection which are not accessible or are unknown to the purchaser.
The'defendant in this case is not a vendor, nor is the plaintiff a vendee. Both parties knew, must necessarily have known, and plaintiff concedes, that the defendant was without means of ascertaining the condition of the casing as much as plaintiff was.
The plaintiff contends the relations of the parties were analogous to those of manufacturer and purchaser. In our opinion they are more nearly analogous to the relations of a vendor, who is not a manufacturer, and a purchaser, whose knowledge of the article is equal to that of the vendor. In this case the defendant was a purchaser. It had no better opportunity to know of any defect in the casing than had the plaintiff.
Plaintiff also contends that this case is analogous to those cases where the builder prepared plans and specifications which had in them some inherent defect which caused damage or delay in the construction, some defect for which the contractor could not in any wise be held liable. We have examined these cases, but cannot see any application to the facts in this case. It was evidently the intention of the parties that defendant should not be liable for any delays except those that might be directly attributable to it. This is especially emphasized by the two clauses of the contract: the first, “That when the well is completed said second party (contractor) shall deliver the same to first party (oil company) free and clear of all encumbrances for labor, work or material used on or in connection with the drilling,” and second, “That if said delay is caused by some act over which first party (defendant) has no control, then said first party 'shall not be held liable for said payment.”
Plaintiff concedes that defendant could not have known, by inspection or otherwise, of the latent defect in the casing. If it could not have known, how could it have controlled the delay caused by the defect? The contract is not ambiguous. It is definite and certain in its terms. It specifically provides, that, if the delay is caused by an act over which it has no control, the defendant shall not be liable. In the Hickman case the contract made the defendant liable for a latent defect. In the instant case the contract relieves defendant of liability for delay caused by the latent defect.
Our construction of the contract disposes of the other questions. The contract being sufficient in itself, so far as the fishing job was concerned, evidence of a custom which might have changed its terms, was properly rejected.
In Henderson v. Petroleum Co., 104 Kan. 653, 655, 180 Pac. 228, it was said:
“There was nothing ambiguous, or uncertain, or indefinite about the terms of the contract. Who should be responsible for the loss of the drillers’ tools in case fire occurred was something entirely collateral to the contract. It was not necessary to agree upon that in order to make effective the contract for drilling the well. The proper office of usage or custom is to explain technical terms in contracts, or to make certain that which is indefm¡ite, obscure, or ambiguous. (McSherry v. Blanchfield, 68 Kan. 310, 75 Pac. 121.)”
In Hopper v. Sage, 112 N. Y. 530, it was said:
“Usage and custom cannot be proved to contravene a rule of law or to alter or contradict the express or implied terms of a contract free from ambiguity, or to make the legal rights or liabilities of the parties to a contract other than they are by the terms thereof. When the terms of a contract are clear, unambiguous and valid, they must prevail, and no evidence of custom or usage can be permitted to change them. (Markham v. Jaudon, 41 N. Y. 236; Bradley v. Wheeler, 44 id. 495; Baker v. Drake, 66 id. 518; Colgate v. Penn. Co., 31 Hun, 297-299.)” (p. 535.)
Statements of the plaintiff and his assistants that H. E. Preston was the company’s superintendent and' made statements in their presence that “It was a company job,” w§re properly rejected, no proper testimony having been tendered that Preston knew the terms of the contract; had any authority to change them; or to bind the company in a new contract.
We discover no reversible error. The judgment is affirmed. , | [
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The opinion of the court was delivered by
Porter, J.:
John Nangle was injured in a collision between a Ford roadster in which he- was riding and a motor truck, both cars being owned by the Cudahy Packing Company. Nangle had been in the employ of the packing company for more than twenty years and was the manager of its wholesale market business in Kansas City, Kan. He sued the company, charging negligence on the part of the driver of the truck. The evidence established the negligence as charged and the defendant offered no evidence to the contrary. The trial resulted in a verdict and judgment in plaintiff’s favor for $13,500, from which the defendant appeals.
A few days after the accident defendant sent for plaintiff and discharged him. The accident occurred on January 2, 1918. On April 15, 1918, plaintiff went to work for another company and remained in its employ until a day or two before the trial, which did not occur until three years and five months after the accident. The salary he received was considerably in excess of that paid to him while in the employ of-the defendant and before he was injured. The principal issue in the case was the extent of plaintiff’s injuries.
The first complaint is that the court overruled objections to a hypothetical question to physicians who testified for plaintiff. The contention here is that it was not a proper hypothetical question “as it .called for a conclusion of the witness, as distinguished from an opinion; that it called for the conclusion of the witness upon the ultimate issues in the case, and invaded the province of the jury.” This was not the objection urged in the court below. The objection to the hypothetical question propounded to Dr. Glassock was:
“To which the defendant objects as not a proper hypothetical question, assuming facts which are not in evidence, a statement of facts not covered by the testimony herein; not based upon any proper statement of the evidence in the case.”
The objection to the question asked of Dr. Krall, was:
“The defendant objects to the question as not a proper hypothetical question, including facts not in evidence before the jury; incompetent, irrelevant and immaterial.”
It is apparent that the objection did not challenge the court’s attention to the point now presented. Objections to evidence must be sufficiently specific to challenge the attention of the court to the ground relied upon, because error will not be presumed; but must be affirmatively shown. (Humphrey v. Collins, 23 Kan. 549; Roark v. Greeno, 61 Kan. 299, 59 Pac. 655, and authorities cited.) The only respect in which the objection urged to the question asked of Dr. Krall differs from the objection to the question when asked of Dr. Glasscock, was that it was incompetent, irrelevant and immaterial.
The case of Roark v. Greeno, supra, is directly in point. It was there held that—
“An objection that a hypothetical question assumes facts not proved ought to point out with particularity the facts which are claimed to be untruly stated.” (Syl. ¶ 3.)
In the opinion it was said that “none of the questions was composed entirely of assumptions outside the proof” (p. 307), and that the objection in no manner conveyed information to the court as to what facts contained in the question were not proved.
In K. P. Rly. Co. v. Cutter, 19 Kan. 83, it was held that—
“An objection to the introduction of testimony, to be available in this court for purposes of error, must, except perhaps in eases where the defect cannot be obviated by further proof, distinctly and clearly state the point of objection, so that we can see from the record that the very matter to which our attention is directed was presented to the mind of the trial judge.” (Syl. H 2.)
As held in Roark v. Greeno, supra, we might well refuse to consider any of the assignments of error which relate to the objections to the hypothetical questions. It is apparent, however, from the answers of the doctors, that had defendant raised the point in the lower court, we would hold that there was no error in overruling the objections. The question is too long to be set forth in full; but following the hypothetical statement of conditions, Dr. Glasscock was asked to state, “assuming all these facts to be true, whether or not in your opinion there was any connection between the injuries received at the accident that I have enumerated and the condition of the patient at the present time.” He answered:
“If he was well before this accident, and not suffering from any trouble with his nervous system at the time the examination was made, and that trouble commenced immediately or shortly after the accident, I would say that his condition was due to the accident, in my judgment.”
Dr. Krall answered the same question as follows:
“Well, I could answer that question in this way again. If he was my ,patient, if he came to me as a patient, I would strongly suspect that his symptoms were due to the injury, or were a result of the injury, rather.”
•He was further asked whether in his opinion there would be any connection between the accident or the shock and the condition of plaintiff as stated in the main question. His answer was:
“Well, in my opinion there could be. But again, from the standpoint of a medical man, I would have to say that I want to observe the patient before I say whether there are.”
Neither physician testified positively to his opinion on the assumed facts. Dr. Glasscock’s answer was as to his judgment, and that was given only upon the qualification that prior to the accident the plaintiff had not suffered from any nervous trouble, etc. All that Dr. Krall testified was that, assuming the facts stated in the question to be true, there could be some connection between the plaintiff’s condition and the accident; and he qualified this by stating that he would want to observe the patient before he could say whether there was or was not.
It is seriously insisted that the court invaded the province of the jury by instructing them that the defendant was guilty of the negligence charged in the petition. In the first instruction the court, in stating'in substance what the petition alleged, failed to repeat before each statement the fact that it was alleged in the petition. The defendant argues that the jury could, and probably did, assume that the court was stating, as a matter of fact, that plaintiff’s injuries were caused by the negligence of the defendant in the particulars mentioned, because the second paragraph of the instruction does -not commence with the introductory word “that.” At the oral argument here the court intimated that it did not care to hear an extended argument updn this question. The trial court gave the usual instructions as to the burden of proof on the part of the plaintiff to establish negligence, and it is not possible that anyone misunderstood the charge. Some allowance must be made for the intelligence of jurors. After the court had carefully stated the things charged by plaintiff as negligence and the rules of evidence and burden of proof upon that issue, the court was not required in every reference to the alleged negligence to repeat the language of the petition. To do that in every instruction would tend only to confuse a jury.
Other instructions are complained of because they read that if the jury found from the preponderance of the evidence “substantially” as alleged in plaintiff’s petition, the defendant was negligent as alleged. It is insisted that the court permitted the jury to determine for itself whether the evidence did substantially prove negligence of the defendant; that this broadened the issues and permitted the jury to return a verdict outside the pleadings. We do not think there was anything in the instructions to confuse or mislead the jury in this respect.
The same may be said of the criticism of an instruction in which the court charged: “If you find from the evidence that plaintiff’s present condition is caused by illness or disease,” etc., the complaint being that the court advised the jury that plaintiff was in some sort of an abnormal condition at the time of the trial. It was not seriously contended that the plaintiff was not injured to some extent as a result of the accident, and the principal question was the extent of his injuries which resulted.
The defendant asked the court to give the following instruction:
“I instruct you that as a matter of law it is negligence to drive an automobile along the highway on a dark night at such speed that it cannot be stopped within the distance that objects can be seen ahead of it, and if you find and believe from the evidence that at the time plaintiff claims to have been injured it was dark and the weather was foggy, and if you further find that the automobile in which plaintiff was riding was being driven at such a speed that it could not be stopped within the distance that the truck with which it collided could, by the exercise of ordinary diligence on plaintiff’s part, have been seen by plaintiff, then plaintiff cannot recover and your'verdict will be for the defendant.”
The court refused to give it as requested, but took the instruction and made it apply both to the plaintiff and the defendant, and charged:
“. . . and further find from the evidence that the defendant’s driver, McCrea, or the plaintiff, was driving at such a speed that he could not stop within the distance that an object ahead could be seen by the exercise of ordinary care and prudence, this would constitute negligence on the part of the defendant or plaintiff or both, as you may determine from the evidence.”
Complaint is made of the giving of the instruction, because it is said that the petition did not charge the defendant with negligence of that character. Neither did the answer of the defendant charge that the plaintiff was guilty of such negligence, although the answer specified the particular negligence of the plaintiff which was alleged to be contributory. We think, therefore, that the error was invited by the defendant. It has been held that "a party cannot take advantage of the use by the court of language which that party has asked the court to use in an instruction requested by it.” (Ft. S. W. & W. Rly. Co. v. Fortney, 51 Kan. 287, syl. ¶ 3, 32 Pac. 904; see, also, C. K. & W. Rld. Co. v. Brunson, 43 Kan. 371, 23 Pac. 495.) It is not at all probable that the error affected the rights of either party. There was no proof that either car was driven at such a speed that it could not be stopped within the distance that objects could be seen ahead of it; and in the absence of any evidence upon that matter, and in view of the specific negligence charged against the driver of the truck, neither party was hurt by the instruction given.
The only serious question raised in the appeal is whether the amount of the verdict is excessive. Plaintiff was injured on .January 2 and went to work for another packing company on April 15, and was continually employed thereafter at considerable increase of salary until a week before the-trial. It is true that his testimony shows that at intervals during that period he was obliged to go to Excelsior Springs and take treatment there for several days, or at times for a week or more. His physicians testified that he was suffering from neurosis, without defining what that disease is or its effect upon his general health. The judgment seems to us to be large in view of all the facts and circumstances, but we cannot say that it is so excessive as to justify this court in directing its reduction or ordering a new trial.
The judgment is affirmed. | [
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Per Curiam:
The Littler brothers brought an action against S. Nation, P. Nation and Fred Nation to recover upon a grazing contract. It was alleged that the Littlers agreed to keep in a certain pasture for the Nations four hundred and thirty-four steers during the season of 1894, and that the Nations were to pay $1.90 per head for pasturage.
The Nations, in answer, claimed damages from the Littlers on the ground that the water in the pasture was not good or sufficient, as the contract required, and that they were, therefore, compelled to take the cattle out of the pasture and place them in another.
The testimony in the case is not preserved. It is stated in the record that the evidence was conflicting, there being much introduced in support of the claims made by the respective parties. There is a further statement that it was shown, and not denied, that defendants procured a new pasture, for which they paid $800; that the new pasture had plenty of grass and water, and that the cattle did not do well for the season, and made from $3 to $5 each less in growth and value than such cattle should have done if they had had plenty of grass and water for all the season.
The jury found in favor of the Littlers, awarding them $164.92.
The condition of the record does not warrant us in saying that error was -committed in the trial court. The general finding is in favor of the plaintiffs below. It does not appear that they agreed to furnish any particular quality or quantity of grass and water. According to the averments of their petition they leased the pasture for the season as it was, not stipulating'to furnish plenty of grass and water, nor that the cattle would do well throughout the season. The fact that the cattle did not do well for the season does not argue that there was a breach of the contract on the part of the Littlers. As against the general finding wfe cannot presufne that the plaintiffs below failed in their agreement, either as to water or grass. ,
In returning their verdict the jury undertook to divide the costs, assessing one-half to each of the parties. This part of the verdict •was properly set aside by the court. The plaintiffs having prevailed, were entitled to all of their costs, and the incorporation of the provision in the verdict did not defeat it nor require the granting of a new trial.
Judgment affirmed. | [
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The opinion of the court was delivered by
Buroh, J.:
The action was one by a vendor to recover the balance due of the’price of real estate sold. The defendant denied purchasing, and took advantage of the action to sue the plaintiff on a promissory note. Judgment was rendered for the defendant, and the plaintiff appeals.
The real estate was situated in Delaware, Okla., and consisted of ground on which stood a cement-block store building. The plaintiff had not seen the property, and the defendant was not familiar with it, having simply ridden by it some years before negotiating with the plaintiff. About June 19, 1919, the plaintiff proposed a sale, representing the building to be occupied by a tenant who paid $17.50 per month rent, to be in good repair, and to be located next door to the post office in Delaware. The defendant was willing to buy on the proposed terms if the property were as represented, but said he would have to see it. The defendant testified he was about to go to Delaware, and the plaintiff gave him a deed and an abstract of title which he might use while in Oklahoma if he accepted the property. He had the privilege of accepting the property, but if he did not want it he was to return the papers. The defendant went to Oklahoma, and found the post office at Delaware had been removed to a location four or five blocks from the building. The tenant had vacated the building and had left it in bad repair. The defendant declined to buy, and returned the deed and abstract.
