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The opinion of the court was delivered by
Fromme, J.:
Carl Dennis Runnels was convicted of the unlawful possession and control of a pistol after conviction of a felony. (K. S. A. 21-2611.) He was sentenced to the Kansas State Penitentiary at Lansing, Kansas, for not more than five years. Two trial errors are specified on appeal. One of these concerns the court’s instructions. The second is directed at testimony introduced during the trial.
The circumstances leading to defendant’s arrest were related at the trial by Arlen Heffel. A complaint made to the sheriff of Russell county by a passenger in Mr. Heffel’s automobile resulted in defendant’s arrest and conviction.
At 8:30 p. m. on May 27, 1967, Mr. Heffel went for a ride in his automobile. His wife and a friend, Jerry Zorn, accompanied him. They left Dorrance and drove to Russell. On the way to Russell the defendant passed them in his car. The defendant turned his car around and followed the Heffel car into Russell.
The Heffels stopped at a tavern, the Office Lounge. The defendant followed them into the tavern but did not speak or associate with them. After drinking a “couple of beers” the Heffels and Mr. Zorn left this tavern and went to a second tavern, the Red Lounge. The defendant followed them into this tavern. He did not talk or associate with them. After drinking a “couple of beers” the Heffels started back to Dorrance. The defendant followed. The Heffels noticed they were being followed, drove into the driveway of a motel and stopped to see what the defendant wanted. The defendant followed them into the driveway but drove on without stopping. He drove east on the highway toward Dorrance and stopped his car on the right side of the road at the highway interchange where Highway 1-70 crosses over Highway U. S. 40. The time was about midnight. When Heffel saw the defendant’s car parked under the overpass he pulled up to see what the defendant wanted. When the two cars were parallel Mr. Zorn saw a pistol in the defendant’s hand and advised Mr. Heffel of this fact. They left immediately and in haste.
The defendant Runnels testified he raced them to Dorrance. He had been drinking whiskey and beer during the evening. He was not acquainted with Mr. Heffel or Mr. Zorn but he wanted to race them in his car. When he stopped his car at the interchange something slid out from under the front seat of his car. He thought it was his bottle of whiskey so he reached down to pick it up and discovered it was a gun. While he had the gun in his hand the Heffel car drove by. He laid it on the seat of his car and then raced the Heffels to Dorrance. He lost the race. At Dorrance he turned his car around and headed back toward Russell. He became sleepy and drove to the side of the road and went to sleep.
In response to the complaint of Mr. Zorn the sheriff of Russell county located the defendant at 1:00 a. m. on the highway leading to Russell. He was sleeping in his car with the gun on the front seat beside him.
The defendant explained the presence of this strange gun in his car. He said he loaned his car to a half-brother that afternoon. This brother owned several guns, and defendant stated the brother must have left this gun under the front seat in defendant’s car.
Ownership of the pistol was not established. The brother was not called as a witness. This brother did testify at the preliminary hearing. The defendant testified he did not try to locate him prior to the trial.
Defendant requested instructions on the nature of the possession and control of a pistol proscribed by the statute. He contends the court was required to give an instruction based upon the rule set forth in State v. Phinis, 199 Kan. 472, 430 P. 2d 251. In Phinis it was said:
“Although the statute in question (K. S. A. 21-2611) does not require intent to do a prohibited act as a prerequisite for its application, (State v. Wheeler, 195 Kan. 184, 186, 403 P. 2d 1015), yet the statute contemplates proof of possession and control which is more than an innocent handling of the pistol without intent to have, possess or control the same.” (p. 482.)
Defendant states the instructions he requested were taken verbatim from the instructions in the Phinis trial. He contends the court erred in refusing to instruct on his theory of the case, i. e. innocent handling of the pistol. His requested instruction read as follows:
“You are instructed, members of the jury, that possession within the statute prohibiting possession of a pistol by one previously convicted of a crime does not turn upon physical handling of the prohibited weapon alone, and if you find and believe from the evidence that defendant’s handling of said weapon was an innocent one without the intent to have, possess or control said weapon, that this will constitute an exception to this statute of Kansas, and your verdict should be not guilty.”
It should be pointed out, in Phinis we were concerned with the sufficiency of the evidence. We did not examine or approve the instructions given by the trial court.
The instruction given by the trial court in the present case covering the elements of the crime charged and the nature of possession and control of a pistol proscribed by the statute, reads as follows:
“Before you can find the defendant, Carl Dennis Runnels, guilty as charged in the information, the state must prove to your satisfaction beyond a reasonable doubt the following essential elements:
“(a) That the defendant on or about May 28, 1967, in Russell County, Kansas, did wilfully have or keep a pistol in his possession with the intent to control the use and management thereof, or that the defendant did wilfully have a pistol in his control with the power and intent to guide or manage such pistol.
“(h) That at said time the defendant, Carl Dennis Runnels, had previously been convicted in this state or elsewhere of the crime of burglary.
“If you find from the evidence, beyond a reasonable doubt, each and all of the essential elements charged as set forth in this instruction, then you should find the defendant guilty as charged in the information.
“If you fail to find from the evidence, beyond a reasonable doubt, each and all of the essential elements of the offense charged in the information, as set forth in this instruction, then you must find the defendant not guilty as charged in the information.
In State v. Ringler, 194 Kan. 133, 397 P. 2d 390, it was said:
“It is true that one of the court’s duties is to instruct the jury on the law applicable to the theories of both parties so far as they are supported by any competent evidence. The instructions given must be germane to the issues raised by the pleadings and must be limited to those issues supported by some evidence. (citing cases) ” (p. 135.)
It is the duty of the trial court to instruct the jury on the law applicable to the theory of both the prosecution and the accused so far as they are supported by any competent evidence and are germane to the issues raised on the charge in the information.
K. S. A. 62-1447 provides:
“The judge must charge the jury in writing and the charge shall be filed among the papers of the cause. In charging the jury he must state to them all matters of law which are necessary for their information in giving their verdict. If he presents the facts of the case, he must inform the jury that they are the exclusive judges of all questions of fact.”
Defendant’s testimony given at the trial was sufficient, if believed, to support a finding he did not wilfully have or keep this pistol in his possession. It might be inferred by the jury his control of the pistol was merely an innocent handling of the same in an effort to learn what object had been placed under the front seat of his car by his half-brother.
In 23A C. J. S., Criminal Law, § 1190 (c) it is said:
“It is generally the duty of the court to state correctly in the charge the claims made by both the prosecution and the defense, and the theories which the evidence for each respectively tends to establish. Where the affirmative of a theory is submitted, the court should generally give the converse of the charge.” (p. 480.)
In our present case the court set forth in instruction No. 7 the essential elements of the crime which had to be proven. One of the elements was to have or keep a pistol in possession with intent to control the use and management thereof. The state must prove the defendant did wilfully have the pistol in his possession and in his control. In this same instruction, after setting forth the essential elements, the court gave the converse instruction, i. e. if each and all of these essential elements are not found the jury must find the defendant not guilty. Essentially what the defendant is saying is that the court should have used different terminology. The defendant prefers the words “innocent handling” rather than “failure to find wilful possession or control.” The use of either phraseology tends to negate the presence of the power and intent to guide or manage the pistol.
In the case of State v. Jorgenson, 195 Kan. 683, 408 P. 2d 683, a similar question was presented on instructions. It was pointed out that error cannot be predicated on the refusal to give certain instructions when those given cover and include the substance of those which are refused. The Jorgenson case supports our holding in the present case that an affirmative instruction on accused’s theory (innocent handling) is unnecessary.
It is the practice to set forth in an instruction the essential elements necessary to constitute the crime. Then the trial court sets forth in order the two opposing theories which must be resolved by the jury. In our present case this was done. The theory contended for by the state was, “If you find from the evidence, beyond a reasonable doubt, each and all of the essential elements charged as set forth in this instruction, then you should find the defendant guilty as charged in the information.” The theory contended for by the defendant was, “If you fail to find from the evidence, beyond a reasonable doubt, each and all of the essential elements of the offense charged in the information, as set forth in this instruction, then you must find the defendant not guilty as charged in the information.”
We are of the opinion that the instruction requested by defendant under the authority of State v. Phinis, supra, was a correct statement of law except for the statement that the rule constitutes an exception to the statute. (K. S. A. 21-2611.) Omitting this questionable statement the requested instruction might have been given under the evidence introduced by defendant.
However, the jury was adequately advised on the issue of wilfulness. An affirmative instruction on accused’s theory using the term “innocent handling” was unnecessary in this case.
Generally the theory of the accused is adequately set forth in the instructions by including a converse charge under which the jury may find the accused not guilty if any essential element of the crime is not proven, providing such converse charge is preceded in the instruction by a recitation of all essential elements required to be proven, in language the ordinary layman on a jury can understand.
The theory of the defense in this case was adequately set forth in a converse charge under which the jury could have found the defendant not guilty. (State v. Tatlow, 34 Kan. 80, 8 Pac. 267; State v. Jerrel, 200 Kan. 415, 421, 436 P. 2d 973.) We find no prejudicial error in the instructions.
The second specification of error concerns testimony elicited on cross-examination from the defendant concerning his acquaintance with Mrs. Heffel.
On direct examination defendant testified he knew Mr. Heffel and Mr. Zorn when he saw them on the street. He said he had no conversation with Mr. Heffel, Mrs. Heffel or Mr. Zorn during the evening of May 27,1967. He said, “I was trying to get them to race, and it started in town, and as soon as we got out of town I passed him and slowed down and passed them again.”
Defendant was driving a 1958 Chevrolet automobile.
On cross-examination the defendant testified he did not know Mr. Heffel or Mr. Zorn, but he knew Mrs. Heffel and had “gone with her” in 1964. He first testified he had no correspondence with her after 1964 and was not following the car in order to see Mrs. Heffel. In response to further questioning he changed his previous testimony and testified he had written and received letters from Mrs. Heffel while he was in jail on the present charge. During that period they corresponded on an average of once a week. He said he wanted to see her at that time, but at the time of trial he had no further intention or desire to see her.
It is this testimony defendant claims was inadmissible and constitutes reversible error. We do not agree with his contention.
A verdict should not be set aside or a judgment reversed by reason of the erroneous admission of evidence unless there appears of record an objection to the evidence timely interposed and so stated as to make clear the specific ground of the objection. (K. S. A. 60-404. See also State v. Eaton, 199 Kan. 610, 613, 433 P. 2d 347.)
Objections were interposed to two questions during the entire cross-examination of defendant. His cross-examination covered ten pages of the transcript. The first question objected to was, “How well did you know her, Mr. Runnels?” The answer given was, “Well I had went with her.” Objection was made on the ground it was immaterial. The second question objected to was, “And these letters to Mrs. Heffel from you, and from her to you, was there any statements concerning your feelings towards each other?” The answer given by defendant was, “Yes, there was.” Objection was made on the grounds of lack of materiality and lack of foundation.
These questions appear to have been asked on cross-examination in an effort to test the credibility of the witness. The witness testified on direct examination his actions, which led to his arrest, were a result of wanting to race his 1958 Chevrolet automobile against the Heffel car.
The error complained of by defendant with regard to the materiality of this evidence when appraised in the light of the entire record does not appear substantial. Assuming these questions were immaterial they concerned a collateral issue, they were asked on cross-examination and the answers elicited did not constitute prejudicial error.
On appeal this court should disregard technical errors or defects which do not affect the substantial rights of the defendant. (K. S. A. 62-1718. See also State v. Green, 192 Kan. 451, 454, 388 P. 2d 657.)
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a conviction of forcible rape. The sufficiency of the evidence to sustain the conviction is not challenged. We need not, therefore, present in detail the revolting facts surrounding the forcible ravishing of a young girl twelve years of age.
Limited pertinent facts will be presented as we discuss the specific issues to which they apply.
The appellant first contends that it was nineteen days after the motion for a new trial was overruled before he was sentenced, con trary to the provisions of K. S. A. 62-1723 which, after providing for disposing of a motion for new trial, states:
. . If the motion for a new trial is overruled, sentence shall be imposed within five days. . . .”
In State v. Nelson, 200 Kan. 411, 436 P. 2d 885, we considered a similar contention and held:
“The provision of K. S. A. 62-1723 relative to sentence being imposed within five days if a motion for new trial is overruled is merely directory, not mandatory nor jurisdictional, and a valid sentence may be imposed within a reasonable time thereafter.” (Syl. 1.)
We also stated in the Nelson case that the purpose of the time limitation was to prevent prolonged, unreasonable delay in the sentencing of a defendant after his motion for new trial was overruled. To hold that the statute is anything but directory could well affect the propriety of the sentence. The circumstances in the case before us present a fair example of necessity for additional time.
Immediately after the motion for a new trial was overruled, the trial court proceeded to sentence the defendant. The question of sentence under the habitual criminal act then arose. The court expressed a doubt as to whether the crime of conspiracy, presented as a previous conviction, was a felony under the laws of the state of Iowa where the previous conviction took place. The matter of sentencing was continued for further evidence. The above proceedings took place on October 4, 1967, and the final sentence was pronounced on October 23, 1967.
Under the facts and circumstances presented we cannot say that the delay in the sentencing was unreasonable.
The defendant lays great stress on the contention that he was in fact denied the constitutional right to counsel because of incompetency of his trial counsel. Different counsel was appointed for the appeal.
Defendant’s attorney was appointed by the trial court at defendant’s request. He had some thirty-five years of general experience in the practice of law. It would appear, however, that counsel was not familiar with K. S. A. 60-421, contained in the new rales of evidence, placing limitations on evidence of previous convictions of crime as affecting the credibility of a witness.
When the appellant took the stand to deny his guilt, his counsel questioned him as- to his criminal record with the evident intent of taking the sting from such facts when he was cross-examined by the prosecution. However, such cross-examination would not have been proper under the provisions of K. S. A. 60-421. We quote the direct testimony of appellant:
“Q. Now, you have a previous record, don’t you?
“A. Yes, sir.
“Q. You have had several altercations with the police?
“A. Yes, sir.
“Q. Had a jail breaking episode when you were just a boy?
“A. Yes, sir.
“Q. And charged with burglary and a few offenses—
“A. (interrupting) Yes, sir.
“Q. —of that nature? You understand, of course, that all of that is going to be brought up by the County Attorney on cross-examination and the jury is going to be fully advised of all of your past misdeeds?
“A. Yes, sir.
“Q. Notwithstanding that, though, are you saying under oath here and now drat you are not guilty of the charge here in this case?
“A. Yes, sir.”
The prosecution on cross-examination pressed for details of appellant’s previous crimes and asked if appellant had not been charged with forcible rape in 1964. At this point appellant’s counsel objected and, regardless of the direct examination, the trial court stopped the entire line of examination and directed the jury to disregard the question and any inference that might be drawn from it. Again, before delivering the written instructions, the trial court orally instructed the jury that “any evidence of the prior criminal record of the defendant in this case is to be disregarded by you in reaching your decision in this case.” If the jury followed the instructions of the court no prejudicial error resulted. We must assume that it did.
This was the only slip on the part of counsel for appellant and it resulted in nonprejudicial error under the court’s instructions. In all other respects counsel showed unusual diligence and ability, particularly on the motion for new trial when he even went so far as to accuse himself of incompetency.
We doubt if one of the best lawyers ever laid claim to having tried a case with absolute perfection. Any good lawyer, having finished the trial of a case, can think of errors that he could have avoided and also think of moves that might have improved his client’s chances. New trials cannot be granted for such reasons. An accused cannot be guaranteed a lawyer that will present a perfect trial. He can only be guaranteed a trial free of prejudicial error. In Hicks v. Hand, 189 Kan. 415, 417, 369 P. 2d 250, the court stated:
“The guarantee of effective assistance of counsel does not guarantee the most capable or learned counsel possible, but only a competent and reputable member of the bar. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; and Trugillo v. Edmondson, 176 Kan. 195, 270 P. 2d 219.) . . .”
I£ convictions were to be set aside because counsel stated on motion for a new trial that he had overlooked or misconstrued a statute, or after trial thought of some move that might have been beneficial to the accused, it is doubtful if many criminals would be placed in confinement.
The appellant objects because the trial court did not instruct in writing regarding prior offenses citing State v. Roth, 200 Kan. 677, 438 P. 2d 58 in support of his contention. It will suffice to suggest that the Roth case requires written instructions when evidence of prior offenses are admitted, not when the juiy is instructed to disregard such evidence.
The appellant contends that he was denied due process because one of the jurors fell asleep during the trial and that another juror was hard of hearing. At the hearing on the motion for a new trial, counsel for the appellant examined a large number of the jurors close to the point of harassment but failed to establish facts supporting either contention. The trial courts conclusion that the evidence did not support the contentions disposes of this issue.
A careful examination of the record discloses no trial errors that would justify the granting of a new trial.
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
This is the latest in a series of cases reaching this court from the western reaches of our state involving the assessment of oil and gas properties. The plaintiffs, who are partners doing business as Beardmore Drilling Company, own and operate five oil and gas leases in Hodgeman County. They will be referred to herein either as plaintiffs or as Beardmore.
For the calendar year 1965, the five leases were assessed by the county clerk of Hodgeman County, wearing his assessor’s hat, in the aggregate sum of $143,525. This figure was designed to represent thirty per cent of the justifiable value of all five leases and was arrived at by use of a formula prepared and distributed by the state director of property valuation.
Taxes levied against Beardmore’s leases for the year 1965, computed on the basis of the assessor’s valuation, amounted to $6671. Beardmore claimed the assessed values of its leases exceeded thirty per cent of their true justifiable value and were not uniform with valuations placed on other property in the county. Appeals by Beardmore to the County Board of Equalization and to the State Board of Tax Appeals proved fruitless. As a consequence, when Beardmore paid its 1965 taxes, it protested payment of $3094. This amount represented the excess over what Beardmore claimed should have been due had its leaseholds been assessed on the same basis as other property in Hodgeman County. Two actions were commenced by the plaintiffs to recover the taxes paid under protest, and these have been consolidated on appeal. Hereafter we shall speak of them as one case.
The district court found that two of the leases — the Mooney and the Robinson-Waters — were assessed so excessively as to amount to constructive fraud, and ordered a total refund of $846.90. The defendants, who are sometimes spoken of herein as the county, have appealed from this ruling. Conversely, the court found the three other leases were not so overly assessed as to amount to constructive fraud, and Beardmore has cross appealed from this part of the judgment.
We shall first turn our attention to the cross appeal, for we believe our decision thereon will dispose of the county’s appeal as well.
The issue raised on the cross appeal is phrased by Beardmore in this fashion:
“Did the court err in determining that Appellees’ properties were assessed uniformly and non-discriminatorily and at a comparable rate as real property in Hodgeman County, Kansas?”
A brief summation of the evidence is in order. The plaintiffs’ witnesses were Heber Beardmore, Jr., one of the four partners, and G. L. Yates, a consulting petroleum engineer. The county relied on the county clerk-assessor, Leland Crouse, and Charles F. Weinaug, a research engineer and consultant. To an avid reader of the Kansas Reports, the names of Yates and Weinaug may sound familiar, since both experts have appeared on opposite sides in two recent cases involving oil and gas assessments, Cities Service Oil Co. v. Murphy, 202 Kan. 282, 447 P. 2d 791, and Sebits v. Jones, 202 Kan. 435, 449 P. 2d 551.
Both Mr. Yates and Professor Weinaug, testifying as experts, gave widely differing opinions of the justifiable values of the Beardmore leases although, with a single exception on the part of Dr. Weinaug, each placed a lower value on the individual leases than did the county assessor. In arriving at their opinions as to justifiable value, Messrs. Yates and Weinaug took dissimilar approaches and utilized differing factors, none of which need concern us here. Mr. Beardmore’s opinions of value coincided closely with those of his expert, Mr. Yates, in being considerably lower than Dr. Weinaug’s and much below the assessed values returned by the county assessor.
Mr. Crouse, the county assessor, testified that in assessing all oil and gas properties for 1965 he used the 1965 oil and gas schedules and forms prepared by the property valuation department, but made some minor adjustment in valuing two of the leases involved in this action. He also testified that the assessed valuations of the Beardmore leases for the year 1966, using 1966 state schedules, were considerable lower than 1965 assessed values.
When he was questioned concerning the ratio of assessed value of Hodgeman County real estate to its true value, Mr. Crouse testified the ratio was ten per cent for cultivated land, ten per cent for irrigated land and nineteen per cent for grass land, or a median ratio of fourteen per cent. He conceded that the assessment ratio study made by the property valuation department for 1965 was essentially correct as to real estate in that it showed a median ratio of fourteen per cent for Hodgeman County.
Extensive findings of fact were made by the trial court. Among them, the court found that in assessing the Beardmore leases the county assessor utilized and followed the Kansas Price Schedule of Oil and Gas Properties for 1965; that the values which were shown therein represented thirty per cent of justifiable values; and that all personal property in Hodgeman County, including all oil and gas leases, was assessed at thirty per cent of justifiable value.
Finding 27 reads as follows:
“Assessment ratio studies made by the State of Kansas Property Valuation Department for the year 1965 showing that rural farm land in Hodgeman County, Kansas, was assessed on an average of 14% of justifiable value is true and correct.”
In findings 28, 29 and 30, the trial court found assessment ratios for specific categories of real estate to be as follows: ten per cent in case of upland cultivated land; ten per cent for irrigated land; twenty-three per cent for top grass land; and nineteen per cent for other grass land.
The court further found that no actual fraud or bad faith existed on the part of the taxing officials and that Crouse, the assessor, made a bona fide attempt to comply with relevant tax statutes. In addition, by a process of applying the Crouse assessed values to the justifiable values of Weinaug, the court concluded the assessment ratio of three leases — Huling, Waterhouse and Young — were not oppressive and discriminatory but lay within a reasonable range of thirty per cent of justifiable value. As to the Mooney and Robinson-Waters leases, however, the court found, again applying Crouse assessed values against Weinaug justifiable values, that the assessment ratio was some sixty per cent in each instance, which as a matter of law was arbitrary, oppressive and discriminatory.
On their cross appeal the plaintiffs argue that the assessment of all their oil and gas properties — the five leases in question — on the basis of thirty per cent of justifiable value, as the statutes then required (see K. S. A. 79-501, 79-1439, 79-1426, since amended by L. 1969, chap. 433), when at the same time real estate was knowingly assessed by the same taxing officials at fourteen per cent of its justifiable value, was so grossly discriminatory and oppressive as to constitute constructive fraud.
In support of their position, the plaintiffs place great reliance on the recent case of Addington v. Board of County Commissioners, 191 Kan. 528, 382 P. 2d 315, where the facts bear striking resem blance to those here. In the Addington case the plaintiffs grain elevator in Morton County was assessed at thirty per cent of actual or true value, in conformity with the grain elevator schedule promulgated by the director of property valuation, while the median ratio of the assessed value of real estate in the same county was twelve per cent of actual value. The plaintiff paid its taxes under protest and then instituted suit to recover the illegal portion. Upon trial of the action in district court judgment was entered for defendants.
In reversing the lower court’s judgment, and in holding the assessment of Addington’s elevator property at thirty per cent of real value to be discriminatory in a constitutional sense where real property was assessed at but twelve per cent of real value, this court said:
“Uniformity in taxing implies equality in the burden of taxation, and this equality cannot exist without uniformity in the basis of assessment as well as in the rate of taxation.
“. . . Uniformity of taxation does not permit a systematic, arbitrary or intentional valuation of the property of one or a few taxpayers at a substantially higher valuation tifian that placed on other property within the same taxing district; however, this uniformity and equality in a constitutional and statutory sense does not require mathematical exactitude in the assessment valuation of property for taxation. In the instant case if all the property in the county had been assessed at thirty per cent of its true value, plaintiff would have no cause to complain. The fraud upon plaintiff’s rights resulted from the arbitrary distinction made between his elevator property and other property in the county. Mere excessiveness of an assessment or errors in judgment or mistakes in making unequal assessments will not invalidate an assessment, but the inequality or lack of uniformity, if knowingly high or intentionally or fraudulently made, will entitle the taxpayer to relief. (Bank v. Lyon County, 83 Kan. 376, 111 Pac. 496; Hamm v. State, (Minn. 1959), 95 N. W. 2d 649)” (pp. 531, 532.)
Included among the authorities cited in the Addington opinion is Kansas City Southern Rly. Co. v. Board of County Comm'rs, 183 Kan. 675, 331 P. 2d 899, a case which arose in Cherokee County. That was an action to recover taxes paid under protest. The taxpayer alleged in its petition that its property was assessed by the state commission of revenue and taxation at sixty per cent of its true value, while other property in the county was assessed locally at twenty-one per cent. It was alleged that this imbalance of assessed valuations was so grossly discriminatory as to constitute a constructive fraud and a violation of § 1, article 11 of the Kansas Constitution, providing for a uniform and equal rate of assessment and taxation. This court held that the petition in that case stated a sufficient cause of action.
A similar situation came before the court in C. B. & Q. Rld. Co. v. Comm’rs of Atchison Co., 54 Kan. 781, 39 Pac. 1039, where property of the plaintiff taxpayer was assessed by the state board of railroad appraisers at its true and actual value, while all other property in the county, by agreement of the local assessors, was assessed at twenty-five per cent of its true value. The concerted action of the township and city assessors, said the court, was in flagrant disregard of the statute requiring property to be assessed at true value, and resulted in gross discrimination in the taxation of the railroad’s property.
In Bank v. Lyon County, 83 Kan. 376, 111 Pac. 496, another case of older vintage, the same principle is embraced. The evidence in the case disclosed that in Lyon County real estate was assessed at twenty-five per cent, personal property of one class at thirty per cent, and other personal property, including bank capital and surplus, at forty per cent of cash value. In holding the taxes levied against the plaintiff bank to be discriminatory the court declared:
“. . . If all property in Lyon county had been assessed at forty per cent of its full value, the plaintiffs would have had no cause to complain. The fraud upon their rights results from the arbitrary distinction made between their property and other property. . . .” (p. 381.)
The facts now before us fit well the pattern of discrimination denounced in Addington and kindred cases. While it is true that Mr. Crouse was exonerated by the trial court of actual bad faith and fraudulent design in following the schedules required of him, good faith alone, as the trial court observed, does not justify an assessment, if it is in fact discriminatory. (Addington v. Board of County Commissioners, supra; In re Petition of Hamm v. State, 255 Minn. 64, 95 N. W. 2d 649.) In our view the gross discrepancy between the assessed value of Beardmore’s oil and gas properties and the assessed value of real estate in Hodgeman County constitutes a constructive fraud in the sight of the law.
We are well aware of what was decided in Cities Service Oil Co. v. Murphy, supra, and Sebits v. Jones, supra, and have no intention of retracting what was said in either case. While the plaintiffs in Cities Service alleged their property in Haskell County was being assessed at a ratio far greater than that for real property, the trial court found quite otherwise, and we upheld that finding.
The sole evidence offered to establish the assessment ratio of real estate in the Cities Service case was the assessment ratio study for 1965, which disclosed the ratio as being twelve per cent of justifiable value. The trial court found this to be insufficient proof of value on which it might base a comparison with plaintiffs’ oil and gas properties. On appeal we said that while the assessment ratio study was admissible in evidence as tending to establish the assessment ratio of real estate, it was not conclusive evidence on the point, and that the trial court’s finding, under the facts of that case, was justified.
In the Sebits case, although it is not disclosed in the opinion, the assessment ratio studies for several years were introduced in evidence to establish the real estate assessment ratio for 1965. There was no evidence offered in support of the studies, and the county assessor testified he had little faith in them. The trial court refused, under those circumstances, to find there was a deliberate assessment of real estate at twenty-one per cent of value, as the studies purported to show, and a judgment entered for the defendants was affirmed on appeal.
A quite different situation confronts us now. In the present case the trial court found that the median assessment ratio of real estate in Hodgeman County for 1965 was fourteen per cent. The evidence of the county assessor, himself, fully supports this finding, which thus becomes binding on us in this appeal.
The defendants call attention to Harshberger v. Board of County Commissioners, 201 Kan. 592, 442 P. 2d 5. That was an action to enjoin Ford County from using an assessment ratio exceeding nineteen per cent of justifiable value in assessing and taxing plaintiffs’ properties, both real and personal. The basis on which the plaintiffs sought injunctive relief was this: that while Ford County property was assessed at thirty per cent of justifiable value, property in five of the six adjacent counties was being assessed at only nineteen per cent of its justifiable value. Since the state levied ad valorem taxes on all property within the state, and since certain hospital and school districts were located partly in Ford and partly in adjoining counties, the plaintiffs contended they were unequally burdened by taxes for the same public services.
In denying relief, this court held it lacked jurisdiction to enter the order prayed for; and that courts cannot fix the values of property for purposes of taxation, inasmuch as the assessment of property is administrative in character, not judicial. We therefore declined, gently but firmly, to be drawn into the assessment business through the rear door.
The Harshberger case does not mean, however, that action cannot be maintained to recover protested taxes under appropriate circumstances. We made this clear in Cities Service where, in denying relief, we said:
“. . . This is not to say that inequality or lack of uniformity in assessment if knowingly, intentionally or fraudulently made, will not entitle a taxpayer to relief under the provisions of K. S. A. 79-2005.” (p. 294.)
In Builders, Inc. v. Board of County Commissioners, 191 Kan. 379, 381 P. 2d 527, the plaintiff sought to enjoin the collection of taxes levied against it on the ground that its shopping center property was arbitrarily assessed at twenty-two per cent of actual value while other shopping centers were assessed at not more than six per cent. The trial court, in hearing the matter, dismissed the injunction action against the State Board of Equalization and its members at the close of the plaintiff’s evidence. On appeal, this court held that when the Board and its members were dismissed as defendants, the trial court lost jurisdiction to proceed, since the Board, being the last administrative agency to act on plaintiff’s claim for relief, was a necessary party to the lawsuit. However, we proceeded to say in that case:
“This does not mean that the taxpayer is without recourse. The appellee [plaintiff] had an adequate remedy at law under G. S. 1949, 79-2005, whereby it might have paid the tax under protest, and then brought suit to recover such amount as may have been improperly paid . . .” (p. 385.)
For the year 1965, K. S. A. 79-1439, relating to the assessment of real and tangible personal property subject to general property taxes, provided as follows:
“From and after January 1, 1964, all real and tangible personal property which is subject to general property taxes shall be assessed uniformly and equally at thirty percent (30%) of its justifiable value, as hereinafter defined and provided.”
In the present case the trial court found that the assessment ratio of real property in Hodgeman County was fourteen per cent of justifiable value. That finding is supported by substantial competent evidence. The evidence further established that oil and gas leases were assessed for that same year, through the use of state schedules prepared for such purpose, at thirty per cent of justifiable value.
We are constrained to hold that the inequality which existed between the assessment of Beardmore’s oil and gas leases on the basis of thirty per cent of justifiable value and the assessment of real property on the basis of but fourteen per cent of justifiable value was so gross and arbitrary as to constitute constructive fraud.
Such being the case, the plaintiffs are entitled to recover the taxes paid under protest, provided the same were accurately computed. In this connection we might add that plaintiffs’ figures do not appear to be challenged, assuming their position be found correct.
Because of the conclusion we have reached on the cross appeal it would be an exercise in futility for us to pursue the questions raised in the appeal itself. Accordingly, the defendants’ appeal from the judgment entered in the court below must be dismissed as moot.
Beardmore’s cross appeal is sustained and this case is remanded with directions to enter judgment in plaintiffs’ favor in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Fatzer, J.:
These three actions were filed pursuant to K. S. A. 79-2005 to recover taxes levied in 1964 upon grain elevators located in Sedgwick County and paid by the appellants under protest. The actions were ordered consolidated and trial was by the district court. Except for the names of the plaintiffs, the amounts of taxes involved, the date of payment, the bushel storage capacity, and various exhibits computing taxes based on the 1964 assessments sought to be recovered, the evidence was equally applicable to each plaintiff. The appeals are from the order of the district court rendering judgment against the taxpayers.
The parties stipulated that the decision of this court in one case will determine the decision in the other two cases, and since the points of law involved are identical, it is deemed unnecessary to summarize the evidence in each case, hence, the following pertains to the appellant, Sam P. Wallingford, Inc.
On December 21, 1964, the appellant paid 1964 taxes to the county treasurer of Sedgwick County, $28,351.10 of such taxes being paid under protest. The written protest contained citations of law, statutes and facts relied upon, and clearly stated it was made upon grounds that the 1964 taxes were the result of levies extended against valuations and assessments of the appellant’s property which were so unreasonable, excessive, arbitrary, oppressive, illegal and grossly discriminatory as to be void and constituted constructive fraud on the rights of the taxpayer in violation of Chapter 460, Laws of 1963, Section 1 of Article 11 of the Constitution of Kansas, and the Fourteenth Amendment to the Constitution of the United States.
The appellant timely commenced this action, and its amended petition incorporated the written protest and alleged that all conditions precedent to the bringing of the action had been performed; that the valuation of the taxpayer’s property had been fixed at more than the statutory mandate of 30 percent of its true value and at a greater percentage of its true value than the valuation of other comparable properties to which the same tax levies were applicable, and that the valuation and assessment of its property upon which the 1964 taxes were levied was illegal and void for the reason that in determining the justifiable value in money of such property, as required by K. S. A. 79-501, the assessor ignored obvious facts and failed to give consideration to and apply the factors or combinations thereof prescribed by the Legislature in K. S. A. 79-503. The petition further alleged that the illegal and grossly discriminatory valuation placed upon the appellant’s property in 1964 was $843,000; that 30 percent of the justifiable value in money of such property was $500,000, and that the tax which would be due on the difference between such valuations was $28,351.10, for which recovery was sought.
As preliminary, it may be said this controversy revolves around the “Roberts Schedule” promulgated by the Director of Property Valuation for the assessment of bondable grain elevators located in the state. The schedule was prepared in 1960 by Francis R. Roberts, the field director of that department, but was not used in Sedgwick County until 1964. There was no change in the schedule from the time it was formulated until applied in 1964, and with minor exception not here material, it was used and strictly adhered to by the firm of Cole-Layer-Trumble, employed by the county assessor, to assess the appellant’s and other taxpayers’ property in 1964.
In formulating the schedule, Roberts wrote a number of suppliers of materials and builders of grain elevators and obtained costs of building elevators, and he devised the schedule on a cost less depreciation basis, and nothing else. Except for the cost of reproduction factor, the schedule did not provide for any adjustment with respect to the economic condition of the grain storage industry, such as obsolescence or functional depreciation, nor did it recognize or make provision for the consideration of any other pertinent factors set forth in 79-503, to determine justifiable value. It merely directed county assessors to determine justifiable value by bushel storage capacity times the scheduled cost, less one percent per annum depreciation according to the age of the elevator and did not permit depreciation below 40 percent of original cost. Moreover, as demonstrated by the provisions of the schedule, there was no way to determine the effect of average annual occupancy on fair market value although occupancy is a determining factor of revenue and is one of the more important factors that a prudent purchaser would look at in determining whether he would buy an elevator. Likewise, there was no way to attribute valuation to location although location affects transit privileges and the Wichita elevators are at a disadvantage compared with those, for example, at Newton and Hutchinson. A prudent purchaser would take this location factor into consideration, since location affects freight rates and therefore affects profits.
A summary of the facts contained in the pleadings, the admissions of the parties, and pertinent evidence introduced by the appellants, which was uncontradicted except as hereafter noted, follows:
The Wallingford elevators are federally licensed and bonded elevators of a capacity of 12,585,000 bushels, located on 35 acres of land. There are approximately 8/1 million bushels of upright concrete storage and the balance is lean-to sheds. Battery F of the elevator was built in 1929, Battery H was constructed in 1949, and the last unit was built in 1958. Photographs showed cracking and breaking out of the concrete in the concrete tanks.
When Roberts devised the assessment schedule, the storage capacity of appellant’s elevators, as well as elevators of other operators similarly situated, was virtually 100 percent full. Those operators had experienced a number of good years during which capacity was quite full and taxing authorities in many counties had the assessment of their properties up “pretty high.” However, no one was paying attention to the Roberts schedule because it was not being used.
In 1962 or thereabouts, as a result of the change in the farm program from actually storing grain in elevators to the soil bank program, and considerations affecting the supply of world and domestic small grain needs, the United States Department of Agriculture began shipping grain stored in elevators to gulf and west coast ports, which resulted in a steady decline in grain storage occupancy. As a result of those governmental policies, the history of appellant’s average annual occupancy was as follows: 1962, 81.1 percent; 1963, 59.5 percent; 1964, 43 percent; 1965, 35.3 percent, and 1966, 20.38 percent. As indicated, occupancy has an important bearing on the fair market value of an elevator, and the appellant and other operators knew that income was not only on the decline, but they could see it would decline faster. In 1964, the grain storage industry realized it could no longer pay a luxury tax since the occu pancy problem was common to all elevators, and the Roberts schedule made no provision for functional or economic obsolescence in that respect.
In November 1963, the Cole firm made a bushel capacity measurement of appellant’s elevators but no effort was made to determine values at that time. Sometime in March, 1964, the Cole firm actually applied the Roberts schedule to the capacity measurements taken in November 1963, which was merely a mathematical calculation by multiplying capacity measurements by the scheduled cost less depreciation of one percent per annum according to the age of the elevator. However, at that time notices had not been sent out by the county assessor giving the appellant its assessed valuation. All the appellant had was the work sheet prepared by the Cole firm and it had not been notified of a tax change other than it knew perhaps such a change was in the wind. Upon receipt of the Cole firm’s work sheet, the appellant went to see the county assessor to seek relief from the proposed assessment of its property and was told he did not make the assessment, but that the Cole firm did. When the Cole firm was contacted, the appellant was told it really did not make the assessment other than to mathematically apply the Roberts schedule, and that the appellant should talle to Roberts.
On April 10, 1964, the appellant and other grain operators in Sedgwick County met with Roberts, the Cole firm, and the county assessor in his office in Wichita. Roberts was told the schedule did not yield a valuation that was in line with the changed conditions in the grain storage industry because it did not permit adjustment by the assessor for economic obsolescence or the effect of location on value. Roberts readily admitted the schedule was a cost less depreciation schedule and stated he knew that conditions had changed in the industry and that the schedule needed to be revised to provide an economic functional depreciation factor. When asked if the schedule could be changed to make that adjustment for the 1964 assessment, Roberts said, “no, that it was too late to change it”; “that he had sent copies of it to some of the county clerks earlier than this April 10th meeting, and he didn’t want to go back to them again with a revised schedule,” and that “[t]his is the schedule, and we have required the Cole-Layer-Trumble firm to use it.” As indicated, when the Roberts schedule was prepared the appellant was operating at almost 100 percent capacity, and in January, 1964, the elevator was less than half full. Roberts stated he would add an economic functional depreciation factor for the 1965 assessment, and suggested the industry appoint a committee to meet with him later in 1964.
In August, 1964, a committee of the Kansas Grain and Feed Dealers Association met with Roberts and representatives of the County Clerks Association in Topeka to work out an economic functional depreciation factor to be incorporated in the 1965 assessment schedule. Representatives of the grain industry asked Roberts to give them an economic factor which could be applied and which would produce a more realistic assessment value. Roberts stated he realized the Property Valuation Department had a sick industry on its hands and he wanted to work with the committee. Various statutory factors were discussed such as depreciation and location, but the problem most common to all firms was occupancy.
As a result of that meeting, Roberts and the Property Valuation Department agreed to and did revise the schedule for the 1965 assessment. The schedule was revised in several particulars, including physical depreciation on replacement cost new, at the rate of IK percent for each year age of the structure, and a new Section V was added for economic functional depreciation. Section V directed that credit be given for depreciation at the stated rate of the percent of occupancy as compared to total capacity, to be applied to the depreciated net value after applying the IK percent physical depreciation. The 1965 schedule was carried forward with slight revision into the 1966 schedule, and was also placed in the schedule for 1967. By applying the economic and functional obsolescence factor as contained in the 1965 schedule to the valuation of the appellant’s property as found by the state taxing authorities for 1964, to determine justifiable value for that year, the appellant’s 1964 assessment would have been reduced and the difference between such amount and the 1964 assessed valuation upon which the tax levy was based, would have produced a tax of the approximate amount for which recovery was sought.
In addition to the evidence that the 1964 schedule was mathematically applied by the Cole firm only on a cost less depreciation basis, there was evidence that the defendant taxing authorities did not consider or apply an economic and functional factor in assessing the appellant’s elevator in 1964. Both the 1964 and 1965 schedules were admitted in evidence as appellant’s exhibits.
The testimony was also uncontradicted that the 1964 Roberts schedule was not applied uniformly in all counties throughout the state by the county assessors for that year. The schedule was not used in Wilson, Allen, Logan, Reno, Sumner, Stafford, Kingman, Harvey and Comanche Counties.
Roberts testified for the defendants that he prepared the schedule referred to as the 1964 Roberts schedule; that state schedules were first made up in 1957; that he was aware at the time the 1964 schedule was prepared, of “factors” to be considered in appraising property in Kansas, and that in making up the 1964 schedule he considered all factors applicable to grain elevators, including economic obsolescence.
At the conclusion of the evidence, the district court stated that the case was to be resolved by the answer to one question: “Does the failure to include a schedule of economic obsolescence in the schedule for grain elevators for the year 1964 constitute constructive fraud?”
The court then made findings; those pertinent are summarized and quoted: The court specifically found that adherence to the directives of the State Property Valuation Department by the local taxing authorities,
“. . . could not be construed as constructive fraud in any event, because they are so bound to adhere by many statutes; and the State Property Valuation Department is obligated to make such directives and issue such instructions to assessors and other taxing authorities.
“Now the evidence in this case discloses that the schedule used by the local taxing authorities, which was promulgated by the State Property Valuation Department, does not include on its face any reference to obsolescence or functional depreciation; nor does it include on its face any particular reference, as such, to any of the factors contained in Section 79-503.” (Emphasis supplied.)
“The Court finds . . . [i]t is obvious from the schedule, itself, that it contains no instruction to the assessing officer to apply any schedule of economic obsolescence depreciation as do the schedules of 1965 and 1966.” (Emphasis supplied.)
The court further found:
“It has been the testimony of (Roberts) . . . who prepared such schedule that he did consider the factor of economic obsolescence in the preparation of such schedule. Curiously, he was not questioned by any Plaintiff in regard to this statement; nor was he called as a witness, though he was in the courtroom throughout the trial, to inquire what factors went into his preparation of such schedule . . .”
And that:
“The Court therefore finds there is no evidence on which to base a finding of constructive fraud. The Court finds for the Defendant in each of the . . . cases and for their costs.”
We now take up the legal questions. The appellant contends that the valuation of its property by mathematical application of an inflexible schedule which did not include pertinent statutory factors for assessment was illegal, arbitrary and constituted constructive fraud, for which it is entided to relief as a matter of law.
In 1963 the Legislature in compliance with its duty to provide a uniform and equal rate of assessment and taxation imposed upon it by Section 1, Article 11 of the Kansas Constitution, enacted House Bill No. 435 which was incorporated in the 1963 Session Laws as Chapter 460. The Act was effective upon publication in the statute book on June 30, 1963. The title of the bill stated it was “An Act relating to taxation, prescribing a uniform and equal rate of assessment of all real and personal property which is subject to general property taxes . . .” Section 1 (now K. S. A. 79-1439) reads:
“From and after January 1, 1964, all real and tangible personal property which is subject to general property taxes shall be assessed uniformly and equally at thirty percent (30%) of its justifiable value, as hereinafter defined and provided.”
Section 3 amended G. S. 1949, 79-501 (now K. S. A. 79-501) and provided that all real and personal property shall be assessed at thirty percent (30%) of its justifiable value. As used in the statute, “justifiable value” means “true value” or “fair and reasonable value” for taxation purposes. (Board of County Commissioners v. Brookover, 198 Kan. 70, 77, 422 P. 2d 906.)
Section 4 (now K. S. A. 79-503) was a new section and for the first time prescribed the standards for the assessment of real property. The section reads:
“To arrive at the justifiable value of real property the assessor or appraiser shall actually view and inspect the property. The price at which real property would sell at auction, forced sale or any transaction in which personal elements were a factor regarding the sale price shall not be taken into consideration in determining the justifiable value. In determining the justifiable value of real property, the assessor or appraiser shall consider that value in money arrived at when the following factors or combinations thereof are considered:
(a) The proper classification of lands and improvements;
(b) the size thereof;
(c) the effect of location on value;
(d) depreciation, including physical deterioration or functional, economic or social obsolescence;
(e) cost of reproduction or improvements;
(/) productivity;
(g) earning capacity as indicated by lease price or by capitalization of net income;
(h) rental or reasonable rental values;
(i) sale value on open market with due allowance to abnormal and inflationary factors influencing such values;
(y) comparison with values of other property of known or recognized value; and
(7c) valuations of land and improvements on the basis of the foregoing elements and such other elements as may be just and proper.” (Emphasis supplied. )
The manifest purpose of the statute was to require uniformity and equality in the mode of assessment of all real property in the state and to benefit and protect the individual taxpayer from a sacrifice of his property by a disregard of its provisions in which his rights might be injuriously affected. It is evident the Legislature intended that from and after January 1, 1964, all real property in every taxing district would be uniformly and equally assessed at thirty percent of its justifiable value in money. (79-501, 79-1406 and 79-1439.) To accomplish that purpose, the Legislature detailed the factors or combinations thereof to be considered by taxing officials in assessing real property and directed they apply the same in determining justifiable value. State and local taxing officials may not ignore the standards prescribed, since the statute clearly requires consideration of the pertinent factors to specific property and of an assessment of specific property in conformity with its provisions. It requires no semantic niceties to conclude that consideration of the pertinent factors is mandatory to determine justifiable value. In 3 Cooley, Taxation, 4th ed., Sec. 1061, p. 2136, it is stated unequivocally if, “the provision is mandatory it must be followed or the assessment will be invalid.” See, also 84 C. J. S., Taxation, Sec. 393, p. 756.
The appellant’s complaint is not merely that its property was overvalued, but that the overvaluation was the result of an arbitrary assessment made in violation of law. A valid assessment of property is a necessary step preliminary to the levy of a valid tax, and the district court’s findings tend to support the appellant’s contention. The court correctly interpreted the 1964 Roberts schedule as making no provision for allowance for economic or functional obsolescence or depreciation or any of the other pertinent statutory factors to determine justifiable value of the appellant’s property. The finding was nothing less than that the schedule was unlawful on its face and prevented application of those factors, although the evidence substantiating application of them was clearly warranted by the facts. Moreover, the evidence was undisputed that the defendant taxing officials did not consider or apply those factors in assessing the appellant’s property.
The district court concluded that adherence to the Roberts schedule could not be construed as constructive fraud in any event because the local taxing officials were bound to adhere to directives of the director of property valuation by many statutes. The conclusion is erroneous. It would have the effect of permitting the Property Valuation Department to usurp both legislative and judicial functions and amount to a holding that it could by administrative action vitiate the statutory commands of the Legislature. It requires no citation of authority to demonstrate that such is not the law. Obviously, the district court misinterpreted the statutes defining the relationship between the director of property valuations and local assessors.
The director of property valuation has general supervision of the system of taxation throughout the state (79-1402), and has supervision of the Property Valuation Department. (74-2440 and 74-2441.) He is given plenary powers over the administration of the assessment and tax laws of the state to the end that all assessments of property be made relatively just and equitable and at its actual and full cash market value. (74-2441 and 79-1404.) Likewise, he has general supervision and direction over all local assessing and taxing officials in the performance of their duties and is required to direct such officials, under penalty of their removal from office, to uniformly assess all property at its justifiable value. (79-503, 79-1401, 79-1404.) In the performance of his duties, he is authorized to adopt and promulgate rules and regulations relating to the assessment of property (79-1441), and to prosecute local taxing officials for a violation thereof. (79-1405.) He is further directed to render all assistance possible toward uniform assessments within the counties and throughout the state (74-2441), and to that end he is authorized to devise forms and schedules for the assessment of property which detail the technical steps necessary to make an accurate valuation and assessment. In Cities Service Oil Co. v. Murphy, 202 Kan. 282, 293, 447 P. 2d 791, it was said that the director of property valuation properly furnished assessment schedules to the county assessor pursuant to 74-2441, and that the county assessor was required to conform to the values in such schedules by which he could more accurately appraise property in his jurisdiction. See, also, Mobil Oil Corporation v. McHenry, 200 Kan. 211, 216, 436 P. 2d 982. Assessment schedules promulgated by the Property Valuation Department must be based upon a consideration of the factors of the statute to provide as nearly as may be a uniform and equal rate of assessment throughout the state, and be so formulated as to enable a competent assessor or appraiser to apply the pertinent factors to specify the property in determining its justifiable value.
The director of property valuation is an administrative official and his decisions in all matters within the scope of his supervisory power, involving administrative judgment and discretion, are conclusive upon subordinate taxing officials. In the exercise of his powers, the director must of necessity interpret the tax laws and such interpretations are prima facie binding. However, the power exercised by the director is not judicial, and the question whether assessment schedules promulgated by the Property Valuation Department conform to the statute is a question of law not finally determinable by the director of property valuation. In such a situation, the court is of the opinion a taxpayer may protect his proprietary interest against an erroneous decision of the director and is authorized to have the validity of the assessment schedule, as applied to his property, reviewed on the ground the schedule was erroneous as a matter of law. Robinson v. Jones, 119 Kan. 609, 612, 240 Pac. 957; Beacon Publishing Co. v. Burke, 143 Kan. 248, 253, 254, 53 P. 2d 888.) The director of property valuation is obligated to instruct local taxing officials to follow the law — not to violate it. (79-1426.)
An assessment of property for taxes must be made in accordance with the provisions of a statute, and it would hardly seem necessary to state that if an assessment schedule failed to direct local taxing ■officials to consider and apply any pertinent statutory factors in ■determining justifiable value, the schedule would be erroneous as a matter of law. And if through adherence to that manifestly unlawful schedule, the evidence showed the assessor made a palpably excessive overvaluation of the property to be assessed, .such act, although made in good faith, would be illegal and amount to constructive fraud or the equivalent of fraud on the rights of the taxpayer.
It is the settled law in this jurisdiction that the assessment of property for tax purposes may not be set aside on account of mere errors of judgment on the part of the assessing officials. Courts cannot be called upon, in every instance, to settle differences of opinion between the assessing officer and the property owner with respect to the value of property. Before courts will interfere, the conduct of the assessing officer must be without authority or so arbitrary or unreasonable as to amount to constructive fraud. The rule is merely the specific application of the rule of law that the assessment of property, when done in accordance with law, is an administrative function in which courts do not interfere or substitute their judgment for that of the administrative auhority. (Symns v. Graves, 65 Kan. 628, 70 Pac. 591; Board of County Commissioners v. Brookover, 198 Kan. 70, 422 P. 2d 906; Mobil Oil Corporation v. McHenry, supra.) However, where state and local taxing officials do not perform their duties in accordance with law, the issue presented to the court is not the exercise of their administrative judgment, but the legality of their acts. In City Rly. Co. v. Roberts, 45 Kan. 360, 25 Pac. 854, it was said that courts have no difficulty with their power and authority where taxing authorities attempt to proceed without statutory authority or contrary to the statutes, and that such matters are rightly within the province of the judiciary. (Harshberger v. Board of County Commissioners, 201 Kan. 592, 594, 442 P. 2d 5.) In Hitch Land & Cattle Co. v. Board of County Commissioners, 179 Kan. 357, 295 P. 2d 640, it was said:
“Insofar as the argument goes that a court will not give relief against a mere overvaluation, it may be remarked that the rule assumes that proper methods have been followed and the overvaluation, if any, is a matter of the exercise of judgment. In the instant case we have a valuation fixed on a basis which is illegal, arbitrary and discriminatory. Under all of the decisions, a court may grant relief where fraud or conduct equivalent thereto exists or where the action of the taxing officials is illegal, arbitrary and discriminatory.” (1. c. 363, 364.)
Likewise, in Addington v. Board of County Commissioners, 191 Kan. 528, 382 P. 2d 315, this court recently and cogently stated:
“. . . Even though the assessor may have thought he was acting in good faith, his illegal acts in failing to comply with the mandate of the legislature constituted bad faith and constructive fraud . . .” (1. c. 534.)
Except for Roberts’ testimony that he “considered” all factors applicable to grain elevators, including economic or functional depreciation, when he prepared the Roberts schedule in 1960, the evidence was uncontradicted he devised the schedule on a cost less depreciation basis, and nothing else. It is difficult to perceive how Roberts could have considered such factors when the statute requiring their consideration was enacted three years after the schedule was adopted. Be that as it may, at the meeting in Wichita Roberts stated he knew conditions had changed in the grain storage industry and that the 1964 schedule needed to be revised to provide an economic or functional depreciation factor. However, he refused to make that adjustment in the schedule, but instead, required the county assessor to use the schedule in making the assessment of the appellant’s property. Under such circumstances, it must be said that Roberts’ conduct at that time can justify no other conclusion than that of an adopted policy or practice of constructive fraud and discrimination against the appellant and its property.
We do not say that in assessing real property and the improvements thereon, consideration and application of the elements of age, state of repair, location, cost of reproduction or improvements, or any other pertinent statutory factors are or that any one of them is controlling upon the assessor in the exercise of his judgment and discretion in determining what valuation he shall place upon the property assessed. What we do hold is that an assessment, made by an assessor in adherence to an assessment schedule promulgated by the Property Valuation Department which fails to take into consideration any of the pertinent statutory factors prescribed in 79-503 and which in common experience ordinarily determines values, will not be upheld where the evidence substantiating application of the pertinent statutory factors is clearly warranted by the facts. When the statutory factors leading to uniformity in distributing the burdens of taxation have been lost sight of or willfully abandoned in promulgating a schedule upon which an assessment is made, the mere assertion of the official who formulated the schedule that he “considered” all pertinent factors, including economic or functional depreciation, when he prepared the schedule, will not avail him in the presence of the actual and admitted facts supplied from his own lips that he did not do so, nor will his assertion suffice to compel the upholding an assessment made in adherence thereto by an assessor, when the evidence shows the assess ment resulted in a gross overvaluation of the property assessed. Such an assessment will be invalidated at the instance of a property owner who pursues the proper statutory method to recover the taxes thus improperly imposed.
In view of the conclusion just announced, it is unnecessary to discuss and decide the appellant’s contention that the use of the Roberts schedule deprived it of the equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United States.
We are of the opinion the appellant has clearly sustained the burden of proof that the assessment of its property was made in violation of 79-503 and is entitled to have judgment entered in its favor in accordance with the views herein expressed and in accordance with the provisions of 79-2005.
It is so ordered. | [
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The opinion of the court was delivered by
Fontron, J.:
The plaintiffs, Julius D. Spears, Spears Realty Co., Inc., and West Riding Development Company, bring this action against the defendant, Kansas City Power and Light Company, to recover damages for an alleged appropriation of their land by means of the construction of underground transmission lines and conduits. Summary judgment was entered in the defendant’s favor and the plaintiffs have appealed. For convenience we shall hereafter refer to the appellants as Spears or plaintiffs, and to the appellee as defendant or Company.
None of the facts required to determine the issue here presented are in dispute. In 1956 the Company instituted eminent domain proceedings to secure an easement in certain lands lying in that part of Johnson County which is now a part of Prairie Village. Included in the condemnation proceedings was a strip of land along the south line of a tract presently bounded by Roe and Nall Avenues, on the east and west, and by 87th Street and the Meadowbrook Golf and Country Club, on the north and south. This tract, which was owned at the time by Mr. and Mrs. Irwig, was acquired by Spears in 1960. It is not denied that Spears took title to the tract subject to the Company’s easement acquired in the condemnation action.
In paragraph 3 of the petition filed in the condemnation proceedings, the Company alleged that it desired “to construct, operate and maintain a 161 Kv transmission line or lines, together with necessary distribution lines,” extending a distance of some 2% miles between two of its substations “for the purpose of more adequately serving present and future customers in the State of Kansas.” Paragraph 4 of the same petition reads as follows:
“Petitioner desires to exercise the right of eminent domain as conferred upon it by Section 17-618 of General Statutes of Kansas, 1949, in the manner provided by Section 26-101 of General Statutes of Kansas, 1949, for the purpose of constructing, operating and maintaining said transmission line or lines as heretofore described, to acquire by condemnation, an easement or right-of-way over, under, along and across each of the hereinafter described tracts or parcels of land, for the purpose of transacting and conducting its said business, as aforesaid.” (Emphasis supplied.)
No complaint is made by Spears as to the regularity of the eminent domain proceedings. The appraisers appointed by the court awarded the Irwigs $18,000 for the easement across their tract, and this award was appealed to district court, where the appeal was settled for $20,000.
Shortly after acquiring its easement, the Company constructed ■overhead electric transmission lines within its right of way, and in 1958 constructed certain underground installations. In 1966, the ■Company installed additional underground electric transmission lines within its right of way across the tract, which was then ■owned by Spears, and the construction of these later lines gave xise to this lawsuit. In view of the limited question before us in this appeal, the alleged character and extent of the underground installations, whenever they were constructed, are not of material ■consequence and need not be determined here.
Responding to the plaintiffs’ petition, the Company filed an answer conceding its construction of underground electrical facilities within the right of way, both before and after Spears acquired title, and incorporating therein by reference the petition filed in the condemnation action. The Company also filed a verified motion for .summary judgment admitting the underground installations and setting out by means of exhibits the entire eminent domain proceedings.
The Company’s motion for summary judgment was thereafter sustained by the court pursuant to the following Memorandum Decision:
“1. The entire court file in Case No. 22791 is made a part hereof by reference.
“2. The petition, order appointing appraisers, publication notice and report of appraisers all refer to the easement for transmission lines — under, along — the land involved.
“3. The appraisers’ report is controlling as to what is taken in a condemnation proceeding. It recites — in through, under and across the lands described in the petition.
Sutton Vs. Frazier, 183 Kansas 33.
Roberts, et al. Vs. Upper Verdigris Water District,
No. 24, 193 Kansas 151.
“The court finds and decrees that the defendant acquired, by condemnation in Case No. 22791, the right to construct, operate, and maintain underground electric transmission lines in its easement across the land described in plaintiffs’ petition prior to the plaintiffs acquiring any interest therein.
“The motion for summary judgment is sustained.
“Costs are taxed against the plaintiffs.
“Dated December 12th, 1967.
/s/ Clayton Brenner
Judge, Division No. 2.”
As previously stated, the plaintiffs appealed from the summary judgment entered against them and the issue raised by them on appeal is presented in this concise statement found in their brief:
“The sole question in this case is whether or not defendant power company acquired the right to install an underground conduit by virtue of the easement which it acquired in the 1956 condemnation action.”
Following the phrasing of the question, the plaintiffs’ contentions are succinctly summarized:
“Appellant contends: (1) there was no statutory authority by which defendant power company could have acquired by condemnation any right to construct an underground conduit, and (2) even if such statutory authority existed, the purpose and effect of the 1956 condemnation action was to acquire a right-of-way for a 161,000 volt transmission line and defendant power company thereby acquired no right to construct underground conduits.”
A conduit is a pipe, tube or tile for receiving and protecting electric wires or cables. (Webster’s Third International Dictionary, Unabridged; Wofford Heights Associates v. County of Kern, 219 C. A. 2d 34, 32 Cal. Rptr. 870.) The connotation of the word “conduit” presupposes a cable or wires for the transmission of electric power, and we consider the term as being used co-extensively with electric lines throughout these proceedings.
Proceeding to the first point, Spears suggests that under Kansas statutes an electric power company is not authorized to acquire property by condemnation for the purpose of constructing underground transmission lines or conduits. This contention must be rejected.
Under the provisions of K. S. A. 17-618 various corporations affected with a public interest are empowered to exercise the right of eminent domain. By the very terms of the act, electric companies are included among those so favored. In Cline v. Kansas Gas and Electric Company, 260 F. 2d 271, the United States Court of Appeals, 10th Circuit, held that an electric utility company came expressly within the act and was empowered to obtain a right of way by eminent domain for the construction of its electric line.
Although the statute may never serve as a model for clarity of expression, nonetheless we believe it furnishes authority for the acquisition by a public utility company engaged in producing electricity, to acquire an underground easement for the purpose of installing underground lines. As we read K. S. A. 17-618, using a kaleidoscopic process, it authorizes a corporation such as the defendant, which desires to transmit power by electrical current, to obtain a right of way by condemnation for the purpose of laying its wires “on, through, or over any land or lot.” (Emphasis supplied.) The term “through,” in our opinion, is used in the sense of and is equivalent to “under.”
If an electric power company is authorized by statute to install underground wires through property in which it has an easement, we believe that by natural intendment of the law it may insulate and protect its wires by conduit or otherwise to the extent required for rendering service to its customers. Although statutes which confer rights to exercise the power of eminent domain are to be strictly construed, this doctrine does not preclude the reasonable and sound construction thereof in the light of the purposes and objectives sought to be obtained by its enactment. (29A C. J. S., Eminent Domain, § 22, pp. 220, 221.)
We now turn to plaintiffs’ second contention on which, according to their counsel, reliance is chiefly placed. Put briefly, the argument is that the only right acquired by the Company in the 1956 condemnation action was to construct overhead wires or lines above the right of way, not underground lines beneath the surface. The trial court rejected this construction of the eminent domain proceedings. We believe it was correct in so doing.
In its decision, the trial court said that the report of the appraisers controls what is taken in a condemnation action. This conclusion is supported by our cases. In Sutton v. Frazier, 183 Kan. 33, 325 P. 2d 338, we held that where land was taken under eminent domain for the purpose of constructing and operating a sewage disposal plant, the condemner, an improvement district, acquired no title to the minerals underlying the land condemned. Paragraph 8 of the syllabus reads:
“In an eminent domain proceeding the report of the appraisers must show what is taken, and what the landowners part with. Nothing is taken by implication or intendment, and the landowners may rely implicitly on the report filed which becomes the evidence and the only evidence of the commissioners’ doings.”
The Sutton case was followed in Roberts v. Upper Verdigris Watershed, 193 Kan. 151, 392 P. 2d 914, where an easement was taken for the impounding, permanent storage and temporary detention of waters. In considering what use of the easement was acquired by the condemner this court held:
“In a condemnation proceeding instituted under the provisions of G. S. 1949, 24-438 et seq., and amendments thereto, the commissioners’ report becomes the evidence and the only evidence of the extent of the easement taken and the extent of its use.
“The extent of the easement taken in the condemnation proceeding and the extent of its use is to be determined as a matter of law from the language used in the commissioners’ report.” (Syl. ¶¶ 1, 2.)
For an earlier case to like effect, see Mercantile Co. v. O. H. & G. Rld. Co., 56 Kan. 174, 42 Pac. 712, in which the subject is discussed and prior decisions are cited.
The appraisers report in the present action is fully set out in the record. In the report, which is verified, the appraisers state they were appointed to appraise the lands taken and assess the damages done to owners, tenants, etc., by reason of the condemnation of “right-of-way easements for the construction, operation and maintenance of electric transmission line or lines and the construction thereof, as more particularly described in the petition filed with the Clerk of said Court, in, through, under and across the hereinafter designated tracts and parcels of land in Johnson County, Kansas, more particularly described in said petition, . . .” (Emphasis supplied.) The report thereafter lists each tract separately, together with the amount of damages awarded. The report also incorporates by reference the notice given landowners by mail and by publication.
At this point it is appropriate to mention that the order appointing appraisers shows their appointment to view and appraise the value of the easements taken through, under and across each of the tracts and to assess the damage done to the owners, etc. The notice given by the appraisers, both by publication and by individual mailing, likewise reflects their appointment to view, appraise and assess damages by reason of the condemnation of right of way easements to construct, operate and maintain electric transmission and distribution lines in, through, under and across the several described tracts of land.
After thoroughly considering the appraisers’ report, corroborated as it is by the order appointing the appraisers and by the appraisers’ notice of their appointment, we feel bound to conclude that the Company, through the 1956 condemnation proceedings, acquired an easement not only for the erection of overhead transmission lines, but for underground lines as well. There is no ambiguity as to the extent of the easement taken. It is explicitly described in each instrument as through, under and across the several properties.
We are well aware of plaintiffs’ argument that the sole and only purpose of the condemnation suit was to obtain an easement for the construction of overhead lines. In this connection, they point out two maps attached to the petition in that case, the first purporting to show the proposed route of “161 Kv Transmission Line”, and the second tracing the route across the Irwig property. We discern nothing in either map which suggests the design of or the manner in which the line or lines are to be constructed or which negatives in any way the condemner’s intention, openly expressed in its petition, to acquire an easement in, under, through and across the Irwig and other tracts. Moreover the maps, even had they revealed the nature, design and manner of the construction contemplated, were not made a part of the appraisers’ report. (Roberts v. Upper Verdigris Watershed, supra, p. 158.)
Spears also points to language found in the condemnation petition which refers to towers, poles, wires, anchors and appurtenances. The reference relates to the condemner’s rights of ingress and egress to the right of way to erect, construct, maintain, inspect, rebuild and repair its transmission and distribution lines, and to replace, renew and relocate steel towers, poles, wires, anchors and appurtenances thereto “upon, across, over, under or along said right-of-way.” (Emphasis supplied.) The petition does not define “appurtenances” nor does it attempt to limit what may be erected upon, across, over, under or along the right of way. The reference can not be said to negate the acquisition of sub-surface easement rights, even by implication, when the adverb “under” has been specifically included. Nor do provisions in the condemnation petition which relate to the cutting of trees upon the right of way, and prohibit the erection of permanent structures under transmission lines have the significance attributed to them by Spears; neither provision is inconsistent with the condemner’s obtaining the right to construct its lines both underground and overhead.
Thus we discover nothing, either in the appraisers’ report, which is the controlling document, or in other papers filed in the condemnation action, which is inconsistent with the right claimed by the Company to install underground power lines or conduits within the boundaries of its easement. The prevailing rule is that an easement or a servitude imposed upon another’s land extends to all uses directly or indirectly conducive to advance the purposes for which it was obtained. (26 Am. Jur. 2d, Eminent Domain, § 133, p. 794.) As it applies specifically to power lines, the rule is stated in 30 C. J. S., Eminent Domain, § 451, pp. 644, 645, in this fashion:
“Tower Lines. An easement obtained by condemnation of a right of way for a power line extends to all uses directly or incidentally conducive to the advancement of the purposes for which the right of way was acquired, including the right to erect, maintain, and service underground wires. . . .”
As the rule is applied to the taking of lands for railroad purposes and for highway purposes, we find it exemplified in the cases of Hennick v. Kansas City Southern Ry. Co., 364 Mo. 883, 269 S. W. 2d 646 and S. C. State Hwy. Dept. v. Butterfield et ux., 216 S. C. 463, 58 S. E. 2d 737, respectively.
In Aycock v. Houston Lighting & Power Co., 175 S. W. 2d 710 (Tex.), which was an eminent domain proceeding to condemn an easement for the construction of lines to transmit and distribute electric current, the Texas appellate court ruled that the trial court did not err in adjudging the power company, as part of its easement, had acquired the right to erect, maintain and service underground wires.
This court has recently said in Soden v. State Highway Commission, 192 Kan. 241, 387 P. 2d 182; Reinecker v. Board of Trustees, 198 Kan. 715, 426 P. 2d 44 and Shelor v. Western Power & Gas Co., 202 Kan. 428, 449 P. 2d 591, that in determining the extent of land needed for legitimate public purposes, it is proper to consider future demands which may reasonably be anticipated. These holdings mirror the generally accepted view that land condemned in the public interest is taken for such present and prospective uses as are consistent with the purpose for which the land is appropriated. (S. C. State Hwy. Dept. v. Butterfield et ux., supra; Hennick v. Kansas City Southern Ry. Co., supra.)
At the time it instituted proceedings to obtain a right of way for the transmission of electric power, the Company could reasonably expect that demand for its product would grow, requiring additional transmission lines and facilities. Recognition of this contingency is reflected in the condemnation petition where the Company alleged that its contemplated construction of the transmission line or lines was for the purpose of more adequately serving present and future needs of its Kansas customers. This was a legitimate consideration in acquiring an easement over, under and across the plaintiffs’ tract.
Having once concluded that the Company, through the 1956 eminent domain proceedings, acquired the right to use its easement for the construction of underground lines as well as for lines overhead, we are constrained also to hold the trial court did not err in rendering summary judgment in the Company’s favor. In this connection we have not failed to note the plaintiffs’ argument that they had not completed their discovery at the time summary judgment was entered. However, we consider their contention unavailing.
It is true we said in Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, that ordinarily motions for summary judgment should not be sustained so long as pretrial discovery remains unfinished. But we also said in Brick, and we have consistently held in other cases, that K. S. A. 60-256 authorizes the entry of summary judgment if the pleadings, depositions, answers to interrogatories and affidavits, if any, show there is no genuine issue as to any material fact. (Evans v. Lynch, 200 Kan. 331, 436 P. 2d 867; West v. Prairie State Bank, 200 Kan. 263, 436 P. 2d 402.)
For the most part our cases in this area have dealt with situations where depositions have been taken, interrogatories answered, affidavits filed, etc. But we have also recognized that summary judgment may be granted upon the pleadings alone, where only a question of law remains. This was the problem confronting us in In re Estate of Mullin, 201 Kan. 756, 443 P. 2d 331, where we said:
“The purpose of summary judgment is to make possible the expeditious disposition of cases in which there are no genuine issues of material fact upon which the outcome of the litigation depends. In determining whether a motion for summary judgment is well founded, the court may pierce formal allegations of fact in pleadings and determine from the entire case whether there are genuine issues of fact to be resolved at a formal trial. . . .” (p. 761.)
In the instant case we must appraise the propriety of entering summary judgment against Spears in the context of the pleadings, including the summary judgment motion which set out the entire eminent domain proceedings, together with the nature and character of the evidence which Spears proposed to obtain. The only pleadings of record are the plaintiffs’ petition, the defendant’s answer, and the Company’s motion for summary judgment. All three pleadings incorporate the petition in the condemnation action.
The plaintiffs now say they offered to make available to the court the plans for constructing the underground conduit as to size and as to location vis-á-vis their own sewer lines. Even were this offer made of record, the evidence would have been irrelevant to the issue before us on appeal. Neither are we persuaded that the nature and extent of the underground cables installed in 1958 would be of any moment on the limited issue formulated in plaintiffs’ brief conformably with their statement of points.
We are fully cognizant of the authorities which formulate the rule that the use made of an easement must not only be germane to the purposes for which the easement was acquired but that it must be a reasonable use, as well. (Aycock v. Houston Lighting & Power Co., supra; Jenkins v. Depoyster, 299 Ky. 500, 186 S. W. 2d 14.) Rut the reasonableness of the defendant’s use of the easement has not been made an issue in this lawsuit; the issue is confined to whether the Company’s use was an authorized use. Consequently, evidence as to whether the Company has used its authority to construct underground lines in a reasonable and justifiable fashion has no bearing on any material issue raised herein.
We emphasize: the issue we are called upon to decide is whether the Company acquired the right to install an underground line or conduit by virtue of the easement obtained in the condemnation action; that is, whether such use of its easement was an authorized use. The answer depends, as a matter of law, upon the extent of the easement and extent of the use shown by the language in the appraisers’ report. (Roberts v. Upper Verdigris Watershed, supra.) The extent of the use in this case, as clearly shown by the report, is to construct, operate and maintain electric transmission line or lines in, through, under and across the lands involved.
We are not to be understood as saying that a condemner may make an unlimited or unreasonable use of an easement it has acquired, or that he may burden a servitude imposed on a condemnee’s land in disregard of latter’s correlative rights. That kind of a situation does not confront us in this case. The issue framed by the pleadings was not the reasonableness of the Company’s use of the easement but whether the company was authorized to use the easement for laying underground lines. This has been the issue throughout the course of this action, not only in this court but before the trial court as well, and our decision is confined thereto.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from an order denying relief on petitioner’s motion filed pursuant to K. S. A. 60-1507. Petitioner’s motion attacks a sentence of life imprisonment imposed after petitioner entered a plea of guilty to first degree murder. On receipt of petitioner’s motion, the trial court appointed counsel and granted an evidentiary hearing.
Petitioner and five other inmates, while attempting to escape from .the Kansas State Penitentiary, shot and killed a guard. Each was charged with murder in the first degree. One of the defendants, Henry Parker, was tried by a jury and convicted of murder in the first degree on November 9, 1954. Six days later, the cases of the other five defendants were called for trial. Each defendant was represented by separate counsel, each entered a plea of guilty to murder in the first degree and, in due course, each was sentenced to life imprisonment in the Kansas State Penitentiary.
One of the defendants, Lawton Ray Rollins, has previously attacked his sentence by a motion under K. S. A. 60-1507. Rollins’ motion was denied by the trial court and the ruling affirmed by this court in Rollins v. State, 200 Kan. 695, 438 P. 2d 99.
Petitioner’s case was consolidated for trial with that of Rollins and the three other codefendants. The factual background pertinent to this appeal is identical with that recited in Rollins v. State, supra.
The five cases were called for trial on November 15, 1954, and the parties proceeded to select a jury. Before the selection of a jury had been completed, the trial court recessed for lunch. At the beginning of the afternoon session each defendant asked to change his plea to guilty of murder in the first degree.
Petitioner claims the evidence adduced prior to sentencing does not meet the requirements of K. S. A. 21-403. The identical question was presented in Rollins v. State, supra. As disclosed in Rollins, the five codefendants, present with respective counsel, joined in a common request of the court that the evidence received at the trial of codefendant Parker be considered by the court pursuant to 21-403. Thereafter, counsel for the respective defendants joined in a common argument requesting the court to sentence petitioner and his codefendants to fife imprisonment, rather than imposing a death penalty sentence. The result suggests counsel for defendants were successful in the trial tactics employed. Under the circumstances, the evidence received in the Parker trial was held to be sufficient to comply with the requirements of 21-403 in Rollins v. State, supra. We adhere to our decision therein.
Petitioner next claims that his confinment in the segregation and isolation building at the penitentiary, prior to his trial, amounted to such unusual and cruel punishment that his plea of guilty was coerced.
At the hearing on his motion the trial court heard petitioner’s testimony in this regard. Petitioner testified that he was confined in the segregation and isolation building without clothes, on short rations and was not allowed to write letters or get in touch with an attorney. Petitioner does not claim that he was subjected to any physical abuse by the prison personnel, nor does he claim inducement by any threats of harm or promises that he would be released from isolation if he changed his plea to guilty.
The trial court considered the voluntariness of petitioner s plea, first when it was changed to guilty, during his trial in 1954, and again at petitioner’s evidentiary hearing in these proceedings. Petitioner was interrogated by the court on both occasions and in each instance the plea was determined to be free and voluntary. We find nothing in the record that justifies disturbing the trial court’s determination.
In State v. Jenkins, 197 Kan. 651, 421 P. 2d 33, the defendant, an escapee of the penitentiary, was confined to the isolation unit on his return. Jenkins claimed that a statement made while he was confined in the “hole” was erroneously admitted in evidence during the trial because he had given it in order to be released from the “hole,” and thus it was coerced. The trial court found no evidence of threats, force, coercion or promises in the making of the statement by Jenkins. When presented with tire issue on appeal, we held:
“The fact alone that a defendant was closely confined in a custodial institution when his statement was made does not render it inadmissible.” (Syl. ¶ 2.)
We believe the underlying issue in Jenkins to be so analogous to that framed here that our decision therein is controlling.
In the instant case we have carefully examined the record of the allocution at defendant’s trial, as well as his testimony at the evidentiary hearing in these proceedings. While petitioner described discomforts suffered during confinement in the isolation unit, he did not testify himself or offer any other evidence that his change of plea was induced by any promises that his place of confinement would be changed. Actually, petitioner’s position in this regard is inconsistent with his course of action. Petitioner was appointed counsel more than two months prior to his trial. He had entered a plea of not guilty and the process of empaneling a jury had commenced. Only at this point did petitioner and his codefendants decide to withdraw their pleas and plead guilty. The chronology of events refutes the position adopted by petitioner.
Petitioner next claims that he at no time, in fact, entered a plea of guilty. While the record is unclear whether petitioner personally entered a plea, it conclusively shows that a plea was entered by his counsel and personally acquiesced in by petitioner in the allocution which followed.
A plea of guilty entered by counsel has the same force and effect as a plea personally entered by the accused, where the accused is present in court when counsel enters the plea and the circum stances are such as to show that the accused understands what is being done and acquiesces therein. (State v. Spain, 193 Kan. 1, 391 P. 2d 1001, and cases cited therein.)
In this case the record shows that after petitioner’s plea of guilty was entered an allocution was afforded him as follows:
“The Court: Now, Mr. Knight, is it? Mr. Knight, do you have any legal cause or reason to show why the judgment and sentence of the Court should not be pronounced against you at this time?
“Defendant: No, sir.”
Following the allocution sentence was imposed.
The purpose of an allocution is to afford the accused an opportunity to present any complaint he may have against the integrity of the proceedings. (Craig v. State, 198 Kan. 39, 422 P. 2d 955.)
In his motion, petitioner alleges he was not allowed to appeal his conviction due to cruel and unusual punishment following his plea and sentence. The point is neither briefed nor argued by petitioner on appeal. Although the record fails to show that petitioner was advised of his right to appeal by the court, petitioner does not claim that he was not so advised by his counsel, who represented him at each stage of his trial proceedings. Under the circumstances, it cannot be said the trial court erred in concluding there had been no denial or infringement of petitioner’s constitutional rights. (Ware v. State, 198 Kan. 523, 426 P. 2d 78.)
We have fully examined the record and find no error. The judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
The defendant, Alan Wade, was convicted by a. jury in the Sedgwick county district court of burglary in the first degree (K. S. A. 21-513) and attempted forcible rape (K. S. A. 21-101 and 21-424). After denying a motion for new trial, the district court sentenced appellant to concurrent sentences in the state reformatory. This appeal ensued.
The uncontroverted facts are that on July 1, 1967, at approximately 2:00 a. m., the complaining witness heard a noise at the rear room window of her home. Being unable to determine what it was, she obtained a gun, laid it at the foot of her bed, and went back to sleep. At approximately five o’clock the same morning she saw “this boy” enter her bedroom. At first she though it was her husband, but soon realized it was someone else when the intruder pushed a pair of scissors to her throat and attempted to have sexual intercourse with her. The victim’s baby was in the same bedroom. After a time the victim succeeded in routing her assailant, and as he started to run from the bedroom, he hit the door and fell to the floor. She picked up the gun and fired three shots, the bullets apparently failing to find their mark. The intruder departed the house through a window in the den adjacent to the bedroom, which, presumably, was the same window through which he had entered the house. During the entire episode a light burned in the den. The light, described as being red, and somewhat larger than a Christmas light, reflected off the walls, thus providing a “bright red” light in the bedroom for the baby’s benefit.
The victim testified that as the man left the bedroom she saw his “side profile and just as he turned to go through the den” in which the light was burning, she got at least a side view of his face. She further stated she “got a look at his side profile and his back profile as he went out the window.” She described the person as being a Negro youth with bushy hair and wearing dark pants and an ■orange, short-sleeve shirt.
Several weeks after the incident the victim looked at numerous photographs provided by the police on two separate occasions. On ■each occasion she identified one of the photographs as being that ■of her assailant. During this time she also viewed suspects in two lineups at the police station. The first lineup consisted of five ■colored males, none of whom she could identify. At the second lineup, also consisting of five colored males, she identified one of them (the defendant) as the person who had been in her home. After her lineup identification the police informed her the man ■she had picked out was the same person whose photograph she had previously identified. There was testimony that the police officers ■did not attempt to aid the victim in any way in making her identi fication at the lineup. At trial, the victim identified the defendant as the person who entered her home and attempted to attack her.
Defendant chose to present no evidence in his defense.
The principal point raised on appeal is the sufficiency of the evidence relating to the victim’s identification of defendant as the perpetrator of the crimes.
Although the lineup identification occurred subsequent to the pronouncement of the rule set forth in United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, and Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951, defendant makes no contention his constitutional rights were violated in respect thereto, nor does he contend the lineup was held under such circumstances as to amount to a denial of due process. (See, State v. Sanders, 202 Kan. 551, 451 P. 2d 148.) The complaining witness was subjected to extensive cross-examination concerning her pretrial identification of the defendant. No objection was interposed to her testimony on direct examination relating to such identification. The adequacy of the evidence on the point was a matter for the jury. The means or manner in which an extrajudicial identification is made relates to the weight and sufficiency of the evidence rather than to its admissibility. (State v. LeVier, 202 Kan. 544, 451 P. 2d 142; State v. Childs, 198 Kan. 4, 422 P. 2d 898; State v. Hill, 193 Kan. 512, 394 P. 2d 106.)
Defendant’s main argument is based on the contention the prosecutrix was never in a position to identify her assailant when the crimes were committed because she saw only his profile and the back of his head in a semidarkened room; consequently, the trial court erred in not sustaining the motion to discharge, and in submitting the case to the jury.
This court has long been committed to the rule that it is the function of the jury, not that of the appellate court, to weigh the evidence and pass upon the credibility of witnesses, and a verdict, if supported by substantial, competent evidence will not be disturbed on the grounds of insufficiency of evidence. (State v. Churning, 201 Kan. 784, 443 P. 2d 248; State v. Shaw, 195 Kan. 677, 408 P. 2d 650; State v. Clark, 194 Kan. 265, 398 P. 2d 327; State v. Osburn, 171 Kan. 330, 232 P. 2d 451.) Where the sufficiency of evidence is being reviewed, this court’s function is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (State v. Churning, supra; State v. Shaw, supra; State v. Ledbetter, 183 Kan. 302, 327 P. 2d 1039; State v. Hancock, 127 Kan. 510, 274 Pac. 209.) Our law recognizes the jury is the exclusive judge of all material questions of fact and is entitled to draw reasonable inferences from the evidence. (State v. Greenwood, 197 Kan. 676, 421 P. 2d 24.) If the evidence tends to disclose the offenses charged were committed, and the defendant committed them, the question is for the jury to decide, even though the evidence is weak. (State v. Townsend, 201 Kan. 122, 439 P. 2d 70; State v. Dill, 182 Kan. 174, 319 P. 2d 172.)
Involved in State v. Osburn, supra, was the identification of the defendant by a single eyewitness, and we stated:
“Neither can it be said, as appellant suggests, that the evidence is insufficient simply because the verdict with respect to the identity of an accused, is based upon the testimony of a single witness. . . .” (p. 332.)
Similarly, in State v. Whalen, 163 Kan. 8, 179 P. 2d 942, testimony of the victim, standing alone, was held to be sufficient to sustain the verdict. (Also, see, State v. Berry, 170 Kan. 174, 223 P. 2d 726; State v. Barger, 148 Kan. 590, 83 P. 2d 648; State v. Wright, 139 Kan. 14, 29 P. 2d 1099.)
A factually analogous case is State v. Herbert, 63 Kan. 516, 66 Pac. 235, where the offenses charged were burglary and attempted rape. Though the room was dark, the victim identified the defendant by voice, form, clothing, and movements. This court said:
“Considerable complaint is made of the identifying testimony given by the witnesses named. Miss Gilson testified, over objection, that the defendant was the man who made the assault. In view of her means of information, which have already been stated, the testimony was competent. She was subject to cross-examination as to her means of knowledge, and the weight to be given her testimony was for the jury. . . .” (p. 518.)
Defendant here raises no question of the admissibility of the prosecutrixs’ testimony. Under the conditions described, the victim’s testimony of identification was neither incredulous nor unreasonable. She was able to describe her assailant, his clothing, race, hair and age. She demonstrated no hesitancy or equivocation in positively identifying the defendant at trial, even under vigorous cross-examination. Defendant’s contention that the identification by the victim was insufficient because she was not in a position to clearly observe her assailant goes not to the admissibility of such testimony, but to the weight and credibility thereof, which was solely within the province of the jury to determine. (State v. Herbert, supra; People v. Ayala, 89 Ill. App. 2d 393, 233 N. E. 2d 80; Green v. State, 106 G. App. 485, 127 S. E. 2d 383; Commonwealth v. Bradford, 200 Pa. Super. 216, 188 A. 2d 809; People v. Johnson, 33 Cal. Rptr. 359; People v. Jones, 24 Ill. 2d 71, 179 N. E. 2d 620; 23 C. J. S., Criminal Law § 920.)
Additionally, we find the trial court gave an instruction to the effect that opinion evidence of the defendant’s identity, particularly when it depends upon impressions obtained in haste and excitement, should be treated with utmost caution. The propriety of such an instruction is fully discussed in Commonwealth v. Kloiber, 378 Pa. 412, 106 A. 2d 820. The giving of the instruction is not questioned, since it obviously was beneficial to the defense of inadequate identification.
We are compelled to conclude there was substantial evidence which warranted the jury’s finding that defendant was the perpetrator of the crimes.
Defendant also complains the trial court erred in failing to declare a mistrial when, after selection of a jury but before the opening statement, the assistant county attorney orally moved to dismiss a case against the defendant which had been consolidated with the present case for purposes of trial. Defendant’s attempt to equate the situation with that where we have held it improper to make reference in the opening statement to other similar offenses which would be inadmissible at trial (see, State v. Stephenson, 191 Kan. 424, 381 P. 2d 335) is untenable. In the first place, the prosecutor, in making his motion to dismiss, did not reveal to the jury the nature of the charges in the consolidated case. We find nothing in the proceedings prejudicial to the defendant’s trial. In fact, dismissal of the case operated to the benefit of the defendant rather than to his detriment. Moreover, defendant registered no objection, nor did he request a mistrial, at the time. Under all the circumstances, he is hardly in a position now to complain of the trial court’s failure to act on its own initiative.
As a final point defendant argues that the trial court erred in accepting a plea of guilty by an accused in another case in the presence of the panel of prospective jurors on the morning of defendant’s trial. The defendant was in no way involved in that case. In fact, the cases were completely unrelated. This was a matter which both the state and defense had full opportunity to explore on voir dire examination of the jurors when defendant’s case came on for trial. We agree with the trial judge’s conclusion when he considered the matter at the hearing on defendant’s motion for new trial — there could not possibly have been any prejudice against the defendant because of what the veniremen heard and witnessed in the proceedings.
For the reasons previously stated and discussed, the trial court did not err in overruling defendant’s motion for new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
The plaintiffs filed a claim for relief to recover damages to an aircraft alleged to have been caused by faulty tie-downs at the municipal airport operated by the city of El Dorado, Kansas. The trial court sustained motions to dismiss both the original petition and an amended petition for the reason each failed to state a claim against the defendant city upon which relief could be granted. Thereafter, the court refused to grant plaintiffs permission to file a second amended petition. The plaintiffs have appealed.
The trial court dismissed both the petition and the amended petition. Both pleadings were held defective because they failed to allege compliance with the provisions of K. S. A. 12-105.
K. S. A 12-105 in pertinent part provides:
“No action shall be maintained by any person or corporation against any city on account of injury to person or property unless the person or corporation injured shall within three (3) months thereafter and prior to the bringing of the suit file with the city clerk a written statement, giving the time and place of the happening of the accident or injury received and the circumstances relating thereto: . . .”
Plaintiffs’ petition followed the general form of notice pleading in a tort action. The original petition contained no allegation that the conditions of K. S. A. 12-105 had been performed.
When the amended petition was filed it contained one additional paragraph which alleged:
“5. That claim has been made against the defendant, which said claim has. neither been paid or denied.”