The negotiations were oral, and the statute of frauds, which the defendant pleaded, forbade maintenance of an action for price unless a sale were consummated by delivery and acceptance of the deed as a present conveyance. If, as the defendant asserted, he had the privilege to inspect and reject the property, did so, and returned the deed, there could be no sale.. If a sale were concluded,'the defense of false representations was open-to consideration. These subjects were presented to the jüry by correct instructions, and the jury properly found for the defendant.
The plaintiff criticises the instruction relating to false representa- , tions as unsound because the instruction did not inform the jury that knowledge by the plaintiff of the untruthfulness of his statements was essential to liability. The criticism is itself unsound. (Bice v. Nelson, 105 Kan. 23, 180 Pac. 206, 181 Pac. 558.)
The plaintiff says his representation that the building was occupied by a tenant was true when made, the tenant having vacated afterward, and that the defendant refused to pay on the sole ground the building was not rented when he inspected it. The defendant testified he did not reject the property on the sole ground it was vacant. The subject is immaterial. The defense of false representations became important only in the event the deed was delivered and accepted as a present conveyance before the defendant went to Delaware. If the deed were not so delivered and accepted, there was no writing signed by the party to be charged, and he could refuse to purchase, for any reason or no reason, without liability. Presumably the jury determined the fact in accordance with the defendant’s testimony.
The judgment of the district* court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
A bridge on a township road was repaired under the direction of the county commissioners at a cost of $221.90. The county treasurer by direction of the commissioners transferred this amount to the county from funds of the township in his hands. The township brought mandamus against the county treasurer to require him to retransfer such sum to the credit of the township. The case was submitted on an agreed statement, one provision of which was that it should be determined upon the issue of the township’s liability for the cost of the repairs, regardless of any question concerning the manner of enforcing its obligation if it existed. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
The bridge was originally built by the county at its own expense and was and is what is designated by the statute as a county bridge, although situated on a township road. The plaintiff relies upon the following section of the bridge act of 1917:
“That all bridges or culverts built in this state at county expense, or for which the county has granted aid, shall be known as ‘county bridges’ or ‘county culverts,’ and shall be maintained thereafter under the direction of the county board and the county engineer at county expense. All bridges or culverts on township roads built at the expense of the several townships without county aid shall be known as ‘township bridges’ and ‘township culverts,’ and shall be maintained thereafter under the direction of the township board and the county engineer at township expense.” (Laws 1917, ch. 80, § 7.)
Another section of the same statute as enacted at that time read as follows:
“That whenever it is necessary to construct or repair any bridge or culvert on a township road in any county of this state, the county engineer’s estimated cost of which will not exceed three hundred dollars ($300), the township board of highway commissioners of the township in which such bridge or culvert is located shall appropriate from the road fund of such township a sum sufficient to meet the entire expenses of the proposed work, and the township board shall make all contracts for labor, material and other necessary expenses for such construction or repair in the manner provided in this act, and when the county engineer’s estimated cost of such work exceeds the sum of three hundred dollars ($300) and is less than $10,000 the county board shall make an appropriation from the county bridge fund and shall proceed in the same manner as provided in this act.” (Laws 1917, ch. 80, § 4.)
To give force to both these provisions it must be held that section 4 establishes the general rule making townships liable for construction or repairs to bridges on township roads costing not more than $300, while section 7 makes an exception relieving the township from the maintenance of all bridges built in whole or in part at county expense, the result being to exempt the township from liability in such a case as the present. The county does not controvert this, but contends that the situation is changed by a later enactment incidental to an amendment of section 4 made in 1919, the amended section reading:
“That section 4 of chapter 80, Laws of 1917, be amended to read as follows: Sec. 4. That whenever it is necessary to construct or repair any bridge or culvert on a township road in any county of this state, the county engineer’s estimated cost of which will not exceed six hundred dollars ($600), the township board of highway commissioners of the township in which such bridge or culvert is located shall appropriate from the road fund [of] such township a sum sufficient to meet the entire expenses of the proposed work, and the township board shall make all contracts for labor, material and other necessary expenses for such construction or repair in the manner provided in this act, and when the county engineer’s estimated cost of such work exceeds the sum of six hundred dollars ($600) the county board shall make an appropriation from the county bridge fund and shall proceed in the same manner as provided in this act: Provided farther, That the township board of highway commissioners shall assist in the construction of all bridges on township roads to the extent of $400; the entire construction to be in charge of the county engineer. When any county has elected to operate under the county unit system all bridges and culverts shall be built by the county.” (Lajvs 1919, ch. 98, § 3.)
The usual rule of construction is that language of an earlier statute which is preserved in an amendment is deemed to speak as of the time of the original enactment, and not of the later one. This follows from the statutory rule that “the provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” (Gen. Stat. 1915, § 10973, subdiv. 1.) It is true that in exceptional cases — where “such construction would be inconsistent with the manifest intent of the legislature or repugnant to the context of the statute” (Gen. Stat. 1915, § 10973) — a different rule is applied (Railway Co. v. Fuller, 105 Kan. 608, 610, 186 Pac. 127), but we see no reason for departing from the usual interpretation here. Section 4 of the act of 1917 did not apply to bridges built at county expense, special provision for such bridges being made by section 7. The amendment to section 4, so far as it related in any way to repairs as distinguished from construction, merely raised the limit of costs to be borne by the township from $300 to $600; it did not change the class of bridges to which the section applied. The original section had no application to bridges built by the county, although on a township road, and the amended section is not to be construed as enlarging its scope in that regard. It may be remarked that the language of the original section has now been restored (Laws 1921, ch. 85, § 1) but this is not important in the present case as the repairs in question were made before the restoration.
The reenactment of a section of the statute incidental to its amendment in one respect does not give to the portion which is unchanged the effect of a new enactment so as to constitute later legislation than statutes existing at the time of the amendment and thereby effect their repeal by implication. (The State v. Kansas City, 83 Kan. 431, 111 Pac. 493; Wilson v. Edwards County, 85 Kan. 422, 425, 116 Pac. 614.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
PORTER, J.:
In 1911 the appellant, Mayme White, was married to A. E. Messenheimer. They lived on a farm in Douglas county, two children, boys, were born to them. In 1920, the parties were divorced, after which the appellant was married to one Andrew White and lived with him at his residence in the city of Ottawa. In the action for divorce the court gave the custody of the children to the mother and the father was- to pay certain sums toward their support. Through some arrangement between the parties the father waS allowed to have the children at intervals, but this occasioned trouble.
On October 14, 1921, the appellant came to Lawrence, carrying a loaded revolver. She made an arrangement ,with her former husband to go with her to the office of her attorney to make some adjustment or . settlement concerning the custody of the children. Messenheimer turned away from her, intending to go to the house to use the telephone, when she fired a shot from the revolver at him, the bullet taking effect in his shoulder. He seized and held her until the police arrived and she was placed under arrest.
Subsequently she was charged with the violation of section 72 of the crimes act, convicted of a violation of section 76 of that act, and sentenced to confinement in the county jail for a period of six months, from which judgment she appeals.
The defense at the trial was insanity. The appellant sought to show that because of physical abuse by her former husband during their married life and the suffering occasioned thereby she became obsessed with the delusion that he intended to deprive her of the custody of her children, and that this suffering had broken her mental power so that “she did not know the difference between right and wrong, and if she did, she had lost all will power to prevent her from doing the thing that she did.” The court allowed great latitude in the admission of testimony, but finally excluded testimony offered to show abuse by her former husband, the character of work he compelled her to do in taking care of live stock, evidence of miscarriages and abortions, which she claimed permanently injured her health and affected her nervous system; and also excluded evidence offered to show that Messenheimer had threatened to harm her husband, Andrew White, and had told her that if she got her boys by order of the court, she could not keep them.
It is claimed that this evidence was offered “to show the cause of the peculiar insanity which led the appellant to commit the act.” There was very little, if any, evidence to indicate That the appellant at the time she committed the offense, or at any other time, was insane. Her own testimony shows that she knew it was wrong to commit the act; she admits that she came to Lawrence with a loaded revolver and hunted up Messenheimer. It is true she was anxious and somewhat worried in regard to the custody of her children. A physician testified that he' had known the appellant a long time. He was called to wait upon her in September, 1919, and found her in a highly excited, nervous condition. An objection was sustained to a question calling for his opinion whether the witness at that time was insane. The court also excluded the offer to show by physicians that she had been examined by them various times within five or six years; and that they had found her in ill health and highly nervous.
The main contention is that it was the duty of the court to add an additional element, in defining insanity, and to instruct that “even if the defendant’s mental condition is such that he or she can distinguish right from wrong, but has suffered such impairment of that part of the brain which gives the will power, that the defendant is without the necessary will power to control his or her action because of a diseased brain as aforesaid, then the defendant cannot be held criminally responsible for the act.” This amounts to nothing more than what is known as the “irresistible impulse theory,” which the court rejected in The State v. Nixon, 32 Kan. 205, 4 Pac. 159, and The State v. Mowry, 37 Kan. 369, 15 Pac. 282. An argument is made to induce a reconsideration of the decision in the Mowry case but the court is well satisfied with the reasoning and conclusions reached therein.
It is urged that the trial court committed error in failing to give an instruction as to “delusional insanity,” whatever that may mean. The instruction which the court gave with respect to insanity reads:
“The defendant admits that she fired a shot from a revolver at the time A. E. Messenheimer was shot, but claims that at the time she fired the shot, she was of unsound mind or insane. In this connection I have to advise you that if when the defendant shot A. E. Messenheimer she was laboring under such a defect of reason from disease of the mind as not to know . . . that what she was doing was wrong, then the law does not hold her responsible for her act. On the other hand, if she was capable of understanding what she was doing and had the power to know that her act was wrong, then the law will hold her criminally responsible for it. If this power of discrimination exists, she will not be exempted from punishment because her mind may have been depressed or distracted from brooding over her troubles. The law recognizes no form of insanity, although the mental faculties may be disordered or deranged, which will furnish one immunity from punishment for an act declared by law to be criminal, so long as the person committing the act had the capacity to know what she was doing and had the power to know that this act was wrong.”
The substance of this instruction is approved in The State v. Arnold, 79 Kan. 533, 100 Pac. 64; The State v. Johnson, 92 Kan. 441, 140 Pac. 839.
It is insisted that instruction No. 15 left in the minds of the jurors the notion that the burden of proof was on the appellant to prove her insanity. Instruction No. 15 reads:
“The defendant is presumed to be innocent until her guilt is established by competent evidence beyond a reasonable doubt, and the burden of proof is always upon the state to thus establish her guilt. This presumption of innocence is a presumption that clings to the defendant through every stage of the trial, and is never relaxed until there is a judgment of conviction. It extends to every material fact, element and ingredient of the offense charged, and must be overcome by the state before there can be a conviction. And, if you believe the defendant guilty, but entertain a reasonable doubt as to which of the two or more degrees of crime she is guilty, she may be convicted of the lower degree only; that is, of the degree touching which you entertain no reasonable doubt.”
The contention is that on the issue of insanity the court should have especially charged that the burden of proof rested upon the state, but instruction No. 15 when construed with instruction No. 14 could not have left the jury in doubt. Instruction No. 14 charged that “it is also proper to tell you that every person is presumed to be sane until the contrary is established.” The two instructions together, we think, were sufficient to impress upon the minds of the jurors that the burden of proof was not upon any issue shifted to the appellant. (The State v. Husong, 109 Kan. 84, 197 Pac. 874; The State v. Warner, 93 Kan. 378, 144 Pac. 220.)
Moreover, the defendant made no request for any instruction respecting insanity or the burden of proof. .
We discover no error in overruling the motion for a new trial and the judgment is affirmed. | [
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|
The opinion of the court was delivered by
Porter, J.;
The action was to recover damages for injuries the appellee claims resulted from a collision between a jitney, in which she was riding, and a taxicab, while crossing a street intersection in Kansas City, Mo. She recovered a verdict of $10,000 against the Yellow Cab & Baggage Company, referred to herein as the appellant, and Y. L. Roberson, doing business as the K. & M. Taxicab Company. The Yellow Cab & Baggage Company alone appeals.
The petition set up certain ordinances of Kansas City, Mo., requiring drivers of vehicles to drive on the right of the center of all streets, and limiting the speed to twenty miles per hour upon streets such as the ones in question (with a proviso limiting the rate to ten miles an hour when any person or vehicle is in the intersection and there is danger of a collision). Negligence was charged against both defendants for carelessly operating their cars. It was alleged that Roberson saw or should have seen the yellow cab in time to avoid the accident, and that the driver of the yellow cab violated the ordinance in driving across the intersection in excess of ten miles an hour when he saw or should have seen Roberson's car, in which appellee was a passenger. The petition alleged that the appellee was not driving or directing the movements of the jitney in which she was a passenger and had no control over its movements, and was exercising due care in her own behalf.
In its' answer, the appellant pleaded the same ordinances, including a provision that whenever vehicles approaching each other on different streets shall reach an intersection at the same time, the vehicle which has another on the right hand shall have the right of way, but providing that every such vehicle shall be kept under control so as to prevent danger of collision. The answer further alleged that appellee’s injuries, if any, were caused by the reckless acts and omissions of herself and Roberson who was driving the car in which she was a passenger; (1) in driving the car in a negligent manner without regard to the convenience of other vehicles and in violation of the ordinance; (2) at a rate of speed in excess of fifteen miles per hour at a time when there were upon the intersection other vehicles, including that belonging to the Yellow Cab Company; (3) in attempting to cross' the intersection when the yellow cab was on the intersection and had the right of way. The answer also set up the defense of contributory negligence on the part of the appellee.
Baltimore avenue in Kansas City, Mo., runs north and south and is intersected by Southwest boulevard, which runs on a curve at the intersection from a northeasterly to a southwesterly direction. In the center of the boulevard are located street-car tracks. The accident happened early in the morning. The testimony of the driver of the yellow cab was to the effect that he was on his way to the union station, driving south on the west side of Baltimore avenue ; and when about 45 feet north of the curb line of the boulevard he looked east and west and saw Roberson’s car about 150 feet west of the intersection; he then slowed down to ten miles an hour, but noticed that Roberson was not looking, and he speeded up to try to get out of Roberson’s way. Roberson was on Southwest boulevard, going towards Kansas City, and was driving his car, in which there were seven passengers, including the appellee. As he entered the intersection he leaned forward to look south on Baltimore on account of a blind corner there. He did not look north up Baltimore avenue as he entered the intersection, his attention being fixed on vehicles that might be approaching from the south. After looking south he looked east and first saw the yellow cab on the boulevard just crossing the car tracks. He was then distant a few feet, probably five or six, and he tried to turn to the south to avoid the collision. The radiator of his car struck the right rear fender Of the yellow cab, throwing it across the boulevard, where it tipped over after sliding a distance of fifteen feet or more. Roberson testified that all he saw was just the flash of the car, then the crash, and that the front end of his jitney struck the right side .of the taxicab.