The plaintiffs first contend the provisions of this statute constitute-an affirmative defense, and compliance therewith need not be alleged in the petition. They further contend that the added paragraph in their amended petition is sufficient to allege compliance-with this statute. They argue the amended petition would relate back to the date of the original petition, thus they avoid the bar of' the statute of limitations.
Similar contentions were recently examined in James v. City of Wichita, 202 Kan. 222, 447 P. 2d 817. There the court said:
“In a long line of cases this court has held compliance with K. S. A. 12-105-is an indispensable element in a claim for relief against a city. In Cook v. Topeka, 75 Kan. 534, 90 Pac. 244, the effect of the statute on pleading a. claim for relief was considered and discussed. In subsequent cases this court consistently held the filing of the statutory statement of accident and injury was a condition precedent to maintenance of the action and must be pleaded’ and proved. (See Hibbs v. City of Wichita, 176 Kan. 529, 271 P. 2d 791.) Under our former practice which required fact pleading this condition precedent had to be pleaded and proved with particularity. (See Hibbs v. City of Wichita, supra, McGinnis v. City of Wichita, 180 Kan. 608, 306 P. 2d 127; Alexander v. City of Arkansas City, 193 Kan. 575, 396 P. 2d 311.)
“Compliance with the statute remains a condition to be met before a claim for relief against a city may be maintained. A party who fails to file the statutory statement is not entitled to relief.” (pp. 224, 225.)
We further said:
“. . . Our pleading statute requires a general averment that conditions precedent have been performed or have occurred. (K. S.A. 60-209 (c)) Under the concept of notice pleading a general averment is sufficient. It is no longer necessary to set forth with particularity all facts required to prove compliance.
“Performance of this condition precedent is a prerequisite to a valid claim for relief against the city. The plaintiff did not aver performance of the condition. Therefore the petition did not indicate the pleader was entitled to relief. The petition was defective.” (p.225.)
Compliance with K. S. A. 12-105 is a condition precedent to a claim for relief against a city on account of injuries to a person or property.
In James we also examined the provisions of K. S. A. 60-215 (c), covering the relation back of amendments, and we set forth some guidelines to govern when such amendments may be permitted without injustice. However, the amended petition in the present case was not sufficient to allege compliance with the statute and the question of whether the amended petition related back to the original petition need not be considered. The paragraph added to the amended petition merely stated a claim had been made against the defendant. Such statement cannot be considered as sufficient to allege performance of the statutory condition precedent, i. e. compliance with K. S. A. 12-105.
Since no reference to this specific statute was contained in the pleading we cannot presume the claim to which plaintiffs referred fulfilled the requirements of the statute. We note the statute requires a written statement. It must be filed with the city clerk within three months and must set forth definite information concerning the accident or injury. There is nothing in this record to indicate the statutory requirements were met before the action was filed.
A claim for relief against a city for damage to property which fails to aver generally that the conditions imposed by K. S. A. 12-105 have been complied with is defective and fails to state a claim upon which relief can be granted.
In holding the amended petition insufficient we are not retreating from what was said in James v. City of Wichita, supra. Under K. S. A. 60-209 (c) it is sufficient to aver generally that a condition precedent has been performed or has occurred. The amended petition in the present case did not aver generally that the statutory condition precedent imposed by K. S. A. 12-105 had been complied with. Therefore, both the petition and the amended petition were defective.
Plaintiffs next contend the trial court abused its discretion in denying their oral motion to file a second amended petition. The oral motion was made after the trial court had determined the amended petition failed to state a claim upon which relief could be granted and after the action had been dismissed.
K. S. A. 60-215 (a) provides that a party may amend his pleading once as a matter of course at any time before a responsive pleading is served. The plaintiffs had exercised this right. Permission to file a second amended petition had to be obtained by leave of court or by written consent. Leave of court or written consent of the adverse party was not obtained.
In Hoover Equipment Co. v. Smith, 198 Kan. 127, 422 P. 2d 914. this court said:
“. . . A trial court is given wide latitude and discretion in permitting or refusing amendments of pleading in the interests of justice. In the absence of a clear abuse of discretion the order of the trial court should be approved. (Citations omitted.)” (p. 133.)
This general rule was again recognized and applied in Trimble, Administrator v. Coleman Co., Inc., 200 Kan. 350, 437 P. 2d 219, where it was said leave to amend should be freely given when justice so requires. We are confronted with the question of whether the trial court under the facts of this case abused its judicial discretion by refusing to permit the second amended petition to be filed.
In order for appellants to show the trial court abused its discretion by refusing to permit an amended pleading to be filed they must make it appear affirmatively that such refusal results in manifest injustice. (Hoover Equipment Co. v. Smith, supra; Trimble, Administrator v. Coleman Co., Inc., supra; see also 1A Rarron and Holtzoff [Wright], Federal Practice and Procedure, §445, p. 722.)
In the present case, after two unsuccessful attempts to plead their claim plaintiffs sought permission by oral motion to file a third pleading. A copy of the proposed second amended petition was not tendered with the motion. The plaintiffs made absolutely no showing in the trial court that a proper claim had been filed under K. S. A. 12-105. They made no attempt to show a valid reason for their lack of diligence in pleading.
The rule requiring leave of court for amendment to pleading and providing that leave shall be freely given when justice so requires is not a mechanical absolute right. The circumstances and terms upon which such leave is to be freely given are committed to the informed judgment and discretion of the trial judge.
Lack of diligence may be sufficient reason to refuse permission to file an amended pleading. Where there has been lack of diligence in amending a pleading, the burden is on the pleader to show some justification for the oversight, inadvertence or neglect. Leave to amend may be denied unless the pleader shows some valid reason for his neglect and delay. (Freeman v. Continental Gin Company, [5 C. A. 1967] 381 F. 2d 459; 1A Barron and Holtzoff, supra, § 446, P- 731.)
It has been held a motion for leave to file a second amended complaint which was not accompanied by a copy of the proposed second amended complaint was properly denied when the pleader made no attempt to show just cause for his lack of diligence. (Kamsler v. H. A. Seinscheimer Co. of Cincinnati, Ohio, [7 C. A. 1965] 347 F. 2d 740.)
This court cannot say the trial judge abused judicial discretion in refusing to permit plaintiffs to file a third pleading. The plaintiffs have not made it affirmatively appear that the trial court’s refusal to permit such amended pleading results in manifest injustice.
We have examined the other contentions set forth in the appellants’ statement of points and it has not been made to appear the trial court committed prejudicial error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
The appellant, Hazel M. Johnson, has filed a motion for rehearing or modification of our decision in In re Estate of Johnson, 202 Kan. 684, 452 P. 2d 286, insofar as it relates to the ownership of the checking account in The Macksville State Bank. After careful consideration we have concluded that the motion for rehearing should be denied, but the decision must be modified.
As indicated in the majority opinion, we deem the language of the “Signature Card” portion of the instrument signed by Hazel and Charles to be uncertain and ambiguous, and resort must be had to parol evidence in an effort to ascertain the intention of the depositor at the time the account was created. After further study of the record, we are convinced the district court erroneously determined that parol evidence relating to the facts and circumstances existing prior to and contemporaneously with the execution of the instrument was inadmissible. As a result, the parties were not permitted to develop fully their respective positions by the introduction of extrinsic evidence. Accordingly, Syllabus f 9 and the last paragraph on page 697 of the majority opinion are deleted.
The district court’s judgment in respect to the checking account is reversed and the case is remanded for further proceedings in accordance with the views expressed herein.
It is so ordered. | [
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The opinion of the court was delivered by
O’Connor, J.:
Jack D. Johnson filed a petition in Reno county district court for writ of habeas corpus and release from imprisonment in the state reformatory as a result of revocation of his parole by the state board of probation and parole. The writ was duly issued, and after a hearing the court rendered judgment dissolving the writ and ordering the petitioner remanded to the custody of the respondent. From this judgment and the district court’s subsequent order denying his motion for new trial, Johnson has appealed.
The principal questions for our consideration center on the board’s denial of the petitioner’s request to have counsel presént at the revocation hearing, and the propriety of the district court’s determination that petitioner had failed to show the action of the board in revoking his parole was arbitrary and capricious.
Johnson was originally convicted in September 1964 of second degree burglary and grand larceny and sentenced to the reformatory. After being incarcerated pursuant to the sentence, he was placed on parole by the state board on August 16, 1966, and permitted to return to his home in Story City, Iowa.
In June 1967 Johnson was arrested on a parole violator warrant issued by the state board and returned to the reformatory. Shortly thereafter he was served a statement of charges alleging that he had violated the conditions of his parole in that (1) he failed to keep regularly employed, (2) he failed to cooperate with the parole officer’s efforts to assist him, and (3) he was found guilty by jury trial in Iowa of breaking and entering, although the verdict "was set aside on a legal technicality.” The statement of charges also recited that at the earliest practicable date the board would give Johnson a hearing on the charges and would consider all available information, inbluding any oral or written statements he desired to submit.
The revocation hearing was held July 25, 1967. Although Johnson had retained Mr. Dennis Smith as his counsel, the board denied Johnson’s request to have his attorney present at the hearing. By letter dated July 26, Mr. Smith was informed that after giving consideration to the case and “taking into account the information contained in your [Mr. Smith’s] letter of July 25, and attachments thereto,” the board had entered an order revoking Johnson’s parole.
In due course, Johnson, through his attorney, filed a habeas corpus petition alleging, inter alia, that he had at all times complied with the terms and conditions of his parole; that although he was arrested for breaking and entering in Story City, Iowa, the information was subsequently dismissed and he was discharged and exonerated of any implication in the crime; that the board in revoking his parole exceeded its statutory power and acted capriciously and in the absence of any information which would entitle it to revoke his parole; and that he was denied the presence of counsel at his revocation hearing, in violation of his constitutional rights. Attached to the petition were the statement of charges and the board’s letter to Mr. Smith, to which reference has already been made.
At the habeas hearing, the petitioner, his mother and girl friend testified in support of his allegations. The respondent offered no evidence. Subsequently, the district judge filed a lengthy memorandum opinion in which he concluded that the board’s refusal to permit retained counsel to be present at the revocation hearing was not a denial of due process of law, and that the petitioner had failed to sustain the burden of showing the action of the board in revoking his parole was arbitrary or capricious.
We shall first consider petitioner’s claim that denial of the presence of counsel was a violation of the constitutional requirement of due process of law.
The United States Supreme Court has made it clear that an accused’s Sixth Amendment right to the assistance of counsel not only applies to federal prosecutions but also is made obligatory upon the states by the Fourteenth Amendment. (Gideon v. Wainwight, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A. L. R. 2d 733; Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758; Pointer v. Texas, 380 U. S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065.) The right to counsel in felony cases has been held to exist not only at “critical” pretrial stages, such as custodial interrogations by law enforcement officers (Escobedo v. Illinois, supra; Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974. rehearing denied, 385 U. S. 890, 17 L. Ed. 2d 121, 87 S. Ct. 11) and out-of-court identifications of suspects at police lineups (United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926; Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951), but also at the trial itself (Gideon v. Wainwi'ight, supra). In addition, the accused’s right to counsel on appeal from a state court conviction was upheld in Swenson v. Bosler, 386 U. S. 258, 18 L. Ed. 2d 33, 87 S. Ct. 996, and Anders v. California, 386 U. S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, rehearing denied, 388 U. S. 924, 18 L. Ed. 2d 1377, 87 S. Ct. 2094.
In 1948 the high court concluded that the absence of counsel during sentencing after a plea of guilty, coupled with “assumptions concerning his criminal record which were materially untrue,” deprived the accused of due process. (Townsend v. Burke, 334 U. S. 736, 92 L. Ed. 1690, 68 S. Ct. 1252.) In one of its most recent pronouncements on the subject, Mempa v. Rhay, 389 U. S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254, the court held the right extended to the time of sentencing where sentencing had been deferred subject to probation. In reaching its decision, the court observed that Townsend illustrates the critical nature of sentencing in a criminal case and “might well be considered to support by itself a holding that the right to counsel applies at sentencing.”
We do not interpret or construe Mempa as extending the constitutional requirement of counsel to parole revocation hearings before the state board of probation and parole. The Mempa decision concerned a deferred-sentencing situation, whereas here, sentence had been imposed and the petitioner confined pursuant thereto. The adversary system had been terminated and the correctional and rehabilitative processes of the parole system substituted in its place. Thus, we are no longer concerned with the matter of sentencing or the procedures connected therewith. (Williams v. Patterson, 389 F. 2d 374 [10th Cir. 1968]; Eason v. Dickson, 390 F. 2d 585 [9th Cir. 1968]; Rose v. Haskins, 388 F. 2d 91 [6th Cir. 1968].) A hearing before the parole board is a nonadversary proceeding, and as described in Washington v. Hagan, 287 F. 2d 332 (3d Cir. 1960), cert. denied, 366 U. S. 970, 6 L. Ed. 2d 1259, 81 S. Ct. 1934:
“The period of contentious litigation is over when a man accused of crime is tried, defended, sentenced and, if he wishes, has gone through the process of appeal. Now the problem becomes one of an attempt at rehabilitation. The progress of that attempt must be measured, not by legal rules, but by the judgment of those who make it their professional business. So long as that judgment is fairly and honestly exercised we think there is no place for lawyer representation and lawyer opposition in the matter of revocation of parole.” (p. 334.)
Parole from confinement in a penal institution prior to serving all of an imposed sentence is a privilege, a matter of grace, and no constitutional right is involved. (Jones v. Rivers, 338 F. 2d 862 [4th Cir. 1964].) The courts generally have held there is no federally protected constitutional right to counsel at a parole revocation hearing, and that any such right depends entirely upon the existence of statutory provisions. (Dunn v. California Department of Corrections, 401 F. 2d 340 [9th Cir. 1968]; Williams v. Patterson, supra; Gonzales v. Patterson, 370 F. 2d 94 [10th Cir. 1966]; Lavendera v. Taylor, 234 F. Supp. 703, affirmed 347 F. 2d 989 [10th Cir. 1965]; Jones v. Rivers, supra; Hyser v. Reed, 318 F. 2d 225 [D. C. Cir. 1963], cert. denied, 375 U. S. 957 [1963]; Fleming v. Tate, 156 F. 2d 848 [D. C. Cir. 1946], Also, see Escoe v. Zerbst, 295 U. S. 490, 79 L. Ed. 1566, 55 S. Ct. 818.)
Petitioner’s right to the presence of counsel at his revocation hearing arises, if at all, from the provisions of K. S. A. 62-2226, et seq. The act authorizes the board of probation and parole to adopt such rules, not inconsistent with the statutes, as it deems proper or necessary with respect to parole eligibility, the conduct of parole hearings, and conditions to be imposed upon the parolee. (K. S. A. 62-2245.) Such rules appear to be exempt from publication in the Kansas Administrative Regulations by the revisor of statutes (K. S. A. 1965 Supp. 77-415 [4]). We, nevertheless, have obtained a copy of the rules and regulations which, we understand, have been promulgated by the board and became effective July 1, 1966.
K. S. A. 62-2250 requires that a parolee accused of violation of any of the conditions of his release be brought before the board for “a hearing on the violation charged under such rules and regulations as the board may adopt.” 45-1-7 (b) of the board’s regulations provides that a statement of charges of parole violation shall be delivered to the prisoner to permit him to prepare his defense before appearing at the violator hearing.
Before granting a parole in the first instance, the board must have the prisoner appear before it and interview him (K. S. A. 62-2245). Likewise, his appearance is guaranteed at the revocation hearing (K. S. A. 62-2250). While the board is empowered to issue subpoenas requiring the presence of witnesses (K. S. A. 62-2249), it is not required to hear statements or arguments by any person not connected with the correctional system (K. S. A. 62-2248). In fact, the latter statute explicitly says that all persons not connected with the correctional system presenting information or arguments to the board shall submit their statements in writing, and further, shall submit therewith an affidavit stating whether any fee has been paid or is to be paid for their services, and that the amount of any fee for their services in the case was not or is not to be determined on the basis of the granting or denial of parole. This statute, we believe, was intended to apply not only to the hearing when a parole is granted, but also to a revocation hearing.
Careful scrutiny of the foregoing statutes leads us to the conclusion the legislature did not contemplate that a parolee is entitled to have counsel present and appear with him as a matter of right at a revocation hearing. This is not to say that the prisoner is precluded from employing and being represented by counsel; but having done so, counsel’s arguments and statements in his client’s behalf must be submitted in writing for the board’s consideration, together with the affidavit required by K. S. A. 62-2248. Furthermore, our conclusion is unaffected by K. S. A. 62-2250, requiring “the prisoner be brought before the board for a hearing on the violation charged.” A similar statute affording the prisoner charged with parole violation the “opportunity to appear” was held not to embrace the right to assistance of counsel. (Washington v. Hagan, supra.) There, the petitioner did not have counsel, nor was he advised that he had the right to counsel. After emphasizing that it has been the practice for more than fifty years to allow a prisoner a hearing, but not representation by counsel, the court said:
“. . . We think the practice is right because this matter of whether a prisoner is a good risk for release on parole or has shown himself not to he a good risk, is a disciplinary matter which by its very nature should be left in hands of those charged with the responsibility for deciding the question. . . (p. 334.)
Under statutes similar to those of Kansas, the supreme court of New Mexico had before it the question of a parolee’s right to counsel at a revocation hearing in Robinson v. Cox, 77 N. M. 55, 419 P. 2d 253. The court’s conclusion is reflected in the following language:
“We reject the contention that a right to counsel at a revocation hearing springs from the due process requirements. In so doing, we must reject the argument that either the board’s rules or § 41-17-27, supra, are unconstitutional as thus construed. Escoe v. Zerbst, supra; Jones v. Rivers, supra . . . [NJeither due process nor the applicable statutes require that parolees be provided with appointed counsel or represented by employed counsel when they appear before the parole board in a revocation hearing. See 29 A. L. R. 2d 1074,1097.” (p. 59.)
We hold that the board’s refusal to permit petitioner’s counsel to be present at the revocation hearing was not a denial of due process, nor was the refusal a violation of any statutory enactment governing such proceedings.
Before taking up petitioner’s other points which relate to the merits of the district court’s decision, we should briefly mention respondent’s contention at oral argument that habeas corpus is an improper remedy for testing the action of the parole board.
Respondent urges that habeas lies only to “attack the validity of custody,” and here, even if petitioner’s allegations were found to be meritorious, he would still remain in “legal custody” under his original sentence, which is not being challenged. K. S. A. 60-1501 explicitly offers the aid of the Great Writ to any person “who is restrained from his liberty.” While it is true that a paroled prisoner is one conditionally released from actual custody, he remains in “legal custody” of the institution from which he is released, and constructively is a prisoner of the state. (K. S. A. 62-2245; Hunt v. Hand, 186 Kan. 670, 352 P. 2d 1; In re Tabor, 173 Kan. 686, 250 P. 2d 793. Also, see Baier v. State, 197 Kan. 602, 419 P. 2d 865.) Upon a parolee’s arrest and confinement as a parole violator, however, constructive custody changes to physical custody or actual imprisonment. Thus, if a prisoner is entitled to be restored to the status of a constructive prisoner of the state, he, in fact, is being unlawfully restrained of his liberty, and may resort to the remedy of habeas corpus. (Schooley v. Wilson, 150 Colo. 483, 374 P. 2d 353.) We are unable to accept respondent’s further argument that judicial review of a revocation order of the board of probation and parole must be by proceedings under K. S. A. 60-2101 (a) instead of by the habeas route. In our view, the appellate procedure for review of the acts of administrative officials or boards provided by that statute was never intended to cover actions of the parole board in revoking a parole. Because the very nature of the board’s action in revoking a parole involves the “liberty” of the prisoner, habeas is an appropriate remedy to review the board’s decision.
But the extent of judicial review with respect to a determination by the board that parole be revoked is extremely narrow and limited. Our statute (K. S. A. 62-2232) specifically provides the orders of the board “shall not be reviewable except as to compliance with the terms of this act or other applicable laws of this state.” This we interpret to mean that in a habeas proceeding the court may inquire into the question of whether the specific terms of the applicable statutes were complied with, and further, whether or not the board’s action in revoking a parole was arbitrary and capricious.
The board, in exercising its parole powers under the law, is vested with considerable discretion. In the first instance a prisoner may be granted parole only when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen under the supervision of the board. Indeed, there is, to some extent at least, a genuine identity of interest, if not purpose, in the prisoner’s desire to be released — the board’s policy being to grant release as soon as possible, consistent with public safety and the prisoner’s own welfare and rehabilitation. The relationship of the board and prisoner has been described as partaking of parens patriae. In a sense, the parole board in revoking parole occupies the role of parent withdrawing a privilege from an errant child, not as punishment but for misuse of the privilege. (See Hyser v. Reed, supra.)
A revocation hearing is not a trial in the traditional sense, nor is the board necessarily concerned with the commission of a criminal offense. As a matter of fact, a prisoner having been granted conditional freedom on parole, the primary question before the board is whether within its discretion the parolee is still a good parole risk. (Hendrickson v. Pennsylvania State Board of Parole, 409 Pa. 204, 185 A. 2d 581; Hock v. Hagan, 190 F. Supp. 749 [M. D. Pa. 1960].) Ry its very nature a revocation hearing does not envision strict observance of technical rules of law and procedure accorded to a judicial proceeding. Any relevant information, even though in the form of letters, reports of parole officers, and similar matter, which may aid the board in making its determination, may be considered. The board is presumed to have had before it information which warranted the order of revocation, and its determination of the matter is conclusive unless the prisoner can prove by a preponderance of the evidence the board’s action was arbitrary and capricious. That burden rests squarely on the prisoner, and if he fails to sustain the burden, the courts will not interfere with the board’s decision. (Freedman v. Looney, 210 F. 2d 56 [10th Cir. 1954]; Lavendera v. Taylor, supra; Teague v. Looney, 268 F. 2d 506 [10th Cir. 1959].)
Petitioner’s remaining contentions relate to the district court’s conclusion that he faded to sustain the burden of proving the board acted arbitrarily and capriciously. He points to the fact respondent offered no evidence to rebut his testimony and that of his two witnesses to the effect he had fully complied with the conditions of his parole. We need look only to his own testimony to show the weakness of his case. In describing the proceedings at the revocation hearing, petitioner testified the violation charges were read to him and that he told the board “for the most part the first two are false.” (Emphasis added.) In respect to the burglary offense, the most petitioner had to offer was the judge “just acquitted me of the charge and I was exonerated.” From the record, it appears petitioner never at any time contradicted the statement in the charges that he had been found guilty by a jury, although the verdict was later set aside. As previously indicated, at a revocation hearing the board is not concerned with the commission of a criminal offense in a prosecution sense. The mere fact that a parolee is arrested, charged, found guilty, but eventually exonerated, while enjoying the privilege of being at liberty on parole, may be strong indication that the parolee has lapsed in his ways to a sufficient degree to warrant the board’s determining he is no longer a good parole risk. At any rate, the burden was on the petitioner to prove the action of the board was arbitrary and capricious, and this the trial court found he had failed to establish.
The finding of the district court was, in effect, a negative finding, which an appellate court will seldom set aside, even though no refuting evidence was offered. The weight and value of the testimony of witnesses is to be assessed by the trial judge who saw them and observed their manner and demeanor on the stand. Although the trial court cannot arbitrarily and capriciously refuse to consider the testimony of a witness, it is not obliged to accept and give effect to any evidence which in its honest opinion is unreliable, even if such evidence is uncontradicted. (Collins v. Merrick, 202 Kan. 276, 448 P. 2d 1, and cases therein cited.)
Other contentions raised by the petitioner relating to alleged procedural infirmities in respect to the habeas corpus proceedings have also been examined and found to be devoid of merit.
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|
The opinion of the court was delivered by
O’Connor, J.:
These two consolidated cases mark the end of a marriage spanning over four decades. Case No. 45,377 is the original divorce action instituted by plaintiff J. Bernice Cool against defendant Howard R. Cool, each charging the other with extreme cruelty and gross neglect of duty. On June 21, 1967, the district court granted both parties a divorce, equally divided property valued at approximately $50,707.61, but refused to grant plaintiff alimony. After denial of plaintiff’s various posttrial motions, she perfected her appeal. Case No. 45,583 is merely an outgrowth of the divorce action in which plaintiff appeals from an order denying her motion to set aside the judgment on the ground of fraud, and will be discussed later in the opinion.
The parties were married December 10, 1921, and except for a short separation followed by a divorce and remarriage in 1939, lived together until plaintiff filed her petition on November 29, 1966. Two sons were born of the union. Both are now adults. One of them, following the death of his wife in 1956, moved back into the home of his parents with his young daughter, where they lived together for approximately nine years. Domestic strife was present throughout most of the marriage and finally culminated in these proceedings.
At the time of the divorce plaintiff was sixty-three years of age, had undergone two operations for cancer, and was unable to be gainfully employed. She received $36.80 per month from social security; and since the divorce, a small rental income from a converted garage located near the residence. Defendant was sixty-five years of age, was a blacksmith by trade, and operated his own shop where he also made loading chutes, fence panels, feed troughs and bunks for sale. He was receiving $83 per month in social security payments.
For purposes of trial, the court appointed appraisers to value various properties, including real estate accumulated by the parties during the marriage. The home and converted garage were appraised at $8,500. The rental unit, when utilized, brought in $60 per month, less utilities, which were paid by the landlord. The parties also owned property west of El Dorado on Highway 196, consisting of approximately seven acres on which the blacksmith shop, and a house trailer occupied by defendant since the separation, were located. This piece of real estate was valued at $37,500; the house trailer was appraised at $350; the building where the blacksmith shop was located at $250; shop equipment and supplies at $825; and two horses at $100. Several automobiles of rather nominal value were also included.
The trial court awarded plaintiff the residential real estate, including the rental unit; household goods valued at $500; a 1960 Chevrolet; and a savings and loan account of $2,611.63. Defendant was awarded the trailer home, blacksmith shop and equipment, horses, two automobiles — a 1956 Ford valued at $40, and a 1959 pickup — plus a savings and loan account in the amount of $3,031. The seven-acre tract on the highway was apportioned between the parties in such a manner that the realty and personalty set over to each was of the approximate value of $25,353.80.
After the court expressed serious reservation about awarding plaintiff any alimony because defendant was "apparently retired or in the process of retiring,” a separate hearing was ordered on that question alone, at which evidence was adduced by both sides. The testimony was sharply conflicting regarding the extent of defendant’s work and activity in the blacksmith shop. Income tax returns for the past several years were produced, and plaintiff indicated that they reflected only income received by defendant in the form of checks, and that he accounted for no cash received in the course of his business. Plaintiff insisted that from 1960 through 1965 defendant’s average annual income from the business was slightly in excess of $6,000; but it is not clear from the record whether this figure represented gross or net income. She did admit there had been a decrease in business over the years, and for that matter, the shop was closed during several periods.
On June 16, 1967, the court rendered a memorandum decision by letter, a part of which is as follows:
“The defendant is a man 65 years of age and is presently drawing $83 a month from Social Security; that the tax return filed by both parties to this action indicated a net income for the year of 1965 of $2,547.58, for his work as a Blacksmith. The year 1966 shows a gross income of $1,116.30, plus $225, which has failed to be reported as being received during the year of 1966; that is his income to date with the exception for the year of 1967, which is $116, as shown by the evidence submitted.
“It would appear to the Court that for the past two and a half years this man has not been making a lage amount of money in his Blacksmith work and that receipts from the same continue to decrease. The Court further observes that Mr. Cool appears to be a man that is beginning to loose his coordination and questions how long he can continue to be engaged in this type of work in the future. . . .”
The contents of the memorandum concerning the granting of a divorce, division of property, and alimony was reduced to a journal entry filed June 21, 1967. Thereafter, plaintiff filed motions for a new trial and to alter or amend the judgment. Evidence in support of the motions was introduced by plaintiff tending to show that defendant was continuing to operate the business as in the past. Defendant, on the other hand, stoutly contended he had curtailed his activities at the shop, particularly the shodding of horses, which in earlier times had been a substantial source of his income. The motions were overruled.
Plaintiff urges that she alone should have been granted the divorce and to that extent the decision was contrary to the evidence. We cannot agree. She raises no question concerning possible lack of corroboration of defendant’s alleged grievances against her. The essence of her argument, as we view it, is that we should reweigh the evidence and arrive at a conclusion different from that reached by the trial court. This, of course, overlooks our long-standing rule that the trial judge has the duty to determine the weight and credibility to be given to the testimony of the witnesses; and on appellate review, findings or a judgment will not be overturned for insufficiency of evidence where there is substantial, competent evidence to support them. (1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error §§506, 507.) Admittedly, plaintiff’s own testimony contradicts that of her husband in many respects; however, it is not the function of this court to weigh conflicting evidence or substitute its judgment for that of the experienced trial judge before whom the case was tried. (Haynes v. Haynes, 202 Kan. 83, 446 P. 2d 749; Saint v. Saint, 196 Kan. 330, 411 P. 2d 683; Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478; Preston v. Preston, 193 Kan. 379, 394 P. 2d 43.) Nothing of value would be added to the annals of law in this state by our detailing the evidence about the discordant marriage and the behavior of each party which made their con tinued relationship as husband and wife intolerable. There was substantial evidence which, if believed by the trial judge, supported his finding that each of the parties was at fault (Greene v. Greene, 201 Kan. 701, 443 P. 2d 263; Clugston v. Clugston, 197 Kan. 180, 415 P. 2d 226) and that defendant was entitled to a divorce from plaintiff on the grounds of extreme cruelty and gross neglect of duty. (See, Haynes v. Haynes, supra, and authorities therein cited.)
Likewise, we find no merit in plaintiff’s contention that the court erred in the division of property. Plaintiff’s principal quarrel is in respect to certain items of personalty which she contends were either undervalued or completely ignored by the court. The division of property made by the trial court in a divorce proceeding will not be set aside in the absence of a clear abuse of discretion. (Clugston v. Clugston, supra; Zeller v. Zeller, supra; Preston v. Preston, supra.) Here, the court, with the parties’ consent, sought the aid of appraisers in determining the values of the properties. Plaintiff offered no evidence concerning the value of certain items about which she now complains. Further, at the posttrial hearings there appeared to be some question about whether defendant actually owned several articles of personalty located on the premises of the blacksmith shop. The experienced trial judge is in a much better position than this court to determine these matters. After carefully examining the lengthy, but confusing, record, we have concluded that plaintiff has failed to produce anything of substance that, in our opinion, would warrant the setting aside of the court’s order dividing the property.
Finally, plaintiff complains bitterly because the court failed to award her any alimony. Again we are faced with our fixed rule that in matters concerning the awarding of alimony to a party in a divorce action, the court is vested with considerable judicial discretion, and its order will not be set aside or vacated in the absence of a clear showing of an abuse of that discretion. (Moran v. Moran, 196 Kan. 380, 411 P. 2d 677; Saint v. Saint, supra; Zeller v. Zeller, supra.) There is no fixed rule for determining what proportion of a husband’s estate should be allowed as alimony. The statute, K. S. A. [now 1968 Supp.] 60-1610 (c), merely requires that the allowance be “fair, just and equitable,” and the amount determined in the light of circumstances which exist in each case. (Clugston v. Clugston, supra; Preston v. Preston, supra.) No longer is it mandatory, as it was under G. S. 1949, 60-1511, that alimony be allowed to a wife when she is granted a divorce for the husband’s fault. In Moran v. Moran, supra, we said:
“. . . A plain reading of the statue [60-1610 (c)] indicates that its terms are to be invoiced when one party’s needs and the other party’s ability to pay are such that support should be ordered. The trial court is possessed of considerable judicial discretion in making an award of alimony which is fair, just and equitable under all the circumstances, and absent manifest abuse thereof, its judgment will not be disturbed on appeal. . . .” (p.386.)
We have made clear the many factors that may be considered in determining what amount of alimony, if any, should be ordered, such as the ages of the parties, duration of the marriage, the property owned by the parties, their respective and future earning capacities; and the question of fault may also be taken into account. (Saint v. Saint, supra; Zeller v. Zeller, supra.)
We find throughout these proceedings frequent references by the trial judge to the ages of the parties and his misgivings about the ability of the defendant to pay alimony to his wife. For want of better evidence, we must take the court’s determination of the husband’s annual income from the operation of the blacksmith shop, as reflected from income tax returns, which are not included in the record before us. There was testimony that there had been a decline in defendant’s business and, in particular, his activity in shodding horses. Evidence relating to defendant’s physical condition disclosed he had had his driver’s license revoked because of epilepsy, for which he was taking medicine. He stated his doctor told him not to do heavy work; that he had quit horseshoeing about a year and a half ago because he was physically unable to do so; and he had not had his business open during the months of January and February 1967. Also, there was a statement from his doctor that he had a “moderate amount of emotional stress.” Plaintiff made no attempt by medical or expert testimony to refute any of defendant’s evidence that he was “slowing down.” She and her son merely stated he was, in effect, carrying on business as usual. The fact remains that defendant was reaching what would be considered retirement age, and common sense would indicate a person’s stamina and ability to work would be on the decline. A matter not to be overlooked is that plaintiff was awarded property valued at approximately $25,000, including a part of the highway real estate, which, because of its location, was subject to appreciation in value. In addition, she will receive the rental income from the converted garage. These factors, as well as many others, including the finding that the parties were equally at fault, undoubtedly were taken into account by the court.
Under all the circumstances, whether we would have made the same determination as the trial judge is irrelevant. Nevertheless, we are not disposed to hold that the court exceeded the bounds of its judicial discretion in denying plaintiff any alimony.
The sequel to the divorce action is found in case No. 45,583, wherein plaintiff, pursuant to K. S. A. 60-260 (b), filed a motion on June 17, 1968, to set aside the earlier judgment, in which she was denied alimony, on the ground of fraud because of alleged perjury committed by defendant. Specifically, she alleged defendant failed to account for his income for the years 1966 and 1967, and that instead of retiring from business and being unable to work, he had continued his business and “continues to shoe horses regularly.” After a hearing on the motion July 1, 1968, at which plaintiff offered evidence by several witnesses, the motion was denied.
Under our former statute (G. S. 1949, 60-3007) the giving of false testimony, standing alone and unaccompanied by other acts or conduct of an extrinsic or collateral nature, constituted intrinsic fraud and ordinarily afforded no ground for equitable relief (e. g., Mathey v. Mathey, 179 Kan. 284, 294 P. 2d 202; Plaster Co. v. Blue Rapids Township, 81 Kan. 731, 106 Pac. 1079). K. S. A. 60-260 (b), however, follows the federal rule in that it abolishes the troublesome distinction between intrinsic and extrinsic fraud, so that now a judgment may be attacked within one year on the ground of fraud, whether the fraud is denominated intrinsic or extrinsic. (Gard, Kansas Code of Civil Procedure § 60-260 [&].)
The burden of proving fraud or misrepresentation in obtaining a judgment is on the movant; fraud is never presumed but must ordinarily be proven by clear and convincing evidence. In determining whether the burden has been met, it becomes the duty of the trial court to weigh the evidence and determine the credibility of the witnesses. (Donaldson v. Donaldson, 199 Kan. 469, 430 P. 2d 210.) In commenting on the federal rule, the New Jersey supreme court, in Shammas v. Shammas, 9 N. J. 321, 88 A. 2d 204, speaking through Judge (now Justice) Brennan, said:
“. . . [W]e hold that relief for fraud upon the court may be allowed under our rule whether the fraud charged is denominated intrinsic or extrinsic. The notion that repeated retrials of cases may be expected to follow the setting aside of judgments rendered on false testimony will not withstand critical analysis. . . . And, in any event, a court may not set aside a final judgment merely because some testimony is perjured. All perjury is an affront to the dignity of the court and to the integrity of the judicial process, but the law is not without other effective means to punish the perpetrator of the crime. . . . Prejured testimony that warrants disturbance of a final judgment must be shown by clear, convincing and satisfactory evidence to have been, not false merely, but to have been willfully and purposely falsely given, and to have been material to the issue tried and not merely cumulative but probably to have controlled the result. Further, a party seeking to be relieved from the judgment must show that the fact of the falsity of the testimony could not have been discovered by reasonable diligence in time to offset it at the trial or that for other good reason the failure to use diligence is in all circumstances not a bar to relief . . . Clearly, - the necessity to satisfy these tests before the judgment may be disturbed is itself a deterrent to repeated litigation of the same factual issues. . . .” (pp. 329, 330.) (Emphasis added.)
(See, 3 Barron and Holtzoff, Federal Practice and Procedure § 1326.)
In an effort to sustain her claim of fraud, plaintiff, by her evidence, sought to establish that because defendant continued to operate his blacksmith shop after the separation and divorce, he perjured himself by testifying in the various proceedings in divorce that he was not going to be able to run his business and “was retiring” because of health and other reasons. While it is true there was some evidence that defendant continued to work and carry on his business much as he had before, there was also evidence that his business had declined. For example, his activity in shodding horses was described by Mr. Poe, one of his clients, “I have another horseshoer that shoes the rougher horses . . . [H]e [defendant] told me he quit and it takes a little begging for him to do it occasionally.”
We are confronted here with what is, in effect, a negative finding by the trial court which normally will not be set aside on appellate review. (In re Estate of Countryman, 203 Kan. 731, 457 P. 2d 53; Collins v. Merrick, 202 Kan. 276, 448 P. 2d 1.) After examining the record and the evidence which is too voluminous to narrate, we are of the opinion the trial court properly denied the motion for the reason plaintiff failed to sustain the burden of proof by clear and convincing evidence, and thus warrant the relief sought.
The judgments of the lower court in both cases are affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the petitioner in a proceeding instituted pursuant to K. S. A. 60-1507. The trial court made findings of fact and conclusions of law denying the petitioner relief.
The three points raised by the petitioner basically constitute trial errors, but in view of the petitioner s contentions have constitutional implications.
The petitioner in his motion relies only upon the transcript of the criminal proceedings resulting in his conviction and sentence to sustain his charges. Throughout these 1507 proceedings the petitioner was represented by court-appointed counsel.
The petitioner, Kenneth Elton Peterson (appellant), is presently before this court on appeal for his third time. His first appearance was in Peterson v. State, 198 Kan. 26, 422 P. 2d 567. This was a proceeding pursuant to K. S. A. 60-1507 seeking post conviction relief from a judgment and sentence entered pursuant to a plea of guilty to robbery in the first degree committed in October, 1959. The points there raised by the petitioner were considered and relief denied.
In December, 1963, the petitioner was tried before a jury on charges of first degree burglary and forcible rape. He was found guilty and sentenced under the habitual criminal act to serve not less than twenty years nor more than forty-two years on the burglary charge, and not less than ten years nor more than forty-two years on the forcible rape charge, the sentences to run consecutively. (This is the conviction and sentence presently under attack.)
In this criminal proceeding the petitioner was represented by retained counsel of his own choosing, and after a motion for a new trial was denied, notice of appeal to the Supreme Court was filed, but his retained counsel was later permitted to withdraw under Rule No. 110 of this court (197 Kan. lxxi), and his appeal was never perfected.
Thereafter the petitioner moved to vacate the judgment and sentence pro se under the provisions of 60-1507, supra.
The trial court denied relief without giving the petitioner an evidentiary hearing, and on appeal this court remanded the case to the lower court with directions to dismiss. (Peterson v. State, 200 Kan. 18, 434 P. 2d 542, cert. denied 390 U. S. 1033, 20 L. Ed. 2d 291, 88 S. Ct. 1429.)
The court there held the petitioner was not entitled to challenge the validity of a sentence by a motion filed pursuant to 60-1507 where, notwithstanding an adjudication finding the sentence void, he would still be confined under another sentence, citing Rule No. 121 (c) (1) (2), (197 Kan. lxxv) and cases adhering thereto.
The McNally doctrine (McNally v. Hill, Warden, 293 U. S. 131, 79 L. Ed. 238, 55 S. Ct. 24), pursuant to which Rule No. 121 (c) (2) of this court was originally promulgated, was subsequently overruled by the United States Supreme Court in Peyton v. Rowe, 391 U. S. 54, 20 L. Ed. 2d 426, 88 S. Ct. 1549, on May 20, 1968. Thereafter this court amended Rule No. 121 (c) to delete subsection (2) as it then appeared, effective June 19, 1968.
Thereafter the petitioner filed a writ of habeas corpus pro se in this court. On the 19th day of June, 1968, the write was denied but leave was granted the petitioner to refile his motion to vacate the sentence in the trial court in Case No. 44,370 ( 200 Kan. 18), pursuant to 60-1507, supra.
In accordance therewith the petitioner filed the motion presently under consideration in the sentencing court, stating the three points upon which he relies for relief as follows:
“1. The Court committed error in allowing the prosecution to invoke the Habitual Criminal Act, K. S. A. 21-107a, in open court and in the presence of the jury.
“2. The Court erred in allowing the prosecution, over the objection of defense counsel, to amend and endorse additional witnesses on the day of trial, for the sole purpose of introducing evidence of a prior criminal act unrelated in time and circumstances.
“3. The Court erred when the presiding judge absented himself from the court and the judicial district prior to the completion of the case and the rendition of the verdict, and in allowing a substitute judge from another division to receive the verdict.”
These points challenge the criminal proceeding wherein the petitioner was convicted of burglary and forcible rape in December, 1963.
Inasmuch as the petitioner has never had a review of trial errors as a result of such conviction, we shall consider the points enumerated. (See Rule No. 121 [c].)
The appellant in his first point does not challenge the validity of the habitual criminal act, only the procedure employed by the prosecuting attorney invoking the statute. The purpose of K. S. A. 21-107a is not to assess the guilt or innocence of one charged with crime, but to enhance the punishment of criminal offenders found guilty and shown to have a record of prior crimes.
The appellant contends the prosecuting attorney, prior to making his opening statements, notified the petitioner in the presence of the jury that in the event of conviction he would ask to have the habitual criminal act invoked. On this point the record discloses the following:
“If the Court please, before making my opening statement, the State would like to invoke the habitual criminal act in the event this defendant is convicted. I wish to, at this time, advise the defendant of that fact.
“The Court: All right, thank you.”
At that time defense counsel made no objection to the statement of the prosecuting attorney, and the court permitted the statement to go on the record without comment.
It is the appellant’s contention that since this statement appeared in the transcript immediately after the voir dire examination of the jury, and prior to the prosecuting attorney making his opening statement, with no indication that the statement was made out of the presence of the jury, it must be assumed from the transcript the statement was made in the presence of the jury.
On this point the trial court found:
“1. There is no evidence or indication that the statement made by the prosecuting attorney relative to the Habitual Criminal Act was made in the presence of the jury.
“2. Since the transcript in this case does not indicate that the prosecuting attorney’s remarks relative to the Habitual Criminal Act were made in the presence of or outside the presence of the jury, petitioner cannot conclude that they were made in the presence of the jury.
“3. If the statement of the prosecuting attorney relative to the Habitual Criminal Act was made in the presence of the jury, defense counsel made no comment or objection to the statement nor was any motion for a mistrial made at that time.”
Counsel presently appearing for the petitioner, both in the sentencing court and on appeal to this court, did not represent the petitioner at the criminal proceeding, and the assistant county attorney of Sedgwick County who prosecuted the case did not present the state’s case on appeal. Counsel, therefore, were required to rely strictly upon the transcript. The trial judge, however, presided over the proceeding in the criminal action and later heard the petitioner’s motion. He is in the best position to determine the facts.
The petitioner in his motion cites only the page numbers of the transcript to support his charge on this point.
The petitioner relies upon Ginsberg v. United States, 257 F. 2d 950, 955 (5th Cir. 1958), for the proposition that the error would have been magnified in its influence on the jury by an objection or motion for mistrial made by counsel for the petitioner at the time the prosecuting attorney made this remark.
This argument, however, does not account for the fact the petitioner failed to raise the point on his motion for a new trial at a time when he was represented by retained counsel. The point was first raised by the petitioner in a 1507 proceeding more than three years after the trial.
If the remarks made by the prosecuting attorney were prejudicial to the appellant under the circumstances presented by this record, the petitioner has failed to make it affirmatively appear.
It is just as logical to assume from the transcript counsel for the petitioner and the state approached the bench, and made the statement in question out of the hearing of the jury. Furthermore, a study of the record reveals the petitioner had no plan to conceal from the jury his prior criminal activity. On the contrary, the petitioner took the witness stand and placed before the jury on direct examination all of his past criminal activities, including burglary committed as a juvenile. He informed the jury at the time of trial he was on parole for robbing an elderly lady.
In his second point the petitioner contends the trial court erred in permitting the state to endorse the names of additional witnesses on the information on the day of trial, over objection, for the purpose of introducing evidence of a prior criminal act unrelated in time and circumstances.
Upon leave of the court the witnesses endorsed by the state were officers of the Wichita police department and four other individuals who were present when the petitioner was apprehended by the Wichita police department as an alleged “peeping tom.” The charges on this incident were pending in a lower court at the time the petitioner was tried, and counsel then retained by the petitioner to represent him in these criminal proceedings also represented him in the “peeping tom” matter.
The testimony of these witnesses was presented during the state’s case in chief over the objection of defense counsel. The testimony of these witnesses could not have been a surprise to the petitioner’s then retained counsel.
In his brief counsel for the petitioner shifts his argument to the nature of the testimony of these witnesses, rather than confining his argument to the point raised on appeal — the alleged abuse of discretion of the trial judge in permitting the endorsements.
Counsel for the state in presenting the matter to the trial court, upon the state’s motion to endorse the names of these witnesses on the information, said he had only learned of the existence of these witnesses the day prior to the trial and thereupon filed his motion. Under the circumstances, the trial court permitted the endorsements.
This court has held time and again that the endorsement of additional names of witnesses on the information, even during the trial, rests in the sound discretion of the trial court, and material prejudice in the ruling must clearly be shown before it constitutes reversible error. (State v. Lopez, 182 Kan. 46, 318 P. 2d 662, and cases cited therein.)
This case was tried in December, 1963, prior to the effective date of the new code of civil procedure, and K. S. A. 60-455 was not then in force.
Under the circumstances shown by the record herein, we cannot say the petitioner was materially prejudiced by the decision of the trial court permitting the endorsement of additional witnesses by the state on the information.
Was the petitioner prejudiced by the substitution of another judge to receive the verdict?
At the close of the evidence and after the case had been argued and submitted to the jury, before a verdict was returned, the presiding judge absented himself from the court. Judge Howard Kline of division No. 2 of the district court of Sedgwick County, Kansas, without agreement or stipulation of counsel, received the verdict of the jury. Judge B. Mack Bryant was present throughout the entire case, with the exception of the rendition of the verdict, which was received by Judge Howard Kline. When the jury returned to the court room Judge Kline addressed the jury as follows:
“Members of the jury, you are wondering why I am sitting here. I am Judge Kline. Judge Bryant had to leave to go up to Manhattan to pick up his daughter who is getting home this evening from school. He had to drive up there. He didn’t want his wife driving in this weather by herself, so I told him I would accept the verdict. Mr. Foreman, have you arrived at a verdict?”
No objection or comment was made by defense counsel and the jury’s verdict of guilty was accepted by the court. The question was not raised in the petitioner s motion for a new trial.
In State v. Wood, 118 Kan. 58, 233 Pac. 1029, the trial judge left the court room after instructing the jury and turned the trial, during the argument, over to the other judge of that district. The court there held where the defendant in a felony prosecution consents thereto the irregularity is not reversible error.
An extended discussion was undertaken by Justice Burch in State v. Keehn, 85 Kan. 765, 118 Pac. 851. There, after the jury had retired to deliberate, in open court the defendant and his counsel agreed with the state that the judge of the court might return to his home in Troy, Kansas, and in the event the jury reached a verdict before his return, the verdict could be received by a lawyer residing in Seneca, Kansas. The verdict was returned in the absence of the judge and was received by the designated lawyer. On request the jury was polled and each juror responded that the verdict was his verdict. No objection was made to the verdict or the proceedings by the defendant or his counsel; The argument of the defendant in that case is similar to the petitioner’s argument presented here.
The court there recognized cases in the jurisdictions of this country were divided on the subject (See annotation in 83 A. L. R. 2d 1032 entitled “Substitution of judge in criminal case,” Subsection 2 [e] — After retirement of jury; reception of verdict), but held, concluding the better rule to be, that unless there has been some prejudice to the substantial rights of a defendant, a verdict should not be set aside because of a mere irregularity amounting to a technical defect. (See, K. S. A. 62-1718.)
As in Keehn this case is one in which the presence of the judge at a proceeding involved no judicial action. The conduct of the petitioner and his counsel in the criminal proceeding was equivalent to a waiver of the presence of the judge. We have no hesitation in holding that, absent objection by the defendant in a criminal proceeding, his waiver of the presence of the judge under the circumstances here presented is lawful, and that the substantial rights of the defendant were in fact observed as fully as if the verdict had been returned in open court with the judge who heard the case presiding.
After carefully reviewing the record presented by petitioner on appeal, we hold the petitioner has failed to sustain the burden of showing he was prejudiced in any of the particulars asserted, and the trial court did not err in denying him relief.
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The opinion of the court was delivered by
Valentine, J.:
S. R. Greenwood executed a negotiable promissory note to William A. Buchanan. Buchanan indorsed the same merely for the accommodation of Green wood, and Greenwood then received the original and only-consideration for the note from John W. Braley, who was the first and only holder of the note for value. The note was not paid when it became due, and no notice of its dishonor was given to Buchanan. Was Buchanan discharged from all liability on said note because of such failure to give him notice? We think he was discharged. Notice of non-payment of a negotiable promissory note must be given tó an accommodation indorser as well as to any other indorser, or he will be discharged from all liability on such note. The case of Bradford v. Pauly, 18 Kas. 216, is almost precisely in point. See, also, the case of Doolittle v. Ferry, 20 Kas. 230.
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.:
The judgment sought to be reversed in this ease is for just $1.20, besides costs, and was rendered on a claim for damages for the failure to deliver just 6^-bushels of corn. James H. McGuire was the plaintiff below and James C. Lawrence was the defendant below. The judgment was rendered in favor of the plaintiff and against the defend-' ant, on the following instrument in wilting, to wit:
“ Osborne City, April 7, 1876.
“Due James H. McGuire one hundred bushels corn, .to be delivered at my house in Corinth, Kansas, on demand.
“J. C. Lawrence.”
The one hundred bushels of corn was all paid for at the time this contract was made, the amount of the purchase money being $20. Afterward, but at different times and in different amounts, the defendant delivered to the plaintiff in the aggregate 93-]^- bushels of said corn, and thereafter failed and refused to deliver the remainder. At the last time, however, at which the plaintiff received .corn on the contract, the defendant requested the plaintiff to take all the corn that the defendant owed him, but the plaintiff did not and could not do so, on account of an insufficiency in his means of transportation. Afterward the defendant refused to deliver- to the plaintiff the remainder of the corn, and the plaintiff then commenced this action for the resulting damages. The action was commenced before a justice of the peace. In the justice’s court the defendant offered to allow judgment to be rendered against him for $1.25, but the offer was not in writing, and it was upon the condition that the plaintiff should pay all costs. The plaintiff of course refused to accept the offer. (Justice’s Code, §117, Gen. Stat. 799.) And it appears from defendant’s (plaintiff in error) counsel’s brief that said offer was afterward withdrawn. Afterward the case was tried in the district court before the court and a jury, in which court the verdict and judgment were rendered in favor of the plaintiff and against the defendant for $1.20. The jury found a general verdict, and also made special findings. The defendant seems to be dissatisfied with the judgment, and now, as plaintiff in error, brings the case to this court for review.
There is nothing in this case to commend it to more than the ordinary attention, diligence and toil usually bestowed upon cases by appellate courts. Substantial justice was done in the court below, and no material error was committed. Besides, 'no great interests are involved in the case, no great question of either law or of fact is presented by the record, nor is this one of a class of cases involving the same question or questions, all of which might be determined by a single adjudication. It is in fact a single, isolated and diminutive contest over only a few cents. It is a trifling case, in whatever aspect we may view it. And even counsel for plaintiff in error must also think that it is a trifling case, for he has failed to refer us to the pages of the record of the proceedings of the court below, as required by rule 2 of the supreme court rules. (13 Kas. 5; second page of the cover of the printed docket, sent to counsel for the last three terms of this court.)
It is claimed that the court below erred in refusing to permit the defendant below to answer the following question, to wit: “State if at the time above mentioned (November) you and plaintiff had an understanding as to the time plaintiff would come for corn, and if so, what was it?” The word “November” was not in the original question, but as the counsel for plaintiff in error has inserted it in his brief, we suppose that November was the time intended. But what ever time was intended is immaterial, for there is no claim that the parties ever, upon any sufficient consideration, made any contract different from the one made April 7th, 1876. But suppose that the plaintiff and defendant did agree, in November, upon some particular time-for the delivery of the corn, still the defendant afterward refused absolutely and unconditionally to deliver said bushels of the corn.
We shall not discuss in detail the other questions. raised by plaintiff in error, but will merely say that -we think his points under the facts of this case are all untenable.
The judgment of the court below will be affirmed. '
All the Justices concurring; | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action of injunction to restrain the sale by defendant, as sheriff of Davis county, of eighty acres claimed by the plaintiff as her homestead. 1 There was a general finding and judgment in favor of defendant, and plaintiff alleges error. The petition to restrain the sale was filed May 28th, 1877, and the trial had November 30th, 1877. The judgment upon which the execution was issued was rendered in 1873.' One execution was issued February 5,1877, and another, April 23d, 1877. Both were levied upon the land, and under the latter the sale was about to be made. It appears that the land was purchased by plaintiff November 13th, 1876, and that there was a small .house upon it, yet up to the time of the trial, more than a year after the purchase, she had failed to move upon the place or occupy it as a residence. “Occupied as a residence by the family of the owner” is the language of the constitution defining the homestead exemption. We are aware that occupancy is not always possible at the instant of purchase, and that, as we have heretofore said, a reasonable time is allowable in which to prepare for and complete the removal to and occupation of the intended homestead. But the purchase must be for the purpose and with the intent of present and not simply of future use as a residence. A party may not have two homesteads. If he occupies one dwelling as a residence, and intends to continue such occupation for the present, a purchase of another residence does not invest that with the character of a homestead simply because of an intent at some future and more convenient time to make it his home. And this is true whether the present residence is owned or leased. We do not mean that a party occupying a residence under a lease must of necessity wait until the exact instant of the termination of that lease before making arrangements for his future home. The law favors homesteads; and arrangements made at about the time of the termination of such lease - or occupation, and with a view. thereto, are, for the purposes of a homestead question, considered as made cotemporaneous with such termination —but with this reasonable limitation: a party wbo has one home cannot impart to another residence which he may purchase the character of a homestead, and thereby secure its exemption from judicial process by the mere intent at some future time to occupy it as a residence of himself and family. Now in the case at bar, the plaintiff was not a witness, and only from the testimony of her husband do we know what her intent in the matter was. He says she purchased it for a homestead; that she did not occupy it at once, because the building then .on the premises was too small and unsuitable, and because of her health; and that upon the purchase he commenced cultivating the ground and improving the premises, and only stopped when the levy was made, and because of this lawsuit. There were no special findings of fact, but only a general finding for defendant. We are not therefore advised upon what particular ground the district court found for defendant — whether because it discredited the witness, or because it regarded the delay unreasonable, or the excuse for stopping work insufficient, or because it was not satisfied that the purchase was made with the intent of present occupation. It is needless therefore to notice in detail the testimony. It is enough to say that, in view of the considerations above named, it does not appear to us that this court can hold that the district court erred, or that the character of a homestead had attached to the premises at the time of the levy.
The judgment wdll therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Plaintiff commenced an action in the district court of Linn county against the defendants, who are executors, &c., of G. W. Bard, deceased, appointed such in another state, and being non-residents. Service was sought by attachment and publication. The petition for the recovery of money counted on a contract alleged to have been made by defendants in the foreclosure of a mortgage on real estate in this state. A motion to set aside the service was made by the defendants, appearing solely for the motion, on the ground that the court could not obtain jurisdiction of the defendants-by attachment and publication. This motion was sustained,, and this ruling is the error complained of. We think the court erred. Whatever might be the rule independent of statute, § 203 of ch. 37, Gen. Stat., p. 472, provides that “an executor or administrator, duly appointed in any other state- or country, may sue or be sued in any court in this state, in his capacity of executor or administrator, in like manner and under like restrictions as a non-resident may sue or be sued.” Now a non-resident may be sued in an action on a contract for the recovery of money, and service may be obtained by attachment and publication. In “like manner” may a foreign executor or administrator be sued. That a state has jurisdiction over all property within its territorial limits,, and may subject it to the process of its courts, will not be doubted. Whether a judgment rendered upon a service by attachment and publication has any extra territorial force, or binds anything other than the specific property attached, we need not inquire. It is enough for the purposes of this case to-hold that jurisdiction may be acquired so far as may be necessary to cut off all interest of the non-resident defendant in. the property attached. Jurisdiction to any extent required the overruling of the motion to set aside the service.
The judgment of the district court will be reversed, and the case remanded with instructions to overrule the motion to set aside the service.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On February 24th, 1875, the Humboldt Loan Association commenced its action against Geo. A. Amos and others, .to foreclose a certain mortgage executed to it by said Amos. On March 26th, 1875, said Amos filed his answer, amounting to a counter-claim. Afterward, on July 9th,-1877, before the case was called for trial, the court granted the motion of the association to dismiss its action without prejudice to a future action, against the objection of Amos. This ruling of the court is assigned as error, and counsel of the plaintiff in error insist that there was an abuse of discretion in allowing the motion. We think otherwise.
Section 397 of the code provides that “.an action may be dismissed without prejudice to a future action by the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.” And section 398. further provides that “in any case where a set-off or counter claim has been presented, the defendant shall have the right of proceeding to the trial of .his claim, although the plaintiff may have dismissed his action or failed to appear.” See also, McVey v. Burns, 14 Kas. 292. Counsel refer to Conner v. Drake, 1 Ohio St. 167, and Wiswell v. First Congregational Church, 14 Ohio St. 31. In the former case it was agreed that the damages should be assessed by three arbitrators, and the plaintiff made no application for dismissal until the award was returned. This decision is not applicable. In the latter case the court refused the plaintiff his motion, as he desired not only.to dismiss his petition but to have the whole case disposed of. In the case at bar the action of the association was dismissed, biit the whole case was not disposed of. ' The plaintiff in error had the right to proceed to a trial of his claim, notwithstanding the dismissal.
As no motion was made for any judgment upon the pleadings, nor was the attention of the court called to the absence of a reply, we cannot now consider the failure to reply as material in deciding thé case.
The judgment of .the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The petitioner claims that by the close of the August term and the commencement of the January term, before the case had been finally submitted to the jury, the power of the court to proceed further in the trial ceased, and that all procéédings had in the case subsequent to the commencement of the January term, were illegal and void; and secondly, that though such subsequent proceedings were illegal and void, yet that inasmuch as at the August term, a jury had been impanneled and sworn and testimony received, the defendant had been placed in jeopardy, and could not, under the constitution, be placed upon trial again under the present charge; and as a conclusion therefrom, that he is illegally restrained of his liberty, and entitled to a discharge.
Upon the first question we express no opinion. The question is not free from difficulty, but in the view we have taken of the other matters, its decision is unnecessary. If the court has power to prolong a trial through or into two successive terms, then of course the verdict was properly received, and is conclusive until set aside by motion, for errors occurring on the trial. On the other hand, if the court has no such power, then the trial was terminated on Saturday, January 4th, 1879, by the close of the term. It is the case of a trial unfinished, not by the choice of the state, nor by the action of the court, but necessarily by the termination of the term at which the trial is pending. In such case the party has not been put in jeopardy, and may be again brought to trial upon the same charge. It is simply a mistrial—ás if a juror or the judge should die pending the trial. The failure to complete the trial is not a matter of" choice, but of necessity, and the law in such cases allows a second trial.
So that in either view which may be taken of the first question, the petitioner is in custody upon a commitment issued by a court of competent jurisdiction, upon an information, and therefore, under our habeas corpus act, not entitled to a discharge. [Ex parte Phillips, 7 Kas. 48.)
Let the petitioner be remanded into custody.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by the Atchison, Topeka & Santa Fé railroad company against the county commissioners of Pawnee county, to recover back certain taxes paid by the-railroad company to the county treasurer of said county. The railroad company alleged in its petition that said taxes were illegal, and that it paid them under protest, and to prevent the county treasurer from issuing tax warrants for their collection. It is claimed that said taxes were illegal because they were levied (as is alleged in the petition) as follows: “ 2J mills incidental tax in school district No. 1;” “2 mills incidental tax in school district No. 8,” etc. The county commissioners demurred to the plaintiff’s petition on the grounds — 1st, that there was a defect of parties defendant; 2d, that the petition did not state facts sufficient to constitute a cause of action. The court overruled the demurrer, and rendered j udgment against the county commissioners for the amount of said taxes and costs. This ruling the county commissioners claim is erroneous, and ask that the judgment be reversed because thereof.
We pass over the first question, as to whether there was a defect of parties defendant, or not, (but see Hays v. Hill, 17 Kas. 360,) and come to the second question, Does the petition state facts sufficient to constitute a cause of action against the county commissioners or the county of Pawnee? And involved in this question are these questions: What wrong or wrongs have the defendants done? what right or rights of the plaintiff have the defendants infringed ? Certain taxes were levied, but it is not alleged that the defendants levied them, and in all probability they did not levy them. Probably the respective school districts as provided by statute levied them. (Laws of 1876, p. 79, §82; id., p. 248, §11; id., p. 255, § 30.) The county treasurer, and not the county commissioners, collected these1 taxes. They were collected for certain school districts, and not for the county or county commissioners. And it does not seem that a single cent of them was ever placed to the credit of the county or the county commissioners. Whether the county treasurer has paid them over to the respective school districts or still holds them, is not shown. Probably he has paid them over to the districts, for it was his duty to do so under the law. (See said §§ 82 and 30 of the laws of 1876, pp. 80 and 255.) Everything that has been done concerning said taxes, has been done by the school districts respectively, and by the county treasurer; and not a thing has been done by the county or the county commissioners. And it has all been done for the benefit of said school districts, and not for the benefit of the county or the county commissioners. Now as neither the county nor the county commissioners have ever done any wrong as against the railroad company, as they have not ratified any wrong, and as they have not received the benefit of any wrong, how can they be held liable? We think they are not liable. In connection with this question, see State v. Leavenworth County, 2 Kas. 61. The case of Jackson County v. Craft is not applicable to this case. Whether the law as there enunciated is still the law, it is unnecessary now to decide. The county treasurer’s bond, however, which was then given to the eounty commissioners, (Comp. Laws of 1862, p. 428, § 104,) is now given to the state. (Laws of 1875, p. 113, § 1.) Whether the taxes claimed to be illegal in this case, and paid by the railroad company, are in fact illegal, it is unnecessary to decide; for supposing .them to be illegal, still the railroad company has no action against the county or the county commissioners to recover them back.
The judgment of the court below will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant was convicted in the district court of Pawnee county of the crime of rape, and from such conviction brings this appeal. Several questions are presented in the record. It is alleged that the information was insufficient for lack of a proper verification. The verification was defective, but the defect was waived by the defendant’s pleading to the merits and going to trial. (State v. Otey, 7 Kas. 69.) The jurisdiction of the court was challenged. The prosecution was in the district court of Pawnee county, and the offense charged to have been committed in Ness county. By sec. 2, ch. 67, laws 1874, the county of Ness was, until organized, attached to Pawnee county for judicial purposes. On the trial a certificate of the secretary of state was offered for the purpose of showing that Ness county had been duly organized, but the district court rejected the testimony. We see no error in this ruling, for the certificate was simply a statement that the records of his office, showed cer tain facts, as, “ that Ness county was duly organized by proclamation of the governor on the 23d day of October, 1873,” and did not purport to furnish copies of any paper or record. The paper was a certificate of a fact, and not a certified copy of any paper of record, and that such a certificate is not, in the absence of express dii’eetion of statute, competent evidence, is clear. (Bemis v. Becker, 1 Kas. 226; Owen v. Boyle, 3 Shepl. 147; English v. Sprague, 33 Me. 440; 1 Greenl. on Ev., §498, and cases cited in note.)
Will the court, in the absence of evidexxce, take judicial notice of the date of the organization of new counties? Doubtless the court takes judicial notice of the fact that in the eastern portion of the state there are counties duly organized; and with all the machinery of the law and coux’ts in full operation, and that the western portion is composed of unorganized territory; but whether it will take notice of the timé when any particular county passes from an unoi'ganized to an organized condition, is doubtful. Such passage dates not from any proclamation from the governor-, nor from any action of the executive, but “from and after the qualification of the officers appointed” by the governor. (Laws 1872, p.244, §1; Laws 1^76, p. 159, §1.) And it can hardly be that the court is to take judicial notice of the times at which certain officers appointed in a county hitherto unorganized take the oath of office and give their official bond. It would seem that this is a questiou of fact, and a subject-matter of proof. Doubtless when a district court is held in a county, it will be presumed by this court that the county is so organized as to afford officers and other machinery for the holding of courts, and that the action of the district judge in there holding court is warranted by the facts as he has found them to exist; and this presumption can only be overthrown by evidence proving the contrary. It is not necessary in each cáse to prove that the county has in fact been organized. Is not the converse of this proposition equally correct? The question now before us is not whether this court, in an original action, is to take judicial notice of the fact that a county is regularly organized and courts held .therein, but whether, when the district court is not held in such county, and the court of an adjoining county to which by express statute the county is attached for judicial purposes declines to recognize such county as organized, and continues to exercise the jurisdiction which it unquestionably once held, this court shall, in proceedings in error, take judicial notice of the fact that the officers had duly qualified, the county become regularly organized, and that the district court erred in not so recognizing the fact, and holding terms of court therein. See the case of Wood v. Bartling, 16 Kas. 109, on this question.
But is it true that the legislature has no power to attach one organized county to another for judicial purposes? The constitution provides (§ 5, art. 3) that “the state shall be divided into five judicial districts,” and in § 18, same article, names the counties of which such districts were at first to consist. It is. also provided in said § 5, that the “district courts should be held at such times and places as may be provided by law.” It does not say that they shall be held in each county; and though by § 7, a clerk of the district court is to be elected in each organized county, is there any inhibition on the legislature’s providing that the district court in each district be held at only one place in the district? Again, the number of districts may be increased by law, but it requires the concurrence of two-thirds of the members of each house; (§ 14, art. 3, Const.) And “new or unorganized counties shall by law be attached for judicial purposes to.the most convenient judicial districts;” (§ 19.) Now, under that, may not the legislature attach a new though organized county for judicial purposes to any convenient district, or to any county in that district? Such certainly was the understanding of-the legislature in the early history of the state; for the first state legislature attached Clay, Dickinson, Saline ' and Ottawa counties to the county of Davis; the counties of .'Washington, Republic and Shirley to the county of Marshall, and so on. (See Laws 1861, p. 123, §1.) Some of these counties so attached were named in the constitution as included in the five districts, aud others were organized intermediate the sitting of the constitutional convention and the admission of the state. That such contingencies as the creation and organization of new counties were foreseen and provided for, the constitution itself discloses, and the power to provide for the administration of justice in them, without creating new districts, was expressly granted. And the bill of rights, as foreseeing the very question here presented,' guarantees to an accused “a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” (Bill of Rights, §10.) But it is perhaps unnecessary to pursue this inquiry further. It does not seem to us that this court can hold that the district court erred in exercising jurisdiction of the case.
The law of the case was 'fairly presented by the charge of the court. The court declared that the force necessary to constitute the crime of rape might be mental or physical force, or both combined, and that if a person by threats, or by. placing a female in fear of death, violence or bodily harm, induces her to submit to his desires, and while under this influence ravishes her, this is as much a forcible ravishing as if a person, by reason of his • superior strength, would hold a woman and forcibly ravish her. We understand the court to simply mean that the act must be committed, either (1) by physical force against the will of the female, or (2) with, her acquiescence procured by threats or violence. On the contrary, the court was asked to declare that the offense charged could not be committed, unless there was the utmost reluctance and the utmost resistance on the part of the female. The distinction between the two theories is broad and well defined. Under the former, acquiescence induced by mental terror and fear of violence, supersedes the necessity of physical resistance. Under the latter, there must be actual physical resistance. The female when assailed must persist, though she knows resistance will be vain; she must fight, though she may believe this course will bring upon her other and perhaps greater violence; she must cry aloud, though she knows no relief is near; she must arouse her sleeping infant sisters to be witnesses to the outrage, though she knows they can render her no aid. Under the former the force may be either actual or constructive, while under the latter it must be actual. The weight of reason and authority is with the view of the court below. Turner v. People, 33 Mich. 363; Commonwealth v. McDonald, 110 Mass. 405; Wright v. State, 4 Humph. (Tenn.) 194; People v. Dohring, 59 N. Y. 374; Regina v. Camplin, 1 Cox C. C. 220; Roscoe’s Cr. Ev. (6th Am. ed.) 806; 1 East. P. C. 444, §7.
In Roscoe’s Cr. Ev., supra, it is said: “ It must appear that the offense was committed without the consent of the woman, but it is no excuse that she yielded at last to the violence, if her consent was forced from her by fear of death or by duress.” In-2 Bishop’s Crim. Law, §1120, the author says: “Yet wherever there is a carnal connection without anything which can be deemed a consent, where there is neither a consent fraudulently procured nor any other sort of consent, by the woman, there is evidently in the wrongful act itself all the force which the law demands as an element of the crime.” And again, in § 1125: “A consent induced by fear of personal violence is no consent, and though a man lays no hand on a woman, yet, if by an array of .physical force he so overpowers her mind that she dares not resist, he is guilty of rape by having the unlawful intercourse.” See also 2 Whar. Am. Crim. Law, §1142; Pleasant v. The State, 8 Eng. (13 Ark.) 360. See also a late decision from Connecticut, reported in 19 Albany Law Journal, page 136, as follows:
• “Held, also, that a refusal of the court to charge that to constitute the crime of rape, it was necessary that the female should have manifested the utmost reluctance, and should have made the utmost resistance, was not error. The importance of resistance is simply to show two elements in the crime — forcible carnal knowledge by the one party, and non-consent by the other. The jury must be satisfied of the existence of these two elements by the resistance of the complainant. If she had the use of her faculties and physical powers at the time, and was not prevented by terror or the exhibition of brutal force, so far her resistance is important; but to make the crime hinge on the uttermost exertion the woman was physically capable of making, would be a reproach to the law and to common sense. The question is one of fact, and a jury must determine it.” (State v. Shields, Conn. Sup. Ct. 1878 — opinion by Park, C. J.)
As to the questions of fact, we cannot say that the jury erred, or that the verdict was against the evidence. The case substantially. hinged on the relative credibility of the prosecuting witness and the defendant. He admitted the intercourse, but claimed that it was voluntary on her part; she testified that there was a forcible ravishing. The corroborating testimony, which, however, was limited, tended support the prosecuting witness. The jury believed her story, and the trial judge approved their verdict. "We cannot say that it was wrong, 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 facts in this case as shown by the findings are substantially, that one Mattie Sanford preempted a certain tract of land in Pawnee county; that one Hurd held a judgment against her, and that she was also indebted to defendant, now plaintiff in error, in the sum of $100; that prior to her obtaining title from the government, defendant, in order to collect his debt, verbally promised plaintiff that if he would buy the land he would see and be responsible to him, the plaintiff, that said judgment should not be a lien on said tract of land, and that if it was he would pay it, and see him harmless from it; that plaintiff thereupon agreed to buy said land, and thereafter Mattie Sanford obtained title and deeded to plaintiff; that no promise was made by defendant after she obtained the title; that said judgment was declared a lien by the district court of Pawnee county, and thereafter paid by plaintiff; that plaintiff paid the entire purchase price to said Mattie Sanford at the time he received .the deed; that defendant had no title or interest in said land; and that said Sanford conveyed by warranty deed, and no demand had been made by plaintiff of her for the amount of the judgment or to make good her warranty. Did the district court err in rendering judgment against the defendant on his promise to pay said judgment and see plaintiff harmless from it?
The findings are meager, and not so full and specific as they ought to be to give us a clear insight into all the facts and circumstances of the case; but still, with the intendments all in favor of the ruling of the district court, we cannot hold that it erred in its judgment upon such findings. That a contract was made between the parties is clearly shown, and also that the circumstances had arisen upon which defendant had predicated his promise. Prima fade, the defendant was bound by such promise, for it is a cardinal rule of all contracts, that he who promises must perform. Having shown a promise and a failure to perform, the general rulé is, that a liability is shown and a right of action exists. The law intends that every man- shall keep his promise, and holds him liable' for- non-performance. And while this is not the universal rule, for the law holds no man bound by a promise prohibited by the statute, or against public policy, yet where one claims immunity by reason thereof, the fact of such immunity should be made to appear. The law does not presume that it exists, but if anything, the reverse.
Two principal grounds of immunity are alleged, first, that the promise was without consideration; and second, that it was void under the statute of frauds. With the first we have had little difficulty, but are doubtful as to the second.
First: Was the promise without consideration? A consideration is said to be something- of value to the promisor, or injury to the promisee. The finding is, that the defendant made the promise in order to collect his debt. Now this may refer simply to the motive which actuated the promisor, i.e., he made the promise in the hope that if Mattie Sanford sold the land, she would pay his debt; or it may be broader, and include both the hope and the result. By some arrangement, the details of which are not given, he was enabled to collect his debt in case of a sale, and he .made the promise in order to accomplish this result. Without a sale the debt may have been worthless, the land exempt even after payment of price to the government and receipt of the patent, and Mattie San ford insolvent; while with a sale his arrangements may have been such that payment of his debt was'certain, and was in fact secured. And all this may be implied and have been intended by the expression, “in order to collect his debt.”' But again, the plaintiff, the promisee, was injured to the extent of the judgment lien. He paid the full price of the land to Mattie Sanford. The judgment was then declared a lien, and to protect his purchase he was compelled to pay it. He was injured then to the full amount of this judgment. At least, this so appears, prima facie; for though, as counsel argue, he had Mattie Sanford’s warranty, it is not shown that she was solvent, or her warranty of any value.
Second: Was the promise void as a promise to pay the debt of another, and not in writing? This is really the difficult question in the case. Counsel argue very forcibly that the debt due Hurd was not a debt of defendant, but of Mattie Sanford alone; that defendant’s promise to pay that debt was a promise to pay the debt of another, and being simply in parol, was not binding under the statute of frauds. They say:
“The promise of Patton was made for Mattie Sanford, to enable her to make a sale of land. The judgment was against her and her property. It was no debt of his, or by which he was in in any manner bound. He made a verbal promise to pay it if it should be adjudged a lien on the land. Section 6 of our statutes on frauds and perjuries provides that ‘No action shall be brought whereby to charge a party upon auy special promise to answer for the debt, default or miscarriage of another person, ... or upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto, by him or her lawfully authorized.’ We claim that this verbal promise was not only to answer for the debt of another, but is undoubtedly included in the meaning of ‘any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them.’”
There seems to be little force in the latter portion of coun sel’s claim. The contract was in no proper sense one for the sale of lands or any interest in or concerning them. The findings expressly show that defendant had no title to or interest in the lands, and he contracted to sell none. And in reference to the prior portion of the claim, the contract was not simply to pay the debt from Sanford to Hurd, but to protect the land from any lien of such judgment; and it was a contract not primarily for the benefit of Hurd, but of defendant. In 3 Parsons on Contracts, p. 24, (6th ed.,) we find this rule:
“It may, indeed, be stated as a general rule that, wherever the main purpose and object of the promisor is not to answer for another, but to subserve some purpose of his own,, his promise is not within the- statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing the liability of another.”
And in Nelson v. Boynton, 3 Metcalf, 396, cited in the note • to the above, C. J. Shaw says:
“The terms ‘original’ and ‘collateral’ promise, though not used in the statute, are convenient enough to distinguish between the cases where the direct and leading object of the promise is, to become the surety or guarantor of another’s debt, and those where, although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is to subserve or promote some interest or purpose of his own. The former, whether made before, or after, or at the same time with the promise of the principal, is not valid, unless manifested by evidence in writing; the latter, if made on good consideration, is unaffected by the statute, because, although the effect of it is to release or suspend the debt of another, yet that is not the leading object on the part of the promisor.”
See, also, Alger v. Scoville, 1 Gray, 391; McCreary v. Van Hook, 35 Tex. 631. Again, we find it laid down in many authorities, that a promise, to be within this clause of the statute, must be to the creditor, and not to the debtor or a stranger to the debt. (Preble v. Baldwin, 6 Cush. 549; Pike v. Brown, 7 Cush. 136; Eastwood v. Kenyon, 11 Adol. & Ell. 446; Hargreaves v. Parsons, 13 Meeson & Welsby, 561; Wolff v. Koppel, 5 Hill, 458; Barker v. Bradley, 42 N. Y. 316; Britton v. Angier, 48 N. H. 420; Wilson v. Bevans, 58 Ill. 232; Brown v. Brown, 47 Mo. 130.) In this last case, it is said:
“The provision that no action shall be brought to charge any person upon the promise to answer for the debt of another, unless it is made in writing, is construed to apply to promises made to the creditor; and hence it is always held, that while the creditor cannot recover upon a collateral parol agreement made with him to pay his debtor’s obligations, yet if such agreement be not made with the creditor, it can be enforced, if otherwise good, though not evidenced by any note or memorandum in writing.”
The idea seems to be, that a promise to answer for the debt of another must be to the one who has a right to claim the debt; that it must be a promise in support of the debt, collateral to it, as the expression is. But a promise that is not primarily designed for relief of the debtor, or to help the creditor, but is for the benefit of the promisor, is valid though not in writing. It is like a promise to do work, or deliver goods, which is good, no matter who receives the benefit of the work, or to whom the goods are delivered. There being a good consideration, and the contract being designed for the benefit of the party promising, it is binding, though in parol, and though it is a promise to pay another party’s debt. It is no more than a promise to pay money to a third party, which, of course, is not within the letter of the act; and the fact that the money thus paid operates to discharge a debt, does not bring the contract within the statute.
Taking the case at bar, if Hurd had held no claim against Mattie Sanford, and defendant had promised plaintiff to pay Hurd some money if he (plaintiff) would buy this land, could it be'claimed that this promise was within the statute ?. Clearly not. No more can it, though the payment operated and was intended to discharge a debt of Sanford’s to Hurd. The primary object was not to relieve her of her obligations, or to help Hurd to his claim, but to collect defendant’s own debt. The payment of her debt was incidental merely to the accomplishment of the object of his promise, the collec tion of bis own debt. We think, therefore, that this objection must also fail.
Other matters are suggested, but they seem to us of minor importance. One is, that the judgment was erroneously declared a lien. But it was so declared by a court of competent jurisdiction, and we musk presume that such adjudication was correct. Enough facts are not before us to show that it was not correct, and anyway it could not be thus collaterally impeached. But it seems to us unnecessary to notice in detail these various objections. None of them go to the effect of showing that the contract was prohibited by statute, against public policy, or without consideration.
We cannot therefore hold that the court erred in its judgment, and it must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is the second time this case has been in this court. At first it was brought here to review the action of the district court in sustaining a demurrer to the plaintiff’s evidence. (Jansen v. The City of Atchison, 16 Kas. 358.) The ruling of the district court at that time was reversed, and it was decided that there was a question of fact which, so far at least as the present parties are concerned, ought to be submitted to a jury. A second trial was had, which resulted in a judgment in favor of Jansen for the sum of $1,000, and from such judgment the city brings error.
The first matter we shall notice is the error in giving oral instructions. The law in force (section 1, subdivision 6, Laws 1872, page 329) provides that “when the argument of the case is concluded, the court shall give general’ instructions to the jury, which shall be in writing, and be numbered and •signed by the judge, if required by either party.” And subdivision 7 of said section provides further, that “all instructions given by the court must be signed by the judge, and filed, together with those asked for by the parties, as a part of the record.”
It is true that the punctuation marks in this last subdivision are such that the clause quoted, which is the last part of the subdivision, seems limited in its application to the previous clauses thereof, and the words, “ all instructions,” as referring only to the instructions provided for in that subdivision; but a comparison of the entire section with the section of the code in the general statutes of which it is an amendment, makes it clear that there should be a period where there is but a semi-colon, and that the sentence quoted applies to the entire section, and includes all the written instructions provided for therein. Even if there wTere any doubt as to this, subdivision 6, supra, is imperative, and makes it the duty of the court, when required, _ 1 . , . . T to reduce its general instructions to writing. In ° ° the case at bar, the defendant fully complied with statute in requiring all instructions to be reduced to writing. Notwithstanding this, the court instructed the jury orally in submitting the ease, and these instructions thus given orally fill out eleven pages of the transcript. Further than that, as the record recites, “ the court otherwise orally explained, modified and changed the said written instructions, against the objection of the defendant.” The tenor and extent of these further changes is not indicated. Upon this, counsel for defendant in error say, and we quote from their brief:
“ The counsel for the plaintiff in error claims that the court ' below gave oral instructions to the jury, which we claim is not a fact, the difference being that what was said by the court was only in explanation of the many instructions and particular questions of fact which the court was about to submit to the jury. This was no part of the charge, nor of the instructions in the case, within the- meaning of subdivision 6, laws 1872, page 329, or of subdivision' 7 of said laws, and this statute was not intended to include' any and every question and answer passing between the court and jury, nor simple matter of explanation; neither does the statute contemplate any such thing. On this point we desire to say to the court that in this .explanation of the court of the special questions, etc., there are certain statements nozo appearing in this record which we have never before seen or heard of until we commenced to prepare our brief.”
We regret that there should ever be anything in- a record to excite the suspicions of either party as to its verity, as would seem to be in this case, from the last remarks of counsel, but of course we must take the record as it was signed by the trial court and is presented to us; and, reading these oral instructions as we find them in the l’eeord, it is plain that the court instructed the jury in many matters upon the merits of the case. We make a single extract by way of illustration :
“In the instructions to the jury upon the question of no tice, several instructions have been asked by counsel on each side. I have modified them so as to submit what the court considers the law of notice, and shall consider this to apply so far as notice is concerned; and, in order to guard against any misconception, we desire to emphasize the fact that, before the jury may find negligence, they must be satisfied that the city had notice of the defect long enough before the injury to have repaired the walk. I consider this remark applicable to all instructions given on the question of notice. We pass, then, to another proposition of the defendant, and here it contends that the defect was a latent or hidden one, and that the city had no notice of it. If this is true, then doubtless the city is not liable. I shall put it in such shape as to mean this: that before the city can be held responsible, if the defect was latent and not apparent, then it must have actual notice, or that it had existed for so long a time as to-presume notice, or that its attention was sufficiently directed to the walk to put it upon inquiry. The rule would be different where the walk is built over an area, than if flat on the ground.”
Nothing can be clearer than that in this the court is expounding the law of the case. We have had occasion heretofore to examine the question as to the necessity of written instructions, and the extent and scope of thé statute, at least in criminal cases. (State v. Potter, 15 Kas. 302. See also, State v. Huber, 8 Kas. 447; Prater v. Snead, 12 Kas. 447; State v. Mortimer, 20 Kas. 93.) We do not deem it necessary to review the question at any length in this ease. We refer to the valuable list of authorities prepared by counsel for plaintiff in error, as showing the extent to which courts have gone in enforcing statutes concerning written instructions, some more and some less stringent than ours: Townsend v. Doe, 8 Blackf. 328; Turnpike Co. v. Conway, 7 Ind. 187; Laselle v. Wells, 17 Ind. 33; Riley v. Watson, 18 Ind. 291; Railroad Co. v. Daniels, 21 Ind. 256; Meredith v. Crawford, 34 Ind. 399; Hardin v. Helton, 50 Ind. 319; Railroad Co. v. Rowland, 51 Ind. 285; Patterson v. Ball, 19 Wis. 259; Hardy v. Turney, 9 Ohio St. 400; Strattan v. Paul, 10 Iowa, 139; Head v. Langworthy, 15 Iowa, 235; Dixon v. The State,
Fla. 636; Coppage v. Commonwealth, 3 Bush. (Ky.) 532; Fry v. Shehee, 55 Ga. 208; Stewart v. The State, 50 Miss. 587; Kellar v. Belleaudeau, et al., 5 La. Ann. 609; Miller v. Hampton, 37 Ala. 342; Edgar v. The State, 43 Ala. 312. And also authorities cited in the case of State v. Potter, 15 Kas. 302.
A second matter we shall notice, is this further extract from the oral charge:' “The fact that the walk was dangerous and defective, show's negligence against the .city. On the first trial I ‘did not think the plaintiff had any case, but the supreme court thinks he had a good case.”
This statement was misleading and prejudicial. When the case was here before, it came on error to the court’s action in sustaining a demurrer to the plaintiff’s evidence. Such a demurrer can never be sustained on a , (1 . , n ,, mere preponderance; there must be a failure or testimony; and the decision was, that there was no failure, and that there was a question of fact upon which the plaintiff was entitled to the opinion of a jury. We did not decide that the preponderance was with the plaintiff, and ' that the jury ought to have found in his favor. We expressly guarded against any such construction, in these words:
“We do not mean to intimate that a jury ought to find from this testimony that sufficient notice existed to charge negligence upon the city, but simply that there was a question ■of. fact which it was "for them, and not the court, to pass upon. And in order to guard against any misconception, we desire to emphasize the fact that before the jury may find negligence they must be satisfied that the city had notice of the defect, or had knowledge of facts sufficient to put it upon inquiry, long enough before the injury to have repaired the walk.”
Now if the district court meant by the above expression that we had decided that the plaintiff’s case was good enough to go to a jury, the statement was correct; but a jury would naturally infer from the statement something more, and that the opinion of this court, the tribunal of last resort, was that the plaintiff -was entitled to a verdict, and that the jury ought to have found in his favor. Of- course, such an opinion would have great weight with a jury. We all know how carefully a jury scrutinize every expression from the trial court, and how quickly in any doubtful case they catch at any intimation and readily follow it in their verdict. Much more readily will they follow the deliberate opinion of the highest judicial tribunal. It stands with them as conclusive, and, yielding their- own opinions, they will accept that as correct. Whenever, therefore, the decision of this court is stated to a jury, it should be so stated that they will easily and clearly comprehend the exact limits and scope of that decision. If it is wrong for the trial judge to throw the weight of his individual opinion into the balance to influence the decision of a jury upon a doubtful question of fact, (and that it sometimes, if not always, is wrong so to do, will not be questioned,) a fortiori it is much more of an injustice to so throw the opinion of this court, and especially when the opinion is so stated, as naturally to mislead them as to the scope and extent of that opinion. True, the language refers in terms to the case as shown upon the former trial; but unless something had occurred on the trial to make it plain that the plaintiff had less testimony than on the former trial, and we see nothing to indicate this, the jury would properly consider the facts identical and the opinion as fairly applicable to the case as it stood before them. We may remark here that the vital question in this case is one of negligence, and that the tendency of decisions is to regard this more and more as a question of fact, and one to be solved by a jury rather than the court; and the case at bar is a good illustration of the propriety of this rule.
Another matter we shall notice is the following instruction :
“5. The jury are also instructed in this case, that the city of Atchison had no right to permit Mr. Otis, or any other person, to use any portion or part of the street as an area-way or opening, or to construct an area-way or opening therein; and if the jury find from the evidence that there was an opening or area-way under any part or portion of said street constructed by Mr. Otis or any other private individual, and that the city of Atchison had notice thereof, or permitted said area-way or opening to remain there after a reasonable time had elapsed from its construction, so that it should have had notice thereof, and' the jury further find from the evidence that any injury resulted to the plaintiff, without fault upon his part, on account of said area or opening, then the jury will find for the plaintiff.”