Roberson testified on direct examination that when he came to the intersection he threw out his clutch and slowed down, and then looked straight ahead and saw nothing on the intersection. “When I looked straight ahead, I was about twenty-five or thirty feet west of the intersection, then I kicked out my clutch and run slow. There is a building on the right-hand side, southwest corner, and just before I got to the intersection I leaned forward to look south on Baltimore, and still south until I could see due south on Baltimore. And then when I raised up and turned the other way, there was the yellow cab six or eight feet from me at the center of the intersection of Baltimore.” He said that he was traveling about ten miles an hour; that the radiator of his car struck the rear fender of the yellow cab; his own car was swung around to the right and turned over on its left side. After the collision the yellow cab turned over and slid up against,the east curbing on its left side. Nobody was thrown out of the car upon the ground. The bystanders came up and tore off the top and the passengers were pulled out and crawled out. “Mrs. Hanks was lying immediately on top of me.”
On cross-examination he admitted that he made a written statement, which he testified was practically true — “a pretty good story of. the accident.” In this statement he said that, “as my car entered this intersection, it was going twelve to fifteen miles an hour.” Asked if that was correct, he said, “I never had any speedometer. Q. Well, that is your estimate, the statement you made? A. Yes.” In the written statement he said that he had to lean forward on account of the girls being to his right, and that by the time he straightened up the other car was almost to the center of the intersection and his own car was five or six feet from it at that time. He then put on his brakes and started to turn to the south to avoid hitting the other car. He testified that these statements were correct, and also the statement that the yellow cab, after his car struck it, went about fifteen feet and turned over on its left side. He denied that he had made the statements in the writing to the effect that there was nothing unusual about the speed of the yellow cab so .far as he could see, and that it was not going unusually fast when he saw it, and denied that he stated therein that the yellow cab might have been going slower than he was for all he knew.
He testified that the following part of the written statement was correct:
“I do not know why I did not look north up Baltimore as I approached and entered the intersection unless it is because I am always afraid of blind corners, and consequently my attention was fixed on vehicles approaching from the south, as I remember there was one, and I just failed to look north.”
Roberson, being a common carrier, was, of course, chargeable with the highest degree of care, skill and foresight consistent with the practical operation of his conveyance to prevent injury to appellee while she was a passenger therein, and the court so instructed the jury 'and told them that if they found from the evidence that he failed in the performance of this duty, it was negligence. The court charged that appellant was required to exercise ordinary care and prudence in operation of its taxicab, and that its failure in this respect would constitute negligence; also that the appellee was required to exercise ordinary care and prudence to prevent an injury to herself, and a failure in the performance of this would constitute negligence on her part.
Complaint is made of the failure to sustain demurrers to appellee’s testimony, and also at the conclusion of the testimony offered by the defendant, Roberson; also of the refusal to direct a verdict in favor of appellant. It is argued that while the testimony proved a cause of action in favor of the appellee against Roberson as a common carrier of passengers for hire, still the charge of negligence against the appellant, based on violations of the city ordinances, was not sustained.
Perhaps the preponderance of the evidence and the physical facts, about which there could be little dispute, were in favor of the appellant in respect to these matters. Nevertheless, Mrs. Hanks testified that she was familiar with street cars and automobiles, knew generally their speed, and could estimate how fast these cars were going at the time of the collision. She says that she saw the yellow cab when it was about twenty feet distant from the point of collision and that she judged it was going three times faster than the jitney, or at the rate of about twenty-seven or thirty miles an hour. If it be conceded that this is opposed to the weight of the other testimony, still it raised a question of fact that had to be submitted to the jury. N'o special findings were asked; and the general verdict cannot be said to be without evidence to support it, if the jury saw fit to believe the evidence. For the same reason it was not error to overrule the motion for a directed verdict. A situation was presented which might have appealed strongly to the judgment and discretion of the trial court on the hearing of the motion for a new trial, but that motion was overruled and the case comes here with the verdict and judgment approved by the district court.
It is said in the appellant’s brief that the appellee “made a feeble attempt, or rather a suggestion, that she was watching Roberson at the time he entered the intersection of Baltimore avenue and Southwest boulevard and that from her observation, based no doubt on her eagerness to win her lawsuit, claimed that Roberson as he en tered the intersection looked both ways for the oncoming of some other car.”
The jury are presumed to have considered her interest in the event of the suit when they weighed the truthfulness of her story; the same presumption must be indulged respecting the court, in overruling the motion for a new trial. It cannot be held as a matter of law that the appellee was guilty of negligence because of the failure, in the short space of time in which she had to act, to caution or warn the driver of the car in which she was a passenger.
Another contention of error presents a more serious question. Edna Everett, the second witness called for appellee, was one of the passengers in the jitney who was injured. Appellee’s counsel asked her this question: “Have you any suit against this company or any other company?” Before her answer was completed, counsel for appellant interrupted and asked her to wait a minute, but she answered, “I have gotten a settlement.” A motion to strike out the answer as incompetent, irrelevant and immaterial was overruled. The witness was then asked, “Have you had a suit against this company, the Yellow Taxicab Company?” She answered, “I have had a settlement with the company.” Upon motion the court first ordered this answer stricken. Mr. Cubbison, attorney for the ap-pellee, said, “I haven’t asked her about a settlement; but about a suit. I have asked her if she had a suit or claim; that is preliminary.” The court instructed him to “go ahead.” “Q. Did you have a suit or claim against the Yellow Taxicab? A. Yes. Q. Was it against them or both companies? A. Against the Yellow Cab.”
The appellant’s attorney considered this evidence as harmful and likely to leave an impression on the jury that a settlement with one of the injured parties was an admission of liability, and thereupon he proceeded to cross-examine the witness as to whether she had not sued both Roberson and the appellant. She testified that she did not know that. He then introduced the petition in her action showing that she had sued both Roberson and the appellant. On redirect examination appellee’s attorney asked, “That suit that was commenced there by you, has it been settled?” The court sustained an objection. Appellee’s counsel then asked the court to hear him for a minute, and said:
“The question about another controversy and whether it is settled or not, might not be an issue; but they have introduced a petition here in which they claim this woman had a suit against their company. They have put it in here for the purpose of affecting the weight of her testimony. Whether or not that case is settled, since they have put the petition in the record, goes to the weight of her testimony. If the case has been settled, it might have one weight; if the case has not been settled, it would be an inducement for her to testify. They have put it in themselves. They have made it an issue, going to the credibility of the witness.”
Appellee’s attorney insisted that his question was proper, but only for the purpose of affecting the credibility of the witness, and stated this was the only theory upon which he desired the question answered. The court reversed the ruling and held that the evidence might go in for the purpose stated; and over appellant’s objections, Edna Everett and another woman, who was a passenger and injured in the same collision, testified that all controversies involved in their separate actions had been settled. A motion to strike out all of this evidence as incompetent, immaterial and prejudicial, and induced by misconduct of counsel, was overruled, as well as a request for the court to instruct the jury to disregard the same as prejudicial.
In this connection error is predicated upon the conduct of appel-lee’s attorney in his closing argument, when he stated to the jury in substance, “These defendants have settled the claims of Miss Everett and Miss Rowe, who were injured in this same accident.” The remarks were objected to, and after the close of the argument by the attorney for the appellee the court instructed the jury as follows:
“In. regard to the exception that was taken by Mr. Berger to the statement of Mr. Cubbison during his argument in regard to the settlement of claims of the witnesses to whom he referred, I want to instruct you that that testimony was not introduced for the purpose and should not be considered by you for the purpose of determining whether there was any liability in those eases or in this case. It was simply admitted for the purpose of — or in so far as it might tend to throw light on the credibility of the witnesses, as tending to show whether they had any interest in this controversy or not.
“Mr. Berger: I want a further exception, Your Honor. He said in his statements that the defendants had made a settlement with these people. I except to the remark whereby he used the plural and^included the defendant Yellow Cab Company, which was not in the evidence and not correct and not true.
“The Court: Well, this instruction I have just given you gentlemen refers to both defendants. Any settlement of that sort should not be considered here as determining whether there was any liability or not, as to either defendant.”
No attack had been made on the credibility of appellee’s witnesses when her counsel first brought into the case, over appellant’s objections, the fact that settlements had been made between them and the appellant for injuries in the same accident. Will the fact that after the evidence had been admitted, over objections, the appellant felt compelled to show by cross-examination that the witnesses had sued Roberson as well as the appellant, cure the error or estop the appellant from claiming that it was prejudicial? We think not. Generally, the purpose for which testimony has been introduced may best be determined by the specific use made of it in argument. It appears that appellee’s counsel in his closing argument to the jury stated that these parties (which includes the appellant) “have settled with these witnesses who were injured in the same collision.” It is not claimed that this statement was made in connection with any argument respecting the credibility of any witness.
Ordinarily, it would seem that before the credibility of a witness is attacked, the party producing the witness should not be entitled to offer affirmative evidence to strengthen the credibility of his witness. And yet it could hardly be held improper or ground of error to permit the party to ask of the witness a general question, such as: “Have you any interest in the result of this lawsuit?” But under the pretense of strengthening the credibility of his witness he ought not to be permitted to drag into the record testimony which would otherwise be wholly incompetent, irrelevant and probably prejudicial; certainly not in the absence of an attack upon the credibility of his witness. In Georgia Ry. & El. Co. v. Wallace, 122 Ga. 547, it was said:
“It costs time, trouble,' and money to defend even an unfounded claim. Parties have a right to purchase their peace. The fact that they have entered into negotiations to secure that end, and admissions or propositions made with the view to a compromise, are not admissible in evidence for or against either litigant, in the event there is a failure to adjust and a suit follows. For a much stronger reason, evidence of a settlement with a third person injured in the same casualty ought to be excluded.” (p. 550.)
In that case the party against whom the evidence was offered made an attempt to remove from the minds of the jury the impression that a certain payment was a settlement of an admitted liability. It was held that the error in admitting the evidence was not cured by an instruction that the evidence could only be considered for the purposes of impeachment.
In Ferry’s Admr. v. Louisville Ry. Co., 165 Ky. 747, it was held in a similar situation that, as affecting the credibility of his witness, plaintiff may not ask him if witness’ claim against defendant was settled, he having no right to impeach him, nor in the absence of an attack on his credibility to give proof tending to strengthen it.
The contention, therefore, that the evidence was admissible in the present case to strengthen the credibility of these witnesses falls to the ground, when it is remembered that evidence of the compromise was admitted over objections, and before any attempt had been made to impeach appellee’s witnesses, if it can be said that any attempt was made.
In Railroad Co. v. Stone, 78 Kan. 505, 97 Pac. 471, the opinion, by Mr. Justice Benson, recognizes the authority of the rule that offers of compromises are not admissible unless they concern admissions of fact.
In St. L. S. F. & T. Ry. Co. v. Knowles, 44 Tex. Civ. App. 172, suit was brought against a traction company and a railroad company for,injuries to a passenger of the former in a collision. Evidence that the traction company had made settlements with several passengers who sustained injuries in the collision was held incompetent as an admission of liability on its part. The reason for the rule is stated in Georgia Ry. & El. Co. v. Wallace, supra, as follows:
“The rule against allowing evidence of compromises is founded upon recognition of the fact that such testimony is inherently harmful, for the jury will draw conclusions therefrom in spite ... of anything which may be said by the judge in instructing them as to the weight to be given such evidence.” (p: 551.)
Moreover, after the court had stricken out the evidence showing this settlement counsel induced the court to reverse the ruling and admit the evidence for the sole purpose of strengthening the credibility of his witness, but later in the closing argument made use of the fact for the purpose for which such evidence is usually offered, and ignored the ruling of the court restricting the purposes for which the settlement could be considered by the jury. This might amount to misconduct within the provisions of section 305 of the civil code, and furnish grounds for a new trial, without necessarily implying any evil or corrupt motive oh the part of counsel. In Winter v. Sass, 19 Kan. 556, 566, Mr. Justice Brewer said:
“We doubt not that many cases may arise in which the "misconduct of counsel, in going outside of the evidence in his argument, may be such as to compel a reversal. No one can doubt the impropriety of such conduct. In doubtful cases it may be that which turns the scale, and determines the verdict.”
As sáid in another opinion, by Mr. Justice Valentine:
“It may also be that the seeming misconduct of the plaintiffs did not affect the verdict of the jury; but it may be that it did, and we cannot say that we feel clear that it did not, and this is all that is -necessary to require a reversal of the judgment.” (May, Weil & Co. v. Ham, 10 Kan. 598, 601.)
Facts in evidence about which there can be little dispute, the admissions of Roberson and many of the circumstances, leave the impression that the real cause of the collision was his negligence. Upon the question as to the negligence of appellant thfe case is at least a doubtful one. Moreover, in view of the evidence of the two physicians appointed by the court to examine the appellee with respect to the extent of her injuries; the history of her condition as detailed to them by her; the fact that not long previous to the accident she had undergone an operation for appendicitis; all these facts and circumstances raise a serious question whether the amount of the verdict and judgment is not excessive. The .record as a whole shows a doubtful case, in which it may well be that the admission of this evidence (and especially the use made of it in direct conflict with the court’s ruling at the time it was admitted) turned the scale and determined the verdict. It is our opinion that in the furtherance of justice a new trial should be ordered.
The judgment is reversed and the cause remanded with directions to grant a new trial to the appellant, the Yellow Cab'and Baggage-Company. | [
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The opinion of the court was delivered by
Maeshall, J..:
Margaret Dreiling appeals from a judgment fixing priority of liens on a crop of wheat. She claims a thresher’s lien under chapter 231 of the Laws of 1917.
The court has before it the petition of the plaintiff in which he claims a lien under a contract with the tenant farmer and other lien-holders for harvesting the wheat. The court has the answer of defendant Dinkel in which he claims a lien on the wheat under a chattel mortgage given by the tenant farmer. The court also has the answer of Margaret Dreiling in which she claims a lien on the wheat for threshing it. No replies are shown to the answers. The wheat had been placed with the Kansas Flour Mills Company. That company was ordered to sell the wheat and make distribution of the proceeds as follows:.