It will be borne in mind that the plaintiff’s injuries resulted, not from falling into an uncovered area or opening, but from the breaking of a part of the sidewalk covering an area upon which he had stepped, thus precipitating him beneath. This instruction must be construed with reference to the facts in the case, and it is unnecessary, therefore, to inquire whether the mere fact of leaving an uncovered opening in the walk would be such negligence as to render the city liable for any injuries which one might sustain in falling into it under any and all circumstances. But the inquiry is, whether the mere fact that the city knowingly permitted an area or opening to be made and continue under the sidewalk, irrespective of any question of the sufficiency or suitableness of the covering of such area or opening, renders the city liable for all injuries which one may suffer who, without fault on his part, breaks through such covering and falls into the area. In other words, is the city an insurer of the strength and sufficiency of such covering? Accidents ^ ° may happen, notwithstanding the utmost care. Does it warrant against all accidents? We think not. Whether it builds the sidewalks so as to rest entirely upon the ground, or builds them upon posts, pillars or walls, leaving openings beneath, the measure of its legal obligation is the same. It must use reasonable care and diligence in making the walk strong and safe. The amount of care and diligence, to be reasonable, may vary with the circumstances of the case. More precaution may be needed where the walk is lifted twenty feet above the ground, than where it rests directly upon the dirt; but in all cases it must be, relative to the danger and risk, reasonable care and diligence. That sidewalks may be built above the ground and on posts, was decided in Challiss v. Parker, 11 Kas. 384. Indeed, every one knows that they are constantly so built. Whoever under such circumstances builds up against the sidewalk, will have an area in front of his building underneath the sidewalk. So in all cities it is customary to open areas under the sidewalk in front of business houses, for light and ventilation. It would be burdensome, indeed, if in all such cases the city were an insurer of the strength of the sidewalk above such area; that no matter what care and diligence it had used, what precautions taken, it should be responsible for all injuries which anyone might sustain therefrom, if without fault on his part; that though it had done all which human prudence and foresight could suggest, it must nevertheless respond in damages. Such is not the law. Siich was not the decision in Smith v. Leavenworth City, 15 Kas. 81, nor the intimation in the opinion filed when this case was here before. Indeed, the whole scope of the discussion in this respect therein was as to the negligence of the city in failing to discover and repair the defect in the sidewalk, not as to its ignorance of the existence of the area.
The 12th and 13th instructions given at the instance of the plaintiff are obnoxious to the same criticism as the one just noticed. They assume that the city is absolutely liable where injuries result without fault on the part of the party injured in consequence of a defect in the sidewalk above any area or opening. They ignore the fact that the proximate cause or the injury ivas the condition or the sidewalk, and that the existence of the area beneath, while it may have enhanced the injury, was not its proximate and direct cause. The city may have been negligent in permitting the area to continue, but if it was guilty of no negligence in respect to the sidewalk, it ivas not responsible for'injuries resulting from a defect in it. The existence of the area may be important in determining whether the care and diligence exercised by the city in reference to the sidewalk was reasonable or not, but its existence does not of itself make the city responsible in case the sidewalk decays and breaks. We might perhaps notice some other matters in the instructions, but these are all the questions whose decision we think necessary for the further trial of this case.
We may remark, that in the preparation of instructions and questions to the jury, as well as in the preparation of the record for this court and the briefs of counsel, it appears as though the parties were actuated by the one desire of seeing how much paper and ink they could waste. The defendant submitted one hundred and twelve special questions and asked fifty special instructions, while the plaintiff' submitted twenty-six questions and asked nineteen instructions. The petition in error extends over thirty-three pages, and contains one hundred and three specifications. The transcript stops at the 786th page, and the brief of counsel for plaintiff in error is a closely-printed book of 122 pages. Now, when the facts are many and complicated, and the case presents a series of questions, new, important, and intricate, we have no disposition to complain of the industry of counsel or the fullness of any record or brief; but in a case like the present, we think such prolixity an imposition upon both the trial court and this, and one that will often of itself justify an affirmance of the judgment. Indeed, we were no little inclined to think that such ought to be our disposition of this case; but on reflection we have concluded, for the errors noticed, that it was our duty to reverse the judgment and remand the case for a new trial, and it is so ordered.
Valentine, J., concurring.
Horton, C. J., not sitting in the case, having been of counsel in the court below. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Isaac Norris against Joseph Hannum, a justice of the peace, for damages alleged to have been sustained by reason of the wrongful issue of a summons and writ of replevin.
In a justice’s court in this state, the summons and the writ of replevin in an action of replevin are substantially one and the same writ. Both are issued at the same time and on the same piece of paper — the summons portion coming first, and the order to seize the property coming afterward, as an addendum, to the summons. (Justice’s Code, §58.) This writ of summons and replevin is not issued until a certain affidavit and a certain undertaking are executed and filed with the justice. (See said §58.) Section 57 of the justice’s code also provides, that “the justice shall not issue a summons” in replevin “until there has been executed in his office” the undertaking above mentioned. (Gen. Stat. 788.) And section 70 of said code provides, that “if any justice shall issue a writ to replevin property as is provided by this act, without the affidavit and undertaking being executed and filed in his office as is provided in this article, the same shall be set aside at his costs, and he shall be liable in damages to the party injured.” (Gen. Stat. 791.)
The justice in the present case, however, did not observe these rules, but issued “ a writ to replevin ” the property of Norris without any undertaking having been first executed or filed in his office. Under the writ so issued, the constable seized and took into his possession the property mentioned in the writ, to wit, “one iron-gray mare,” and thereby deprived Norris of the possession and use thereof, to his injury. The property belonged to Norris. Now, under said statutes, we think that Hannum, the justice, became liable to Norris just as soon as the constable seized said property. Hannum committed the wrong when he issued the writ, and Norris was injured when his property was seized and taken from him by the constable. Therefore, Norris’s cause of action against Hannum accrued simultaneously with the seizure of Norris’s property by the constable. What the measure of Norris’s damages might be, would, of course, depend upon the subsequent circumstances. If the property had been immediately returned to Norris, and if the replevin proceedings had been immediately set aside at the cost of the plaintiff in replevin, or at the cost of the justice, then Norris’s damages would have been merely nominal. But if Norris lost his mare entirely, as was the fact in this case, and lost her, not by the final judicial determination of any court of competent jurisdiction, as was also the fact, then the measure of his damages would be at least the value of the mare. For the purposes of this case, we shall consider sáid writ of summons and replevin as perfect in every respect, except that it was issued before any undertaking was executed or filed with the justice ; but such was not the case, however. It was dated and issued only two days before the time fixed for the defendant to appear for trial.
The defendant in the present case, Hannum, set forth in the second defense of his answer, that after said writ of summons and replevin was issued, and before trial or judgment, the plaintiff in replevin deposited with the justice a sufficient amount of money to secure Norris, and afterward executed and filed with the justice a sufficient undertaking. As to depositing money in lieu of an undertaking, see Shamokin Bank v. Street, 16 Ohio St. 1, 9, 10. He also, in said second defense, speaks of an appearance in said replevin suit, by Nor-, ris, as follows: “That at the time of the said trial and the appearance of said Norris before said justice,” etc.; and, “that after the appearance of said plaintiff and defendant in said replevin suit,” etc. Now, he does not tell us in said second defense, or elsewhere, what kind of an appearance Norris made in the replevin suit. Norris’s counsel in this court, however, says that it was a special appearance to contest the jurisdiction of the justice, and as nothing appears to the contrary, we shall now construe it to have been such. But would it make any difference whether it was such an appearance or a general appearance? The defendant also tells us in said second defense that Norris appealed said replevin suit to the district court.
The court below sustained a demurrer to said second defense, on the ground that it did not state facts sufficient to constitute a defense, and it seems to us that the ruling of the court below was correct. The defendant did not allege that the property belonged to the plaintiff in replevin, or that it was given to him in the replevin action by the judgment of the district court, or by the final determination of any court, or that it was ever returned to Norris, or that Norris ever received any compensation therefor, or that settlement of the matters connected with the replevin of said property had ever taken place. Indeed, he did not allege anything that would be a complete defense to the plaintiff’s action, nor anything, even, that would be taken or received in mitigation of damages.
The trial in the court below was on the issues raised by the plaintiff’s petition and the defendant’s general denial. What was proved or what was disproved we cannot tell, as the evidence has not been brought to this court. As the finding, however, was in favor of the plaintiff and against the defendant, we must presume that all the allegations of the plaintiff’s petition were proved. The judgment was rendered in favor of the plaintiff below, and against the defendant, for $80 and costs, and there is nothing in the record showing the judgment to be erroneous, and therefore it will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The principal question involyed in this case is with reference to the effect to be given to certain alterations made in a certain promissory note. The facts of the case seem to be substantially as follows:
In January, 1875, W. C. Fraker executed to J. C. Fraker a certain promissory note for $4,862.40, dated January 23, 1875, due in six months after date, and drawing interest from maturity at the rate of twelve per cent, per annum. This note was executed by W. C. Fraker without any consideration to him, and merely as an accommodation to his brother J. C. Fraker, who expected to have the note discounted by the First National Bank of Wichita. Afterward the note was so discounted. J. C. Fraker was the president and managing officer of said bank. While said note was in the hands of the bank, J. C. Fraker (its president and managing officer) altered the same by changing the figure “5,” in the figures “1875,” to the figure “6,” and by changing the word “maturity” to the word “date,” so that the note appeared to have been executed in 1876 instead of in 1875, and to draw interest from date instead of from maturity. This was done without the knowledge or consent of W. C. Fraker. August 29, 1876, said bank suspended. At that time the bank owed W. C. Fraker about $1,800, and, although the bank still held said note, W. C. Fraker did not know it. On the night of August 29, 1876, J. C. Fraker informed his brother W. C. Fraker that the bank still held said note; that it was not paid, and that he, W. C. Fraker, was still liable thereon- and requested W. C. Fraker to relinquish to the bank said $1,800 in part payment of said note, and to give new notes for the balance. W.- C. Fraker complied with his brother’s request. The new notes (four in number) tvere executed by W. C. Eraker to J. C. Fraker, and indorsed by J. C. Fraker and delivered to the bank. At the same time that these new notes were executed, the old note was delivered up to W- C. Fraker. No other consideration than this old note was ever received for the new notes, W. C. Fraker did not examine the old note at the time he received it, and did not know then, nor for several days thereafter, that said old note had been altered. Afterward, said bank was placed in the hands of a receiver, and the receiver then commenced this action against W. C. Fraker, and his brother J. C., to recover the amount of one of said new notes. W. C. Fraker defended — setting up, among other things, a want of consideration, and that said old note had been altered. The case was tried before the court and a jury. Evidence was introduced proving or tending to prove all the foregoing facts. When the defendant rested, the plaintiff demurred to the defendant’s evidence, on the ground that it did not prove any'defense. The court sustained the demurrer, the defendant excepting, and then rendered judgment against the defendant for the amount of the note sued on. The defendant then moved the court for a new trial, which motion the court overruled, and the defendant then, as plaintiff in error, brought the case to this court for review.
We think the court below erred. We decide the case upon the facts as they now appear, and not upon what they may be shown to be upon a new trial. We refrain from discussing this case at length, for the reason that we suspect that many new facts will be shown on the new trial, and the case will then be presented in a very different aspect. All that we now decide is as follows: Where a note is executed by an accommodation maker, and is afterward, without his consent or knowledge, materially altered by an indorsee and holder thereof, such note is thereby rendered invalid; and afterward, where such maker, without having any knowledge of such alteration, executes new notes in lieu of the altered one, such new notes are given without any sufficient consideration therefor, and,.except in the hands of an innocent holder, for value, their payment cannot be enforced as against the maker.
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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Per Curiam:
Prior decisions of this court dispose of every substantial question in this case, as follows: Turner v. Hale, 8 Kas. 38, on the question whether the findings are supported by the evidence; Marshall v. Shibley, 11 Kas. 114, on the admissibility of the record of the deed; Scoffins v. Grandstaff, 12 Kas. 467 and 471, on the character of the deed and covenants.
The judgment will be affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
It is often more difficult for this court to ascertain from the record of a case what questions are presented for consideration, than it is to decide the questions involved in the case after they are ascertained. This is particularly true in this case. The court' below, to whom the case was submitted without a jury, found generally for the defendant and rendered judgment accordingly; but what the opinion of the court was upon the various legal questions involved in the case, we are at a loss to know. The plaintiff in error, plaintiff below, complains of this .mode of making findings. He says: “The court found for the defendant, but from some cause the judge has declined to permit the record to show the grounds or points on which the plaintiff failed.” Now the court below or judge did not decline to do any such thing. The court below by finding generally, did just what it has been- the custom for courts to do, ever since courts were instituted, except where the court is asked to find specially. And the court also found just as the statutes authorized it to find. Section 290 of the code reads as follows:
“Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally, for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing the conclusions of fact found, separately from the conclusions of law.” (Gen. Stat. 684.)
No request was made in this case that the court should find otherwise than generally. The court undoubtedly would have found specially, and would have stated its conclusions of law separately from its findings of fact, if even the slightest intimation had been given that such a thing was desirable; but no such intimation was given, and therefore the court found generally, as all courts do in such cases. If special findings had been made, and if the conclusions of law had been stated separately from the findings of fact, then this case could have been presented to this court in something like an intelligent and intelligible manner. Then we could know wherein “the plaintiff failed.” Then we could know what the views of the court below were upon the various questions of law involved in the case; and we could know these things fully as well as we could if the case had been tried by a jury, and written instructions given by the court to the jury, and such instructions brought to this court. But taking the case as it is, and as it has been brought to this court, we shall have to grope our way as best we can. We have the pleadings and evidence before us, and we shall endeavor to decide all such questions as are fairly presented by them, and which were fairly raised in the court below, and saved by the plaintiff. And here we might say, that the plaintiff made a motion for a new trial upon nearly all the statutory grounds, which motion was overruled, and the plaintiff duly excepted. By this means the plaintiff saved some questions which would otherwise have been lost to.him.
The facts of the case, so far as it is necessary to state them, seem to be substantially as follows: In 1865, Theodore Jones and Jacob McMurtry owned forty-eight head of horses, which they had bought in Kansas to take to Illinois to sell. There is no evidence that their partnership extended to anything beyond this single transaction, and all the evidence bearing upon the subject would seem to indicate that they were equal partners. While the horses were in Kansas, General G. M. Dodge and others took them away from Jones and McMurtry, and Jones and McMurtry neyer obtained possession of .them again. Afterward, but iu 1865,-Jones and McMurtry commenced an action in Kansas against Dodge and others for the damages alleged to have been sustained by reason of the •loss of said horses. Afterward, but also in 1865, Jones left Kansas and went to Illinois, where he resided until in 1875, when he died. McMurtry remained in Kansas, where he resided until in 1876, when he died. The witness H. T. Green testified, among other things, “that Jones left Kansas in 1865; that McMurtry agreed with Jones to remain in Kansas and act for him in all matters, and attend to the collection of the money for the horses owned by them and in suit;” and there was no evidence in conflict with this testimony of Green. McMurtry attended to said suit, and on September 28, 1868, judgment was rendered therein in favor of Jones and McMurtry, and against Dodge and others, for $2,928. Several ineffectual attempts were then made' to collect this judgment, and the parties had about come to the conclusion that it was worthless; but in 1870, McMurtry, ascertaining that Dodge, who then resided in Iowa, was solvent, commenced another action against Dodge, in. Iowa, on the said judgment rendered in Kansas. Soon afterward, and on December 3,1870, Dodge settled the entire matter, by paying to McMurtry $3,400, the amount of said judgment with interest and all costs. McMurtry gave to Dodge a receipt for the money,-to which receipt he signed his own name, “Jacob P. McMurtry,” and also the name of “Theodore Jones.” McMurtry never informed Jones that he had collected or received said money, and Jones did not know anything about it until in 1874, and he made no" demand therefor, or for any part thereof, until May 25,1875. This suit was commenced June 24, 1875, for $1,200, which it is alleged in the petition is one-half of the whole amount received by McMurtry after paying all expenses.
From the foregoing facts it would seem that the plaintiff ought to recover; but the defendant says not, and in his brief gives two reasons therefor: 1. He says that Jones and McMurtry were partners; that they never had any settlement of their partnership affairs, and that therefore neither Jones nor his administrator could maintain any action against McMurtry or his administrator,.except an action for an accounting; and he claims that this is not that kind of action. 2. And he also claims that the statute of limitations has barred all right of action that ever existed in favor of Jones or his administrator against McMurtry or his administrator.
I. We do not think that the first reason given by the defendant, why the plaintiff cannot recover in this action, is sufficient. 1. Jones and McMurtry did have a settlement of their partnership affairs, as was testified to by McMurtry himself, and this settlement was made after the action of Jones and McMurtry against Dodge and others was commenced. 2. The whole partnership consisted merely in the purchase and ownership of said horses, and the prosecution of said suit against Dodge and others; and the petition sufficiently alleged all the facts connected therewith, so as to make the suit substantially an action for an accounting, if it were necessary that the action should be in that form. 3. And if the petition were defective in any of its statements, and only defective, it might have been amended, as requested by the plaintiff at the close of the trial, so as to make it correspond with the facts proved. We suppose it is not claimed that the partnership still existed at the time that this suit was commenced, for at that time Jones was dead, and the action was brought by his administrator. The court below probably did not decide this, case upon the ground that the action was not brought in the proper form, for the petition showed the nature of the case, as well as the evidence, and the court below, at the commencement of the trial, overruled an objection made by the defendant to the introduction of any evidence under the petition, which objection was made on the ground that the petition did not state facts sufficient to constitute any cause of action. If it was necessary for the court to render judgment against the plaintiff upon the facts as they were proved, by the evidence, it would also have been necessary, and equally necessary, for the court to render judgment against the plaintiff upon the same facts as-they were alleged .in the petition. And if judgment should have been rendered against the plaintiff on the facts as they were alleged in the petition, then it would have been utterly useless to allow the plaintiff to introduce evidence under his petition to prove such facts.
II. We think, however, that the court below rendered judgment against the plaintiff upon the ground that his action was barred by the statute of limitations. In this we think the court below erred. McMurtry was the agent of Jones for the prosecution of said suit against Dodge and others, and for the collection of said money, and for all matters connected therewith. There does not seem, however,.to have been any agreement between them as to when or how McMurtry should send or pay the money to Jones when he collected it. Possibly Jones may have intended to come back to Kansas for it when it was collected. But probably he did not think how he should get it, for when he constituted McMurtry his agent to collect it, and when he left Kansas, neither he nor McMurtry had much hopes of ever collecting anything. Now where an agent who lives in one state collects money for his principal who resides in another state, and there is no contract between them as to when or how the agent shall send or pay the . . ° . . money to his principal, no action accrues against t}le agent for the money until the principal has made a demand of him therefor and he has refused to pay the same, and consequently the statute of limitations does not begin to run in favor of the agent until after such demand and refusal. Taylor v. Spears, 8 Ark. (3 Eng.) 429; Judah v. Dyott, 3 Blackford (Ind.), 324; Hyman v. Gray, 4 Jones (N. C.) Law, 155; Merle v. Andrews, 4 Texas, 200; Baker v. Joseph, 16 Cal.173; Lever v. Lever, 1 Hill (S.C.) Ch. 62; Roberts v. Armstrong, 1 Bush. (Ky.) 263; Sneed v. Hanly, Hempstead C. C. 659; Voss v. Bachop, 5 Kas. 59; Krutz and Campbell v. Fisher, 8 Kas. 90. And this is true where the agent is held to be such by mere implication of law as well as where he is created such by express contract. It is true as between partners, who act as agents for each other and for their firm, and it is also true as between trustees and cestuis que trust; that is, before an agent, or trustee can-be held to be liable to an action at law or'suit in equity at the instance of his principal, or before any statute of limitations will commence to run in his favor, he must do some act hostile to his principal’s rights. Mere lapse of time, or mere neglect on his part, will not be sufficient. Generally, as between partners, the statute of limitations will not commence to run until the partnership has ceased to exist, and generally not until there has been a settlement of the partnership affairs or an adjustment of the liabilities of the copartners among themselves. (Benoist v. Markey, 25 La. Ann. 59.) And Mr. Perry in his work on Trusts, says:
“In cases where a possession may be lawful and rightful, it cannot be presumed to be adverse. Thus, one tenant in common cannot be presumed to hold adversely to1, the other, unless something more is shown than mere lapse of time. A trustee cannot be presumed to hold adversely to his cestui que trust; on the contrary, he is presumed to hold for his cestui que trust until the contrary appears. (Sec. '866.) And (it is clear that a person, in ignorance of his right, cannot be presumed to have abandoned it, especially if there is a fraudulent concealment of the cause of action by the guilty party.’ ” (Sec. 867.)
In the present case it does not seem that McMurtry ever questioned Jones’s right to one-half of the money collected from Dodge, less costs and expenses, and he never in words refused’to pay the same. He merely delayed, neglected and evaded payment, which after the demand on May 25, 1875, was tantamount to a refusal, but he never in direct terms refused payment. When Green, who made said demand for Jones, asked McMurtry for Jones’s half of said money, McMurtry merely said that “he had' paid out some expenses and costs and thought Green ought not -to take half without allowing him something for his time and trouble in attending to the interest of Jones and the suit.” Under the circumstances of this case, we do not think that any cause of action accrued in favor of Jones and against McMurtry until said demand was made on May 25,1875, and hence the cause of action set forth in this action is not barred by any statute of limitation.
The judgment of the court below will be reversed, and cause remanded for a n.ew trial.
All the Justices concurring. | [
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Per Curiam:
The judgment of the court below in this case will be affirmed, on the authority of the decision just made in the case of Dennis Mooney v. Mary E. Olsen. | [
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Lewis, J.:
Defendant was convicted of sale of cocaine and placed on 3 years’ probation. Subsequently, the probation was revoked, and defendant was ordered incarcerated under his original sentence. Defendant requested jail time credit for time spent in a halfway house and an inpatient drug treatment facility. The trial court denied this motion, and defendant appealed. We remanded and directed the trial court to consider defendant’s jail time credit motion in the light of State v. Williams, 18 Kan. App. 2d 424, 856 P.2d 158 (1993). On remand, the trial court again denied the motion for jail time credit because the facilities in which defendant had been housed for drug treatment were not owned, controlled, or operated by Reno County. Defendant appeals.
We conclude that the trial court construed State v. Williams much too narrowly, and we reverse and remand.
K.S.A. 21-4614a(a) sets out the provision for jail time credit:
“In any criminal action in which probation, assignment to a conservation camp or assignment to community corrections is revoked and the defendant is sentenced to confinement, for the purpose of computing the defendant’s sentence and parole eligibility and conditional release dates, the defendant’s sentence is to be computed from a date, hereafter to be specifically designated in the sentencing order of the journal entry of judgment or the judgment form delivered with the defendant to the correctional institution. Such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent in a residential facility while on probation, assignment to a conservation camp or assignment to community correctional residential services program.” (Emphasis added.)
Interpretation of a statute is a question of law over which this court may exercise unlimited review. State v. Williams, 18 Kan. App. 2d 424, Syl. ¶ 1.
In Williams, this court interpreted K.S.A. 21-4614a to require, in order to receive credit, that the defendant have spent time “in some sort of residential facility, whether it be denominated a residential facility, a conservation camp, or a community correctional residential services program.” 18 Kan. App. 2d at 428-29. We went on to analyze statutes on community corrections in order to determine what the phrase “community correctional residential services program” means. We concluded that in order to receive jail time credit a defendant must “reside at a facility which is owned, operated, maintained, or contracted for by community corrections for the purposes of detention, confinement, care, or treatment of offenders.” 18 Kan. App. 2d at 430.
We went on to say:
“In this case, Williams was placed on probation and assigned to the Cowley County Community Corrections Program. One of the conditions of his probation was that he complete a program of inpatient drug treatment approved by the court. Therefore, if as a condition of Williams’ assignment to community corrections, he was required to reside in a inpatient rehabilitation facility, and if the facility was owned, operated, maintained, or contracted for pursuant to the coun ty’s community corrections program, the time Williams spent in the facility must be credited as time served under the authority of K.S.A. 1992 Supp. 21-4614a.” (Emphasis added.) 18 Kan. App. 2d at 430.
The trial court in the present case interpreted Williams to require defendant to have beén assigned to a community corrections program “owned, operated, maintained, or contracted for” by the sentencing county. The trial court held that because the facilities defendant spent time in were not “owned, operated, maintained, or contracted for” by Reno County, no jail time credit was available.
We concede that some of the language in Williams appears to support the trial court’s conclusion. However, we conclude that Williams does not, in fact, require the program to be owned, operated, or controlled by the sentencing county. If that were true, a defendant' could be denied jail credit by being sent to a facility not controlled by the sentencing county. In this state, some of our small counties do not control an appropriate facility, and a defendant from such a county can only be assigned to a community corrections program controlled by another county. To deny a defendant jail time credit under that scenario would be unwarranted.
The language of K.S.A. 21-4614a does not require the facility to be controlled by the sentencing county, and Williams, although it does use the phrase “the county” at one point, does not include that language in its holding. Syl. ¶ 3 oí Williams sets out the court’s holding on the jail time credit issue, and it does not tie the program requirement to a specific county. On page 430, the Williams court states: “[W]e conclude that ‘community correctional residential services program’ includes assignment to a program operating under the Community Corrections Act . . . .” (Emphasis added.)
To the extent that Williams indicates the facility in question must be controlled by the sentencing county, we disagree. We intend this opinion to clarify Williams and hold that the facility must be owned, operated, maintained, or contracted for by a community corrections program operating under the Community Corrections Act, K.S.A. 75-5290 et seq. There is no requirement that the program be controlled by the community corrections program of the sentencing county.
In this case, the record does not indicate whether the facilities in question were owned, operated, maintained, or contractéd for by any community corrections program operating under the Community Corrections Act. If they were, defendant is entitled to credit for time served.
We reverse and remand to the trial court with directions to determine whether the facilities in question in this case were owned, operated, maintained, or contracted for by any community corrections program in this state operating under the Community Corrections Act. If they were, defendant should be given credit for time served in such facilities.
Reversed and remanded with directions. | [
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Pierron, J.:
Jimmie D. Gray was convicted of the April 2,1994, theft of property of a value of under $500. This charge was enhanced to a felony because of Gray’s two prior municipal court convictions for theft. The municipal ordinance violated by Gray defined theft in the same manner as the applicable statute, K.S.A. 1993 Supp. 21-3701.
Effective July 1, 1993, the legislature amended K.S.A. 21-3701 by deleting the following paragraph:
“Conviction of a violation of a municipal ordinance prohibiting acts which constitute theft . . . shall be considered a conviction of theft for the purpose of determining the number of prior convictions and the classification of the crime under this section.” See L. 1992, ch. 298, § 39.
On appeal, Gray contends that because of the 1992 amendment, the municipal conviction should not have been used to enhance his crime to a felony. He further argues that the criminal statute must be strictly construed against the State. The State maintains there is no need for construction of K.S.A. 1993 Supp. 21-3701 because it is not ambiguous and that the paragraph in issue was deleted not out of a desire to change the law, but because the language was surplusage.
Absent a clear expression of legislative intent, a conviction under a city ordinance cannot be used as a basis for an enhanced penalty for a subsequent violation of a similarly worded state statute. State v. Dunn, 21 Kan. App. 2d 359, 363, 900 P.2d 245 (1995). The applicable statute contains no statement concerning the use or consideration of municipal theft convictions. The absence of any reference at all cannot be considered a clear expression of legislative intent. It was error for Gray’s municipal convictions to be used to enhance his crime to a felony.
Sentence vacated and case remanded. | [
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Wahl, J.:
National City Bank of Cleveland, Ohio, (NCB) appeals the decision of the district court giving the Board of County Commissioners of Ness County, Kansas, (Ness County) priority in pro ceeds from partition of an oil and gas lease following an order in bankruptcy court modifying the automatic stay from the bankruptcy action of High Plains Drilling Program-1981, Ltd., (the 1981 program) a defendant in the original partition proceeding.
The plaintiff in the original action, High Plains Oil, Ltd., (High Plains) was a co-owner of the aforementioned oil and gas lease, along with the defendants, the 1981 program and High Plains Drilling Program-1982 Y.E. Ltd. (the 1982 program). NCB held a mortgage against the lease ownership rights of both High Plains and the 1981 program. In 1988, High Plains filed an action seeking to partition the various ownership interests in the lease. NCB filed a counterclaim, asserting that because a bankruptcy petition filed by the 1981 program in July 1987 remained unresolved, the partition action violated the automatic stay provisions of the Bankruptcy Code, 11 U.S.C. § 362 (1994).
Pursuant to an order filed in September 1988, the judge presiding over the 1981 program’s bankruptcy action modified the automatic stay to allow the following:
“[A]ny party in interest in this case who is also a party to the partition actions [may] assert its claim against the Debtor’s property in those actions [and] . . . the Debtor’s interest in the . . . leases [may] be partitioned, sold, or otherwise disposed of in accordance with the orders of the state district courts.”
The bankruptcy judge made this modification after concluding, pursuant to 11 U.S.C. § 362(d)(2), that the 1981 program had no equity in the lease and the lease was unnecessary to an effective reorganization of the debtor.
In October 1988, the district court filed an order appointing appraisers and authorizing the partition and sale of the oil and gas lease. The court’s order determined that High Plains, the 1981 program, and the 1982 program possessed respective ownership interests in the lease of 12.5%, 72.9544%, and 14.5456%. The value of the lease was subsequently appraised at $19,250. It was sold for $40,600 in August 1989.
Three days after the sale of the lease, Ness County filed a motion to intervene in the partition action. The motion alleged Ness County had an outstanding $35,408.35 judgment against the 1981 program for property taxes assessed against the lease in 1983 and 1986. The district court granted Ness County’s motion to intervene and, subsequendy, issued an order confirming the sale of the lease.
On September 20, 1989, die district judge assigned to the case, Judge Worden, ordered distribution of costs, expenses, and attorney fees from die sale proceeds. The distribution of the remaining sum of $32,399.46 was to be determined at a later date. On September 25, 1989, Ness County filed a motion to determine priorities and distribute proceds. NCB filed an objection, arguing that the motion should be submitted to the bankruptcy court for determination.
Judge Worden’s assignment to this case was canceled in December 1990. No action occurred on the case from the September 1989 order of distribution of costs and expenses until a status conference was set for January 22, 1991, by Judge Meeks. Counsel for NCB did not attend the conference but did submit a letter for the court’s consideration. During the status conference, the court indicated that based on review of the case file, it would order that Ness County receive proceeds subject to further hearing. The county attorney prepared a proposed journal entry and distributed it to the court and all interested parties.
On February 6, 1991, NCB filed a motion objecting to the proposed journal entry on the grounds that it did not detail the basis for the court’s decision and that it was based on a ruling made at a hearing at which NCB did not appear, thus depriving NCB of its right to due process. The court held a telephone hearing on NCB’s objections on March 4, 1991, and, thereafter, signed the journal entry prepared earlier.
NCB appealed, and this court vacated and remandéd the judgment in High Plains Oil, Ltd. v. High Plains Drilling Program-1981, Ltd., et al., No. 69,742, unpublished opinion filed February 11, 1994. This court’s decision was based on insufficient findings of facts and conclusions of law in the district court’s journal entry, precluding meaningful appellate review.
On remand, the district court reviewed the file, considered the briefs and arguments from the parties, and issued a second journal entry in favor of Ness County on May 31, 1995. The court found Ness County followed the correct procedures as set forth in K.S.A. 79-2101 in that tax warrants were filed with the clerk of the court for the 1983 and 1986 delinquent taxes on October 4, 1984, and October 14,1987, respectively. The court held the partition statute, K.S.A. 60-1003, and statutes concerning the sale of personal property for taxes, specifically, K.S.A. 79-2109, K.S.A. 79-2110, and K.S.A. 79-2111, operated to give Ness County priority for its personal property tax lien. Further, the district court found jurisdiction and ordered proceeds from the sale of the oil and gas lease to be paid to Ness County to satisfy delinquent taxes, including all interest and penalties, with the remaining balance, if any, to be paid to NCB.
We must first determine what law should apply. NCB maintains the U.S. Bankruptcy Code should apply. NCB argues the bankruptcy court only allowed the partition sale to proceed and that the bankruptcy court had no intention of abandoning the proceeds from sale of the oil and gas lease; therefore, the proceeds remain in the bankruptcy estate. Ness County points to the plain language from the order modifying the automatic stay. The bankruptcy court clearly stated that any party in interest in the partition case would be allowed to assert its claim and the oil and gas lease could be “sold, or otherwise disposed of in accordance with the orders of the state district courts.” (Emphasis added.)
This issue poses a question of law where this court’s review is unlimited. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
NCB’s interpretation of the bankruptcy court’s order ignores the court’s finding under 11 U.S.C. § 362(d)(2)(A) and (B) that the 1981 program had no equity in the oil and gas leases and that the leases were not necessary to an effective reorganization because the debtor case was converted to a Chapter 7 liquidation. There is no language in the order reserving the proceeds from the sale of the lease to the bankruptcy estate. NCB’s interpretation is not logical where the order granted relief from stay and allowed the lease to be “sold, or otherwise disposed of” and where the bankruptcy court found the debtor had no equity.
The order had the effect of removing the oil and gas lease from the bankruptcy estate. See 11 U.S.C. § 362(c)(1) (1994). Further, the order plainly states the lease should be sold and disposed of “in accordance with the orders of the state district courts.” When the lease was removed from the bankruptcy estate and the partition action proceeded in state court, the bankruptcy court had no further control over the proceeds. Kansas state law must guide the distribution of the oil and gas lease sale proceeds.
The district court specifically found Ness County was entitled to priority in the 1981 program’s interest in the partition proceeds under K.S.A. 79-2109, K.S.A. 79-2110, and K.S.A. 79-2111. As an initial finding, the district court found Ness County followed the applicable procedures for obtaining a tax warrant and judgment under K.S.A. 79-2101. NCB does not claim Ness County did not properly secure judgment but argues Ness County waived its right to proceed under special collection procedures for an oil and gas lease under K.S.A. 79-2101. Ness County could have notified the purchaser of the oil and gas runs to pay proceeds from the sale of any oil or gas to the county until delinquent taxes and costs were paid. NCB does not report the remaining provision in the statute which states in relevant part “but this exception shall not prevent the levy of an execution and sale of the leasehold interest or the physical personal property on any such lease for the payment of delinquent taxes owed by its owner.” K.S.A. 79-2101.
NCB correctly states that oil and gas leases are not in the nature of real property, but rather are personal property. See Utica Nat’l Bank & Trust Co. v. Marney, 233 Kan. 432, 433, 661 P.2d 1246 (1983). Judgment liens attach to real property of the taxpayer and not to the oil and gas lease. K.S.A. 79-2101. A lien on property must be created by statute. Joe Self Chevrolet, Inc. v. Board of Sedgwick County Comm’rs, 247 Kan. 625, 632, 802 P.2d 1231 (1990). K.S.A. 79-2109 and K.S.A. 79-2110 provide statutory authority for liens on personal property. K.S.A. 79-2111 establishes priority for delinquent taxes. Interpretation of statutes is a question of law, and this court’s review of questions of law is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d at 283.
K.S.A. 79-2109 states in relevant part:
“If any owner of personal property after the date as of which personal property is assessed and before the tax thereon is paid, shall sell all of a class of die same to any one person, the tax for that year shall be a hen upon the property so sold, and shall at once become due and payable . . .
The statute plainly contemplates that if the “owner,” determined from the date of assessment, sells the personal property, a lien is created. Robbins-Leavenworth Floor Covering, Inc. v. Leavenworth Nat'l Bank & Trust Co., 229 Kan. 511, 514, 625 P.2d 494 (1981); Palmer v. First Nat'l Bank of Kingman, 10 Kan. App. 2d 84, 87, 692 P.2d 386 (1984). January 1 is the date of assessment for personal property taxes and the date to determine ownership. Palmer, 10 Kan. App. 2d at 87.
NCB argues, following In re White Hat Feed, Inc., 67 Bankr. 851 (Bankr. D. Kan. 1986), and Palmer, that the ownership changed between the date of assessment and the date of sale because the lease became the property of the bankruptcy estate, and, therefore, Ness County could not have a tax lien on the property pursuant to K.S.A. 79-2109. Ness County contends High Plains is the real seller and High Plains, the 1981 program, and the 1982 program were the owners of the property at the time of assessment and at the time of sale.
Neither position clearly states the question. Both parties agree the 1981 program was one of the owners of the oil and gas lease in question on January 1 of the delinquent tax years 1983 and 1986. The 1981 program filed a voluntary bankruptcy petition in 1987. As part of the 1981 program’s assets, the lease became part of the bankruptcy estate. While the 1981 program’s interest in the lease did transfer between the date of assessment and the date of sale, NCB does not deal with the real question of who sold the oil and gas lease. Ness County incorrectly identifies the seller as High Plains, the 1981 program, and the 1982 program. These were the owners of the oil and gas lease as determined on January 1, 1983, and January 1, 1986.
High Plains initiated the partition action in the district court after the 1981 program filed for bankruptcy. As a creditor of the 1981 program and, therefore, a party in interest, NCB could petition the bankruptcy court for relief from the stay so that the par tition action could proceed. However, neither NCB nor the trustee sold the oil and gas lease. The real seller was the district court or, more technically, the sheriff on behalf of the court. See K.S.A. 60-1003(c)(4).
NCB quotes White Hat Feed to show how the bankruptcy court succinctly applied its facts to the proper question of who owned and who sold the property in question and not whether ownership changed hands:
“Here, the debtor was the owner of the property at the time of assessment. Upon the filing of the [bankruptcy] petition the debtor’s property passed to the estate and the subject property was sold by the trustee. Thus, the owner of the property at the time of assessment was not also the seller and K.S.A. 79-2109 is rendered inapplicable.” In re White Hat, Inc., 67 Bankr. at 853.
In the case at hand, the 1981 program’s interest in the lease passed to the bankruptcy estate but was released from that estate to the partition action and was sold by the sheriff under the direction of the district court.
The 1981 program, together with the 1982 program and High Plains, were the owners of the lease as of January 1, 1983, and January 1, 1986, the tax years in question, but they were not the sellers in the partition sale. Therefore, K.S.A. 79-2109 did not apply. Furthermore, while K.S.A. 79-2109 may create a lien upon the property sold if the owner is also the seller, there is no language which would give that lien priority over any other lien. The statute provides only that the tax will be due and payable immediately. The statute does not provide for payment of the taxes from the proceeds of the sale. K.S.A. 79-2109, by its terms, does not appear to affect the priority standing of a perfected secured creditor.
K.S.A. 79-2110 provides in relevant part:
“If any person in this state, after his or her personal property is assessed and before the tax thereon is paid, shall sell all of the same to any one person, and not retain sufficient sic to pay the taxes thereon, the tax for that year shall be a lien upon the property so sold, and shall at once become due and payable. . . .”
Both parties agree that although the wording is slightly different, this statute requires that the owner at the time of assessment must also be the seller. The court in Robbins held this statute to apply to bulk sales. 229 Kan. at 514. Neither party offers any new arguments, and Robbins indicates this statute is not relevant here.
K.S.A. 79-2111 provides:
“If the personal property of any taxpayer be seized by any legal process and if the taxpayer does not have a sufficient amount of other property to pay the taxes which is exempt from levy and sale under such legal process, then the taxes on the personal property of such taxpayer shall at once fall due, and be paid from the proceeds of the sale of the property so taken on such legal process, in preference to all other claims against it.”
This statute and the term “seizure” were first analyzed in Robbins, where a debtor voluntarily surrendered collateral upon default to the creditor bank. “Seizure” is defined in Black’s Law Dictionary 1359 (6th ed. 1990):
“The act of taking possession of property, e.g., for a violation of law or by virtue of an execution of a judgment. Term implies a taking or removal of something from the possession, actual or constructive, of another person or persons. [Citation omitted.]
“The act performed by an officer of the law, under the authority and exigence of a writ, in taking into the custody of the law the property, real or personal, of a person against whom the judgment of a competent court has passed .... Or the act of taking possession of goods in consequence of a violation of public law.”
In the view of our Supreme Court, a “voluntary surrender of property does not comport with the concept of a seizure, which implies a forcible taking under authority of law.” Robbins, 229 Kan. at 515.
The court then turned to “legal process” and defined it as “a writ, warrant, summons, order or mandate; proceedings which invoke the aid of judicial process or decree.” 229 Kan. at 515.
The statute next came under consideration in Palmer, and this court ruled that where personal property under a voluntary bankruptcy came under ownership of the bankruptcy estate and the bank obtained relief from the stay in order to sell collateral, the entire process of bankruptcy met the definition of legal process. The court held that K.S.A. 79-2111 was triggered and the delinquent taxes became payable from the proceeds of the sale. The Palmer court did not specifically separate and consider the term “seizure” in its analysis of “seized by legal process.” 10 Kan. App. 2d at 89-90.
The United States Bankruptcy Court in White Hat Feed found that a debtor’s petition in bankruptcy operates to voluntarily surrender property; therefore, K.S.A. 79-2111 would not operate to give the county priority for delinquent personal taxes. We must consider the effect of use of the term “seizure” in distinction from Palmer, and, thus, we find K.S.A. 79-2111 inapplicable because the 1981 program voluntarily surrendered its interest in the oil and gas lease to the bankruptcy estate. The bankruptcy court voluntarily surrendered the lease to the district court. The partition action is the legal process this court must look at. The lease did not become subject to the jurisdiction of the district court by any forcible taking but by a surrender from the bankruptcy court. “A voluntary surrender of property does not comport with the concept of a seizure.” Robbins, 229 Kan. at 515.
K.S.A. 79-2020 provides in relevant part:
“If any owner of personal property surrenders or transfers such property to another after the date such property is assessed and before the tax thereon is paid, whether by voluntary repossession or any other voluntary act in reduction or satisfaction of indebtedness, then the taxes on the personal property of such taxpayer shall fall due immediately, and a lien shall attach to the property so surrendered or transferred, and shall become due and payable immediately. Such hen shall be in preference to all other claims against such property.”
The district court did not rely on this statute when ruling that Ness County had priority over NCB with respect to the proceeds from the 1981 program’s interest in the oil and gas lease. From the record, it does not appear this statute was presented to the district court. Since it did not enter into the trial court’s consideration, it will not be first considered by this court on appeal.
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Brazil, C.J.:
Tommy Ridgway appeals two cases involving his coverage under a motorcycle insurance policy issued by Shelter Insurance Company (Shelter). We affirm.
The cases arose out of an accident in which Ridgway was struck by a car while on his motorcycle. Ridgway suffered personal injury and property damage, but the driver of the car that struck him was uninsured. Ridgway sued Shelter in one of the cases for failure to pay personal injury protection (PIP) benefits under his niotoreycle insurance policy. In the other case, Ridgway sued Shelter, the driver of the car which struck him, and the driver of another vehicle involved in the accident, alleging negligence by the two drivers and alleging uninsured/underinsured motorist (UM) coverage under the motorcycle insurance policy. Shelter defended in each case on the ground that Ridgway, through his agent Billie Lewis, had rejected in writing the coverages he sought to recover; the trial court granted Shelter summary judgment in each case.
On appeal, Ridgway asserts the following reasons why the trial court erred in finding valid rejections of the PIP and UM coverages: (1) the pertinent Kansas insurance code statutes do not permit an agent of the named insured to reject the coverages at issue; (2) if the statutes do permit an agent to reject the coverages at issue, either (a) Lewis lacked authority from Ridgway to effect the rejections or (b) Lewis’ rejections were ineffective under common-law waiver principles.
At the time of the accident, Ridgway had been living with his girlfriend, Billie Lewis, for almost 5 years, and the two had a daughter together. The three lived in a house owned by Lewis.
Approximately a year before the accident, Ridgway acquired a motorcycle and instructed Lewis to get insurance on the motorcycle for him. Lewis went to Shelter for the insurance because Ridgway told her to get the insurance at the same place that insured his car. According to Lewis, Ridgway told her to get liability insurance but said nothing to her about policy limits. Ridgway stated he “[j]ust told her to get insurance, go by and get me some insurance on the motorcycle so I could ride it.” In addition, Ridgway was questioned at his deposition:
“Q. [By Shelter’s counsel] Did you tell her anything specifically about getting insurance when she went?
“A. No, just to purchase insurance.
“Q. Did you tell her whether to get comprehensive, where everything is covered, or liability only or anything like that?
“A. I figured, you know, she would just get liability because I didn’t even know if they would cover a motorcycle that old, a 77. Because • I had a car or something before, and it seems like they told me I couldn’t get insurance when it was so old, full coverage insurance or something.
“Q. Did you talk to Billie about that at all before she went over?
“A. No. I just told her to get it and she was going to get it.”
Ridgway further stated he gave Lewis money to get the insurance.
Lewis went to Shelter and negotiated a policy with Chuck Sirratt. Sirratt stated he originally knew Lewis from having written insurance for her on another policy, then came to know Ridgway through Lewis, and then wrote another insurance policy for Ridgway as well. Sirratt stated that Lewis handled most of Ridgway s insurance needs, including the signing of documents.
Lewis stated that when she went to see Sirratt about the motorcycle insurance, she signed Ridgway’s signature to two “waivers” but did not read the waivers or know what they were:
“Q. [By Shelter’s counsel] And did Chuck have you sign anything when you were there?
“A. Now, when this accident happened, yes, I remember signing this paper, a waiver, but I don’t know what it is. I signed more than just that. I signed two pieces of paper, I paid him, and then I left.
“Q. Do you remember signing Tommy’s signature to two documents at the insurance agency that day?
“A. Yes.
“Q. Did you try to call Tommy to talk to him about the things you were signing?
“A. No.
“Q. Did they tell you what they were at the agency, the things you were signing?
“A. Not that I recall. I just thought it was insurance.
“Q. Did you read the things you signed?
“A. No.
“Q. Would that be a common practice for you to sign your name or somebody else’s name to something you wouldn’t have read?
“A. Yes.”
The policy which Lewis procured for Ridgway listed coverage for bodily injuiy as $50,000 per person, $100,000 per accident, with $25,000 property damage coverage (50/100/25). The policy listed UM coverage as $25,000 per person and $50,000 per accident (25/ 50). Attached to the application fonn is-a “NOTICE OF REJECTION OF PERSONAL INJURY PROTECTION BENEFITS,” which Lewis admitted signing, bearing Ridgway’s name. Lewis also signed, in Ridgway’s name, a “REDUCED LIMITS ELECTION” rejecting UM coverage equal to the limits of bodily injury liability coverage on the policy and instead selecting a UM coverage limit of $25,000 per person and $50,000 per accident.
Lewis stated that, after she procured the insurance, she and Ridgway never discussed the insurance in detail or what the policy covered. On checks drawn on her account, Lewis later paid renewal premiums on the policy in November 1991, February 1992, and June 1992.
At issue are two provisions of the Kansas insurance code, K.S.A. 40-101 et seq. Under K.S.A. 40-3107(f), every motor vehicle liability insurance policy issued to a Kansas insured shall
“include personal injury protection benefits to the named insured, relatives residing in the same household, persons operating the insured motor vehicle, passengers in such motor vehicle and other persons struck by such motor vehicle and suffering bodily injury while not an occupant of a motor vehicle, not exceeding the limits prescribed for each of such benefits, for loss sustained by any such person as a result of injury. The owner of a motorcycle, as defined by K.S.A. 8-1438 and amendments thereto or motor-driven cycle, defined by K.S.A. 8-1439 and amendments thereto, who is the named insured, shall have the right to reject in writing insurance coverage including such benefits for injury to a person which occurs while the named insured is operating or is a passenger on such motorcycle or motor-driven cycle-, and unless the named insured requests such coverage in writing, such coverage need not be provided in or supplemental to a renewal policy when the named insured has rejected the coverage in connection with a policy previously issued by the same insurer. The fact that the insured has rejected such coverage shall not cause such motorcycle,or motor-driven cycle to be an uninsured motor vehicle.” (Emphasis added.)
In addition, K.S.A. 40-284(c) provides: “The insured named in the policy shall have the right to reject, in writing, the uninsured motorist coverage required by subsections (a) and (b) which is in excess of the limits for bodily injury or death set forth in K.S.A. 40-3107 and amendments thereto.”
Ridgway contends that the written rejections signed by Lewis in this case are ineffective under the above statutes because they were signed by someone other than the named insured. Shelter contends the trial court correctly found the relevant statutes contain no language which undermines the application of common-law agency principles to determine whether valid rejections occurred in this case.
Although this appeal is from an entry of summary judgment, this issue is purely one of statutoiy interpretation, which is a question of law. As to this issue, therefore, this court’s review of the trial court’s decision is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
.. Ridgway argues that this issue is controlled by Larson v. Bath, 15 Kan. App. 2d 42, 801 P.2d 1331 (1990), rev. denied 248 Kan. 996 (1991). He argues that Larson requires rejection of PIP benefits and of the higher UM limits by the named insured only. He cites particularly the Larson court’s emphasis in its holding upon rejection by the named insured and also the requirement of a narrow and strict construction of the rejection provisions of K.S.A. 40-284(c), which arguably would apply equally to the rejection provisions of K.S.A. 40-3107(f). Shelter argues that Larson is factually distinguishable because in Larson no rejection was ever signed or attached to the policy. Shelter also argues that the inference from Larson is that, had the rejection been properly signed by the employer’s agent who procured the insurance, the rejection would have been effective.
Larson is not controlling in the present case. Larson did not address the pivotal issue here of whether the insurance code permits an authorized agent of the insured to reject the respective coverage provisions in K.S.A. 40-284(c) and K.S.A. 40-3107(f).
There is a sizable body of case law, however, involving the procurement of insurance for an insured by an insured’s agent. See 3 Couch on Insurance 3d § 44:1-37 (1995). Although there are no Kansas cases on point, a similar situation arose in Soileau v. Hartford Accident & Indemnity Co., 182 So. 2d 76 (La. App. 1966). In Soileau, a husband sought to recover UM benefits under an automobile liability policy. The Louisiana statute involved required auto liability insurers to provide uninsured motorist coverage “unless ‘any insured named in the policy shall reject the coverage.’ ” 182 So. 2d 76. In suing his insurer, the husband alleged that the policy issued to him improperly omitted the mandatoiy UM coverage because he, as the insured named in the policy, had not rejected the coverage. The trial court had found the wife was authorized by the husband to reject the UM coverage, and the husband appealed.
The court found that, under the general rule in American jurisprudence, a husband was bound by the coverage procured by his wife when she was acting as his validly authorized agent. The court further found that the wife in Soileau had actual authority to procure the insurance, and thus the statutory requirement that “the insured named in the policy” shall reject the coverage had not been violated. 182 So. 2d at 77. Notably, Soileau arose out of the same jurisdiction as Roger v. Estate of Moulton, 513 So. 2d 1126 (La. 1987), cited by Ridgway for support in his brief. In that case, a letter from the insured purporting to expressly reject uninsured motorist coverage was never physically attached to the original policy or subsequent renewals and could not operate as a valid rejection. Estate óf Moulton is distinguished by different facts.
Although the present case does not involve a husband-wife relationship, the same principles of agency are involved. Soileau provides authority for Shelter’s proposition that, although the legislature provided in the insurance code for the rejection of PIP and UM benefits by the named insured, it does not necessarily follow that the legislature intended to abrogate the principles of agency law. Absent a more express statement by the legislature, we find that the Kansas insurance code permits a named insured to give a legal agent the authority to reject the respective coverage provisions in K.S.A. 40-284(c) and K.S.A. 40-3107(f).
Shelter contends the trial court correctly found that Lewis had authority as Ridgway’s agent to effect the coverage rejections found in K.S.A. 40-284(c) and 40-3107(f). Ridgway does not address this issue at any length in his brief. Ridgway devotes two sentences to this issue, without any supporting legal authority:
“Although it is agreed that Tommy Ridgway authorized Billie Lewis to procure insurance for him, it is uncontroverted that Tommy Ridgway did not authorize her to reject any statutorily required coverage. She was authorized to purchase insurance only.”
There is no question here that Ridgway expressly authorized Lewis to procure motorcycle insurance for him. The only argument suggested by Ridgway is that, in rejecting PIP coverage and higher UM coverage, Lewis exceeded Ridgeway’s express grant of authority.
Even if we were to find that Lewis did not have express authority to reject the PIP coverage and higher UM coverage, Lewis certainly had implied authority in this case. In instructing Lewis to procure insurance for him, Ridgway placed no limitations or restrictions upon her. He deferred the coverage specifics to Lewis, just as he had deferred the handling of other household financial matters to her. “ ‘ “On the question of implied agency, it is the manifestation of the alleged principal and agent as between themselves that is decisive, and not the appearance to a third party or what the third party should have known.” ’ ” Mohr v. State Bank of Stanley, 241 Kan. 42, 46, 734 P.2d 1071 (1987) (quoting 2A C.J.S., Agency § 52, p. 627). The decision whether to reject the coverages arose as a necessary or reasonable implication in order for Lewis to effectuate Ridgway s express instruction to procure insurance. See 3 Am. Jur. 2d, Agency § 75, p. 579.
There is no genuine issue as to any material fact concerning the agency relationship. See Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995). The trial court did not err in finding Lewis had authority as Ridgway s agent to reject PIP benefit coverage or elect reduced UM coverage.
Next, Ridgway contends the rejections by Lewis should be considered ineffective because Lewis did not knowingly or intentionally reject the statutorily mandated coverages. Shelter contends that Kansas contractual law presumes that, in signing the documents, Lewis understood the ramifications of the rejections and intended to reject the coverages.
In one of the cases cited by Ridgway, this court stated that waiver in contract law “is consensual in nature, and the intention may be inferred from conduct, and the knowledge may be actual or constructive.” Stratmann v. Stratmann, 6 Kan. App. 2d 403, 410-11, 628 P.2d 1080 (1981). Shelter argues that, by signing the rejection forms, Lewis had constructive knowledge of the coverage she was rejecting and demonstrated her intent to reject the coverages. Shelter cites Miner v. Farm Bur. Mut. Ins. Co., Inc., 17 Kan. App. 2d 598, 609, 841 P.2d 1093 (1992), rev. denied 252 Kan. 1092 (1993), where this court stated:
“Kansas has long held it to be ‘the duty of every contracting party to learn and know the contents of a contract before he signs and delivers it.’ Bailey v. Talbert, 179 Kan. 169, Syl. ¶ 4, 294 P.2d 220 (1956). ‘As a result of this duty, a person who signs a written contract is bound by its terms regardless of his or her failure to read and understand its terms.’ Rosenbaum v. Texas Energies, Inc., 241 Kan. 295, 299, 736 P.2d 888 (1987). See Vanier v. Ponsoldt, 251 Kan. 88, Syl. ¶ 1, 833 P.2d 949 (1992). Only where there is a mutual mistake as to the contents and meaning of the contract is this rule inapplicable.”
The rejection-of-coverage forms signed by Lewis are unambiguous. As such, they should “ ‘be enforced as written so long as the terms do not conflict with pertinent statutes or public policy.’ ” 17 Kan. App. 2d at 609. Ridgway’s suggestion that Lewis did not understand the nature of the forms she was signing, even if true, is unavailing. Neither K.S.A. 40-284(c) nor K.S.A. 40-3107(f) mandates the duty to inform suggested by Ridgway. Also, Ridgway has provided no iegal support for a public policy in favor of a duty to inform in this instance. On the other hand, as stated in Miner, “[e]nforcement of the rule holding the contracting party to the duty of knowing the contents of the contract before signing gives stability to written contracts and removes the temptation and possibility of perjury at a later date to vary the terms of the instrument.” 17 Kan. App. 2d at 609.
Ridgway also argues in his brief that Sirratt did not understand the meaning of PIP or UM coverage and, therefore, Lewis’ rejection was unknowing. However, in his own recitation of the facts, Ridgway states that Sirratt did not discuss with Lewis the meaning of PIP or UM coverage. Thus, even if Sirratt misunderstands the meaning of those coverages, his misunderstandings would not have influenced Lewis. Under Kansas contract law, Lewis had the duty to ask questions about the meanings of the various coverages if she did not understand them. The undisputed facts here show that Lewis had the opportunity to ask any questions about the coverages but declined to do so. Lewis’ rejections of the coverages were valid.
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Penland, J.:
Unified School District No. 500 (District) appeals the district court’s decision which affirmed the hearing officer’s ruling that the District failed to establish by substantial evidence good cause for nonrenewal of Mable Robinson’s teacher contract. We reverse.
The District had continuously employed Robinson as an elementary teacher since 1967. In the spring of 1994, the District decided to terminate Robinson’s contract. Robinson was given notice of the school board’s intent to nonrenew her contract for the 1994-95 school year due to her failure to satisfactorily plan and teach lessons and her failure to provide an orderly teaching and learning climate. As a tenured teacher, Robinson filed a request for a due process hearing pursuant to K.S.A. 72-5436 et seq. An evidentiary hearing was held beginning January 12,1995. The hearing officer found that there was not substantial evidence to support the District’s stated reasons for nonrenewal.
On appeal at the district court level, the court found that the hearing officer had applied the correct standard of “good cause,” his findings were supported by substantial evidence, and he did not arbitrarily ignore undisputed evidence. The District appeals.
Dr. Nelda Kibby was the principal at Lindbergh Elementary School during most of Robinson’s tenure there and was Robinson’s main evaluator. Dr. Kibby testified that from the beginning, Robinson was a “mediocre” teacher, but Dr. Kibby believed that with time and support, Robinson would improve. Eventually, Dr. Kibby’s concern over Robinson’s performance grew. Dr. Kibby went to Robinson’s room to retrieve her grade book and found that it contained either an inadequate record or no record of grades. The principal also discovered that Robinson’s students had met only 14 out of 216 goals for second graders within the first 9 weeks of school, far below the progress obtained by other second-grade teachers.
Dr. Kibby had general concerns about Robinson’s teaching style in that Robinson often had no clear objective in making sure the children in her class mastered their lessons. Although the special needs of the children at Lindbergh were growing, the ability of Robinson to control the classroom did not appear to keep pace. Dr. Kibby believed that many of the children’s behavior problems escalated during the year that they spent in Robinson’s classroom. Robinson responded to the children with comments such as: “You’re acting like a fool,” “Don’t act retarded,” and “You’ve got a head like a doughnut.”
There were several specific instances of inappropriate responses by Robinson to a child’s behavior. For instance, when a student threatened to hit Robinson, Robinson threatened to hit the child. On May 24, 1993, a student asked to use the restroom. Because the class would be going to physical education in a few minutes, Robinson asked the child to wait. The child went back to his seat but then returned to the front of the classroom and told Robinson, “I’m going to have my mother kick your butt.” Robinson testified that she told the child that if he ever said that again, then she would “kick his butt.” Robinson then called Dr. Kibby to remove the child because by that time he was throwing a tantrum. Dr. Kibby testified that after talking with Robinson about this incident and thinking it over, the decision was made to place Robinson on leave without pay for the next school day. Following this incident, Robinson was placed on warning status and received intensive assistance during the 1993-94 school year.
During the 1993-94 school year, Dr. Kibby and Georgia Berry, the principal at Silver City Elementary School, made up the team for Robinson’s assistance program. The team decided that Robinson should complete the new teacher mentor program whereby objectives were provided to help new teachers. Berry also observed Robinson approximately six times while Robinson was teaching. After each observation, Berry would conference with Robinson on what went well and what needed improvement. Berry’s concerns were that Robinson was inconsistent in following through with suggestions and no real improvement was ever achieved. Berry was concerned about Robinson’s lesson presentation, use of relevant materials, and ability to keep the students focused and involved in the lesson.
The three factors that should have guided the hearing officer in his decision were: (1) The burden of proof was on the school board, (2) the school board’s reasons for termination had to constitute good cause, and (3) the decision had to be supported by substantial evidence. See U.S.D. No. 434 v. Hubbard, 19 Kan. App. 2d 323, 326, 868 P.2d 1240, rev. denied 255 Kan. 1007 (1994).
The standard of review of a due process hearing officer’s decision is limited to deciding if: (1) the hearing officer’s decision was within the scope of the officer’s authority; (2) the hearing officer’s decision was supported by substantial evidence; and (3) the hearing officer did not act fraudulently, arbitrarily, or capriciously. See Hubbard, 19 Kan. App. 2d at 326.
When a district court’s decision is appealed, we review the hearing officer’s decision as though the appeal has been made directly tó us, and we are subject to the same limitations of review as the district court. See Butler v. U.S.D. No. 440, 244 Kan. 458, 464, 769 P.2d 651 (1989).
Gillett v. U.S.D. No. 276, 227 Kan. 71, 78, 605 P.2d 105 (1980), has been widely cited for its definition of good cause:
“The words ‘good cause’ are somewhat indefinite and to a great degree are dependent upon the peculiar facts and circumstances presented to a court in a particular case .... We hold that under the Kansas due process statute [K.S.A. 72-5436 et seq. ] a tenured teacher may be terminated or nonrenewed only if good cause is shown, including any ground which is put forward by the school board in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building up and maintaining an efficient school system.”
“ ‘The evident purpose of the Tenure of Instructors Act... is to protect competent and worthy instructors and other members of the teaching profession against unjust dismissal of any kind — political, religious or personal, and secure for them teaching conditions which will encourage their growth in the full practice of their profession, unharried by constant pressure and fear, but it does not confer special privileges or immunities upon them to retain permanently their positions or salary, nor permit their interference with the control or efficient operation of the public-school system; and, notwithstanding it grants tenure to those who have taught the requisite period, it nonetheless empowers Boards of Education to discharge them for just cause in an orderly manner by the procedures specified.’ ” Gillett, 227 Kan. at 75-76 (quoting Million v. Board of Education, 181 Kan. 230, Syl. ¶ 1, 310 P.2d 917 [1957]).
The District argues that the hearing officer neither found that the reasons for nonrenewal of Robinson’s contract were based on bad faith nor that the reasons were arbitrary, irrational, unreasonable, or irrelevant to the District’s objective of maintaining an efficient school system for the students. It does appear that the hearing officer made no such finding.
The District contends that the hearing officer failed to balance the interests of everyone involved and instead focused solely on Robinson’s tenure interest.
“In determining cases involving the dismissal or nonrenewal of a teaching contract, the courts are obligated to consider the rights of the teacher, the rights of the school board, and the rights of the school children to receive a quality education in a proper school atmosphere. In every such case, the challenge presented to the court is to provide a decision, fair and equitable both to the teacher and to the school board, with a minimum amount of disruption of the educational opportunity for the children.” Gillett, 227 Kan. at 75.
The District also argues that the hearing officer erred or acted outside his scope of authority by applying his own standards of teacher performance rather than the administration’s standards. This argument has merit.
Several of the hearing officer’s comments or findings are particularly pertinent to this court’s review. In paragraph 12 of his opinion, the hearing officer cited U.S.D. No. 380 v. McMillen, 252 Kan. 451, 845 P.2d 676 (1993), in which our Supreme Court appears to acknowledge that the duty to select and maintain an efficient, knowledgeable, and adequate teaching staff is one that devolves upon the local school board, which is accountable to the public. In paragraph 16 of his opinion, the hearing officer acknowledged that a tenured teacher may be nonrenewed for good cause shown, including any ground which is put forward by the school board in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building up and maintaining an efficient school system. See Gillett, 227 Kan. at 78. In paragraph 22 of his opinion, the hearing officer acknowledged that if the notice of nonrenewal had stated that Robinson was terminated for inefficient or incompetent service, his decision would have been much more difficult.
In paragraph 26 of his opinion, the hearing officer conceded that the philosophy of teaching between the administration and Robinson had changed over the years and that the administration was of the opinion that Robinson was no longer a suitable teacher for the present school environment. In paragraph 28 of his opinion, the hearing officer stated that in the opinion of the administration, Robinson no longer fit the system or the administrations expectations. In paragraph 30 of his opinion, ihe hearing officer indicated that while the record may reveal Robinson was a teacher with many years of experience who did not have exceptional credentials or ability, she appeared to have fit into the system until recently. Finally, in paragraph 54 of his opinion, the hearing officer wrote: “Satisfactory performance by a teacher is what the administrator says is satisfactory. Mrs. Robinson had to become a satisfactory teacher in the opinion and judgment of Dr. Kibby and Ms. [Berry].”
It does seem that the school board would be in a better position to determine the standard of performance for teachers within the district than a hearing officer. The changes in educational philosophy and the resulting change in methods of teaching might be challenging or even overwhelming to some teachers, but schools have a right to expect teachers to maintain skills in accordance with the changing methods of instruction. Certainly, the students must be prepared to deal with numerous changes in modem life.
The District argues that its reasons for nonrenewal were supported by substantial evidence. The District contends that the record shows the administration was concerned with Robinson’s classroom management and instructional performance early on as evidenced by her evaluations in 1983, 1986, 1989, and 1992. During the due process hearing, two teachers testified both favorably and protectively for Robinson, though they expressed some concerns about her teaching performance. Robinson’s 1992 evaluation clearly illustrates Dr. Kibby’s concerns in that the performance check list was marked “needs improvement” in the areas of discipline, resourcefulness and adaptability, and ability to clarify lesson concepts. Additionally, Dr. Kibby’s comments on the evaluation were almost entirely negative. The hearing officer did not refer to the additional unsatisfactory evaluations that Robinson received after having been placed on warning status and in intensive assistance in June 1993. The hearing officer’s findings show that he believed the May 24,1993, incident resulted in the District’s placement of Robinson on warning status and in intensive assistance. The District counters that the undisputed evidence contained in the evaluations shows that there were concerns about Robinson prior to this incident and that the incident itself was not really disputed.
Robinson presented no testimony to refute her 1989 or 1992 evaluations. At a minimum, the 1992 evaluation shows that Robinson’s teaching performance was unsatisfactory. Robinson’s April 1993 evaluation referred to Robinson’s personal goals instead of a general evaluation of her teaching performance. These evaluations occurred before the May 24, 1993, incident and contradict the hearing officer’s opinion that this event triggered Robinson’s warning status.
The District contends that its nonrenewal notice was sufficient and that Robinson did not vigorously argue to the contrary. Citing Loewen v. U.S.D. No. 411, 15 Kan. App. 2d 612, 813 P.2d 385 (1991), the hearing officer noted that a teacher whose contract is being nonrenewed “is entitled to be judged solely on the reasons enunciated in the notice of nonrenewal. Due process requires no less.” The hearing officer appears to have concluded that because the notice of nonrenewal did not specifically claim that Robinson was a “substandard” or an “incompetent” teacher, any evidence of substandard teaching or incompetence would be ignored. The claim that Robinson was a substandard teacher would be the more general underlying reason. If a teacher cannot adequately plan and teach lessons or maintain control of the classroom, then that teacher would be substandard by any definition. How the hearing officer distinguishes incompetence, substandard or inadequate planning and teaching of lessons, and inability to maintain control in the classroom is not clear.
The hearing officer concluded his opinion by writing:
“After considering and weighing testimony and exhibits introduced into evidence and making credibility determinations, U.S.D. No. 500 has failed to prove by substantial evidence the allegations that Mrs. Robinson failed to satisfactorily plan and teach lessons and failed to provide an orderly teaching and learning climate while employed as a teacher at Lindbergh Elementary School in the Kansas City, Kansas School District.”
We disagree. As suggested in Gillett, we are impelled to weigh or balance all of the interests that are involved. We recognize that the decisions of the hearing officer and the district court were difficult. We are also sensitive to Robinson’s position and not unmindful of her many years of faithful service with the District.
But in the final analysis, we believe that after a fair and impartial review, the goal of promoting the best interests of the students and the educational process must prevail over the interests or convenience of an individual teacher. If the District is to be held accountable for the quality of education, it must be given significant authority to insure the success of its essential responsibilities.
We conclude that the hearing officer exceeded the scope of his authority by applying his own standard of teacher performance, that the hearing officer ignored undisputed evidence which supported the District’s decision, and that the hearing officer acted arbitrarily or erroneously in finding that the District’s evidence did not comport with the notice of nonrenewal.
The judgment of the district court affirming the ruling of the hearing officer is reversed. | [
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Gernon, J.:
John D. Wilson appeals a district court decision which granted summary judgment in favor of Daytec Construction Company (Daytec).
Wilson worked for a Nissan car dealership in Johnson County. The dealership contracted with Daytec to refurbish the dealership premises. Daytec then subcontracted with Dahmer Construction Company (Dahmer) to paint paneling in a stairway.
Wilson and another employee moved a desk down a stairway. Dahmer had finished painting the same area a few days earlier. Wilson slipped on the stairway but did not fall. He looked and noticed that there was a slick, white residue which had accumulated on the stairs following the spray painting. After moving the desk, Wilson went back up the same stairs where he had observed the slick, white residue to retrieve a tool. At that time, Wilson knew the stairs were slippery and proceeded carefully, but he nevertheless slipped on the residue and fell down the flight of stairs, injuring himself.
Wilson filed a negligence action against Daytec. The court granted Daytec’s motion for summary judgment. The court held that as a matter of law, Daytec owed no duty to Wilson since Daytec was not in control of the premises or the spray painting work. The court also held that spray painting was hot an inherently dangerous activity. Wilson appeals. We affirm.
Genuine Issues of Material Fact
Wilson first argues that the district court erred in granting summary judgment because genuine issues of material fact still exist. Wilson contends that issues of fact exist concerning whether Daytec was an occupier or possessor of the Nissan premises and whether Daytec controlled the premises and the painting work.
Our review of the record leads us to conclude that Wilson is confused as to issues of law and issues of fact. Daytec’s status as a “possessor” of the premises is a legal conclusion drawn from the facts. However, the central facts concerning Daytec’s presence at the Nissan agency and its exercise of control over the painting work are uncontroverted. At the district court level, Wilson alleged that Daytec was on the premises at all times. However, Wilson provided no evidence to substantiate this claim. Therefore, we conclude that Wilson failed to come forward with evidence to establish a dispute as to a material fact. The only issue was a question of law, and that was whether Daytec was a “possessor” in control of the premises. Given this, summary judgment was proper.
Wilson next argues that factual issues exist concerning whether the painting created an obvious danger and whether Daytec knew or should have known of this danger. Wilson cites Miller v. Zep Mfg. Co., 249 Kan. 34, 43, 815 P.2d 506 (1991), where our Supreme Court stated the rule regarding obvious dangers:
“Generally, a possessor of land is under no duty to remove known and obvious dangers. Balagna v. Shawnee County, 233 Kan. 1068, 1083, 668 P.2d 157 (1983). However, the possessor may be under an affirmative duty to minimize the risk if there is reason to expect an invitee will be distracted, so that he or she will not discover what is obvious, will forget what has been discovered, or will fail to protect against the danger.”
The only evidence available, and which would ever be available, concerning this issue is Wilson’s own testimony regarding the condition of the stairs, which is already in the record. The facts concerning Wilson’s knowledge of the danger and his level of distraction are not in dispute. Therefore, given that these facts are not in dispute, summary judgment is appropriate. See McCubbin v. Walker, 256 Kan. 276, 279-80, 886 P.2d 790 (1994).
Inherently Dangerous Activity
Finally, Wilson argues that the inherently dangerous activity exception applies and exposes Daytec to liability.
The Kansas Supreme Court, in Falls v. Scott, 249 Kan. 54, 59, 815 P.2d 1104 (1991), explained the inherently dangerous activity rule:
“An exception to the general rule is the inherently dangerous activity doctrine, which provides that one who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such dangers. Balagna, 233 Kan. 1068, Syl. ¶ 4.
“Restatement (Second) of Torts § 427 defines the ‘inherently dangerous activity’ doctrine in the following language:
“ ‘One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.’ ”
Kansas courts have not addressed the precise question of whether spray painting is an inherently dangerous activity. See McCubbin, 256 Kan. at 292-93 (citing cases).
In Benesh v. New Era, Inc., 207 Ill. App. 3d 1049, 566 N.E.2d 779 (1991), the defendant spray painted the exterior of a building, and paint overspray coated the plaintiff’s nearby garage and fence. The court concluded that spray painting was inherently dangerous because overspray was a foreseeable consequence of the defendant’s work which the defendant took no precautions to prevent. The court noted that the wind created an unavoidable risk of dangerous paint overspray.
However, in Miles Farm Supply v. Ellis, 878 S.W.2d 803, 805 (Ky. App. 1994), the court held that spray painting was not an inherently dangerous activity. In Miles, the defendant spray painted the exterior of some anhydrous tanks, and paint overspray splattered the plaintiff’s nearby automobile. The court concluded that outside influences and circumstances, such as the presence of wind, should not alter the inherent nature of an activity. The court reasoned that without the circumstance of wind, spray painting could be accomplished without probable injury and, therefore, spray painting does not constitute an inherently dangerous activity.
We conclude that the Kansas Supreme Court laid down perhaps the best rule when it stated: “In determining whether an inherently dangerous activity exists, each case must rest upon its own facts.” McCubbin, 256 Kan. at 290.
Here, the spray painting in the stairwell created a slick residue on the stairs. The creation of the residue is obviously inherent in the use of the spray paint. However, the dangerous aspect of the residue only comes into play if the residue is allowed to settle on a surface such as stairs or a floor. Clearly, if the residue settles on a tarp or other covering which is subsequently removed, no danger exists. Therefore, the danger is not inherent in spray painting, but rather in the exercise of reasonable care and preparation which goes to eliminate risk after the painting is completed.
In McCubbin, the Kansas Supreme Court held that the inherently dangerous activity doctrine is inapplicable if the risk could have been prevented by routine precautions which any careful contractor would be expected to take.
Therefore, applying the holding in McCubbin to the facts before us, we hold that the district court properly concluded that spray painting is not an inherently dangerous activity.
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Gernon, J.:
Fort Hays State University Endowment Association (Trustee), as the trustee of the Leslie and Irene Murdock Educational Scholarship Fund (Murdock Fund), appeals from a district court ruling which denied its amended application to release certain trust restrictions pursuant to K.S.A. 58-3607.
Irene Murdock died in 1970. Under one of the provisions of her will, she provided for the creation of the Murdock Fund, with Fort Hays University Endowment Association appointed as Trustee. The trust agreement requires the trust assets to be invested in time deposits in Ness County banks or in Kansas municipal bonds. The trust further provides that the Trustee is to award a scholarship to students from Bazine, Utica, Ransom, and Ness City high schools on a rotating annual basis. The amount of the scholarship awarded to an individual student is limited to $2,000 per year. If the trust income exceeds that amount, additional students are to be awarded scholarships. The trust further provides that children of school board members are prohibited from receiving any trust funds and that the Trustee is to charge no fee for its services but is entitled to recover reasonable expenses for managing the trust.
In 1992, the Trustee applied for a release from the investment restrictions, the rotating scholarship schedule, and the prohibition against awarding scholarships to family members of school board members. The district court denied the application on the grounds that the Trustee had failed to establish that the trust purpose was frustrated, and the Trustee subsequently appealed.
In In re Estate of Murdock, 20 Kan. App. 2d 170, 174, 884 P.2d 749 (1994), this court held that a restriction in a trust of the nature of the Murdock Fund may be released upon a finding that the restriction on the use or investment of the fund is obsolete, inappropriate, or impractical, referring to the language in K.S.A. 58-3607.
After the filing of the appellate decision in In re Estate of Murdock, 20 Kan. App. 2d 170, the Trustee filed a motion with the district court seeking relief from the judgment and the opportunity to present evidence to properly consider the merits of die application.
After hearing the evidence, the district court noted that the trust had been operating for over 20 years and that several legitimate reasons existed for restrictions, namely: (1) The investment restriction requiring the trust funds to be in certificates of deposit in Ness County banks indicates an intent for the fund to benefit Ness County residents; (2) the respective schools have relied on the rotating scholarship provision since the trust was created,.and a release would be inappropriate at this time; (3) the ineligibility of children of school board members as potential scholarship recipients reduces any concern about conflicts of interest; and (4) the trust adequately provides for the recovery of the reasonable expenses the Trustee incurs while managing the fund. The district court concluded that the restrictions were not obsolete, inappropriate, or impracticable and denied the amended application. The Trustee appeals from this ruling.
The Trustee argues the district court erred in failing to find that the trust restrictions were “obsolete, inappropriate or impracticable.” The Trustee contends the trust’s investment restriction should be released to maximize the return on the investment and to safeguard the trust income through diversification. It further points out that the release of the annual rotation scheme would permit the fund’s income to be divided equally among the four Ness County schools and make scholarship dollars available to all Ness County graduates each year. The Trustee also maintains that removing the provision preventing children of school board members from becoming scholarship recipients would provide fairness to the students and stop qualified people from resigning from the school board so their children could apply for the scholarship. Finally, the Trustee claims that the restriction preventing it from charging an administrative fee should be released because it cannot continue to absorb the administrative costs associated with the fund.
The district court’s finding is, in essence, a negative finding. A negative finding means the party with the burden of proof failed to meet that burden. Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466 (1989).
An appellate court will not disturb such a finding “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). “ ‘An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.’ ” Mohr v. State Bank of Stanley, 244 Kan. at 568 (quoting Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. ¶ 5, 548 P.2d 719 [1976]).
K.S.A. 58-3607 provides in part:
“(a) A restriction on the use or investment of an institutional fund imposed by the applicable gift instrument maybe released, entirely or in part, by the governing board with the written consent of the donor.
“(b) If consent of the donor cannot be obtained by reason of the death, disability or unavailability, or impossibility of identification of the donor, upon application of the governing board, a restriction on the use or investment of an institutional fund imposed by the applicable gift instrument may be released, entirely or in part, by order of the district court after reasonable notice to the attorney general and an opportunity for him or her to be heard, and upon a finding that the restriction on the use or investment of the fund is obsolete, inappropriate or impracticable. A release under this subsection may not change an endowment fund to a fund which is not an endowment fund.”
It is well settled that “[w]hen construing a statute, a court should give words in common usage their natural and ordinary meaning.” Bank TV Wichita v. Plein, 250 Kan. 701, 705-06, 830 P.2d 29 (1992).
Obsolete is commonly defined as being “no longer in use or practice; discarded.” Webster’s New World Dictionary 936 (3d college ed. 1988). Inappropriate is defined as “not appropriate; not suitable, fitting, or proper.” Webster’s New World Dictionary 681 (3d college ed. 1988). Impracticable means “not capable of being carried out in practice.” Webster’s New World Dictionary 678 (3d college ed. 1988). Thus, a restriction on the use or investment of institutional funds imposed by a charitable trust may be released pursuant to K.S.A. 58-3607(b) if the district court finds that the restriction is either (1) no longer being used, (2) improper, or (3) incapable of being carried out in practice.
We conclude that the evidence provided by the Trustee is insufficient to establish the obsolescence, inappropriateness, or impracticality of the restrictions challenged.
There was no evidence before the trial court that the time deposits or investments in Kansas municipal bonds are obsolete or inappropriate investments for a scholarship trust fund. Such investments are clearly not impractical, since they are a current medium of investment.
The Trustee also failed to establish that the annual rotating scholarship schedule should be released or relaxed. The rotating scholarship schedule is designed to insure that every school district receives the entire income for its respective year; the school district can then distribute whatever amount it deems appropriate as scholarships for the students. The rotating schedule for awarding scholarships to students desiring higher education is not an obsolete, inappropriate, or impractical restriction on a scholarship fund. We further conclude that the restriction preventing families of school board members from applying for scholarships avoids any potential issue concerning conflicts of interest or any suggestion of favoritism to school board members and is an entirely appropriate restriction.
Furthermore, the Trustee presented no evidence establishing that the restriction preventing the Trustee from charging a fee for managing the trust fell within one of the definitions which might require the court to consider relief. The trust provision clearly allows the Trustee to recover reasonable expenses it incurs while managing the funds.
Finally, the Trustee refers to the differences between the Murdock Fund and the Rebecca Dubbs Memorial Fund, on which the Murdock Fund was to be modeled. However, the Trustee concedes that it is not seeking to reform the trust agreement to reflect the donor’s intent but is, instead, seeking a release of the restrictions within the trust.
We note that the trust has been operating for over 20 years, successfully providing scholarships for students, without complaint from anyone until the inception of these challenges to the provisions of the trust. The record before us contains nothing which would require a change in the way the trust is handled at the present time.
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Pierron, J.:
This is a wrongful discharge case based on the employment termination of Peggy Gassmann. Gassmann appeals the district court’s grant of summary judgment in favor of The Evangelical Lutheran Good Samaritan Society, Inc. (Good Samaritan). Specifically, Gassmann argues the district court erred in applying the after-acquired evidence doctrine and that such evidence, in any event, did not constitute a violation of company policy for which she could have been terminated.
The facts in this case are for the most part undisputed. Good Samaritan is a corporation which owns and operates nursing homes in many states throughout the Midwest, one of which is the Decatur County Good Samaritan Center in Oberlin. Gassmann worked at Good Samaritan from September 16, 1985, to December 10, 1993, as a certified nurse’s aide. She was terminated for inconsiderate treatment of residents. On June 27,1994, Gassmann filed a wrongful discharge lawsuit based upon Good Samaritan’s violation of an implied employment contract and violation of public policy. She sought an award for back pay and reinstatement.
At her September 17,1994, deposition, Gassmann admitted that while she was still employed at Good Samaritan, she entered the office of the acting director of nursing without authorization and took a videotape of a company in-service meeting. She copied the videotape and then returned it to the office the next morning. In her deposition testimony, Gassmann agreed that the purpose for taking the tape was to serve as evidence in an effort to get rid of the acting facility director.
On December 5, 1994, Good Samaritan filed a motion for summary judgment. The basis for the motion was neither the implied contract nor the facts surrounding Gassmann’s termination, but instead was the evidence acquired during her deposition concerning the videotape. Good Samaritan requested that the district court adopt the after-acquired evidence doctrine, i.e., evidence discovered after an employee’s termination can be used to justify the discharge, if the evidence would have also been sufficient to terminate the employee, and grant its motion.
Good Samaritan submitted an affidavit from its administrator indicating that all employees received an employee handbook which states that any employee will be terminated if found to have engaged in “theft from coworker(s), resident(s), and/or the facility.” Gassmann acknowledged receipt of copies of all Good Samaritan’s employee handbooks. The administrator stated that if Gassmann had still been employed when he learned of the “theft” of the videotape, he would have immediately terminated her.
In her affidavit, Gassmann explained that all employees of Good Samaritan were required to either attend all in-service meetings or, if unable to attend, watch the videotape of the meeting. The facility director became upset at a particular in-service meeting, and Gassmann stated she wanted to watch the videotape of that meeting because she had missed the meeting. Gassmann also stated that prior to her termination, there had been much dissension between the employees and management of Good Samaritan. However, Gassmann contends she had no intent to use the videotape in an effort to get the acting director fired. Contrary to her deposition, she stated in her affidavit, “I made the copy in order to preserve the tape because I was afraid the tape, which showed the director acting inappropriately, would 'get lost’. I did not make the copy in a mutinous attempt to get [the director] fired.”
Gassmann also submitted the affidavit of Lila Keenan, a former employee of Good Samaritan. Keenan confirmed Gassmann’s statements that all Good Samaritan employees were required to watch the videotape of any missed in-service meetings. Keenan stated the only rule regarding taking videotapes was that they Were to be returned quickly so others would be able to watch them. Keenan maintained she had taken a videotape home before to watch a missed in-service meeting and then returned it. Keenan did not believe this violated a company policy.
The district court specifically adopted the after-acquired evidence doctrine and granted summary judgment in favor of Good Samaritan. The district court denied Gassmann’s motion for reconsideration.
The issue of the applicability of Gassmann’s taking the videotape, evidence which became apparent to Good Samaritan only in the course of discovery during this litigation, is not a simple one. Analysis of this issue necessitates an examination of the admissibility and effect of “after-acquired evidence.”
The after-acquired evidence doctrine in its purest form allows an employer to be relieved of liability in a wrongful discharge lawsuit where it is discovered, normally during litigation, that the employee was guilty of pre-discharge misconduct sufficient for termination that the employer was unaware of and was not relying upon for discharge. See Summers v. State Farm Mut. Auto. Ins. Co., 864 F.2d 700 (10th Cir. 1988); Yoo, The After-Acquired Evidence Doctrine, 25 Colum. Hum. Rts. L. Rev. 219, 228 (Fall 1993) (the Summers rule). The after-acquired evidence doctrine has its foundation in the logic that an employee cannot complain about being wrongfully discharged because the individual is no worse off than he or she would have been had the truth of his or her misconduct been presented at the outset. See Annot., After-Acquired Evidence of Employee’s Misconduct as Barring or Limiting Recovery in Action For Wrongful Discharge, 34 A.L.R.5th 699, 707.
The Kansas appellate courts have yet to rule on the issue of after-acquired evidence. Our analysis begins with the United States Supreme Court’s recent decision in McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 130 L. Ed. 2d 852, 115 S. Ct. 879 (1995). In McKennon, the Court granted certiorari to resolve a split among the Circuit Courts of Appeals regarding the question of whether all relief must be denied when an employee has been discharged in violation of the Age Discrimination in Employment Act (ADEA); 29 U.S.C. § 621 et seq. (1994), and the employer later discovers some' wrongful conduct that would have led to discharge had it been discovered earlier. 513 U.S. at 356.
The court in Russell v. Microdyne Corp., 65 F.3d 1229, 1238 (4th Cir. 1995), explained the split in this manner:
“Some circuits held that an after-acquired motive for an otherwise discriminatory action provided a complete defense, precluding a plaintiff from’ establishing liability or obtaining relief for the employer’s conduct in violation of the law. See, e.g. Summers, 864 F.2d at 708. Others held that such after-acquired evidence of employee wrongdoing should only concern the remedies available to the employee once liability was established, and that it should not be admissible unless the employer demonstrated that it would have discovered the evidence in the absence of the discrimination litigation, because, otherwise, the employer would benefit from its discriminatory conduct. E.g., Wallace, 968 F.2d at 1181-84.”
In McKennon, the plaintiff, a 62-year-old employee of Nashville Banner Publishing Company for 30 years, was discharged in what Banner termed a “work force reduction plan necessitated by cost considerations.” 513 U.S. at 354. McKennon filed suit alleging that her discharge violated the ADEA. In a deposition prior to trial, McKennon admitted to copying several confidential documents bearing upon the company’s financial condition. She had access to these documents as secretary to Banner’s comptroller. Her motivation for copying the documents was “insurance” and “protection” in case she was fired because of her age. Shortly after this deposition, Banner sent McKennon a letter claiming that the removal and copying of the records was in violation of her job responsibilities and again advised her that she was terminated. -
Banner filed for summary judgment based on the evidence discovered during McKennon’s deposition. Banner conceded its age discrimination against McKennon. The district court granted Banner’s motion, holding that McKennon’s misconduct was grounds for her termination, and that neither back pay nor any other remedy was available to her under the ADEA. The United States Court of Appeals for the Sixth Circuit affirmed on the same rationale. The United States Supreme Court disagreed.