“(1) That out of the proceeds of said wheat the costs of this action taxed at $47.00 be paid; (2) that the defendant Robert Goetz be paid $112.42, be ing the amount of his landlord’s lien upon said wheat ; (3) that the plaintiff Joseph A. Rupp be paid the sum of $500 with interest at 6 per cent per an-num from the 1st of August, 1921; (4) that the defendant Frank M. Dinkel be paid the amount of his lien under his mortgage computed at $593.00; (5) that the remainder, if any, after paying Frank M. Dinkel, be paid to defendant Margaret Dreiling in satisfaction of her claim for threshing said wheat fixed at $166.64.”
'There was a motion for a new trial.
We quote the entire brief of the appellant—
“The labor of the appellant in threshing the wheat in question, preserved it, and converted it into a marketable condition. Without such labor, none of the parties hereto could have received any payment on their respective claims against said wheat. She has a lien on all of said wheat for her work, which she perfected by complying with Chapter 231 of the Session Laws for the year 1917 of the State of Kansas. Her lien is superior to either the claim of plaintiff, Joseph A. Rupp, or the lien of defendant, Frank M. Dinkel, and under the laws of the State of Kansas, she is entitled to her pay.”
The contention of the appellant may be correct, but the record brought to this court does not disclose that the judgment was wrong or on what it was based. It may have been on the pleadings, on trial statements, on admissions and stipulations, or on evidence. There is nothing to show that any error was committed. For that reason, the judgment is affirmed. (Bartlett v. Feeney, 11 Kan. 593.) Many cases to the same effect might be cited.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Farmers and Bankers Life Insurance Company sued -W. R. Whitney upon several promissory notes executed by him. He filed a second amended answer and cross-petition, to which the plaintiff demurred. This appeal is taken from the overruling of the demurrer. A former judgment was reversed on account of the erroneous admission of evidence. (Insurance Co. v. Whitney, 105 Kan. 237, 182 Pac. 645.)
1. The allegations of the pleading attacked may be thus summarized: The defendant was the general agent for the plaintiff in certain territory and was entitled to some renewal commissions. The plaintiff wished to appoint one F. R. Fenn as its general agent in this territory. At the solicitation of the plaintiff the defendant entered into a written contract with Fenn, which was also signed and agreed to by the. plaintiff, providing that the defendant should release his claim for such commissions and Fenn should allow him 10 per cent of the “first year’s commissions on new business written by” him [Fenn] under his contract with the plaintiff, and also two-fifths of his compensation for “re-transfering” certain business from one plan to another, until the total of such allowances should be $2,000, these allowances to be paid to the plaintiff by Fenn and credited to the account of the defendant. Under this contract the defendant was entitled to ten per cent of the first year’s commissions on new business written by Fenn under the terms of his contract with the plaintiff. The total premiums on new business written by Fenn under his contract amounted to more than $20,000, ten per cent of which the 'plaintiff received on account of ■ the defendant. Fenn also earned under his contract with the plaintiff premiums for such retransfer many thousand dollars (the exact amount being unknown to the defendant), two-fifths of which the plaintiff received on account of the defendant. ' The plaintiff refused to render the defendant an account of these sums, did not pay them to him, and now owes him $2,000 on account thereof.
The plaintiff contends that the answer does not plead any contract between Fenn and the plaintiff. It alleges that the plaintiff wished to make Fenn its agent in place of the defendant, and solicited the making of the contract between Fenn and the defendant, which it also signed and approved; that the contract provided for the disposition of commissions to be earned by Fenn, a part of which were to be paid by Fenn to the plaintiff for the benefit of the defendant; that under this contract with Fenn the plaintiff was entitled to ten per cent of Fenn’s first year’s commissions on new business written by him under his contract with the plaintiff; that the plaintiff received this ten per cent, $2,000 of which it held for the defendant. The absence of an allegation in so many words that Fenn entered into. an agency contract with the plaintiff is not a ground of demurrer, the existence of such contract being so clearly' assumed and implied that the plaintiff could by no possibility have failed to understand from reading the answer that the defendant was asserting it had been entered into. “The true doctrine to be gathered from all the cases is, that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment.” (Pomeroy on Remedies and Remedial Rights, § 549.)
The plaintiff also contends that the answer does not affirmatively allege that the amounts paid by Fenn to the plaintiff for the benefit of the defendant exceeded the credits allowed on the notes sued upon. These credits totaled $625.13. The statements that ten per cent of $20,000 from Fenn’s first year’s business was received by the plaintiff on account of the defendant, and that the plaintiff owed the defendant $2,000 on account of the matters stated, are at least inferential allegations to that effect. .
As already indicated, the answer set out that the total “premiums” on the first year’s new business written by Fenn amounted to $20,000, ten per cent of which the plaintiff received on account of the defendant. The plaintiff argues that the force of the allegation is destroyed by the use of the word quoted, inasmuch as the contract had to do with ten per cent of the first year’s commissions. It is reasonably clear from- the context that the pleader meant commissions.
The allegation immediately following, that by the transfer of business from one plan to another Fenn earned “premiums,” to a portion of which the defendant was entitled, confirms this view. The word “premium” has of course a specific meaning in the insurance business which is well understood. But its general sense of a reward or recompense is near enough to that of “commission” to make its use as a synonym excusable, although inexact. The plaintiff cannot have been misled by this inaccuracy in the use of language.
2. The plaintiff further contends that the pleading attacked— the second amended answer and cross-petition — is demurrable on account of the statute of limitations, because it was filed October 7, 1920, and the cross demand it sets out accrued January 5, 1913. An amended answer and cross-petition, which sufficiently set out the same claim, was filed August 19, 1916, and from that time the statute of limitations ceased to run. Subsequent amendments, not essential to a statement of the cause of action, did not affect the matter. (Culp v. Steere, 47 Kan. 746, 28 Pac. 987.)
The judgment is affirmed.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
MaRshall, J.:
This is an appeal from a judgment in an action in quo warranto prosecuted by the state on the relation of the county attorney of Pratt county to compel the defendants to show by what authority they exercised the powers of director, clerk and treasurer of school district No. 91, which the plaintiff contends was never organized. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
The case was tried on an agreed statement of facts which showed that school district No. 8 of Pratt county was regularly organized hnd included the city of Preston, a city of the third class, and for a number of years maintained a graded school; that school district No. 22 was regularly organized and had a boundary contiguous to that of school district No. 8 for three and one-half miles; that school districts No. 8 and No. 22 were consolidated in 1920 and were thereafter known as school district No. 8; that in June, 1920, a petition was presented to the county superintendent, signed by residents of the territory described in the petition, praying for the organization of a new school district to include a large portion of the territory of old district No. 22; that on August 21, 1920, the county superintendent refused to create a new school district as prayed for and made an order for the formation of another school district having boundaries different from those described in the petition, from which order an appeal was at once taken to the board of county commissioners; that on September 7, 1920, the appeal was sustained by the board of county commissioners, and an order was made creating a school district as prayed for in the petition; and that afterward the defendants were elected by the new school district, director, treasurer and clerk, respectively, and have acted as such continuously since their election.
1. The first contention of the plaintiff is that district No. 91 was not legally organized, for the reason that a new district could not be created out of the territory of school district No. 22 after it had been consolidated with district No. 8. To support this contention, plaintiff argues that sections 8938 and 8939 of the General Statutes of 1915, the law under which districts Nos. 8 and 22 were consolidated, repeal section 8891 so far as that section gives to the county superintendent authority to create a new district out of territory embraced in a consolidated district. Section 8891 was passed in 1881 and amended in 1907. Sections 8938 and 8939 were passed in 1911 and are the last expression of the legislature. It is argued by the plaintiff that sections 8938 and 8939 are inconsistent with section 8891, and that therefore the former repeals the latter so far as they are contradictory. This court fails to see wherein these statutes are necessarily contradictory so far as the creation of a new district out of territory embraced wholly or partly within a consolidated district is concerned. The authority of the.county superintendent to create a new school district does not appear to be curtailed by sections 8938 and 8939 authorizing the consolidation of districts. After the consolidation, the authority of the county superintendent was the same as it would have been if no consolidation had taken place. Other consolidations may be made, or new districts may be created.
2. Another contention of the plaintiff is that the appeal from the order made by the county superintendent did not comply with the law. Section 8906 of the General Statutes of 1915 provides that a notice of appeal shall be served on the county superintendent within ten days of the time of posting notices of the formation or alteration of such district. No notice was ever posted concerning the formation of the district as ordered by the superintendent. The notice of appeal was served immediately after the county superintendent made the order .creating the new district. The fact that no notice of the formation of that district was posted cannot defeat the appeal. Posting notices fixes the time within which an appeal must be taken, but it is not necessary to wait until notices are posted before taking an appeal.
3. Another contention is that a new school district could not be formed on September 7,1920. The argument to support this' contention is based on section 8905 of the General Statutes of 1915, which in part reads:
“When a new district is formed, in whole or in part, from one or more districts possessing a schoolhouse or entitled to other property, such new district shall be formed only between April 1 and September 1 of the same year.”
The petition for the organization of the new district was presented to the county superintendent on June 25, 1920. It was heard by her on August 21, 1920, and the appeal was taken on that day. If this statute compels the county commissioners to make an order on an appeal between April 1 and September 1, the right to an appeal from the order of the county superintendent is practically denied, for the reason that there must be some delay between the order appealed from and the hearing before the commissioners. The appeal must be heard by the commissioners at their next regular meeting. (Gen. Stat. 1915, §8906.) It will often happen that an appeal cannot be heard before September 1. That was probably true in the present case. Section 8905 must be construed as a restriction of the power of the county superintendent and not as a restriction on the authority of the county commissioners on an appeal from the order of the county superintendent. Any other construction of this statute will render it ineffective.
No error is shown, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff seeks to compel the defendants, school district No. 2 of the county of Sumner’ and the director, clerk, and treasurer of the district to maintain a university preparatory high school as provided by chapter 276 of the Laws of 1919, in accordance with the vote of the annual meeting of the school district. An alternative writ of mandamus has been issued. The case is presented on a motion to quash the writ.
The writ alleges that school district No. 2 is regularly organized; that the defendants, Charles Alter, W. E. Bartlett, and L. L. Con stant, are respectively director, treasurer, and clerk of the district; that in 1919 the district was organized into a standard county high school under the provisions of chapter 276 of the Laws of 1919; that during the year 1920 and 1921 such a high school was conducted, and the district participated in the high-school fund raised as provided for in that act; that at the annual school meeting of the district, held April 14, 1922, it was voted that the school be maintained at its present standard and for a term of nine months beginning September 5, 1922; and that the board resolved to conduct a high school with a three-year course of study instead of one with a four-year course.
1. Could the district be organized into a standard county high school under chapter 276 of the Laws of 1919? That chapter does not provide for the organization of any kind of school. It provides for the levy and distribution of taxes for the support of high schools.
2. Did the annual school meeting have power to direct the school board to maintain a four-year high-school course of study? To answer this question, it is necessary to ascertain the powers of an annual school meeting. They are given in sections 8913 and 8914 of the General Statutes of 1915, which read as follows:
“The inhabitants qualified to vote at a school meeting lawfully assembled shall have power: First, to appoint a fchairman to preside over said meeting in the absence of the director; second, to adjourn from time to time; third, to choose a director, clerk and treasurer, who shall possess the qualifications of voters; fourth, to designate by vote a site for a district schoolhouse; fifth, to vote a sum annually not exceeding the limit fixed by law, as the meeting shall deem sufficient, for the various school purposes and for the payment of any floating indebtedness of the district, and distribute the amount as the meeting shall deem proper in the payment of teachers’ wages, and to purchase or lease a site (provided, when not included within the limits of a town or village, said site shall not contain less than one acre), and to build, hire or purchase such schoolhouse, and to keep in repair and furnish the same with the necessary fuel and appendages, and to pay any floating indebtedness of the school district; sixth, to authorize and direct the sale of any schoolhouse, site or other property belonging to the district when the same shall not longer be needful for the use of the district; seventh, to give such direction and make such provision as may be deemed necessary in relation to prosecution or defense of any suit or proceedings in which the district may be a party.” (§ 8913.)
“The qualified voters at each annual meeting or any special meeting duly called, may determine the length of time a-school shall be taught in their district for the ensuing year, which shall not be less than three months, and whether the school money to which the district may be entitled shall be ap plied to the support of the summer or winter term of school, or a certain portion of each; but if such matters shall not be determined at the annual or any special meeting, it shall be the duty of the district board to determine the same.” (§ 8914.)
The length of time that a school must be maintained is not controlled by section 8914, but is controlled by section 9427 and subsequent sections. These require that seven months’ school shall be maintained in each school district except in cities of the first and second class, where eight months of school must be maintained.
Section 8985 reads:
“That in each and every school district shall be taught orthography, reading, writing, English grammar, geography, arithmetic, history of the United States, and history of the state of Kansas, and such other branches as may be determined by the district board: Provided, That the instruction given shall be in the English language.”
Two other sections of the statute must be noticed. They are sections 9034 and 9449. They read:
“No certificate shall be granted to any person to teach in any of the public schools of this state after the first of January, eighteen hundred and eighty-six, who has not passed a satisfactory examination in the elements of physiology and hygiene, with special reference to the effects of alcohol stimulants and narcotics upon the human system; and provisions shall be made by the proper officers, committees and boards for instructing all pupils in each public school supported by public money and under state control upon the aforesaid topics.” (§ 9034.)
“That September 28, or the school day in each year hereafter nearest to said date, shall be set apart and designated as ‘Frances Willard day’; and, in every public school in the state of Kansas, one-quarter of the school day shall be set apart for instruction and appropriate exercises relative to the history and benefits of the prohibitory amendment to the constitution and the prohibitory laws of the state of Kansas. It shall be the duty of all state, county, city, and school-district officers, and of all public-school teachers in the state, to carry out the provisions of this act.” (§ 9449.)
So far as these statutes are concerned, the school board has the power to say what shall be taught in the district school, except that the statutes command that certain things must be taught.
3. Can a school district be compelled to follow the full four-year high-school course of study prescribed by the state board of education under section 8872 of the General Statutes of 1915? The plaintiff in its brief contends that this can be done, but there is no allegation in the alternative writ on which the contention can be based.
Section 8872 reads:
“The state board of education shall meet at such times and places as may be determined by them and at the call of the state superintendent of public instruction. The board shall prescribe courses of study for the public schools of the state, including the common or district schools, the graded schools, and the high schools; they shall also prepare a course of study for the normal institutes; and they shall revise the several courses of study when in their judgment such revision is desirable; they shall have authority to make rules and regulations relating to the observance of the prescribed courses of study; and they shall also issue state teacher’s certificates under such regulations, not inconsistent with law, as the state board may determine.” (§ 8872.)