In McKennon, the Supreme Court rejected the line of discrimination cases , holding that after-acquired evidence of misconduct acted as a complete bar to recovery in an ADEA action, concluding that it only affects the amount of damages an employee may recover. 115 S. Ct. at 886. See also Manard v. Fort Howard Corp., 47 F.3d 1067 (10th Cir. 1995) (McKennon “largely rejected” the line of cases holding that after-acquired evidence of employee misconduct barred recovery in discrimination cases). The Court determined that “after-acquired evidence” of misconduct during employment is relevant in a discrimination case:
“In determining appropriate remedial action, the employee’s wrongdoing becomes relevant not to punish the employee, or out of concern ‘for the relative moral worth of the parties,’ Perma Mufflers v. International Parts Corp., [392 U.S. 134,] 139, 88 S. Ct. [1981,] 1984, [20 L. Ed. 2d 982 (1968)], but to take due account of the lawful prerogatives of the employer in the usual course of its business and the corresponding equities that it has arising from the employee’s wrongdoing.” 513 U.S. at 361.
The Court determined that the availability of remedies in discrimination cases involving after-acquired evidence had to be determined on a case-by-case basis, but certain remedies were obviously unrealistic:
“The proper boundaries of remedial relief in the general class of cases where, after termination, it is discovered that the employee has engaged in wrongdoing must be addressed by the judicial system in the ordinary course of further decisions, for the factual permutations and the equitable considerations they raise will vary from case to case. We do conclude that here, and as a general rule in cases of this type, neither reinstatement nor front pay is an appropriate remedy. It would be both inequitable and pointless to order the reinstatement of someone the employer would have terminated, and will terminate, in any event and upon lawful grounds.” 513 U.S. at 361-62.
The McKennon Court had more difficulty with the question of whether after-acquired evidence of wrongdoing barred back pay awards. Writing for a unanimous court, Justice Kennedy explained that such after-acquired evidence is not a complete bar to recovery because the purposes of the ADEA’s remedial provisions, as well as other anti-discrimination statutes, are to compensate employees for injuries caused by prohibited discrimination and to deter employers from engaging in such discrimination. See Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994) (race, color, sex, national origin, and religion); the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (1994) (disability); the National Labor Relations Act, 29 U.S.C. § 158(a) (1994) (union activity); the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1994) (sex).
Such anti-discrimination purposes would be thwarted if after-acquired evidence of wrongdoing barred all relief in a discrimination case. The ADEA and Title VII share common substantive features and also a common purpose: “the elimination of discrimination in the workplace.” McKennon, 513 U.S. at 358. With these purposes in mind, the Court sought to balance the concerns of both sides:
“The beginning point in the trial court’s formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered. In determining the appropriate order for relief, the court can consider taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party. An absolute rule barring any recovery of backpay, however, would undermine the ADEA’s objective of forcing employers to consider and examine their motivations, and of penalizing them for employment decisions that spring from age discrimination.” 513 U.S. at 362.
Many of the pre-McKennon discrimination cases finding that after-acquired evidence provided a complete defense to a wrongful discharge lawsuit relied on “mixed-motive” termination cases for authority, i.e., where the employer was motivated by both legitimate and illegitimate reasons. See Summers, 864 F.2d 700. The Supreme Court in McKennon explained that the “mixed-motives” termination cases are not relevant in after-acquired evidence cases:
“In Mt Healthy we addressed a mixed-motives case, in which two motives were said to be operative in the employer’s decision to fire an employee. One was lawful [obscene gestures], the other (an alleged constitutional violation) unlawful [First Amendment freedom of speech]. We held that if the lawful reason alone would have sufficed to justify the firing, the employee could not prevail in a suit against the employer. The case was controlled by the difficulty, and what we thought was the lack of necessity, of disentangling the proper motive from the improper one where both played a part in the termination and the former motive would suffice to sustain the employer’s action. [Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 284-87, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977).]
“That is not the problem confronted here. As we have said, the case comes to us on the express assumption that an unlawful motive was the sole basis for the firing. McKennon’s misconduct was not discovered until after she had been fired. The employer could not have been motivated by knowledge it did not have and it cannot now claim that the employee was fired for the nondiscriminatory reason. Mixed motive cases are inapposite here, except to the important extent they underscore the necessity of determining the employer’s motives in ordering the discharge, an essential element in determining whether the employer violated the federal antidiscrimination law. [Citations omitted.] As we have observed, ‘proving that the same decision would have been justified ... is not the same as proving that the same decision would have been made.’ [Citations omitted].” 513 U.S. at 359-60.
In the present case, the district court recognized that the United States District Court for the District of Kansas has repeatedly endorsed the after-acquired evidence doctrine in cases similar to McKennon. In Mathis v. Boeing Military Airplane Co., 719 F. Supp. 991 (D. Kan. 1989), the plaintiff claimed her former employer discriminated against her on the basis of race and sex. During discovery it was uncovered that the plaintiff had made material omissions on her employment application regarding her employment history and prior felony convictions. The federal district court, relying on Summers, 864 F.2d 700, found that the after-acquired evidence precluded the plaintiff from recovering damages and granted the defendant’s motion for summary judgment. 719 F. Supp. at 993-95. See also Churchman v. Pinkerton’s Inc., 756 F. Supp. 515 (D. Kan. 1991). However, the decisions in both Mathis and Pinkerton’s Inc., are incorrect inasmuch as they conflict with McKennon. See Miller v. Bircham, Inc., 874 F. Supp. 337, 340-41 (D. Kan. 1995).
Gassmann argues that under McKennon, if the allegations of theft are sufficient to give legal reason for discharge, she would not be entitled to reinstatement or front pay, but she would be entitled to back pay from her termination until the time Good Samaritan actually discovered her theft. However, Gassmann states that in McKennon there was no factual dispute that McKennon had committed misconduct and could therefore be terminated. Gassmann submits that unlike McKennon, the issue of her intent in taking the videotape should preclude the grant of even partial summary judgment on the issues of reinstatement and front pay.
: Good Samaritan acknowledges McKennon and its ramifications, but argues that the policy concerns at stake in applying the after-acquired evidence defense to an unlawful discharge based on discrimination are not implicated in a private employment contract áction. Good Samaritan states that Gassmann’s claim arises out of an alleged employment contract she contends they have breached. Gassmann does not allege a claim under any federal or state discrimination statute. Good Samaritan contends that the principles of McKennon are preserved in the present type of case and the after-acquired evidence doctrine is fully intact to bar all relief. Last, Good Samaritan argues that even if the court finds McKennon applicable, it is still entitled to partial summary judgment on the issues of front pay, reinstatement, punitive damages, and all other relief from the time after they discovered Gassmann’s theft.
The first issue facing this court is whether the McKennon line of discrimination cases applies to the case at bar. If applicable and Good Samaritan can prove proper after-acquired evidence, then all Gassmann would be entitled to under McKennon is back pay, if she can prove wrongful termination (reinstatement and front pay both being inappropriate remedies). However, the reason back pay was allowed in McKennon was to combat age discrimination. Obviously, if Good Samaritan does not have enough after-acquired evidence to justify termination, then Gassmann’s remedies would not be limited. Alternatively, if McKennon is not applicable and Good Samaritan has sufficient after-acquired evidence, Gassmann would be without recourse.
Once the discriminatory actions of the employer are eliminated from the equation, we ultimately get back to the underlying principle that after-acquired evidence is a complete bar to any recovery by the former employee where the employer can show it would have fired the employee on the basis of the evidence. McKennon, 513 U.S. at 361-63.
Our holding today is in accord with other courts’ holdings that if after-acquired evidence would justify termination, the employee may not recover any damages for the period following the actual dismissal. See, e.g., Leahey v. Federal Exp. Corp., 685 F. Supp. 127 (E.D. Va. 1988); Von Heyne v. Tompkins, 89 Minn. 77, 93 N.W. 901 (1903); Schuessler v. Benchmark Mktg. & Consulting, 243 Neb. 425, 500 N.W.2d 529 (1993). Generally, an employer may defend a wrongful discharge claim on the basis of facts unknown at the time of discharge and, therefore, not an actual or inducing motive for the termination. 53 Am. Jur. 2d, Master and Servant § 46, pp. 120-21, provides:
“If legal grounds for the dismissal of an employee during the term of his employment exist, no importance attaches to the motive which may have actuated the employer in making the dismissal. It is not necessary that an employer, in order to justify a dismissal, show that in dismissing his employee he in fact acted upon some proper ground of dismissal. It is sufficient if a ground of dismissal existed at that time. It is not material whether the employer knew of grounds which in fact existed at the time of discharge; notwithstanding his ignorance, he may avail himself thereof, and in the event of his death, his representative has the same right. Nor is it material that the employer assigned another ground as the cause of the employee’s dismissal. The employer may justify a dismissal by relying on a ground different from that assigned at the time of the dismissal.”
Three different theories justify Good Samaritan’s use of the after-acquired evidence doctrine to defend against a contract claim of wrongful discharge: fraud, legal excuse, and unclean hands. Kadue and Dritsas, The Use of After-Acquired Evidence in Employee Misconduct and Resume Fraud Cases, 44 Lab. L.J. 531, 534 (1993). Fraud is more akin to cases involving “resume fraud” or material misrepresentations on employment applications. See Massey v. Trump’s Castle Hotel & Casino, 828 F. Supp. 314, 325 (D.N.J. 1993): However, legal excuse and clean hands are applicable to the present case.
“The concept of a legal excuse to cancel a contract is an ancient one. Indeed, although reliance on after-acquired evidence of misconduct is heralded as a ‘new’ defense in some contexts, an employer’s ability to rely on that evidence is a long-established principle of contract.
‘A party to a contract who is sued for its breach may ordinarily defend on the ground that there existed, at the time, a ‘legal excuse’ for nonperformance by him, although he was then ignorant of the fact. He may, likewise, justify an asserted termination, rescission, or repudiation, of a contract by proving that there was, at the time, an ‘adequate cause,’ although it did not become known to him until later.’
“As applied to a wrongful discharge case, the propositions cited by Justice Brandéis would permit an employer to justify termination of an employment contract for an ‘adequate cause’ even if that justification was unknown at the time that the employer chose to terminate the contract for other reasons.” Kadue and Dritsas, 44 Lab. L.J. at 534-35.
Accord Restatement (Second) of Contracts § 385, comment a (1979).
The after-acquired evidence doctrine also conforms with the fundamental maxim of equity that one who comes into equity must come with clean hands. See Goben v. Barry, 234 Kan. 721, 727, 676 P.2d 90 (1984); Fuqua v. Hanson, 222 Kan. 653, Syl. ¶¶ 2-5, 567 P.2d 862 (1977); see also 27 Am. Jur. 2d, Equity § 136, p. 667 (a litigant may be denied relief by a court of equity on the ground that his or her conduct has been inequitable, unfair, and dishonest, or fraudulent and deceitful as to the controversy in issue.) Furthermore, although the unclean hands doctrine originally arose in cases seeking equitable relief, courts have expanded'its application to contractual claims and other matters in law. Kadue and Dritsas, 44 Lab. L.J. at 536. The Court in McKennon explained the interplay of the clean hands doctrine and the anti-discrimination statutes:
“Equity’s maxim that a suitor who engaged in his own reprehensible conduct in the course of the transaction at issue must be denied equitable relief because of unclean hands, a rule which in conventional formulation operated in limine to bar the suitor from invoking the aid of the equity court, 2 S. Symons, Pomeroy’s Equity Jurisprudence § 397, pp. 90-92 (5th éd. 1941), has not been applied where Congress authorizes broad equitable relief to serve important national policies. We have rejected the unclean hands defense ‘where a private suit serves important public purposes.’ Perma Life Mufflers, Inc. v. International Parts Corp., 392 U.S. 134, 138, [88 S. Ct. 1981, 1984, 20 L. Ed. 2d 982] (1968) (Sherman and Clayton Antitrust Acts).” 513 U.S. at 360.
We find persuasive the case of Schuessler, 243 Neb. 425, as cited by Good Samaritan. Schuessler, vice president and chief operating officer of Benchmark, a telemarketing company which placed luxury car owners in touch with prospective buyers, was fired from the company. Schuessler was. in the fourth month of his 1-year contract, and he filed suit for wrongful discharge. At trial, Schuessler established that he had met the sales quotas required by his contract and offered other evidence that he had complied with his contractual obligations. Benchmark alleged several reasons for Schuessler s termination, including (1) sexual harassment of at least one female employee at Benchmark, (2) his unauthorized pay increase for a subordinate employee, (3) his personal use of company time and equipment, and (4) his failure to properly supervise the employees under his control. The district court found that Schuessler had not acted in a manner warranting termination by Benchmark and awarded him $167,089.93 in damages, plus attorney fees and costs.
On appeal, the Schuessler court concurred that the latter three reasons did not constitute good cause for Schuessler’s termination. Claims of Schuessler’s sexual harassment were not discovered by Benchmark until after Schuessler’s termination. The district court held the evidence of Schuessler’s sexual harassment was irrelevant because it did not form the basis for Schuessler’s discharge. The Schuessler court disagreed, stating that post-termination evidence or after-acquired evidence was admissible as bearing on an employee’s recovery in a wrongful discharge suit. 243 Neb. at 439. Thus, the court held that once an employee has established a case of wrongful discharge, the employer may limit recovery by using post-termination evidence to prove employee misconduct which would have resulted in the justified termination of the employee. 243 Neb. at 439.
The Schuessler court recognized the persuasive reasoning of the federal discrimination cases, including McKennon, but found them inapplicable to its breach of contract case. The court stated:
“In those federal cases permitting prediscovery backpay, the rationale for allowing recovery appears to be that the employer should not be excused from its discrimination; i.e., the employer’s liability should not depend on whether the employee also engaged in misconduct. See, Wallace [v. Dunn Const. Co., 968 F. 2d 1174 (11th Cir. 1992)]; Smith v. General Scanning, Inc., [876 F.2d 1315 (7th Cir. 1989)]. That situation is vastly different from the simple breach of contract action now before us.
“The aforementioned federal cases dealt with actions based on statutes which specifically prohibit discrimination. See, Wallace, supra (ruling on claims under 42 U.S.C. § 2000e (1988) and the federal Equal Pay Act of 1963, 29 U.S.C. §§ 206 and 215 (1988)); Smith v. General Scanning, Inc., supra (ruling on a claim under the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621 through 634 (1988)). The liability associated with the employer’s misconduct thus arises independently of the contract or any activity by the employee.
“Breach of a contract does not give rise to the same concerns or demand the same protections as does an action based on discrimination. Even more important, however, is the fact that in the present case Benchmark’s liability is predicated solely on the contract. Assuming for the moment that the sexual harassment allegations are true, Schuessler should not be able to recover damages.” 243 Neb. at 441.
Good Samaritan also directs the court’s attention to Bazzi v. Western and Southern Life Ins. Co., 808 F. Supp. 1306 (E.D. Mich. 1992). In Bazzi, the court faced a discrimination case under Michigan’s Elliot-Larson Civil Rights Act. It ultimately denied summary judgment on Bazzi’s discrimination claim, using rationale similar to McKennon, but granted dismissal of Bazzi’s breach of contract claim. It appears Bazzi was subsequently reversed by the United States Court of Appeals for the Sixth Circuit during the time period when the Sixth Circuit decided McKennon and the United States Supreme Court subsequently reversed McKennon. Bazzi is applicable to the case at bar in that the court originally explained the difference of after-acquired evidence doctrine in the context of discrimination cases and those involving mere breaches of contract.
“The availability of noneconomic and emotional distress damages under Elliot-Larson demonstrates that the Michigan Legislature intended to provide redress for the consequences of impermissible discrimination, without limiting the employer’s liability to breaches that otherwise sound in contract. The application of the after-acquired evidence doctrine urged by WSLIC is inconsistent with this intent, as it would permit an employer to escape all of the consequences of dis crimination through the fortuitous discovery of a basis for avoiding a contract. This result obfuscates the important distinction between the duties arising from contract and duties imposed by remedial legislation, and overlooks the distinctions between Title VII and Elliot-Larsen. A false statement on an employment application is not an insurance policy covering bigotry.” 808 F. Supp. at 1310.
See Massey v. Trump's Castle Hotel & Casino, 828 F. Supp. at 325.
As recognized in Schuessler, Bazzi, and Massey, unlike the policies underlying anti-discrimination statutes, in ordinary breach of employment actions, there is no overriding governmental interest in preventing breaches to limit the applicability of the after-acquired evidence doctrine. Therefore, we find the limits placed on die after-acquired evidence doctrine disseminated in McKennon are not applicable to the case at bar and hold that this employee is not entitled to any relief if the employer can establish after-acquired evidence sufficient for termination.
The next issue for our consideration is whether, based on the facts presented to the district court on Good Samaritan’s motion for summary judgment, the court should have held that Gassmann’s conduct of taking and copying the videotape constituted just cause for her dismissal as a matter of law. Our review of cases decided on summary judgment is well established. In Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995), the court explained the scope of our review:
“The burden on the party seeking summary judgment is a strict one. 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. 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 entide 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. On appeal we apply the same rale, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]"
The McKennon Court essentially established a three-prong test in order for an employer to rely on after-acquired evidence. An
employer must satisfy the foUowing conditions: (1) The plaintiff was guilty of some misconduct of which the employer was unaware; (2) the misconduct would have justified discharge; and (3) if the employer had known of the misconduct, the employer would have discharged the plaintiff. 513 U.S. at 359-63. See O’Driscoll v. Hercules, Inc., 745 F. Supp. 656 (D. Utah 1990). However, because of the posture of this case, we review these three prongs in light of our summary judgment standard of review.
Taking the McKennon factors in reverse, the third prong presents the easiest question for our disposal. Good Samaritan produced sufficient uncontradicted evidence that it would have terminated Gassmann had it known about her “theft” of company property. Where employers have shown they had a policy of terminating employees for certain rule violations and also submitted affidavits attesting that the rules are enforced, courts have consistently held that the employers satisfied their burden of showing that they would have fired the employee. See O’Day v. McDonnell Douglas Helicopter Co., 784 F. Supp. 1466 (D. Ariz. 1992); Churchman v. Pinkerton’s Inc., 756 F. Supp. 515.
Good Samaritan’s administrator, Craig Goth, attested in his affidavit that company policy would mandate that Gassmann be immediately terminated once her “theft” was known. This affidavit is essentially uncontradicted and presents strong support for Goth’s assertions of knowledge in the areas of hiring and firing. The burden was on Gassmann to produce affirmative evidence that punctured Goth’s assertion of knowledge regarding these matters, and she produced no such evidence. Good Samaritan’s policy, in conjunction with Goth’s affidavit, constitutes sufficient evidence to establish that Gassmann would have been terminated had Good Samaritan learned of her theft prior to her termination for inconsiderate treatment of residents.
However, the district court’s grant of summary judgment on the first two prongs of the McKennon test seems inappropriate, considering the standards for awarding summary judgment. Gassmann argues she had no intent to permanently deprive Good Samaritan of the videotape and therefore there is a genuine issue of material fact as to whether she had the necessary intent and could be ter minated for cause. Gassmann also argues that Good Samaritan cannot prove the required intent to substantiate a claim of criminal theft. Theft, as defined under Kansas law, is any of the following acts done with intent to deprive the owner permanently of the possession, use, or benefit of the owner’s property: (1) obtaining or exerting unauthorized control over property; (2) obtaining by deception control over property; (3) obtaining by threat control over property; or (4) obtaining control over stolen property knowing the property to have been stolen by another. K.S.A. 21-3701(a).
To support her claim of lack of intent, Gassmann cites her deposition and affidavit stating she took the videotape home overnight, copied it, and returned it the next morning. Gassmann states it was company policy that all in-service meetings were videotaped so that those employees not in attendance could watch the videotape and know what was discussed. Gassmann states she had no intent to use the videotape in a subversive manner. She also supports her claim with the affidavit of Lila Keenan, another former employee of Good Samaritan. Keenan stated that all employees of Good Samaritan were required to watch missed in-service meetings and that she had in fact taken a videotape home before and did not believe she had violated company policy.
On the other hand, Good Samaritan argues there is no dispute that Gassmann “stole” a videotape belonging to the company. Good Samaritan contends that theft, as mentioned in the employee handbook, does not invoke the Kansas criminal law definition, but rather the term should be given its common and everyday usage, similar to terms in a contract. Good Samaritan defines “theft” as “the act or instance of stealing” and “stealing” as “to take [the property of another] without right or permission” or “to get or accomplish secretly or artfully.” See Webster’s II New Riverside University Dictionary 1199, 1134 (1984).
Good Samaritan argues that Gassmann’s deposition demonstrates that she took and copied the tape without permission and put it back without anyone discovering she had taken it. Within the definitions used by Good Samaritan, it argues Gassmann clearly acted secretly and artfully. Good Samaritan believes it has dem onstrated there is no factual dispute that Gassmann stole the tape in an effort to get the facility director fired.
Good Samaritan also argues that Gassmanris theft of property would have justified terminating her employment. Good Samaritan relies on what it believes to be evidence that Gassmann artfully slipped into the director’s office to get the videotape and secretly took the videotape home, copied it, and returned it without anyone knowing. Good Samaritan contends that Gassmann must have been aware that her actions violated some company rule; otherwise, she would not have been so sneaky, secretive, and deceitful. Good Samaritan dismisses Keenan’s affidavit as irrelevant. Citing the provisions in the employee handbook concerning theft from the facility, Good Samaritan submits it would have been legally and objectively justified in terminating Gassmann after learning of her theft.
This issue presents a factual question. Considering the principle of summary judgment that the district court must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom a summary judgment ruling is sought, we cannot find that this case is ripe for summary judgment. Nor can we say there is no genuine issue as to any material fact of whether Gassmann’s actions constituted theft. Gassmann’s affidavit and Keenan’s supporting affidavit provide a sufficient inference to preclude summary judgment. Both Gassmann and Keenan stated it was company policy to watch the videotapes. We also note the definition of “theft” has not been adequately resolved. Simply proposing one definition over another does not resolve the question. This is a term whose definition must be factually resolved.
Because we find the record insufficient to dispose of Gassman’s claim, we find it necessary to remand the cause to the district court for further proceedings.
Gassmann also claims two other reasons prevented summary judgment. She argues her allegations of the existence of an implied contract and failure to breach the implied contract created disputed issues of material fact and thus precluded summary judgment. However, Gassmann did not present any evidence in support of an implied contract in her motion opposing summary judgment, nor does she in her brief on appeal. Good Samaritan did not address these issues on appeal.
We find the existence of an implied contract to be immaterial to a determination of whether summary judgment is appropriate on the issue of after-acquired evidence.
“’[A]n issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issues does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact.’ [Citation omitted.]” Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 (1995).
Whether Gassmann’s employment was at will or under an implied-in-fact contract, the existence of after-acquired evidence, if properly established, would provide a reason to terminate for cause even in the implied-in-fact contract situation. Therefore, the existence of an implied-in-fact contract has no bearing on the issues raised to this court. In any event, Gassmann has not provided sufficient evidence which would preclude summary judgment in favor of dismissing a claim of an implied-in-fact contract.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinon. | [
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Brazil, C.J.:
This case arises out of three ordinary ordinances and one charter ordinance enacted by the City of Overland Park (the City). Essentially, the four ordinances impose an excise tax to be paid by those who apply for plat approval and recordation in the City. The tax is $0.10 for each square foot of land included within the plat. The stated purpose of the tax is to provide funding for the construction of thoroughfare improvements within the City.
The Home Builders Association of Greater Kansas City, along with numerous developers and private landowners, filed suit seeking to declare the ordinances in violation of state and federal constitutional law and state statutory law and seeking to enjoin enforcement of the ordinances. On cross-motions for partial summary judgment, the trial court found the ordinances invalid as beyond the scope of the City’s constitutional home rule authority. The City appeals.
There are no material facts in dispute in this case. In entering summary judgment, the trial court incorporated by reference the pertinent facts from the City’s “MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT” and from “PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT OF PLAIN TIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT.” The facts relied upon by the trial court stem primarily from the City’s above-cited motion, are uncontroverted, and are essentially as follows.
Parties
The Homebuilders Association of Greater Kansas City is a nonprofit trade association authorized to do business in Kansas and is comprised of home builders, developers, remodelers, and business associates with the home building industry. It promotes and supports the local building industry in the 10-county Greater Kansas City metropolitan area which includes Johnson County, Kansas. Other appellees are owners and developers of various parcels of residential real estate located in Overland Park, Johnson County, Kansas. Appellees will be collectively referred to as HBA.
The City is a duly organized municipal corporation located in Johnson County, Kansas.
Background
A typical thoroughfare in the City consists of 56 feet of pavement width covering four traffic lanes, with the opposite direction traffic lanes usually separated by a 24-foot landscaped median with left-turn lanes at major intersections. From September 29, 1976, the date the City’s Ordinance No. ZRR-901 became effective, to October 7,1994, the date the City’s Ordinance No. ZRR-1886 became effective, the City financed thoroughfare improvements in part by requiring, at the time of and as a condition to platting, that anyone seeking to plat property help pay the cost of the improvement by contributing to an escrow account an amount of money (or provide a letter of credit to pay the money one year later) for each lineal front foot of property abutting on the unimproved thoroughfare and by dedicating right-of-way for the thoroughfare, as previously set forth in §§ 18.460.340 and 18.460.230 of the Overland Park Municipal Code (or the predecessors of those sections).
Prior to October 7, 1994, § 18.460.340. of the Overland Park Municipal Code required subdividers abutting unimproved thoroughfares to escrow funds based upon the City’s estimate of one-half of the cost of constructing a 36-foot wide collector street. The City’s rationale for this amount was that, in addition to serving the purpose of moving through traffic from one part of the City to another, a thoroughfare also functions as a collector street for properties and subdivisions abutting the thoroughfare.
In May 1990, the city engineer estimated the cost to improve one-half of a street to 36-foot wide collector street standards was $90 per abutting lineal front foot, exclusive of right-of-way acquisition costs. As of the first quarter of 1994, based upon the actual cost of three recent thoroughfare improvements, the engineer estimated the cost to improve one-half of a street to 36-foot wide collector street standards was $117.28 per abutting lineal front foot, exclusive of right-of-way acquisition costs.
In addition to these escrow charges and right-of-way dedication requirements to persons platting property, the City relied on the General Improvement and Assessment Law, K.S.A. 12-6a01 et seq., as an alternative means to help finance thoroughfare improvements for unplatted property. Under this statutory scheme, cities are authorized to finance improvements through the creation of improvement districts and the imposition of special assessments on property abutting or near the thoroughfare to be improved. Additional costs of thoroughfare improvements not paid from escrow charges or special assessments were paid by the City from other sources of revenue.
The City’s policy for financing thoroughfare improvements, as just described, was ruled unlawful in Landau Investment Co., Inc., et al. v. City of Overland Park, Johnson County District Court Case No. 93C-12128. Upon appeal, our Supreme Court dismissed the case for lack of a final decision. Landau Investment Co. v. City of Overland Park, No. 71,979, unpublished Supreme Court opinion filed April 21, 1995.
The Relevant Ordinances
On August 1, 1994, in response to the Landau case, the City passed Ordinance No. EX-1880 (Ord. EX-1880), which levies an excise tax on the privilege of engaging in the business of platting real property in the City. Ord. EX-1880 became effective on October 10, 1994.
The rate of $0.10 per square foot levied by Ord. EX-1880 was calculated so as to raise equivalent amounts of revenue as were raised from the combination of the $90 per abutting lineal front foot that, prior to October 7, 1994, was required to be escrowed by § 18.460.340 of the Overland Park Municipal Code, and the cost to the City of acquiring right-of-way that, prior to October 7, 1994, was required to be dedicated by § 18.460.230 of the Overland Park Municipal Code.
The rate of $0.10 per square foot levied by Ord. EX-1880 was derived as follows. The $90 per abutting lineal foot was mathematically converted into an amount per square foot within a section of land, which resulted in a figure of $0.07058 per square foot. In addition, the amount of $0.02353 was calculated to represent a portion of the estimated cost to the City of acquiring the right-of-way necessary to improve streets designated as thoroughfares on the City’s Official Street Map to thoroughfare standards. The total ($0.09411) was rounded up to $0.10 in order to pay for part of the cost to the City of relocating utilities within the right-of way.
On October 12,1994, the City passed Ordinance No. REB-1882 (Ord. REB-1882), which rebates excise taxes paid pursuant to Ord. EX-1880 if an individual would have paid less under the prior escrow financing system. Ord. REB-1882 became effective on October 14, 1994.
On August 1, 1994, the City passed Charter Ordinance No. 64 (Ch. Ord. 64), which exempts the City from application of K.S.A. 12-194 and gives it authority to create an excise tax on platting and grant an equitable credit. The apparent purpose of Ch. Ord. 64 is to provide alternate home rule authority (i.e., as an alternative to Ord. EX-1880) for the City’s excise tax scheme. Ch. Ord. 64 became effective on October 10, 1994.
On October 12, 1994, the City passed Ordinance No. EX-1885 (Ord. EX-1885), which levies an excise tax on the act of platting real property in the City (as opposed to a tax on the privilege of engaging in the business of platting real property as provided in Ord. EX-1880). Ord. EX-1885 was enacted under the authority of Ch. Ord. 64 and became effective on December 21, 1994.
On October 3,1994, the City enacted Ordinance No. ZRR-1886, which, inter alia, amended §§ 18.460.230 and 18.460.340 of the Overland Park Municipal Code to repeal the requirements of right-of-way contributions and escrow payments for thoroughfare improvements. Ordinance No. ZRR-1886 became effective on October 7, 1994.
Anticipating the passage of Ord. EX-1880, Ord. REB-1882, Ch. Ord. 64, and Ord. EX-1885, HBA filed the complaint on February 22, 1994, before those four ordinances were enacted. HBA’s Second Amended Petition, filed after those four ordinances were enacted, contained the following four counts.
Count I alleged the City’s imposition of private developer fees and/or improvement district special assessments to help pay for the cost of improvements to designated main trafficways and thoroughfares (done through § 18.460.340 of the Overland Park Municipal Code) violated state statutory law. Count I sought á declaratory judgment.
Count II sought to enjoin the City from imposing fees, assessments, taxes, “or utilitizing any other means” requiring developers or other private landowners to pay the cost of improvements to designated main trafficways or thoroughfares. HBA requested a court order requiring that all such costs be paid by the City solely from at-large sources. Count II also sought to enjoin the City from levying an excise tax on the platting or use of real property.
Count III sought a refund of escrowed developer fees paid, or a release of developers’ letters of credit posted, under the City’s previous funding scheme.
Count IV sought a judgment declaring Ord. EX-1880, Ord. REB-1882, Ch. Ord. 64, and Ord. EX-1885, invalid as violative of the City’s home rule authority and state and federal constitutional takings and substantive due process law.
The City filed a motion for partial summary judgment on counts II and IV of the petition. Specifically, the City sought a court order declaring that Ord. EX-1880, Ord. REB-1882, Ch. Ord. 64, and Ord. EX-1885 were each valid and enforceable. Subsequently, HBA filed a motion for partial summary judgment on counts II and IV as well. In a comprehensive memorandum decision, the trial court granted HBA’s motions for partial summary judgment, finding all four of the City’s ordinances invalid as beyond the City’s home rule powers under the Kansas Constitution.
Because the trial court granted HBA’s request for injunctive relief on counts II and IV of its second amended petition, this court has jurisdiction under K.S.A. 60-2102(a)(2).
Standard of Review
This is an appeal from a grant of partial summary judgment. “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, “[sjummary 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).
Further references to this court’s standard of review will be noted as required by the individual issues.
Home Rule Power in General
As did the trial court, it is helpful to first set out some general principles regarding the home rule power for Kansas cities.
The home rule amendment, Kan. Const, art. 12, § 5, grants cities the power to determine their local affairs and government. Under the amendment, adopted by the people in the general election of 1960 and effective July 1, 1961, “‘[n]o longer are cities dependent upon the state legislature for their authority to determine their local affairs and government. Since home rule, cities have power granted directly from the people through the constitution without statutory authorization.’ ” McCarthy v. City of Leawood, 257 Kan. 566, -570, 894 P.2d 836 (1995) (quoting Claflin v. Walsh, 212 Kan. 1, 6, 509 P.2d 1130 [1973]). In addition, the powers and authority granted to cities pursuant to the home rule amendment “shall be liberally construed for the purpose of giving to cities the largest measure of self-government.” Kan. Const, art. 12, § 5(d).
There are two methods by which cities may exercise their home rule authority. First, cities may enact ordinances without authority from specific enabling legislation. Kan. Const, art. 12, § 5(b). Second, cities may exempt themselves from certain state legislation through charter ordinances. Kan. Const, art. 12, § 5(c).
Drawing from the express language of Kan. Const, art. 12, § 5(b), the Supreme Court in Claflin stated the general limitations on home rule authority:
“The home rule power is subject to optional control by legislative action in four specific areas:
(1) Enactments of statewide concern which are applicable uniformly to all cities.
(2) Other enactments of the legislature applicable uniformly to all cities.
(3) Enactments applicable uniformly to all cities of the same class limiting or prohibiting the levying of any tax, excise, fee, charge or other exaction.
(4) Enactments of the legislature prescribing limits of indebtedness.” 212 Kan. at 7.
Ord. EX-1880 and K.S.A. 12-194
First, the City contends the trial court erred in finding K.S.A. 12-194 prohibits the City from imposing an excise tax on the privilege of engaging in the business of platting real property as set forth in Ord. EX-1880. Specifically, the City asserts that K.S.A. 12-194 does not act as a limitation upon the City’s home rule authority to tax under Kan. Const art. 12, § 5(b).
K.S.A. 12-194 provides:
“No city or county shall levy or impose an excise tax or a tax in the nature of an excise, other than a retailers’ sales tax and a compensating use tax, upon the sale or transfer of personal or real property, or the use thereof, or the rendering of a service, but the provisions of this section shall not be construed as prohibiting any city from (a) contracting with a utility for a fixed charge based upon a percentage of gross receipts derived from the service permitted by grant, right, privilege or franchise to such utility; (b) imposing an occupation tax or license fee for the privilege of engaging in any business, trade, occupation or profession, or rendering or furnishing any service, but the determination of any such license fee shall not be based upon any amount the licensee has received from the sale or transfer of personal or real property, or for the rendering or furnishing of a service, or on the income of the licensee; or (c) levying any occupation tax or license fee imposed by such city prior to the effective date of this act. No license fee described in subsection (b) of this section shall be imposed upon any utility contracting with and subject to a charge, described in subsection (a) of this section, by such city.” (Emphasis added.)
The City offers alternative arguments to support its contention that K.S.A. 12-194 does not prohibit the tax on platting which is embodied-in Ord. EX-1880. First, the City argues the incidence of the excise tax imposed by Ord. EX-1880 is not upon the sale, transfer, or use of real property. Second, the City argues that, even if Ord. EX-1880 is considered a tax on the sale, transfer, or use of real property, the tax falls within the exemption in K.S.A. 12-194(b) for occupational or business taxes. In both of these arguments, the City is addressing the essential question of whether the tax levied by Ord. EX-1880 is in conflict with the proscription on certain taxes contained in K.S.A. 12-194.
A. Sale, transfer, or use of real property
The City asserts the trial court erred in ruling K.S.A. 12-194 prohibits the excise tax levied in Ord. EX-1880. Specifically, the City argues the business of platting real property does not fall within the proscription of K.S.A. 12-194 because it does not fall within the scope of a sale, transfer, or use of real property.
In McCarthy, 257 Kan. at 569, the Supreme Court reiterated the principle of Kansas home rule law that “‘[a] city ordinance should be permitted to stand unless an actual conflict exists between the ordinance and a statute, or unless the legislature has clearly preempted the field so as to preclude municipal action.’ ” (Quoting Moore v. City of Lawrence, 232 Kan. 353, Syl. ¶ 4, 654 P.2d 445 [1982].) “A test frequently used to determine whether conflict in terms exists is whether the ordinance permits or licenses that which the statute forbids or prohibits that which the statute authorizes; if so, there is conflict . . . .” City of Junction City v. Lee, 216 Kan. 495, 501, 532 P.2d 1292 (1975).
In addition, in cases involving the legality of an ordinance under home rule authority, “the ordinance is entitled to a presumption of validity and should not be stricken unless its infringement upon a statute is clear beyond substantial doubt.” Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, 424, 845 P.2d 57 (1993). This presumption flows from the liberal construction requirement in Kan. Const, art. 12, § 5(d). See 252 Kan. at 425.
The question, therefore, is whether K.S.A. 12-194 prohibits an excise tax on the privilege of engaging in the business of platting real property, as levied by Ord. EX-1880. Because statutory interpretation is a question of law, this court’s standard of review is unlimited. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
The City argues the tax in the present case does not fall on the “use” of real property because it is not tied to the type of activity for which the property is being employed. The City cites Elwell v. Stewart, 110 Kan. 218, 219, 203 Pac. 922 (1922), where the court stated:
‘“As a general rule the use of a thing does not mean the thing itself, but means that the user is to enjoy, hold, occupy, or have in some manner the benefit thereof. If the thing to be used is in the form or shape of real estate, the use thereof is its occupancy or cultivation, etc., or the rent which can be obtained for its use.’ ” (Emphasis added.)
Invoking the ruling of the trial court, HBA contends that the tax in Ord. EX-1880 is, in fact, one upon the use of real property. In so ruling, the trial court noted the legal significance of platting under Kansas statutory and case law. The trial court then concluded, without further reasoning, that “the business of platting is encompassed by ‘the sale or transfer of . . . real property, or the use thereof.’ ” HBA expounds on the court’s conclusion by adding that the act of platting is “integral to the use of the land in question,” and that the usage of land “goes far beyond its physical occupation or cultivation.”
HBA and the trial court describe the use of property too broadly. It is not clear how platting can be considered integral to the “use” of property, as that term is commonly understood, when a plat is not tied to the employment, occupation, or enjoyment of the land itself. As argued by the City, simply recording a plat does not give rise to any particular use then or in the future. The trial court erred in finding the tax levied by Ord. EX-1880 is one upon the use of real property.
The City also asserts that K.S.A. 12-194 does not proscribe the tax levied by Ord. EX-1880 because there is no transactional relationship between the tax and anything that could be considered a sale, transfer, or use of real property. Consistent with the trial court’s conclusion, HBA argues the tax is imposed on a transactional basis simply because the ordinance requires the excise tax to be levied at the time the plat is recorded. Both parties cite Callaway v. City of Overland Park, 211 Kan. 646, 654-55, 508 P.2d 902 (1973), for support.
In Callaway, the Supreme Court addressed the validity of a city ordinance which imposed a tax on numerous business pursuits. The ordinance imposed an annual tax “on practically all retail, wholesale, manufacturing, sales, professional, banking, loan and service firms” in Overland Park. 211 Kan. at 647. One of the sections of the ordinance imposed such an annual tax on the business of leasing rental properties in Overland Park. Several individuals and firms who either owned or leased rental property challenged the ordinance, and the trial court upheld the ordinance as valid.
On appeal, the parties agreed with the trial court’s finding that the ordinance was enacted by the city for revenue purposes. 211 Kan. at 648. The appellants argued the ordinance violated K.S.A. 1971 Supp. 79-4424(a), which read: “‘No city shall impose an excise tax or tax in the nature of an excise, upon a sale or transfer of personal or real property, or the use thereof, or the rendering of a service.’ ” 211 Kan. at 651. (K.S.A. 1971 Supp. 79-4424[a] is a predecessor to what is currently embodied in K.S.A. 12-194.) In particular, the court addressed the issue of whether the tax on leasing rental property was one “ ‘upon a sale or transfer of personal or real property, or the use thereof, or the rendering of a service.’ ” 211 Kan. at 651.
The Callaway court described the type of tax prohibited by K.S.A. 1971 Supp. 79-4424 as one that is imposed on a “transactional basis.” See 211 Kan. at 654. The court defined a tax on a transactional basis to be one “upon each sale, transfer or use of real property or upon each rendition of service by a licensee or taxpayer.” 211 Kan. at 655. In affirming the trial court, the Calla- way court noted that the tax at issue in that case was not due on a transactional basis:
“The tax imposed, .0035 dollars per square foot of living space subject to being rented or leased, is an annual government exaction. It is not due on a transactional basis for it is paid only once a year whether the properties are rented or vacant and whether the same property is rented one or more times during a year.” 211 Kan. at 651.
The City argues the tax in the present case likewise is not imposed on a transactional basis because the tax is triggered by the recording of the plat, not the sale, transfer, or use of the property. HBA does not address this particular argument in its brief.
Callaway lends support to the City’s argument that the tax in the present case is also not one that is imposed on a transactional basis. The tax in the present case does not arise “upon each sale, transfer or use of real property” in Overland Park. See 211 Kan. at 655. Rather, as the City urges, the tax is levied but once no matter how often the property is subsequently transferred, sold, or used.
We agree with the City and conclude that the trial court erred in finding that the tax was imposed on a transactional basis because the tax is levied on each plat that is recorded.
B. K.S.A. 12-194(b)
Alternatively, the City argues the tax levied by Ord. EX-1880 constitutes a business or occupation tax which is exempted from the prohibition of K.S.A. 12-194. The trial court found the ordinance did not impose an occupational tax but rather a tax upon a service, and that the tax upon this service was imposed on a transactional basis.
The trial court stated:
“In its first sentence, K.S.A. 12-194 prohibits excise taxes on the rendering of a service; however, in (b) the legislature provided that the prohibition did not extend to occupational taxes or licenses. ‘[I]t is the duty of the court, as far as practicable, to reconcile the different provisions [of an act] so as to make them consistent, harmonious, and sensible.’ Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992). The consistent interpretation is that the legislature did not intend to approve of an excise tax on a service which is provided by those engaging in a particular independent occupation. For example, K.S.A. 12-194 prohibits an excise tax on the ordering of shoes, a service provided by a retail shoe store.
“Following this interpretation, the court holds that the City has failed to prove that platting is an independent occupation. Rather, platting is a service provided by a real estate developer to its customers as a part of its real estate development. Platting is among several services provided by the developer. Therefore, the tax on the service of platting is prohibited by K.S.A. 12-194. This Court will not construe this statute as validating a tax on what is essentially a service within a larger vocation.”
While we agree with the trial court that “platting” in this context, i.e., as done by developers, is not a business, we are not persuaded that Ord. EX-1880 taxes a service. The trial court noted that platting is a service within the larger occupation of a developer and, moreover, by requiring a tax to be paid prior to the recordation of every approved plat, the tax is transactional because it is imposed “upon each rendition of service by a licensee or taxpayer.” Callaway, 211 Kan. at 655.
We fail to see how developers or owners of land who plat their own property can be said to be rendering a service to anyone but themselves. Arguably, the act of platting one’s property is a step that will often result in enhancing the value of property. In that sense it is no more of a rendition of a service than a homeowner who repairs or renovates his or her home for resale.
The trial court was correct, however, in finding that “platting” is not a business under K.S.A. 12-194(b).
In summary, the excise tax under Ord. EX-1880 is not prohibited under K.S.A. 12-194. Since it is not prohibited, K.S.A. 12-194(b) is not relevant, and Ord. EX-1880 is a valid ordinance under the home rule powers of the City.
Ord. REB-1882
The trial court found Ord. REB-1882 invalid based upon the invalidity of Ord. EX-1880. We reverse based on our holding that Ord. EX-1880 is valid.
Ch. Ord. 64
Apparently acting from an abundance of caution, the City also enacted Ch. Ord. 64 to exempt itself from K.S.A. 12-194. Ch. Ord. 64 gave the City the authority to enact Ord. EX-1885 which is, in substance, the same as Ord. EX-1880. (Ord. EX-1885 refers to the “act” of platting rather than the “business” of platting used in Ord. EX-1880). The trial court held that Ch. Ord. 64 is invalid because it purports to exempt the City from a statute that is applicable uniformly to all cities in Kansas or that is applicable uniformly to all cities in Kansas of the same class, the legislature having created not more than four classes.
Kan. Const, art. 12, § 5(c)(1) states:
“Any city may by charter ordinance elect in the manner prescribed in this section that the whole or any part of any enactment of the legislature applying to such city, other than enactments of statewide concern applicable uniformly to all cities, other enactments applicable uniformly to all cities, and enactments prescribing limits of indebtedness, shall not apply to such city.”