Does this statute have the effect of repealing the statute giving to the school board power to say what subjects shall be taught outside those named in sections 8985, 9034, and 9449? There is nothing in section 8872 to indicate that the annual school meeting or the school board is divested of any authority held by either prior to the enactment of that section. Within narrow limits, the annual meeting has power to determine the length of time the school shall be taught. All districts must maintain a seven-months school, but some may desire and maintain a longer term. A rigid course of study requiring a certain number of months in the year for a number of years to complete, cannot be complied with by all school districts. Some districts maintain high schools whose graduates are admitted to the state university without examination; others do not and cannot do so. There is nothing in the statute to indicate that those districts which do not desire or cannot maintain such a school may be compelled to do so. Funds must be raised by taxation for the purpose of maintaining schools. In school districts, the annual meeting votes the tax. After provision is made for instruction in the subjects named in the statutes for the prescribed length of time, there is no power anywhere to compel a school district to levy taxes for the purpose of furnishing instruction in any other branch or for any other length of time.
Part of section 9428 of the General Statutes of 1915 may be of assistance in reaching a conclusion on this proposition. That part reads:
“All districts receiving aid under the provisions of this act shall follow the course of study as prescribed by the state board of education and shall employ a qualified teacher recommended by the county superintendent.”
The aid referred to is that given to those districts which are not able to raise funds sufficient to carry on a school for seven months. This direction to those districts implies that districts which are able to raise funds with which to maintain their schools are not compelled to follow the course of study prescribed by the state board of education.
The case is submitted for final judgment on the motion to quash. That motion is allowed, and the application for a peremptory writ of mandamus is denied. | [
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The opinion of the court was delivered by
Maeshall, J.:
The defendant appeals from a judgment convicting him of concealing chattel-mortgaged property with intent to defraud the mortgagee.
1. The first complaint is of the restriction of the defendant’s cross-examination of one . of the plaintiff’s witnesses. We quote from the defendant’s abstract:
“Witness testified that Mrs. Perkins was in their place of business, that he made out a statement of Mr. Perkins’ account, and the amount of the note which would have acted as a bill of sale; that this was made out the day after Mrs. Perkins was there. Mrs. Perkins told them to leave it at the Lawrence National Bank, that he has not that statement now.
“Q. Did you tell her you would leave it there?
“Q. Was Mrs. Perkins in there more than once?
“Q. Have you that statement now? A. No sir.
“Q. Do you know what became of the statement?”
Objections to the four questions asked were sustained by the court. The matter sought to be elicited by this cross-examination does not appear to have been material. The court could have permitted the questions to have been answered without committing error, but it does not appear that any prejudice resulted from refusing to permit the questions to be answered.
2. The defendant contends that the chattel mortgage was void because it was on exempt property and was not signed by his wife. The defendant purchased an automobile from the Lawrence Buick Company at Lawrence and in part payment gave a note secured by a chattel mortgage. That note was not fully paid at its maturity, and a new note was given with a new chattel mortgage on the same property to secure the payment of the note. In Boggs v. Kelly, 76 Kan. 9, 90 Pac. 765, this court said:
“The statutory requirement that a mortgage of exempt personal property must be executed jointly by the husband and wife when that relation exists (Gen. Stat. 1901;- § 4255 [Gen. Stat. 1915, §6506.]) has no application to a mortgage given for a part of the purchase-price of the mortgaged property at the time of its sale by the mortgagee to the mortgagor.” (Syl. ¶ 2.)
The rights of the automobile company under the first note and mortgage continued under the second note and .mortgage. The failure of the defendant’s wife to sign the mortgage did not render it invalid even if the automobile was exempt property. There Was no evidence to show that the automobile was exempt.
3. At the close of the evidence for the state defendant requested that the jury be instructed to discharge him for the reason that he did not commit any offense and that the state had failed to show that at any time he had concealed the mortgaged property with the intention of defrauding the mortgagee. The evidence tended to show that the defendant, after giving the chattel mortgage, left Douglas county, the county of his residence, took the automobile with him, and went to Arizona where he was known by an assumed name given by him. That evidence was sufficient to justify the jury in concluding that he took the automobile away from Douglas county to conceal it with intent to defraud the mortgagee.
4. The defendant requested the following instruction:
“In. determining the question of intention to defraud, you have a right and it is your duty to take into consideration the acts of the defendant during the time the property is alleged to have been concealed. His effort, if any, to satisfy the debt, to obtain the consent to sell the automobile and to have as much of the purchase price as was necessary to pay the debt applied for that purpose. It is hard to reconcile the intent to defraud with an intent at the same time to pay the debt.”
All- of the instruction requested except the last sentence might have been given, but the last sentence is not law; it is argument, and the court was not compelled to give it. (Mayberry et al. v. Kelly, 1 Kan. 116; Rice v. The State, 3 Kan. 141, 152; John C. Douglas v. Cora Wolf and others, 6 Kan. 88; Kansas Ins. Co. v. Berry, 8 Kan. 159; Dickson v. Randal, 19 Kan. 212; Condiff v. K. C. Ft. S. & G. Rld. Co., 45 Kan. 256, 25 Pac. 562.)
5. Complaint is made of the following instruction given by the court:
“There is some testimony before you in regard to communications alleged to have been made by the defendant to his wife, in regard to several matters. I think that this testimony was erroneously admitted, and that it should not be considered by you in arriving at a verdict and it is withdrawn from your consideration.”
The instruction shows the nature of the evidence in regard to which the instruction was given. The testimony of the wife concerned letters she had received from her husband. Her testimony concerning the contents of those letters was properly excluded. If those letters gave his explanations or reasons for taking the car from Douglas county, they would be self-serving declarations, to which declarations he could not testify if he were on the stand as a witness. He could testify concerning his reasons and give his explanation for taking the car away, but he could not state his reasons or give explanation to another person and have that person testify to them. Any statement made by him could be introduced in evidence against him, but he could not introduce 'in evidence in his own behalf any statement made by him concerning his taking the property from Douglas county, unless that statement was so intimately connected with that taking as to constitute a part of the res gestee. The statements in the letters were made after whatever crime was committed by the defendant had been completed and were not a part of the res gestee.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.;
The action was one to enjoin sale of real estate on execution issued on the alimony provision of a divorce decree. Injunction was denied, and the plaintiff appeals.
The decree was rendered in the action of Minnie E. Roberts v. Louis D. Roberts, and contained the following provisions:
“It is further ordered, adjudged and decreed that the said defendant shall have the real estate known as lot 21, Winona avenue, in the city of Lawrence, Kan., subject to the encumbrances now on the same, which he assumes and agrees to pay, and shall have possession thereof within 30 days from this date. He shall also have his own personal belongings and such personal property known to the plaintiff to have been given to said defendant by any person or persons whomsoever. He shall also have all garden tools, yard and furnace utensils, together with the coal in the bin at said'homestead at the time possession is given.
“It is further ordered, adjudged and decreed that said plaintiff shall have and hold as her property the automobile, and all household furniture, including the piano; also the real estate now located at Ontario, Cal.; and also the real estate located in the city of Pueblo, Colo., known as 914 East Second street; said plaintiff to assume and pay the encumbrance on the property at Ontario, Cal., amounting to the sum of S500, and also to assume and pay the encumbrance now on the property located at Pueblo, Colo., now amounting to approximately $600.
“It is further ordered, adjudged and decreed that said defendant pay or cause to be paid to said plaintiff the sum of $4,900 in the manner following: $200 May 1, 1919; $225 June 1, 1919; $225 July 1, 1919; $225 August 1, 1919; $225 September 1, 1919; and thereafter the sum of $200 per month on the first day of each and every subsequent month thereafter until the full sum of $4,900 is paid in full; the said judgment for said $4,900 being hereby expressly made a lien upon the salary of the said defendant as supreme secretary of the Fraternal Aid Union, and in the event the said defendant should hereafter sever his connection with said Fraternal Aid Union, by resignation, then the total amount remaining unpaid at that time shall at once become due and payable.
“It is further ordered, adjudged and decreed that the said defendant, Louis D. Roberts, shall pay the costs of this action taxed at $5.25, and shall pay or cause to be paid an attorney’s fee of $100 to plaintiff’s attorney, Tom Harley, and in default thereof that execution issue therefor. And in default of the payment of any said monthly payments/ or any part thereof, at any time for ten days after the same becomes due and payable, execution may issue therefor.”
The decree was rendered on April 3, 1919. Within thirty days' possession of the lot in Lawrence was yielded to Roberts. Six months after date of the decree he remarried, and occupied the lot as a homestead until some time in June, 1920, when he and his wife conveyed by warranty deed to the plaintiff. The specified monthly installments of alimony were paid to Minnie E. Roberts until her death, in January, 1920. Roberts refused to make payments to her administrator and, in December, 1920, the administrator caused execution to be issued, which the sheriff levied on the lot conveyed to the plaintiff.
The decree did not create or constitute a lien on the lot, and conveyance, before seizure under execution passed title free from lien. The principles are discussed in the cases of Scott v. Scott, 80 Kan. 489, 103 Pac. 1005, and McGill v. McGill, 101 Kan. 324, 166 Pac. 501. The syllabus in the Scott case reads:
“Notwithstanding the statute making judgments liens on the real estate of the debtor within the county, an allowance of permanent alimony payable in installments does not create a lien on any property of the husband unless the record affirmatively discloses that the court intended it to have that effect.” (p. 489.)
In this instance the court, having absolute control of the matter, disposed of everything the parties had, real and personal, and of the husband’s future earnings for a limited period. Real estate was given the husband by the same terms employed to give him personal effects, garden tools, and coal, and by the same terms employed to give the wife real and personal property. In dealing with the real estate given the husband, the decree provided that he should take subject to an existing encumbrance, which he assumed, but his taking was not otherwise burdened or qualified, and he took the lot as free from lien as his personal effects, garden tools, and coal. The wife was then given some money, $4,900, payable in monthly installments extending over a period of two years from date of decree. Security for payment of the money was then considered and provided. The security provided was by means -of a lien. The subject of the lien was Robert’s salary. The real estate given him was not included. The contingency of failure of lien by resignation of office was considered, but no mention was made of further security by lien on the lot. The result is, the decree indicates an award of the lot to Roberts free from lien, and then a judgment in favor of the wife, secured by a specific lien; and the record not only fails to show affirmatively that the court intended the lot to be burdened by lien, but under the ordinary rules of interpretation, shows the contrary.
The decree finally awarded execution in case of default in payment of monthly installments. It did not provide for enforcement of any lien on the lot, but merely for general execution, leviable under the law first on goods and chattels, and then on whatever real estate the husband might own, subject to execution. The result is, the provision for execution may not be regarded as upsetting the entire scheme of the decree. Being the court’s own kind of decree, giving property, creating and withholding liens, and awarding remedy, it does not fall within the class of judgments which, under the general statute, become liens on real estate.
The defendant cites the cases of Bassett v. Waters, 103 Kan. 853, 176 Pac. 663, and Chumos v. Chumos, 105 Kan. 374, 184 Pac. 736: In neither case did the court consider the subject of lien of the decree involved.
The judgment of tlie district court is reversed, and the cause is remanded with direction to grant the injunction. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for an agent’s commission for the sale of real estate. The plaintiffs recovered, and the defendant appeals.
The only important question is whether the following instruction given the jury states the law:
“If you find, from the evidence in this case, that the defendant placed the land described in the plaintiffs’ petition in the hands of the plaintiffs for sale, at the stipulated price of $25 per acre; that the defendant agreed to pay plaintiffs the sum of $2 per acre as commission for the sale of said land when sold at said price of $25 per acre; that plaintiffs, acting upon their employment, procured a prospective purchaser for said land, and priced the same to him at $25 per acre; that plaintiffs directed their prospective purchaser to the defendant; that the defendant began negotiations with such prospective purchaser, and sold the land to him at a less price than $25 per acre, without the consent of the plaintiffs; then you are instructed that the plaintiffs are entitled to recover their commission of $2 per acre as stipulated, and your verdict should be for the plaintiffs, for such sum in dollars as will equal two times the number of acres of land in the tract sold, as shown by the evidence ; but if you do not so find and so believe, from the evidence, then your verdict should be for the defendant.”
It will be observed the jury were required to find certain facts, before returning a verdict computed according to the court’s method. Unless those facts were found, the verdict was to be for the defendant. The facts were those which the plaintiffs’ evidence tended to establish. The defendant introduced contradictory evidence, and the controversy over the facts was resolved by the jury in favor of the plaintiffs. The verdict was well sustained by the evidence, which need not be discussed.
There was no evidence that the purchaser was ready, able and willing to pay $25 per acre for the land. Indeed, the purchaser testified he told the officer of the bank who made the sale that he would not pay more than $11,000, the price at which the sale was made. This fact did not preclude recovery of a commission. The agents produced the purchaser, sent him to the owner, and as a result the owner sold the land.
If an agent produce a purchaser ready, able and willing to buy on the terms given the agent, the agent earns the stipulated commission, whether a sale be concluded or not, provided, of course, sale be not prevented through fault of the agent or his customer. If the agent produce a customer not ready, able or willing to buy on the terms given the agent, but producing the customer is the cause of a sale to him by the owner on other terms, the agent is entitled to a commission. These two theories of recovery are distinguished and discussed in the opinion in the case of Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104. In that case the owner sold to a purchaser produced by the agent, at a price less than that at which the land was listed with the agent. The jury returned the following special finding of fact:
“Did the plaintiff, under the contract sued on, bring to the defendant a purchaser who was ready, willing and able to purchase the land of the defendant in accordance with the terms under which plaintiff was authorized to make a sale? Ans. The plaintiff did bring the defendant a purchaser, but purchaser was not ready or willing to pay the price asked for in contract, . ■. . ” (p. 479.)
The agent recovered judgment for a commission on the sale price, and the judgment was affirmed. The decision was based on earlier ones rendered by this court, and has been cited and approved in many later ones.
' The instruction did not require that the vendor have notice that the prospective purchaser was sent by the agents.
In granting the agency and in making the sale, the defendant was represented by its cashier. The land was near Havana, where the bank was located. The plaintiffs resided at Cherryvale, and the purchaser resided at Caney. After employment, the plaintiffs advertised the land for sale at $25 per acre. The purchaser saw the advertisement, and telephoned the plaintiffs about looking at the land. The plaintiffs told him the bank would show the land. The next day the purchaser called at the bank, the cashier took him to the land, and the sale was quickly negotiated. The cashier repudiated the plaintiffs’ agency in toto. The plaintiffs not only proved employment, but proved the cashier granted an extension of time in which they might find a > purchaser, and the jury believed the plaintiffs. The sale was concluded soon after the extension of time was granted, and it would have been easy for the cashier to surmise that the coming of the purchaser was related to the plaintiffs’ agency. The cashier testified he had listed the land with E. R. Brown, and as soon as he contracted to sell the land, he called Brown by telephone “to find out if he had anything coming.” Of course, if the cashier antipipated Brown might be entitled to a commission, he was equally aware the plaintiffs might have sent the purchaser to him. The cashier testified that while negotiating with the purchaser he declared the negotiations would stop if a commission were to be paid, and the purchaser said there would be no commission; but the cashier testified that after the contract of sale was signed the purchaser told him of the plaintiffs and'of being attracted by the plaintiffs’ newspaper advertisement of the land. There was positive testimony on behalf of the plaintiffs that, before the cashier concluded the contract to sell, he knew the purchaser had been sent by the plaintiffs, but was determined to sell at the price the purchaser was willing to give, regardless of liability for a commission. There was no testimony indicating that the plaintiffs concealed the fact that the purchaser was their customer, or were guilty of any unfairness, and the instruction was sufficient and correct, under both the majority and minority opinions in the case of Grimes v. Emery, 94 Kan. 701, 146 Pac. 1135.
The defendant cites the case of Karr v. Moffett, 105 Kan. 692, 185 Pac. 890. Both the original opinion in that case and the opinion denying a rehearing, Karr v. Moffett, 106 Kan. 379, 187 Pac. 683, make it clear the decision is not applicable to the present controversy.
The agreement was that the plaintiffs w'ere to receive a commission of $2 per acre if they found a purchaser who would pay $25 per acre for the land. The instruction did not make it a condition to recovery of the stipulated commission that the purchaser was willing to pay $25 per acre for the land, and would have done so but for the fact the vendor accepted less, and the plaintiffs were permitted to recover precisely as though they had brought about a sale at $25 per acre. ,
When an agent finds a customer, sends him to the vendor, and the vendor makes a sale at a reduced price, the agent is entitled to a commission. The vendor has appropriated the agent’s services, and should pay for them. If the customer was willing to pay the full price at which the land was listed with the agent, the vendor should have secured it, and he cannot defeat recovery of the stipulated commission by accepting less, whatever his motive in doing so. In some instances vendors have voluntarily reduced the price, thinking they might thereby avoid paying a commission. But, speaking concretely, the plaintiffs were not entitled to the full commission of $2 per acre, unless their customer was ready, able and willing to pay $25 per acre for the land. As indicated above, there was no evidence the purchaser was willing to do this, and he testified he was not. Therefore, the instruction was erroneous.
What is the proper measure of compensation when the agent produces a customer who will not pay the.listed price, but does buy at a reduced price? The decisions are that the agent’s commission should be computed on the price at which the sale was made. (Ratts v. Shepherd, 37 Kan. 20, 14 Pac. 496; Marlatt v. Elliott, 69 Kan. 477, 77 Pac. 104.)
Expressions are found in the decisions to the effect that the agent is entitled to “the commission,” “his commission,” etc. In the cases just cited, verdicts applying contract rates of three per cent and two per cent were upheld, but without discussion of rate, and' this court has not adjudicated the subject of rate at which commission on the sale price should be computed. On principle, the contract rate is not applicable. The agent is unable to show a sale made according to contract, and the only reason he is allowed to recover anything is that he rendered services beneficial to the vendor. The implied obligation of the benefited vendor is to pay what the agent deserves, and the agent’s cause of action is founded on what, at common law, would have been pleaded as assumpsit on quantuum meruit.
The plaintiffs have had an opportunity to show their customer was willing to pay $25 per acre for the land, and failed tg do so. At the oral argument, counsel for both sides admitted the reasonable rate of commission is five per cent of the first thousand dollars and two and one-half per cent of the remainder.
The district court is directed to modify its judgment by awarding the plaintiffs a sum computed at the rates just stated, on the price at which the land was sold. As modified, the judgment is affirmed. | [
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The opinion of the court was delivered by
MasoN, J.;
On February 20, 1920, W. P. Toothalcer sued Walker D. Hines, director-general of railroads, for the value of a steer killed by an engine on the Union Pacific railroad. At the trial, on February 28, 1921, John Barton Payne, the agent appointed by the president under section 206 of the federal transportation act of 1920 (41 U. S. Stat. 461), was substituted as defendant. A jury was impaneled, after which an objection to the introduction of evidence was sustained on the ground that the petition did not state a cause of action. Judgment was thereupon rendered in favor of the defendant, and'the plaintiff appealed. The case is by this court entitled as above in accordance with the practice of naming the parties as they appeared in the original petition and adding any others who are either appellants or appellees.
Briefs on each side were filed in this court, and when the case was called for oral argument, on October 31, 1922, an objection to entertaining the appeal was raised on the ground that James C. Davis had succeeded John Barton Payne on March 28, 1921, and as no substitution had been made within a year thereafter jurisdiction had been lost. A brief in support of the objection has subsequently been filed.
The federal statute provides:
“That no suit, action, or other proceeding lawfully commenced by or against the head of any Department or Bureau or other officer of the United States in his official capacity, or'in relation to the discharge of- his official duties, shall abate by reason, of his death, or the expiration of his term of office, or his retirement, or resignation, or removal from office, but, in such event, the court, on motion or supplemental petition filed, at any time within twelve months thereafter, showing a necessity for the survival thereof to obtain a settlement of the questions involved, may allow the same to be maintained by or against -his successor in office, and the Court may make such order as shall be equitable for the payment of costs.” (Act of February 8, 1899, ch. 121, 30 U. S. Stat. 822.)
Under this statute it is held that if the successor is not substituted within the time named no substitution can be made, and that without it no review of the judgment can be had. (LeCrone v. McAdoo, 253 U. S. 217—not a railroad case, however.)
Prior to this enactment it had been held that an action against a public officer as such abated by his death or retirement, except in the case of a continuing body, or perhaps of an officer acting only in a representative capacity. • (Thompson v. United States, 103 U. S. 480; Murphy v. Utter, 186 U. S. 95.) A reason given for this holding was that in the cases in which it was made the relation of the officer to the matter was personal. (United States v. Boutwell, 84 U. S. 604; see, also, Richardson v. McChesney, 218 U. S. 487; Pullman Co. v. Croom, 231 U. S. 571.) The statute was passed in response to a suggestion of the court as to its necessity in view of the holding referred to. (U. S. ex rel. Bernardin, v. Butterworth, 169 U. S. 600, 605.) Considered in the light of the history and obvious purpose of the statute, it might be argued that it does not apply to the present case, where the defendant acts in a purely representative capacity. That question, however, seems to be foreclosed by a recent decision in which the statute appears to have been applied in similar circumstances, although without an opinion beyond a reference to the statute and to LeCrone v. McAdoo, supra. (John Barton, Agt., etc., v. Industrial Board of Illinois, 42 S. C. R. 462.)
In two recent cases in this court, in situations somewhat similar to those here presented, formal substitution was held unnecessary, no reference however being made in the opinions to the federal statute above quoted or the decisions under it. (Helm v. Railway Co., 109 Kan. 57, 198 Pac. 190; Jameson v. Railway Co., 111 Kan. 670, 208 Pac. 560.) In the one first cited the judgment appealed from was rendered while government control was in force, and the substitution of the agent for the director-general was specifically provided for without a time limitation. (41 U. S. Stat. 462, ch. 91, § 206, subdiv. d.) A change of agents, however, took place between the judgment in the district court and the hearing on appeal. In the present case, on October 24, 1922, a brief upon the merits was filed by attorneys describing themselves as attorneys for the appellee, the brief bearing the title — “W. P. Toothaker, Appellant, vs. Walker D. Hines, Director General of Railroads, Appellee.” They were not appearing for Walker D. Hines or for. John Barton Payne personally, for neither of these gentlemen personally ever had anything to d'o with the matter. They were not appearing for either of them as an officer of the government, for the official relation of each of them to the proceeding had ceased. No suggestion is made that the attorneys were not in fact representing the federal railroad agent, whatever individual might at the time be holding that position — in this instance, James C. Davis. The use of-the wrong name in describing him is of no more practical importance than if the right name had been misspelled. We regard the appearance of the attorneys, and their presentation of the case on the merits as made in behalf of the agent then in office. There was no occasion for pleading the fact of a change of agents, for judicial notice is taken of it. (Helm v. Railway Co., 109 Kan. 57, 198 Pac. 190.) All that was necessary was that the new incumbent of the office should be brought into the case, and this was done by his appearance through his attorneys, which we hold resulted in an informal but actual substitution such as to preserve the jurisdiction of the court, the appeal under the present Kansas code being a part of the same proceeding with the original case.
It may be, however, that considered alone such appearance could not effect a valid substitution because not made within one year after the change in federal agents, inasmuch as' except for the act permitting it a substitution could not be accomplished even by consent. (U. S. ex rel., Bernardin v. Butterworth, 169 U. S. 600.) This feature of the matter is affected by the fact that on July 6, 1921, less than a year after the change, a notice of appeal addressed to the attorneys “for defendant John Barton Payne director-general of railroads as agent of the president,” was served, service being ac knowledged by one of them. Upon the reasoning already indicated we hold this to have been an acknowledgment of service upon the actual appellee, the then agent of the government, effecting a substitution at that time, ponfirmed by the subsequent appearance to the merits, recognizing the validity of the appeal. If the attorney to whom the notice was presented had declined to acknowledge service no doubt a formal substitution would have been had.
2. The petition alleged in substance that the steer got upon the track at a point where the gate of a sufficient fence constructed by the railroad company was so covered by a snowdrift that the animal was enabled to walk over it without hindrance; and that this condition had existed for three weeks with the knowledge of the defendant’s agents and without effort on their part to correct it.
The defendant argues that the petition does not allege negligence. It does not use that word, but under the liberal interpretation to which it is entitled when attacked only by an objection to the introduction of evidence the allegation that the sno.w had been permitted to cover the gate for three weeks without an effort to remove it must be held to imply that the exercise of reasonable diligence would have resulted in its removal within that period.
It is also argued that inasmuch as the obligation rested upon the plaintiff to keep the gate closed (Plummer v. Railway Co., 86 Kan. 744, 121 Pac. 906), it was his duty also to keep it sufficiently free from snow to act as a barrier against the escape of his cattle. We do not regard the conclusion as sound. The accumulation of the snow is not shown to have been due to any mismanagement of the gate, or to its existence as a gate as distinguished from any other part of the fence.
The statute in terms makes a railroad company liable for all cattle killed by the operation of its trains, irrespective of its negligence (Gen. Stat. 1915, § 8557), but provides that the act shall not apply where its road is enclosed with a lawful fence (§ 8561). The resulting obligation to furnish a fence is quite analogous to the duty to maintain cattle guards. It has been determined that the railroad company is required to exercise reasonable diligence to keep its cattle guards free from such accumulation of snow and ice as to render them ineffective. (Martin v. Railway Co., 92 Kan. 595, 141 Pac. 599.) Inasmuch as the purpose of the fence is to turn cattle we think a parity of reasoning requires us to hold that the obligation to maintain it includes the duty of seeing that it continues to be effective for that purpose, and if cattle get on the track by reason of an accumulation of snow covering the fence, where that condition has been permitted to exist for a longer period than the exercise of reasonable diligence would allow, the company is liable.
3. It is suggested that at all events the company was under no duty to clear away the snow on the side of the fence away from the track. The petition, however, alleges that the fence and gate is wholly upon the land and right of way of the company, being but 50 feet from the track; that an enclosure constituting the plaintiff’s pasture included the strip of the company’s land outside of the fence,~50 to 100 feet in width, which for several years the plaintiff had so used without any lease or other agreement between him and the company. As the company has elected to place the fence wholly on its own land we think its obligation to keep it effective requires it to use reasonable diligence to remove the snow on either side sufficiently to insure this. Although the plaintiff might be presumed. from his occupancy of the strip with the consent of the owner to be a tenant at will (Gen. Stat. 1915, § 5956), the company is not shown to have relinquished the right to occupy it so far as necessary for the operation of the road.
The judgment is reversed and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
DawsoN, J.:
This was a lawsuit over a boundary line between the owners of two forty-acre tracts of land. The case was here before (Long v. Myers, 109 Kan. 278) and the judgment was then reversed because there was sufficient evidence to require the issue of fact to be submitted to a jury, while the trial court had disposed of it on demurrer to the evidence.
But it is needless to repeat the statement of facts given in our former opinion. The evidence in this trial was substantially the same as before. Testimony for the plaintiff (appellant), tended to show that the boundary line between the two forties was only tentative and intended by the respective owners to serve their convenience until an official survey could be obtained. The original settler and patentee, who conveyed one of the forties, involved testified:
“Q. You measured this land off with Mr Massey, that you sold to Mr. Massey? A. Yes, sir, measured it off with a rope.
“Q. Did you know at the time you established this whether you were getting it on the correct line or just guessing at it? A. Well, we just measured it off eighty rods square — aimed to. We didn’t know whether we got it or not, we measured it with a rope. . . .
“Q. You established that as a line fence? A. Well, we calculated to get it surveyed when the surveyor came up.
“Q. You knew where the line was at that time? A. No, I didn’t know.”
On the other hand, however, this witness also testified:
“I sold a forty to Mr. Massey [in 1882], . . . While Mr. Myers [Massey’s granteee] owned that forty I owned the forty on the south and I farmed this land and Mr. Myers farmed his. Each of us farmed up to the fence. During these years I knew that the wire fence that is up now was on my own —was put over two feet on my ground outside of what was measured off, just two feet over. Mr. Massey and I established a line through there, the line we established was two feet from the fence that we built. . . .
“After we measured it we put the fence two feet on my land. We used it as a line fence ever after that, he used one side and farmed it, treated it as the line, and when Myers came there 23 .years ago he farmed up to the fence on the other side and the fence that was there we treated as a line fence. He farmed clear up to the fence and I had possession of all the land on the south side of the fence ever since, and had no objection, never made any claim to any of the land on the north side, and Myers has had peaceable possession for 23 years, ever since I bought it. . . . Mr. Myers and I never had any words about the line at all, I knew he was claiming up to the fence.”
Defendant Myers also testified that he had always claimed all the land north of the boundary-line fence established by the patentee and Massey since he acquired the land in 1898.
Here was testimony tending to show an adverse claim to all the land north of the fence by Myers and his grantor Massey, and that the plaintiff’s grantor, who owned the south forty until 1918, knew of that adverse claim and acquiesced in it. Under such a state of the testimony, the issue was clearly one of fact for a jury to determine, and plaintiff’s motion for an instructed verdict was properly overruled. (Edwards v. Fleming, 83 Kan. 653, 112 Pac. 836; Vandling v. Griffith, 105 Kan. 477, 185 Pac. 23.)
In Peterson v. Hollis, 90 Kan. 655, 659, 136 Pac. 258, is an excerpt from 2 Ene. L. & P. 401, part of which is pertinent here:
“When one of two adjoining landowners, without actual knowledge of the true boundary line, takes possession beyond the true boundary line, with the intention to claim the line to which he takes possession as the boundary line, his possession is under a claim of title or ownership so as to render his possession of the encroachment adverse.”
If it be necessary add to the matter of notice to the owner encroached upon to make this a complete and precise statement of the laW, that was not wanting in the instant case, for here the plaintiff’s grantor testified: ‘T knew he was claiming up to the fence.”
Complaint is made of the court’s instructions. These have been examined; they contain no error prejudicial to plaintiff and need no discussion.
Error is assigned because the trial court submitted certain special questions to the jury. We need only copy two of these and the jury’s answers thereto to demonstrate their pertinence and controlling significance:
“Q. If defendant held this strip of land by adverse possession, did the former owner, Mr. Geo. Cosner, [patentee and plaintiff’s grantor] know that the defendant was holding it adversely to him? Answer: Yes.
“Q. If you answer the preceding question in the affirmative, then state how many years Cosner acquiesced and treated said fence as the established boundary line? Answer: More than 20 years.”
Another error assigned relates to the admission of oral testimony concerning official surveys of the lands involved in this action. All these surveys could establish was the true boundary line, and it never was a serious issue, and none at all now, that the disputed boundary line did not accord with the true line. Thirty-five or forty years ago Cosner and Massey knowingly set the fence two feet over on Cosner’s land. That when surveyed it turned out to be considerably more than two feet is immaterial. The testimony was perhaps incompetent, but certainly it was immaterial; we cannot conceive how it could be prejudicial, as this case turned upon adverse possession on the one hand and notice and acquiescence on the other, and not at all upon the accuracy or inaccuracy of the surveys.
The other matters urged in the brief of counsel have been duly considered but they disclose no point where this judgment could or should be disturbed.
Judgment affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The appellant was convicted of the murder of his wife, and the jury fixed his punishment at confinement in the-Kansas State Penitentiary for his natural life. (K. S. A. 21-401 and 21-403.)
On February 13, 1967, a complaint was filed in the county court of Jackson County and a warrant issued for the appellant’s arrest, charging him with murder in the first degree.
On the following day, February 14, 1967, the appellant was brought before the county court and Mr. James E. Parmiter was appointed to represent him “in the arraignment.” The record shows that upon “arraignment,” the appellant “entered a plea of not guilty by and through his attorney,” and a preliminary examination was set for February 28, 1967. On that date, employed counsel other than Mr. Parmiter, appeared on the appellant’s behalf and entered an oral plea in abatement on the ground the county court had continued the preliminary examination more than ten days from February 14, without the appellant’s consent. The court granted a continuance to allow time for the submission of briefs on the plea. Later, the oral plea in abatement was overruled.
On March 8, and 9, 1967, a preliminary examination was had, and the appellant was bound over to the district court to stand trial at the next regular term. The proof being evident and the presumption of the appellant’s guilt being great, bond was denied.
After other preliminary matters, trial was had commencing on May 22, 1967, and concluded on May 27, resulting in the jury finding the appellant guilty as charged, and it fixed his punishment as previously indicated.
On June 7, and 8, 1967, appellant’s motions for a new trial, judgment in acquittal, and in arrest of judgment, were overruled and sentence was imposed.
In seeking reversal, the appellant first contends the county court violated K. S. A. 62-611 in continuing the preliminary examination, more than ten days from February 14. The point is not well taken.
In the first place, any argument based upon the appellant’s so-called arraignment and plea of not guilty before the county court constitutes no basis for any valid claim of error. We have repeatedly held that where an accused is charged with the commission of a felony and attempts to enter a plea of guilty or not guilty before the examining magistrate, such a plea is a nullity and should be disregarded. (State v. Jordon, 193 Kan. 664, 396 P. 2d 342, cert. den. 380 U. S. 920, 13 L. Ed. 2d 805, 85 S. Ct. 917; McCuan v. State, 196 Kan. 457, 413 P. 2d 69; Blakesley v. State, 199 Kan. 128, 131, 427 P. 2d 497.)
In the second place, the statute provides that, insofar as pertinent, a magistrate may adjourn an examination or trial pending before himself from time to time as occasion shall require, not exceeding ten days at one time, without the consent of the defendant or person charged. Once an accused is brought before-the magistrate, a preliminary examination must be concluded without delay. (K. S. A. 62-610, 62-611, 62-614.) See State v. Trotter, 203 Kan. 31, 453 P. 2d 93.
The rule with respect to a continuance under the provisions of 62-611 is stated in Whalen v. Cristell, 161 Kan. 747, 173 P. 2d 252, at p. 752, to the effect that a magistrate cannot arbitrarily continue the hearing of a preliminary examination for an indefinite period of time. On the contrary, his power to continue such hearing is limited to ten days at one time, except in cases where the defendant consents to a longer delay. (White v. Crouse, 193 Kan. 674, 396 P. 2d 333, cert. den. 381 U. S. 954, 14 L. Ed. 2d 727, 85 S. Ct. 1814.)
After the information was filed charging the appellant with murder in the first degree, counsel timely filed a plea in abatement and a motion to quash the information for the reasons here urged. A hearing was had on the plea in abatement, and both the state and the appellant presented evidence. The district court specifically found that the continuance to February 28, was granted at the request of Mr. Parmiter on behalf of the appellant and for his sole and exclusive benefit. There was no allegation the delay was unreasonable or unnecessary, or resulted in the denial of a fair trial, hence, the claim is without merit. (State v. Trotter, supra; State v. Dobney, 199 Kan. 449, 429 P. 2d 928; Cooper v. State, 196 Kan. 421, 411 P. 2d 652.)
It is claimed the county court failed to make a finding that a crime had been committed and that there was probable cause to believe the appellant committed the crime. The journal entry of the prehminary examination conclusively shows to the contrary. The pertinent portion reads:
“It Is the Finding, Order and Judgment and Decree of This Court, that at the conclusion of the testimony of the plaintiff and defendant and after listening to all of the evidence brought before this court, or magistrate, that there is probable cause to believe an offense or crime being the violation of Section 21-401, K. S. A., 1964, which is the crime of murder in the first degree, and there is probable cause to believe that the defendant or prisoner herein, committed the said crime and there is probable cause to believe that said crime was committed within the jurisdiction of this court, to-wit: Jackson County, Kansas. The Court hereby finds that said defendant, according to the laws of the State of Kansas, should be bound over for trial in the District Court of Jackson County, Kansas.”
It is next contended the district court erred in overruling appellant’s motion to dismiss the information. On May 1, the county attorney filed an information charging the appellant with murder in the first degree. While the information pleaded the crime at length, a careful examination of its allegations clearly shows it charged the offense of murder in the first degree. However, on May 17, 1967, the county attorney filed an amended information charging murder in the first degree, and an examination of that document indicates it fully apprised the appellant of the charge and it pleaded all the essential elements of the offense. (State v. Baker, 197 Kan. 660, 421 P. 2d 16; State v. Ashton, 175 Kan. 164, 262 P. 2d 123; State v. Hazen, 160 Kan. 733, 165 P. 2d 234.)
Little need be said about appellant’s contention the district court erred in not dismissing the information when it was shown the county court failed to allow appellant to attach his Exhibit A to the record, such being an affidavit that he did not waive the provisions of 62-611.
The district court allowed Exhibit A to be filed, and, as indicated, conducted a full and complete hearing on the identical subject matter as was contained in the affidavit when it heard the appellant’s plea in abatement in the district court. The result of such hearing has been stated. There was no error.
Appellant contends the district court erred in admitting into evidence state’s Exhibit 1, the murder weapon. There is no reasonable basis upon which to sustain such a contention. The testimony of appelant’s son, Lowell Winter, clearly indicated that he was able to identify state’s Exhibit 1 as being owned by his father and was the gun he had in his possession on February 4, 1967, and which he had in his hand when the crime was committed. On cross-examination, the witness further identified the gun on the basis of a loose and broken handle and stated he had on a previous occasion fired the gun himself.
The appellant contends the district court erred when it failed to appoint a commission to determine his mental capacity, or to find he was unable to comprehend his position, or conduct his defense, or to assist counsel in conducting his defense pursuant to K. S. A. 62-1531. The record shows no such request was made until after both parties had rested their case. In denying the motion, the court made lengthy observations as follows:
“On the defendant’s plea in abatement. The Court noted at that time the defendant testified clearly, succinctly, and without any hesitation. The Court has noticed, throughout this trial, beginning May 22nd, that the defendant and his attorneys have consulted at their table repeatedly, and, of course, the Court has noticed that the defendant kept a note pad in front of him during the selection of the jury, which took three days, at which the defendant apparently kept track of the jurors’ names. The Court noticed, upon many occasions, that Mr. Crow, in dealing with the selection of the jury, consulted with Mr. Winter; that they talked back and forth. What they talked about, of course, I don’t know. The Court noted that at the time to strike jurors and reduce the number from 36 to 12, that counsel repeatedly consulted with the defendant and that the defendant apparently talked at some length with his counsel during this time. The Court also noticed that during the trial of this case the defense counsel would consult with defendant at counsel table upon many occasions, and the defendant, of course, testified in person yesterday. His testimony was given in a manner in which in no way indicated to this Court that he didn’t understand his position, or that he is an idiot or insane person or an imbecile, and the Court specifically finds that during all of these things that he does know his position and there is no grounds that I know of been brought to my attention or by my own observations which would make the Court have any doubt whatsoever on this point. Further, prior to the trial the defendant filed a motion for the purpose of making the defendant available to Menninger Foundation, in person, for such psychiatric examination as the defendant’s doctors wished to conduct; the Court granted that motion; the defendant was permitted, under the custody of the sheriff, of course, to be transported to Menninger Foundation to be examined. Mr. Crow tells me he was so examined. The Court has heard no word as to the results, one way or the other of that examination. However, the Court notes that there was no doctor, psychiatrist or psychologist or anyone else testified in this case as to the mental condition of the defendant in any way.”
“The Court does not find that the defendant is insane, an idiot or imbecile or unable to comprehend his position and make defense. The Court does find that he, the defendant, in fact, did, obviously, cooperate fully in making his defense.”
We think no error was committed. As indicated, at the appellant’s request, the district court directed he be taken to the Menninger Clinic at Topeka for mental examination. Such an examination was conducted and the results made known to the appellant. For reasons solely his own, the appellant did not at the time of trial introduce into evidence the results of such examination. As stated by the district court, the failure of the examining psychiatrist to testify in the appellant’s defense left it with “the only conclusion that the psychiatrist’s testimony would not be favorable to the defendant.” There was nothing in the record which would indicate to the district court from his observations, or otherwise, that the appellant was unable to comprehend his position or assist in his defense. On the contrary, the record indicates he was able to and did cooperate with his counsel in the three days that were consumed in selecting the jury. Moreover, counsel stated to the court when it ordered the defendant transported to the Menninger Clinic to be examined by a psychiatrist of his own choice, that a commission under the mentioned statute would not be requested.
The rule whether the district court should order an inquiry into the defendant’s sanity on its own initiative is stated in State v. Kelly, 192 Kan. 641, 391 P. 2d 123, as follows:
“It is the district court in whose mind a real doubt of sanity or mental capacity to properly defend must be created before that court is required to order an inquiry solely on its own initiative. Whether a district court on its own initiative should order an inquiry to determine the sanity of an accused at or during the trial is a matter addressed to the discretion of the court and its decision will not he disturbed in the absence of abuse of sound judicial discretion.” (Syl. If 2.)
See, also, Van Dusen v. State, 197 Kan. 718, 421 P. 2d 197.
No showing was made by appellant that he was prejudiced by reason of the denial to appoint the commission following the trial, or if allowed, that any evidence presented at the trial or hearing would have been to appellant’s benefit or different than that actually presented. It is sufficient to say that there was more than enough evidence to justify the court in concluding that defendant knew what he was doing. (State v. Martin, 175 Kan. 373, 265 P. 2d 297.)
It is claimed the verdict was not supported by substantial evidence in that the state did not prove beyond a reasonable doubt the elements of deliberation, premeditation and malice aforethought, and State v. Greenwood, 197 Kan. 676, 421 P. 2d 24, is cited and relied upon. It is unnecessary to detail at length the evidence. It is sufficient to say the record contains competent and ample evidence that on February 4, 1967, as related by eyewitnesses to the killing, the appellant shot his wife in the right temple at close range with a 32.20 caliber revolver, which resulted in her death. There was evidence proving or tending to prove each and every essential element of the crime of murder in the first degree, which would form the basis for a reasonable inference of the appellant’s guilt, and justify the jury in finding him guilty of the crime charged.
In overruling the appellant’s motion for a new trial, the district court considered each point in the motion. The same has been done by this court and we conclude the ruling denying the motion was correct. No error prejudicial to the rights of the appellant appearing, and since he was given a fair and impartial trial, and there being no grounds for reversal on any point, the judgment of the district court is affirmed.
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The opinion of the court was delivered by
Kaul, J.:
The defendant, Charles Stamps, appeals from a judgment and sentence on a conviction by a jury of converting to his own use a 20-gauge shotgun in his possession as bailee in violation of K. S. A. 21-547.
Defendant and W. A. Parker had been acquainted for several years prior to October 1966, when Parker lent the shotgun to defendant. Parker testified defendant wanted to borrow the gun to go hunting and promised to return it when he was through hunting. The shotgun was never returned. During the next yeár, Parker and defendant had many conversations concerning the return of the shotgun. In November of 1967, Parker saw the gun in a Junction City pawnshop and identified it by serial number. On November 29, 1967, Parker filed a complaint initiating this criminal action against defendant. On the same day a warrant was issued. Thereafter, tihe pawnshop proprietors were directed to “hold” the gun by the police, who later picked it up.
On December 4, 1967, defendant was arrested while in the pawnshop were he had paid the pawn ticket to redeem the gun.
On appeal, defendant claims the trial court erred in refusing to submit a requested instruction concerning criminal intent. Defendant further contends the evidence is insufficient to support the verdict and that his motion for a directed verdict, at the conclusion of the state’s evidence, should have been sustained.
Defendant requested an instruction relative to intent as follows:
“An essential element in the crime charged in this case is a felonious intent and before you can convict the defendant you must find from the evidence that he intended to convert to his own use the gun of the prosecuting witness and to cheat, wrong, and defraud him.”
In the instructions given the court described the charge contained in the information, set out the requirement of proof beyond a reasonable doubt, defined the term “pawn,” and then enumerated the elements of the offense charged as follows:
“3. The burden of proof is upon the State of Kansas to prove to your satisfaction, beyond a reasonable doubt, the following:
“1) That W. A. Parker loaned a 20-gauge Remington Model 58 shotgun, Sportsman shotgun, serial No. 201687, to Charles Stamps, for the purpose of hunting.
“2) That on or about the 5th day of January, 1967, Charles Stamps pawned the above-described shotgun to Jack and Dick’s Pawn Shop.
“3) That by the pawning of the said shotgun, Charles Stamps intended to convert the property to his own use.
“4) That the value of the said shotgun was in excess of $50.
“5) That the act set forth occurred in Geary County, Kansas.
“If you find that the St|ate of Kansas has proved to your satisfaction, beyond a reasonable doubt, all of the above-stated facts, then you must find the defendant guilty as charged. If, on the other hand, you find that the State has not proved all the above-stated facts beyond a reasonable doubt, you must find the defendant not guilty.
“4. In arriving at the verdict in this case, you shall not discuss or consider the subject of penalty or punishment, as that is a matter which lies with the Court and other governmental agencies and must not in any way affect your decision as to the innocence or guilt of the defendant.
“5. It is your duty to determine the facts and to determine them from the evidence produced in open court. You are to apply the law as given to you in these instructions, to the facts, and in this way decide the case. Neither sympathy nor prejudice or bias should influence you.”
K. S. A. 21-547 reads as follows:
“If any carrier or other bailee shall embezzle or convert to his own use, or make way with or secrete, with intent to embezzle or convert to his own use, any money, goods, rights in action, property or valuable security or other effects, which shall have been delivered to him, or shall have come into his possession or under his care as such bailee, although he shall not break any trunk, package, box or other thing in which he received them, he shall upon conviction be adjudged guilty of larceny, and punished in the manner prescribed by law for stealing property of the nature or value of the article so embezzled, taken or secreted.”
Defendant argues that a conviction under the forerunner (Gen. Stat. 1889, ¶2220) of the present statute was reversed in State v. Eastman, 60 Kan. 557, 57 Pac. 109, for failure to give the instruction requested here. The requested instruction in Eastman appears to be identical with that submitted by defendant. However, an examination of the opinion in Eastman reveals that the real issue involved was whether intent was an element of the offense. The phraseology of the statute then — and in its present form — does not make intent an ingredient of the offense defined. In Eastman the state argued, and the trial court so ruled, that, since it was not made so by the statute, guilty intent was not necessary to the commission of the offense charged. On appeal, this court described the offense as malum in se requiring intent and reversed the judgment with directions to grant a new trial.
In the early case of State v. Small, 26 Kan. 209, a prosecution for embezzlement by bailee, brought under a precursor of K. S. A. 21-547, it was held:
“Where a person fraudulently removes and secretes a gelding with which he has been entrusted as bailee, with intent to embezzle and convert the property to his own use, he may be convicted therefor under the provisions of § 90, ch. 31, Comp. Laws of 1879.” (Syl. f 1.) (Emphasis supplied.)
In the instant case the trial court instructed that in order to convict the jury must find, beyond a reasonable doubt, defendant pawned the shotgun with intent to convert it to his own use. We believe the law was properly applied to the facts in the case in this respect.
As to the evidence, defendant argues he intended to redeem the gun and did in fact do so and that such negates his intention to permanently deprive Parker of his shotgun.
In support of his position defendant directs our attention to 82 A. L. R. 2d Anno., 863. The annotation does not deal with embezzlement by a bailee but is confined to cases dealing specifically with theft or larceny to the exclusion of cases dealing with such offenses as embezzlement or wrongful hypothecation.
In discussing whether the pledging or pawning of another’s property, after a physical taking of it, affects the status of the taker as guilty of larceny, the author of the annotation states:
“. . . The actual pledging or pawning seems to be regarded as neutral, the important factor being whether the accused intended to redeem the property and had the ability to do so.” (p. 864.)
We have no quarrel with the proposition stated, however, its application in this appeal fails to avail defendant. The jury by its verdict found defendant intended to convert the shotgun to his own use when he pawned it. The finding forecloses the existence of an intention to redeem on the part of defendant at the time of pawning.
One of the pawnshop proprietors testified the gun was pawned for $75 on January 5, 1967, and not having been redeemed within thirty days, under the rules of the trade, title passed to the pawnshop, and the gun became available for sale.
The testimony of defendant and Parker was in sharp conflict as to the conversations between them pertaining to the return of the gun. Defendant did not attempt to redeem the gun until almost a year after it was pawned and after a warrant had been issued for his arrest. Parker did not know defendant had pawned the gun until he discovered it in the pawnshop a year after it was borrowed.
From such evidence the jury could properly infer defendant, at the time of pawning the gun, had no intention of redeeming it and only did so after learning of Parker’s discovery of the gun’s whereabouts, the filing of a complaint and the issuance of a warrant.
Defendant testified he pawned the gun with Parker’s knowledge and consent. Parker testified defendant borrowed the gun only for the purpose of going hunting.
In final analysis the only material controverted question of fact in the case was defendant’s motive, purpose or intent in pawning the gun. This was fully tried out and the verdict of the jury is amply supported by the evidence of defendant’s own acts and the testimony of Parker.
The conflict in the evidence was resolved by the jury whose function it was to weigh the evidence and pass upon the credibility of the witnesses. (State v. Donahue, 197 Kan. 317, 416 P. 2d 287; State v. Clark, 194 Kan. 265, 398 P. 2d 327.) The jury chose to believe Parker, not the defendant. A verdict is not to be set aside because a jury fails to believe the defendant’s version, if the conviction is supported by evidence. (State v. Donahue supra; State v. Morrow, 179 Kan. 63, 292 P. 2d 1094.)
No error having been made to appear, the judgment is affirmed. | [
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The opinion of the court was delivered by
Price, C. J.:
This is a workmen s compensation case.
On March 14, 1968, the examiner entered an award in which he found that claimant suffered no compensable disability by reason of the accident in question and that an award in her favor should be denied.
Claimant filed a request for review by the workmen’s compensation director.
On June 12 the request for review came on for hearing before the assistant director (K. S. A. 1968 Supp. 44-551). Counsel for both sides were present. On July 10 the assistant director — after correcting the findings of the examiner in two immaterial respects — entered an order affirming the award of the examiner.
Claimant appealed to the district court.
On August 13 claimant filed a motion to remand the proceeding to the director. This motion was overruled on August 15.
On November 6 the court entered an order affirming the award of the assistant director.
On November 8 claimant filed a motion “to alter or amend judgment under K. S. A. 60-259 (/)”. This motion was overruled on November 29.
On December 13 claimant filed a notice appeal to this court from the above mentioned orders of August 15 and November 29 and from the judgment of November 6.
On oral argument of this appeal counsel for respondent employer and insurance carrier moved to dismiss the appeal on the ground it was not taken in time and therefore this court was without jurisdiction to consider it.
The point is well taken.
It has been held many times that the workmen’s compensation act is complete in itself and may not be supplemented by borrowing from the code of civil procedure; that there is no provision in the act for motions for a new trial or other post-judgment motions, and that the statutory time for appeal is not enlarged or extended by the filing of such post-judgment motions (Brower v. Sedgwick County Commrs, 142 Kan. 7, syl. 1, 45 P. 2d 835; Souden v. Rine Drilling Co., 150 Kan. 239, 92 P. 2d 74; Gray v. Hercules Powder Co., 160 Kan. 767, 165 P. 2d 447; Norcross v. Pickrell Drilling Co., 202 Kan. 524, 449 P. 2d 569).
K. S. A. 1968 Supp. 44-556 provides that an appeal to this court shall be taken within 20 days after the final order of the district court. Here the final order — judgment—of the district court was rendered on November 6, and claimant had 20 days from that date in which to appeal. The filling of the post-judgment motion on November 8 was to no avail and did not enlarge or extend the time for appeal. The notice of appeal was not filed until December 13— which was more than 20 days after the judgment of November 6. No timely appeal having been taken — this court is without jurisdiction. Notwithstanding that adherence to the rule requires a dismissal of this appeal, we have examined the record and state that if the case were before us on the merits claimant’s contentions could not be sustained.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Fromme, J.:
Howard B. Robertson appeals from a conviction, judgment and sentence in the District Court of Reno County, Kansas, for robbery in the first degree. (K. S. A. 21-527.) He was sentenced as an habitual criminal for a period of not less than thirty years. (K. S. A. 21-107a.) Defendant had three prior felony convictions in Reno county.
Defendant-appellant’s first specification of error is that the bail required was unjustified and excessive. The record from the district court affords this court little opportunity to evaluate such a claim. The amount of bail was fixed by the magistrate at $25,000. No proceedings to obtain a reduction of bail appear in the record. It does appear, however, the defendant has committed three previous felonies in Reno county.
The amount of bail rests in the sound discretion of the presiding magistrate. The purpose of bail is to insure the presence of the prisoner at a future hearing. In fixing the amount a magistrate should be guided by a consideration of the nature of the offense as shown by the proof thereof. He may consider the propensity of the defendant for crime as indicated by his previous convictions. The magistrate must consider the probability of escape. No hard and fast rule can be laid down for fixing the amount of bail on a criminal charge. Each case must be governed by its own facts and circumstances. An appellate court should not interfere with the decision of the magistrate except where a clear abuse of discretion is shown affecting substantial rights and denying due process of the law. (8 C. J. S. Bail § 48b; 8 Am. Jur. 2d, Bail and Recognizance, § 39; Craig v. State, 198 Kan. 39, 41, 422 P. 2d 955.)
No abuse of discretion is shown in the present case.
Defendant next specifies that the trial court erred in allowing the prosecution to endorse additional witnesses on the information and to introduce their testimony at the trial.
The prosecuting attorney is required to endorse on the information the names of witnesses known to him at the time of filing. He may thereafter endorse the names of additional witnesses as may afterward be known to him if he obtains permission from the court. (K. S. A. 62-802; State v. Poulos, 196 Kan. 287, 290, 411 P. 2d 689; State v. Zimmer, 198 Kan. 479, 484, 426 P. 2d 267; State v. Davis, 199 Kan. 33, 37, 427 P. 2d 606.)
Subsequent endorsement and use of witnesses must be left to the sound discretion of the trial court as the interest of justice may require. The exercise of this judicial discretion is not without limitation. When it is shown the use of such witnesses will result in surprise and material prejudice preventing a fair preparation for defense the granting of such permission constitutes an abuse of judicial discretion. (State v. Eidson, 143 Kan. 300, 307, 54 P. 2d 977.)
This requirement of endorsement of witnesses is a safeguard extended to a defendant to prevent surprise and give him an opportunity to examine the witnesses for the state in advance of trial. (Pyle v. Amrine, 159 Kan. 458, 474, 156 P. 2d 509.)
In the present case the two witnesses endorsed late were accomplices who took part in the crime. The defendant had issued subpoenas before trial to secure their testimony. We assume defendant was familiar with their knowledge of the crime before he issued the subpoenas.
When the prosecuting attorney sought permission to endorse the names of the accomplices as witnesses he informed the court of the reasons for his original omission of their names. They were sepa rately charged with this crime. They were hostile to the prosecution. They were entitled to claim a privilege not to testify under the 5th Amendment to the Constitution of the United States. While the jury was being impaneled these accomplices indicated to the law officers a desire to testify against the defendant. This information was relayed to the county attorney and he sought verification and confirmation from their legal counsel. The following morning before any testimony was introduced the county attorney sought and obtained permission to endorse their names as witnesses. Defendant made objection but he did not ask for a continuance to ascertain the nature of their testimony. He already was advised of their knowledge of the crime. The testimony did not change the theory of the prosecution. It merely bolstered the case of the prosecution.
Under these circumstances there was no surprise or change in theory which would result in prejudice or deny defendant a fair and impartial trial. No abuse of judicial discretion occurred in permitting the endorsement and use of these witnesses under the circumstances shown by the record.
The final specification of error concerns alleged misconduct by the county attorney while the trial was in progress but during a noon recess. It is charged the county attorney intimidated one of defendant’s witnesses and the witness did not testify.
Misconduct is not confined to occurrences while the case is being heard. It can occur before or during the trial and may be outside the hearing of the jury if the conduct results in loss of a witness’s testimony which testimony would lend substantial support to the theory of a party. (Phares v. Krhut, 76 Kan. 238, 91 Pac. 52.)
The witness, a Mr. Castor, was approached by the county attorney during a noon recess. Both sides had issued subpoenas for this witness. The county attorney and Mr. Castor were standing near the railing which separates the courtroom. They were in a public-place and in the presence of several people. The defendant was one of those present. Mr. Castor, the defendant and another bystander testified on the motion for mistrial.
Additional background information is necessary to understand what transpired. The defendant and his two accomplices stayed at Mr. Castor’s home the night before the robbery. The robbery-occurred around 8:00 a. m. The robbers returned to Mr. Castor’s-place with the fruits of the crime, $1205. The three robbers were- picked up at Mr. Castor’s place several hours after the robbery took place. Some of the money was not recovered by the police.
On the motion of mistrial Mr. Castor was questioned by the county attorney and testified as follows:
“Q. And would you relate to the court what that conversation was as close as you can verbatim?
“A. You asked me, you said ‘Castor, there is $800.00 missing and what did you do with the money,’ and you said ‘You have got the money, there is $400.00 in the couch and $400.00 in the attic and you took it and you better come up with it.’
“Q. Is that the extent of our conversation?
“A. No, I told you I didn’t have it.
“Q. And what else did you tell me about that.
“A. I said there is a lot of people that had already been in the house before I got there, that I didn’t know nothing about this until about 11:00 o’clock the next day after it happened.
“Q. And we had some conversation, I believe, about this couch, and you had indicated what, concerning this couch?
“A. That it has already been searched by the detectives.
“Q. In relation to our conversation concerning this money that was supposed to be in the house, will you state to the Court whether there was any mention concerning your testimony in any respect, either for the state or for the defense?
“A. You mean to testify for the defendant?
“Q. Was there any talk except the fact that I told you I wasn’t going to use you about testifying in this case?
“A. You said 1 might not use you.’
“Q. Any other conversation between you and I about your testimony?
“A. No, other than you said I took the money.
“Q. But about the testimony, this is what I am relating to.
“A. No, nothing at all, nothing that I recall.
“Q. Were any threats made?
“A. No.”
The testimony of the other witnesses did not change the substance of this testimony.
The defendant contends this conversation by the county attorney constitutes misconduct because it resulted in the loss of vital testimony in support of the defense.
Mr. Castor was present during the trial but he was not called to the stand by either party. The record does not indicate he refused to testify. There is no showing made as to what his testimony would have been, if called. There is no showing, except the absence of his testimony, that the conversation with the county attorney resulted in loss of his testimony. As we view the conversation set forth in the record no misconduct is shown. The conversation merely indicates a desire by the county attorney to recover the fruits of the crime. It did not relate to trial testimony. It is difficult to read, into it an intent to prevent the witness from testifying. It took place at a time and place where such an intent was improbable. It was. not in the presence of the jury and no prejudicial error appears in. the record.
The judgment is affirmed. | [
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