The City points out that Kan. Const, art. § 5(c)(1) does not expressly contain the limitation upon home rule power found in Kan. Const, art. § 5(b) relating to tax-type enactments. Specifically, Kan. Const, art. § 5(b) permits cities to impose any tax, excise, fee, charge, or other exaction
“except when and as the levying of any tax, excise, fee, charge or other exaction is limited or prohibited by enactment of the legislature applicable uniformly to all cities of the same class: Provided, That the legislature may establish not to exceed four classes of cities for the purpose of imposing all such limitations or prohibitions.”
Both parties, as well as the League of Kansas Municipalities (League), assume in their briefs that this limitation on home rule power applies to charter ordinances as well. This assumption appears valid in light of the recent case of City of Wichita v. Kansas Taxpayers Network, Inc., 255 Kan. 534, 537-38, 874 P.2d 667 (1994), where the Supreme Court itself seemed to assume that this limitation applies to charter ordinances. See Clark, State Control of Local Government in Kansas: Special Legislation and Home Rule, 20 Kan. L. Rev. 631, 657 (1972). In our view, the distinction is not determinative of the issue before us. Thus, we too will assume, without deciding, that the limitation upon the taxing authority of cities expressly applicable to ordinary ordinances in Kan. Const, art. § 5(b) applies to charter ordinances as well.
As the trial court found, K.S.A. 12-194, on its face, applies uniformly to all cities. If the analysis were to stop there, then Ch. Ord. 64 would be invalid under the plain language of Kan. Const, art. 12, § 5(c)(1). Our Supreme Court held in City of Junction City v. Griffin, 227 Kan. 332, 335-37, 607 P.2d 459 (1980), however, that the question of uniformity goes to the entirety of the enactment in question, and that if any statute within the enactment is .nonuniform then the entire enactment is considered nonuniform.
The City, therefore, contends (1) K.S.A. 12-194 is part of a larger enactment and (2) another statute within this larger enactment either creates more than four classes of cities for purposes of limiting or prohibiting the home rule taxing power of cities or treats cities within four classes nonuniformly. If the City is correct, then Ch. Ord. 64 would be a valid use of home rule authority. The trial court rejected this contention by the City.
The questions raised are questions of statutory interpretation which carry an unlimited scope of review.
1. Is K.S.A. 12-194 a stand-alone provision or part of a larger enactment?
The trial court found that, although numerically part of the statutory provisions concerning countywide and city retailers’ sales taxes beginning at K.S.A. 12-187 (which will be referred to as “the local retailers’ sales tax enactment”), K.S.A. 12-194 was not in substance part of that enactment because it deals with excise taxes rather than sales taxes. The court then construed K.S.A. 12-194 in pari materia with K.S.A. 12-188, which also concerns excise taxes. The court found that K.S.A. 12-194 applies uniformly to all four classes of cities within K.S.A. 12-188 and concluded that, therefore, the City lacked authority to use a charter amendment to exempt itself from K.S.A. 12-194.
Our Supreme Court in Claflin v. Walsh, 212 Kan. 1, 7-8, 509 P.2d 1130 (1973), provided guidance for courts to use to determine whether an enactment is uniform for home rule purposes:
“In view of the liberal construction provision of [Kan. Const, art. $ 5(d)], in determining whether a legislative enactment is applicable uniformly to all cities such a legislative intent should be clearly evident before the courts should deny a city the right to exercise home rule power in that area.
“. . . 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 all 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 puipose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law. [Citation omitted.] In addition, to be in pari materia statutes need not have been enacted at the same time. Statutes relating to the same subject, although enacted at different times, are in pari materia and should be construed together. [Citation omitted.]
“These rules of construction require us to consider all statutes relating to the same subject together in determining legislative intent. We should follow these rules in determining whether the legislature intended to have a statute applied 'uniformly to all cities.’ ” (Emphasis added.)
The City contends K.S.A. 12-194 is part of the local retailers’ sales tax enactment. The League weighs in in support of the City’s analysis.
HBA rejects the City’s contention through an analysis of the legislative history of what is now K.S.A. 12-194. According to HBA’s reasoning, K.S.A. 12-194 stands on its own as part of the General Provisions of Chapter 12, Article 1 of the Kansas statutes.
The trial court noted Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, 424, 845 P.2d 57 (1993), where, in discussing home rule authority, the court stated: “The defendants acknowledge that K.S.A. 79-3424 and K.S.A. 12-194 are uniform enactments.” K.S.A. 12-194 formed no part of the Executive Aircraft court’s ultimate holding, however, and so the court’s statement concerning the uniformity of K.S.A. 12-194 lies in dicta. Moreover, even if the court’s statement is considered binding, the City’s contention on this issue revolves around a 1992 amendment to K.S.A. 12-187 (one of the statutes within the local retailers’ sales tax enactment) for its authority that the enactment is nonuniform. The 1992 amendment was subsequent to the litigation in Executive Aircraft.
Where the City and the League part company with HBA and the trial court is over the question of whether K.S.A. 12-194 is considered part of the local retailers’ sales tax enactment. If it is, then HBA seems to concede that K.S.A. 12-194 would be considered nonuniform by virtue of K.S.A. 1992 Supp. 12-187.
A review of the parties’ respective analyses shows that the current K.S.A. 12-194 has had a long and confusing legislative history. However, what seems more pertinent to the issue at hand is the enactment of K.S.A. 12-194 in its current form. K.S.A. 12-194 was enacted in 1978 as “New Sec. 8” of H.B. 3039. The preamble to the bill states:
“An Act relating to taxation; concerning retailers’ sales taxes; concerning the imposition of sales taxes by cities and counties; providing for the adoption and approval thereof; providing for the administration and collection thereof and the distribution and use of the proceeds therefrom; providing for the refund of state retail sales taxes upon food to certain resident individuals . . . .” L. 1978, ch. 56, §8.
The issue boils down to whether K.S.A. 12-194 concerns the same subject matter as the rest of the local retailers’ sales tax enactment. See Claflin, 212 Kan. at 8 (finding that rules of statutory construction “require us to consider all statutes relating to the same subject together in determining legislative intent”).
K.S.A. 12-194 certainly relates to taxation in general. See preamble to H.B. 3039. And contrary to HBA’s arguments and the trial court’s findings, K.S.A. 12-194 relates to retailers’ sales taxation. After a retailers’ sales tax is described in K.S.A. 12-187 etseq., K.S.A. 12-194 then states that a local retailers’ sales tax and a compensating use tax (see K.S.A. 12-198) are the only excise taxes which a city or county may impose. K.S.A. 12-194 goes on to describe certain taxes which are, in effect, exempt from the proscription dictated in the first 51 words of the statute. Although HBA is correct when it asserts an excise tax is a broader concept than a retailers’ sales tax, it does not follow that K.S.A. 12-194 does not closely concern the subject of retailers’ sales taxation.
In Griffin, the Supreme Court considered the question of which individual statutes are considered part of a broader enactment:
“In order to preserve the uniformity of the [Kansas Code of Procedure for Municipal Courts] it has been urged that [K.S.A. 12-4105] be declared no part of the enactment of the procedural code. However, this section is one of the sections included in L. 1973, ch. 61. It is clearly one of the sections comprising the enactment. The division into chapter, article and sections in the Kansas Statutes Annotated does not have the effect of making separate enactments of a single bill passed by the legislature of the State of Kansas.” 227 Kan. at 335-36.
See also City of Wichita v. Kansas Taxpayers Network, Inc., 255 Kan. 534 (following Griffin and finding that the Kansas Water Pollution Act is nonuniform because one provision of the enactment is nonuniform); see State ex rel. Schneider v. City of Kansas City, 228 Kan. 25, 31, 612 P.2d 578 (1980).
Here, K.S.A. 12-194 is one of the sections included in L. .1978, ch. 56. In addition, contrary to HBA’s fears of lumping together provisions of a bill which clearly involve unrelated matters, K.S.A. 12-194 generally relates to the same subject matter as the rest of the taxation statutes at K.S.A. 12-187 et seq., as shown above. In fact, HBA even argues in its brief that K.S.A. 12-194 provides the authorization for the other statutes at K.S.A. 12-187 et seq., which specifically concern a local retailers’ sales tax. Given that position, it is unclear how HBA can maintain that K.S.A. 12-194 is completely unrelated to the other statutes within the enactment.
The trial court’s analysis seems to collapse upon itself on this issue. The trial court posits that K.S.A. 12-194 is not part of the retailers’ sales tax enactment because it concerns excise taxes as opposed to retailers’ sales taxes. The court then groups K.S.A. 12-194 with K.S.A. 12-188 because K.S.A. 12-188 also mentions excise taxes. The court then notes that K.S.A. 12-188 also deals with retailers’ sales taxes and is, therefore, broader than K.S.A. 12-194. Apparently, however, the trial court would consider K.S.A. 12-188 as part of the larger enactment because it also concerns retailers’ sales taxes. The question is: How can K.S.A. 12-188 be part of two different enactments? The answer is that it cannot. There is only one enactment of which K.S.A. 12-194 is part.
The trial court erred in finding K.S.A. 12-194 is not part of the local retailers’ sales tax enactment at K.S.A. 12-187 et seq.
2. Does the local retailers’ sales tax enactment (of which K.S.A. . 12-194 is part) create more than four classes of cities or treat cities nonuniformly?
The City argues the local retailers’ sales tax enactment was rendered subject to the charter ordinance home rule authority of cities by virtue of the 1992 amendment to K.S.A. 12-187. The League presénts a similar argument in its brief. HBA does not address this particular issue in its brief.
K.S.A. 1995 Supp. 12-188 contains four classes of cities established by the legislature
“for the purpose of imposing limitations and prohibitions upon the levying of sales and excise taxes or taxes in the nature of an excise upon sales or transfers of real property or the usé thereof, or the rendering or furnishing of services by cities as authorized and provided by article 12, section 5, of the constitution of. the state of Kansas.”
K.S.A. 1995 Supp. 12-189 goes on to describe the different retailers’ sales tax rates applicable to the four classes' of cities described in K.S.A.. 1995 Supp. 12-188.
If the limitation upon home rule power found in Kan. Const, art. § 5(b) tax-type enactments does not apply to charter ordinances, then the local retailers’ sales tax enactment is a nonuniform enactment simply by virtue of the express language of K.S.A. 1995 Supp. 12-188 and K.S.A. 1995 Supp. 12-189.
However, even if the limitation upon home rule authority for tax-type enactments also applies to charter ordinances, K.S.A. 1995 Supp. 12-187(a)(2) provides:
“The governing body of any city located in any county which does not impose a countywide retailers’ sales tax pursuant to.paragraph (5) of subsection (b) may submit the question of imposing a retailers’ sales tax at the rate of .25%, .5%,. 75% or 1% and pledging the revenue received therefrom for the purpose of financing the provision of health care services, as enumerated in the question, to the electors at an election called and held thereon. The tax imposed pursuant to this paragraph shad be deemed to be in addition to the rate limitations prescribed in K.S.A. 12-189, and amendments thereto. As used in this paragraph, health care services shall include but not be limited to the following: Local health departments, city, county or district hospitals, city or county nursing homes, preventive health care services including immunizations, prenatal care and the postponement of entry into nursing homes by home health care services, mental health services, indigent health care, physician or health care worker recruitment, health education, emergency medical services, rural health clinics, integration of health care services, home health services and rural health networks.” (Emphasis added.)
This subsection to K.S.A. 12-187 was added by the legislature in 1992. L. 1992, ch. 279, § 1.
As the City and the League point out, K.S.A. 1995 Supp. 12-187(a)(2) has the effect of treating cities within the four classes of K.S.A. 1995 Supp. 12-188 nonuniformly depending upon whether the county in which a particular city sits has enacted the retailers’ sales tax in K.S.A. 1995 Supp. 12-187(b)(5). Take, for instance, a class B city under K.S.A. 1995 Supp. 12-188. According to K.S.A. 1995 Supp. 12-189, “the rate of any class B city retailers’ sales tax shall be fixed in the amount of .25%, .5%, .75%, 1%, 1.25%, 1.5%, 1.75% or 2%.” However, class B cities sitting in a county which has not enacted a countywide retailers’ sales tax pursuant to K.S.A. 1995 Supp. 12-188(b)(5) may submit the question of an additional retailers’ sales tax to their electors. K.S.A. 1995 Supp. 12-187(a)(2). Thus, it appears the legislature, pursuant to the 1992 amendment to K.S.A. 12-187(a), is treating cities of the same class within the local retailers’ sales tax enactment nonuniformly. By treating cities within the same class nonuniformly, the legislature has opened up the local retailers’ sales tax enactment to home rule authority.
Under either analysis, the trial court erred in finding Ch. Ord. 64 and Ord. EX-1885 were an invalid use of the City’s home rule authority.
K.S.A. 1978 Supp. 12-194 and the STANDARD INDUSTRIAL CLASSIFICATION MANUAL
The City contends the trial court erred in failing to take judicial notice of the 1978 supplement to K.S.A. 12-194 and of the Standard Industrial Classification Manual, a publication issued by the Executive Office of Management and Budget.
The City has provided nothing in the record to suggest the trial court failed or refused to take judicial notice of these documents. Thus, the City has failed to affirmatively show prejudicial error by the trial court. See Hesston Corp. v. Kansas Employment Security Bd. of Review, 235 Kan. 716, 724, 684 P.2d 388 (1984).
Issues Not Resolved By The Trial Court
The remaining issues all require statutory interpretation and, therefore, this court’s scope of review is unlimited for these issues.
A. K.S.A. 19-1201 et seq. and K.S.A. 28-115
HBA contends that K.S.A. 19-1201 et seq. (setting forth the duties and powers of the register of deeds) and K.S.A. 28-115 (stating, inter alia, the fee which the register of deeds for each county shall charge for recording town plats) prohibit the City’s excise tax for the recording of approved plats. Specifically, HBA argues the only fee which can be charged for the recording of plats is the one authorized by K.S.A. 28-115. We disagree.
As the City points out, K.S.A. 28-115 does not attempt to specifically preempt the field of charges upon plat recordation. Thus, the excise tax is valid unless it conflicts with the fee charged by K.S.A. 28-115. Johnson County Water Dist. No. 1 v. City of Kansas City, 255 Kan. 183, 193-94, 871 P.2d 1256 (1994). The excise tax imposed by the City does not conflict with the fee in K.S.A. 28-115 but, rather, is in addition to the fee which K.S.A. 28-115 requires. Thus, the excise tax is not prohibited by K.S.A. 19-1201 et seq. and K.S.A. 28-115. See McCarthy v. City of Leawood, 257 Kan. at 577-78.
B. K.S.A. 12-741 et seq. and substantive due process law
HBA contends the City’s “excise tax ordinances foist a condition on plat approval that is neither contemplated nor condoned by K.S.A. 12-741 et seq.” However, as the City points out, HBA fails to show how the excise tax conflicts with any of the provisions contained in K:S.A. 12-741 et seq.
HBA also contends the excise tax amounts to a denial of substantive due process, citing Walz v. Town of Smithtoum, 46 F.3d 162 (2d Cir. 1995). It is unclear how Walz advances HBA’s argument, however. As HBA itself points out in its brief, the Walz court held that landowners had a property interest in the grant of an application for an excavation permit where there was a strong likelihood that the application would be granted. 43 F.3d at 168. The Walz court further held the landowners had a substantive due process right “not to be compelled to convey some of their land in order to obtain utility service.” 43 F.3d at 169. It is unclear how Walz supports HBA’s assertion that it has a substantive due process right in not having to pay a tax prior to plat approval and recordation.
C. Excise tax/regulatory fee
HBA contends the excise tax is a disguised regulatory fee that violates substantive due process and constitutes an unlawful taking under the United States and Kansas Constitutions. The City responds that the excise tax was enacted as a revenue measure rather than for regulatory purposes..
HBA cites the following test from Hillis Homes, Inc. v. Snohomish County, 97 Wash. 804, 809, 650 P.2d 193 (1982):
“Not all demands made by a governmental body are taxes. We have pointed out that ‘if the primary purpose of legislation is regulation rather than raising revenue, the legislation cannot be classified as a tax even if a burden or charge is imposed.’ [Citation omitted.] The characterization of the development fees will, therefore, turn on a determination of the primary purpose of the fees. If the fees are merely tools in the regulation of land subdivision, they are not taxes. If, on the other hand, the primary purpose of the fees is to raise money, the fees are not regulatory, but fiscal, and they are taxes.”
Our own Supreme Court has expressed the distinction between a tax and a fee as follows:
“Thus, a tax is a forced contribution to raise revenue for the maintenance of governmental services offered to the general public. In contrast, a fee is paid in exchange for a special service, benefit, or privilege not automatically conferred upon the general public. A fee is not a revenue measure, but a means of compensating the government for the cost of offering and regulating the special service, benefit, or privilege. Payment of a fee is voluntary — an individual can avoid the charge by choosing not to take advantage of the service, benefit, or privilege offered.” Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. at 427.
The stated purpose of Ord. EX-1880 is “the raising of general revenues to be used for general City projects or General Fund operations as approved by the Governing Body during adoption of the City’s annual budget.” The stated purpose of Ord. EX-1885 is “raising general revenues pledged to the improvement of thoroughfares in the City.” Despite these stated purposes, HBA asserts “that the primary purpose of the ordinance is to regulate devel opment by assuring the provision of adequate public facilities (i.e., improved thoroughfares) to serve new developments.”
HBA argues the legislative history of the ordinances supports a finding that the primary purpose of the excise tax “was to replace the regulatory fees (escrow payments) previously charged by the City to developers seeking plat approval of land abutting unimproved' thoroughfares.” This argument, however, is premised on the fact that the previous funding scheme was regulatory in nature. HBA provides no support for this assumption.
HBA further argues that, even if the primary purpose of the excise tax is. not regulatory, certain tests must be met for a tax measure that is characterized as being partially regulatory. Once again, however, HBA seems to assume.that the excise tax is partially regulatory, while providing no legal authority for such a characterization.
D. ■ Equal Protection under the United .States and Kansas Constitutions
Finally, HBA contends the City has singled out land developers to pay a fee disguised as an excise tax to finance the construction of .main thoroughfares in the City.
. The parties agree that the standard to be applied here in determining whether the City’s excise tax violates the federal and state guarantees of equal protection is whether the differential treatment of taxing those engaged in the act of recording approved plats bears a rational relationship to a legitimate governmental purpose.
The rational basis test contains two substantive limitations on legislative choice: legislative enactments must implicate legitimate goals, and the irieans chosen by the legislature must bear a rational relationship to those goals. These limitations amount to a requirement that all persons similarly situated should be treated alike. U.S.D. No. 229 v. State, 256 Kan. 232, 260, 885 P.2d 1170 (1994).
HBA cites Duff v. Garden City, 122 Kan. 390, 251 Pac. 1091 (1926). In Duff, the court invalidated a city ordinance which levied a .charge upon the business of selling oil and gas. The court found the charge to be, in substantial part, a license fee as opposed to an occupation, tax. Duff is difficult to apply to the present case because it arose prior to passage of home rule authority. In addition, the Duff court found the charge there to be regulatory, at least in part, based upon its effect of prohibiting small businesses in the oil and gas field. 122 Kan. at 393. HBA has made no showing that the excise tax in the present case has a disparate effect on a certain class of developers.
HBA also cites Christopher Lake Development Co. v. St. Louis City, 35 F.3d 1269 (8th Cir. 1994). In that case, the court merely remanded to the district court for a determination of whether certain developers had been singled out to subsidize a drainage system for an entire watershed area. The court did not determine whether the complaining developers actually had been singled out.
Here, there is a rational relationship between the tax imposed and the City’s legitimate goal of raising revenue to provide for streets and services. In addition, there is no claim in the present case that certain developers have been singled out for the excise tax to the exclusion of other developers. Such a situation was clearly the concern in Christopher Lake Development Co., 35 F.3d at 1274. The excise tax meets the rational basis test and, therefore, does not violate HBA’s right to equal protection of the law.
Reversed and remanded for further proceedings on the remaining counts of HBA’s second amended petition. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Irene Sowers upon a guardian’s bond executed by Roy Pollock as guardian, with H. H. Wetzig and H. W. Smith, as sureties. Judgment was given in favor of the plaintiff and against the sureties, who appeal.
After the issues were joined, plaintiff moved for judgment on the pleadings and defendants also asked for judgment in their favor on the same basis. Plaintiff alleged that her mother died in 1917, leaving to plaintiff and her brother, Clyde Pollock, $1,000, the proceeds of an insurance policy. The children were both minors, and Roy Pollock, their father, was appointed as guardian of their persons and estate. He gave the bond mentioned for $2,000 signed by himself and the sureties mentioned. The guardian obtained possession of the $1,000, and later procured an order of the probate court allowing him to loan to himself $900 of his wards’ money, for which he gave his note, to himself as guardian, payable in three years with interest at six per cent per annum. With this money he purchased real estate taking the title to it in his own name, and later he filed an account in the probate court showing the application of the trust fund that had been placed in his hands. In the account he claimed and was allowed a credit for $500, being a payment on the purchase price of-real estate purchased for himself and $147.64 for lumber used in the improvement of the real estate, and $111.30 for the work of carpenters in making the improvement. It is alleged that these were not debts of the wards and that the orders of the probate court allowing him to loan the wards’ money to himself and approving the accounts for using it to buy property for himself, were all nullities. It was further alleged that he had absconded and left the state. The guardian was not served with process and made no defense, but the sureties on his bond answered and claimed that the probate court had jurisdiction over the guardian and the wards, that it made a lawful order requiring the guardian of the estate of the wards to loan the money to himself, also claimed that at the time there existed circumstances and conditions of such an exceptional character, which are not described, that the court is deemed to have found and decided that such an order was to the best interest of the estate of the minors, that no appeal had been taken from it, that it had never been set aside, and that as the guardian complied with the order of the probate court, no liability has arisen against the sureties on the guardian’s bond.
Numerous authorities are cited by the defendants to the effect that judgments of the probate court in matters in its jurisdiction are not subject to collateral attack. As said in Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86, such a judgment “is ordinarily conclusive and final, unless vacated by appeal, impeached for fraud, or set aside by direct proceedings brought for that purpose.” Although of limited jurisdiction, a probate court has full power to adjudicate matters which come within the jurisdiction conferred by constitution and statute, and its judgment rendered within the prescribed limits, however erroneous, are ordinarily conclusive unless reversed and set aside in appropriate proceedings. If it acts outside of its powers or its action is obviously fraudulent, the judgment rendered may be treated as a nullity. Here the court had power to authorize and approve loans of the wards’ money by the -guardian. (Gen. Stat. 1915, § 5050.) It had no power however to direct or permit the guardian to use the money of the ward for his own purpose. The loan to himself was in fact not a loan within the meaning of the statute cited. It has been expressly held that, “A guardian may not trade with himself on account of the ward or use or deal with his ward’s property for his own benefit.” (Charles v. Witt, 88 Kan. 484, 129 Pac. 140.) The court had no more authority to direct or approve a loan of the wards’ money by the guardian to himself than he would have had to have directed a loan of the funds to the judge who made the order. His order was of no more effect than if he had authorized the guardian to use it in the purchase of lottery tickets in a bucket-shop deal or .in. any gambling transaction. In borrowing the wards’ money the guardian became both borrower and lender, relationships in which his personal interest was brought into direct conflict with the interest of the wards whom he was bound to protect.
A principle which has been universally recognized since the beginning, was expressed by Lord Ellenborough in 1st Campbell, 528, that “no man should be allowed to have an interest against his duty.”
In Frazier v. Jeakins, 64 Kan. 615, 68 Pac. 24, it was said:
“Nothing in the law of fiduciary trusts is better settled than that the . trustee shall not be allowed to advantage himself in dealings with the trust estate. He shall not be allowed to serve himself under the pretense of serving his cestui que trust.” (p. 618.)
In that case it was held that a guardian’s sale of her ward’s land to her husband upon fair consideration and free from actual fraud and where the sale had been confirmed by the court, was absolutely void and subject to collateral attack. Something is made of a remark in that case to the effect that there may be exceptional circumstances justifying sales by trustees to their wives or husbands or even to the trustee himself. However, we can conceive of no circumstances . which would justify the loan of practically the entire trust estate to the guardian.
In Webb v. Branner, 59 Kan. 190, 52 Pac. 429, a guardian procured an order for the sale of his ward’s property under which a sale was made to the purchaser who immediately conveyed the property to the guardian. Although the sale was approved by the probate court and the accounts filed by the guardian were approved; the guardian discharged an order made relieving his sureties from liability on his bond, the sale was held to be void, and 'the estate was reopened for a just settlement. The action of the guardian in the present case, from which the sureties asked to be relieved from liability, was such a gross violation of duty, so plainly illegal and obviously fraudulent, that no sanction or validity could be given to it by an order of the probate court. The record of the probate court is presumed to speak the truth, but the truth as related in the order itself shows that the proposed action was so illegal and so tainted with fraud that the court had no power to authorize or approve .it.
In Fidelity & Dep. Co. v. Freud, 115 Md. 29, a guardian borrowed a part of the fund committed to his care, and this was done on the permission and authority of the orphans’ court. The question there was whether the loan made under the sanction of an order of the court would protect the guardian or the sureties on his bond. The court declared that:
“No one having fiduciary duties to discharge should be allowed to enter into any engagement in which he has, or can have, a personal interest conflicting, or which may possibly conflict, with the interests of those whom he is bound to protect.” (p. 33.)
It was held that nothing in the statutes of that state nor in the general principles of law would relieve the guardian or his bond from liability for the misuse of the funds of his ward.
In another case, where a guardian had borrowed and used $750 of the money of his ward with the approval of the county court, and it was claimed that, the order of the court relieved the guardian from liability for its loss, it was held that the court was without authority to authorize the guardian to loan the money belonging to the estate of the ward to himself and that it could not by its order give validity to such a subterfuge. In the opinion it was said:
“Orders of a court of record valid on their face cannot be attacked collaterally, but the proceedings as to the $750 are so irregular and unconscionable as to carry with them the badge of fraud and to be vulnerable to attack by objections to the final report, in which the guardian by means of such invalid orders seeks to be relieved from liability for loss to the estate arising from the inadequate security taken. The county court is without authority to authorize a guardian to lend funds of the estate on securities offered by the guardian himself, or by order of court to give validity to any subterfuge in such respect.” (In re Bates’ Guardianship, [Okla.] 174 Pac. 743, 744.)
The order made by the probate court in this instance was void and subject to collateral attack. It afforded no protection to the sureties on the guardian’s bond, and therefore the judgment of the court is affirmed. | [
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|
The opinion of the court was delivered by
PoeteR, J.:
The defendant issued and delivered a policy of insurance to Dr. R. L. Baker insuring his touring car to the' amount of $3,000 for one year against loss by fire or lightning. He paid the premium, took the policy, put it ip his safety box at the bank. About a year afterwards his car was destroyed by fire. The company denied liability and he brought this action in which he recovered judgment, and the North River Insurance Company appeals.
The defense was that the policy had been canceled. It was alleged that Claud L. Yaughn was the general manager of the Hess Real Estate Company of Arkansas City, Kan., which was at all times the defendant’s local agent, and that for a long time prior to the issuance of the policy defendant’s agent had been the plaintiff’s agent, issuing policies to him without any request and transacting all his insurance business without consulting him; that on the 11th day of February, 1920, the Hess Real Estate Company under defendant’s instructions canceled the policy, and in lieu thereof issued a policy of insurance duly executed by the American Insurance Company of New Jersey; that the premium was duly paid to the latter company and the policy countersigned by the Hess Real Estate Company, and had ever since been in full force and effect.
The answer alleged that after plaintiff’s loss occurred he made out a regular proof thereof to the American Insurance Company under its policy, and stated under oath that there was no other insurance on his automobile, and was now estopped from claiming any rights under the policy issued by the defendant. Another defense was that the policy sued upon contained a clause forfeiting the insurance if the insured in his proof of loss to defendant made any false statement; and it was claimed that he had forfeited his rights by failing to disclose that he held a valid policy in the American Insurance Company.
A verified reply denied that Vaughn or the Hess Real Estate Company was plaintiff’s agent for the purpose of renewing, canceling or effecting other insurance; and alleged that plaintiff had no notice or knowledge of the existence of the policy issued by the American Insurance Company until after the loss occurred, and never authorized or ratified its issuance or made any claim under it, with a knowledge of the facts.
The undisputed facts are that the next day after the fire Doctor Baker learned for the first time about the American Insurance Company policy; he had taken the policy sued upon to Vaughn, who informed him that it had been canceled; plaintiff asked him how it came that it was for $2,500 when the other policy was for $3,000; Vaughn said that that was all the insurance he could give him then. Acting on the advice and suggestion of Vaughn, he signed proofs of loss prepared by Vaughn, which were sent to the American Insurance Company. Vaughn told him the North River Insurance Company had canceled the other policy, and “to leave it to him and he would get the money.” The American Insurance Company denied any liability on the policy, and no action was brought against that company.
There are a number of very good reasons why the judgment must be affirmed. In the first place, the only provision for cancellation was the usual clause in the policy reading:
"It (the policy) may be canceled by the company by delivering or mailing to the insured at his last known address, five days’ written notice of such cancellation, and if the premium has been paid, by tendering in cash, postal money order or check, the pro rata unearned premium thereon.”
In no respect was this provision complied with; no notice at all was given to plaintiff of the cancellation and no part of the unearned premium was returned to him. In the second place, the burden was upon the defendant to show that the local agent of the defendant was the plaintiff’s agent. The defendant wholly failed in this respect. The burden rested upon defendant to prove ratification and that plaintiff- had full knowledge of his rights and all the material facts. (Owings v. Hull, 9 Peters (U. S.) 607.)
“Ah. invalid or defective cancellation by the insurer will not become effective by ratification, where the act of the insured relied on as evidencing a ratification is induced by his ignorance of the facts or his rights, or by the false representations of the insurer’s agent. (3 Cooley on Insurance, 2806-(k) ; Cassville Roller Mill Co. v. Ætna Ins. Co., 105, Mo. App. 146.)
Even where there is a contract arrangement between the insured and the local agent to renew a policy the presumption is that the renewal is for the same time, terms, premium, and with the same insurer. (Brown v. Ins. Co., 82 Kan. 442, 108 Pac. 824 ; 6 Cooley on Insurance, 850-)
There were numerous material differences in the two policies; the amount of insurance had been reduced from $3,000 to $2,500; the premium had been increased from 80 cents to $1.00 per thousand. There was a mortgage on the automobile held by a dealer, and the policy sued “upon recited this fact and protected the mortgagee. No mention of it was made in the policy issued in the name of the American Insurance Company. So that even if Yaughn and the real estate company were shown to be plaintiff’s agents, to renew the insurance, there was no evidence whatever to warrant the inference that they possessed authority to write a new policy for a different amount, at a higher premium and differing materially in other terms. Nothing that plaintiff did under the advice of the defendant’s local agent in an attempt to collect the loss from the American Insurance' Company estops him from claiming under this policy, for the reason that nothing done by him in that respect altered the position of the defendant, or furnished any ground for an estoppel. When the loss occurred the rights and liabilities of the North River Insurance Company and the plaintiff had become fixed; and this was true before anything occurred which could be called an attempt on the part of the plaintiff to ratify the insurance of the other policy. Úntil the day after the fire plaintiff knew nothing of the attempted cancellation or the issuance of the new policy and, as .his rights had fully accrued under the defendant’s policy, he was entitled to recover $3,000 if his loss equalled that sum. He had paid the premium for that much insurance, which the company had in its possession at the time the loss occurred. There are numerous cases in the books involving the same questions presented here; and in a similar situation it has been held that the insured may bring suit on both .policies without waiving any rights under either. (Hartford Fire Ins. Co. v. Tewes, 132 Ill. App. 321.) In that case the appellee brought suit upon both the old and the new policies. It was argued that by suing on the new he elected to treat them as valid and thereby conceded that the old were not in force. In the opinion it was said:
“The companies who issued the new policies should with equal logic say that as appellee sued appellant and the Eagle he thereby elected to treat the old policies as in force and the attempted cancellation as void; . . . By this reasoning each insurance company would be able to show that by suing each he had released all” (pp. 331, 332.)
In Cure v. Insurance Co., 109 Kan. 259, 198 Pac. 940, it was said:
“To constitute a waiver of a contract right, there must be a clear, unequivocal and decisive act of the party showing an* intention to relinquish the right, or acts amounting to an estoppel on his part.” (Syl. IT 2.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The defendant, with Harry Breen and two others, was charged with the violation of the criminal syndicalism act. A motion was made to quash the information upon the ground that it failed to sufficiently state a public offense. This motion was denied, and from the ruling an appeal has been taken.
The same information was before the court in The State v. Breen, 110 Kan. 817, 205 Pac. 632, in which it was held that the information was defective, and the judgment in that case was reversed. Separate trials were had by the defendants, and Murphy was found guilty upon the charge. He raises the question of the sufficiency of the information, and alleges that the ruling sustaining it was error.
The state is not contesting the controlling effect of the decision made in The State v. Breen, supra, but is insisting that as no motion was made for a new trial nor in arrest of judgment, the error in overruling the motion to quash is waived. It is said that the defect in the information was amendable at any stage of the trial, and is to be considered as amended in the absence of a motion for a new trial or in arrest of judgment.
The failure to file a motion in arrest of judgment did not operate to cure the defect in the information, nor as a waiver of the error in holding it to be sufficient. The defendant of course might have filed a motion in arrest of judgment, but all that he could have alleged in it would have been that the facts stated in the information did not constitute a public offense. That was the objection raised on the motion to quash, and a motion in arrest of judgment would have been but a repetition of the motion already made. The objection of the defendant raised a question of law which was directly and fully presented to the court, and it was in as good a position to consider and determine the sufficiency of the charge upon the motion to quash as it would have been on the motion'in arrest of judgment. The motion in arrest of judgment is a last chance opportunity of the defendant to insist that the charge made against him, even if proven to be true, is not a public offense, and he can raise the question after conviction where no motion to quash had been made. However, the question having been previously raised on the motion to quash, a challenge of the correctness of the ruling on that motion is available to him on appeal without going through the form of repeating the challenge. The judgment of the court is reversed and the cause remanded with directions to discharge the defendant.
HopKINS, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
This action was one to recover for nonperformance of gratuitous agency. The plaintiff recovered, and the defendant appeals.
The plaintiff purchased real estate, subject to two mortgages given to Pettyjohn & Company. Desiring to pay interest on the mortgages, the plaintiff requested the bank to transact the business. The plaintiff was a depositor in the bank, and gave a check on his account for the amount of the interest. Pettyjohn & Company owed the bank, and had instructed the bank to credit on the indebtedness any money received for Pettyjohn & Company’s account. This was done, Pettyjohn & Company were duly notified, and were requested to forward the interest coupons to the bank. Soon afterward Pettyjohn & Company were declared to be bankrupt. Petty-john &• Company had assigned both mortgages, and the assignment of one of them had been recorded. The plaintiff paid the assignees, and sued the bank. The court returned the following finding of fact:
“On the 25th das'- of January, 1921, the plaintiff, N. P. Nelson, went into the place of business of the State Bank of Ottawa, in Ottawa, Kansas, and requested the bank to send 8132 to J. L. Pettyjohn & Company, for the purpose of paying the interest on the two loans above mentioned, which interest was due about February 1, 1921, and he also told the bank that he desired the interest coupons representing the interest to be paid. The bank agreed to send the money to J. L. Pettyjohn & Company, and to secure the return of the coupons if possible. The plaintiff paid the defendant, the State Bank of Ottawa, the sum of 8132, to be used for the purpose indicated. The bank neg- leeted to send or forward the §132 so received by the defendant J. L. Petty-john & Company.”
This finding does not, in all respects, accurately represent the .testimony, and requires interpretation because it employs terms having different meanings in different relations.
The testimony does not disclose an agreement on the part of the bank to obtain the interest coupons “if possible,” and does not permit the inference that the coupons were to be obtained by 'handling the money in any way except by paying Pettyjohn & Company. There is no basis in the testimony for an inference that the bank was requested or agreed to send $132 in money to Pettyjohn & Company. The plaintiff made no special deposit of money, his check segregated no fund in the bank, and the bank was at liberty to use any of its money to pay the amout of the plaintiff’s interest to Pettyjohn & Company. The plaintiff gave no instruction relating to method of remittance. The bank was at liberty to choose any approved method, and the agreement to “send the money” would have been satisfied by forwarding specie or currency, or by mailing the bank’s own check or draft, or by any method which would have paid the coupons if Pettyjohn & Company had held them. This being true, the bank did not neglect to send or forward to Pettyjohn & Company any special fund, or any sum of identified money, or any money, amounting to $132, received from the plaintiff; and if the finding is to be interpreted as disclosing bailment, or special deposit, or trust fund, it is not sustained by the evidence.
The finding is to be interpreted as stating the facts, uncolored by legal conclusions, showing the nature of the transaction. So interpreted, the transaction is just what the plaintiff understood it to be. He testified he was following a custom of paying interest through the bank, to “headquarters where the loan was issued.” The'bank was following a familiar practice of accommodating customers by doing that kind of business for them.
The law ,of the case is well stated in the treatise on agency in 2 C. J. at page 717:
Ordinarily a substantial compliance with the terms of the authority is all that can be required, and where this has been done a circumstantial variance from the instructions is immaterial. But it must be shown affirmatively that the deviation in no manner contributed to the loss. Deviations cannot be justified on the ground that they were not material if the principal in giving the instructions regarded them as material.
“In so far as the agent is invested with discretionary powers he is required to act only according to the best of his judgment for the interest of his principal, and in the absence of negligence or bad faith he will not be liable; but if the instructions are direct and positive the agent has no discretion, and his motives in departing therefrom are not material, . .
Pettyjohn & Company was the final destination of the plaintiff’s money, and the bank was charged with no duty to see that Petty-john & Company applied it properly, or that it reached anyone else. The case is not one in which the bank arbitrarily impounded funds which it was obligated to use to accomplish the plaintiff’s ends, and used them to accomplish its own ends. The bank was receiving from time to time money belonging to Pettyj ohn & Company. Pet-tyjohn & Company owed the bank. Remittance by the bank to Pettyjohn & Company, and return remittance by Pettyjohn & Company to the bank, involved economic waste, which was obviated by the authority given the bank to credit Pettyjohn & Company money on their note. Under these circumstances, Pettyjohn & Company received the plaintiff’s money when it was credited on their note, and the bank discharged its duty to the plaintiff without material deviation when it made the credit, notified Pettyjohn & Company, and requested that the interest coupons be forwarded.
The bank’s conduct occasioned the plaintiff no loss. One mortgage was assigned to the Temple Trust Company, and the assignment was recorded. The other mortgage was assigned to Carsop & Company, and the assignment was not recorded. Interest on the Carson & Company mortgage was paid by what the bank did, and the plaintiff rested under no obligation to pay it again. (Gen. Stat. 1915, § 6485.) With respect to the Temple Trust Company mortgage, the plaintiff was in precisely the same situation as if he or the bank had remitted to Pettyjohn & Company by draft, and the draft had been paid. If Pettyjohn & Company had remained owner of the mortgage, or if the assignment had not been recorded, the interest would have been paid, and when the bank effected payment to Pettyjohn & Company, its duty to the plaintiff was discharged.
The plaintiff has a theory that if the bank had “sent the money” to Pettyjohn & Company, he would have had a preferred claim against the bankrupt’s estate for a trust fund, which he cannot now assert. The court is not deciding the matter but, as indicated earlier in this opinion, the expression “sent the money,” may mean one thing or may mean another. Very little specie and currency are shipped to mortgage companies to pay interest on loans they have made. The plaintiff did not specify that method of paying his interest. The bank had discretion, and could use its best judgment, exercising due care and good faith. It would have discharged its agency by remitting to Pettyjohn & Company by draft. The method adopted got “the money” to Pettyjohn & Company as effectually as if remittance had been made by draft, and if “sending the money” by draft would have given the plaintiff the privilege of claiming a preference, he has that privilege now.
It is not necessary to review the authorities cited by the respective parties. The case is not one of bailment, or special deposit, or trust fund. It is simply a case of agency. The plaintiff furnished the bank with funds to pay to Pettyjohn & Company interest on his mortgages. The sole restriction imposed on the bank was that implied by the purpose for which the money was furnished. That purpose was accomplished.
The petition counted on a contract -by the bank, made in consideration of a deposit of $132, to get interest coupons. There was no evidence of such a contract. The money was to go to Pettyjohn & Company and, following the finding of fact, it was not “possible” for the bank to obtain the coupons by such means.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
An opinion in this action is found in Training-School v. White, 110 Kan. 498, 204 Pac. 688. After that opinion
was rendered, the plaintiff procured an order on its motion to set. aside the judgment rendered in the action foreclosing the tax lien. The trial court denied the motion of the plaintiff in that action. An appeal has been taken from the order denying that motion. The judgment of this court on that appeal is found in Wyandotte County v. Kerr, ante, p. 463. A motion for a rehearing has been filed in Douglass Hospital and Training School for Nurses v. G. A. White. That motion and the appeal in Board of County Commissioners et al. v. Corydon Kerr et al., have been heard together.
There is nothing to indicate that the opinion in Training School v. White, 110 Kan. 498, 204 Pac. 688, is incorrect; but, the judgment of the district court in that action is avoided by the action of the training school in procuring an order on its motion to set aside the judgment in the foreclosure action, if that motion should have been sustained. The motion for a rehearing is denied. | [
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The opinion of the court was delivered by
Mason,' J.:
D. T. Nicholson brought an action against F. F. Fawley for the specific performance of a written contract whereby the plaintiff was to convey to the defendant a farm in consideration of a deed to some town lots and the payment of $1,000 down and $6,200 in eleven months. The defendant’s answer alleged that he signed the contract under the belief, induced by the fraud of the plaintiff, that the final payment it provided for was $4;500, instead of $6,200. The court refused to grant specific performance, but gave the plaintiff a judgment for $650 as damages by reason of expenses he had incurred in reliance on the contract. The defendant appeals.
The evidence established these facts, which are undisputed: The plaintiff listed the farm with an agent for sale at $6,500. The agent offered it to the defendant at that price, and later the defendant made to the plaintiff in the presence of the agent a counterproposition that in exchange for the land he would give the lots, which were worth $1,000, pay $1,000 down and $6,200 later, the last-named figure being the result, according to an explanation given in his answer, of a “mistaken mental mathematical calculation, whereby this defendant attempted a process of subtraction from the said price agreed upon, and the cash payment to be made March 1, 1920, was put at $6,200 when in truth and in fact it should have been $4,500.” The agent then prepared a contract in which $6,500 was named as the total consideration, to be paid by a deed to the lots, $1,000 down, and $6,200 in eleven months. The plaintiff refused to sign this, saying he preferred his banker should draw the contract. Later the contract sued on was drawn by the banker and signed by the parties. It did not contain the recital giving $6,500 as the total price.
Obviously the court concluded that the plaintiff was not guilty of any fraud or conduct having the effect of fraud, or being such as to vitiate the contract, but that the defendant signed it under a mistake as to the price he was to pay and in such circumstances that a court of equity, in its discretion should refuse to decree specific performance against him. In such a situation it is competent under some conditions to allow damages to the plaintiff, covering losses he had incurred in reliance upon the contract. (36 Cyc. 750.) The defendant does not dispute this proposition, but contends that here the judgment for damages was erroneous because the facts on which it was based were (1) not pleaded, and (2) were not supported by any evidence, except as to an item of $200 on account of the real-estate agent’s commission. The petition was drawn merely as one for specific performance. It is concluded with a prayer for such other relief as might be equitable, but did not mention damages, nor set out the losses the plaintiff had suffered.
The issues framed by the pleadings are often enlarged at the trial, and unless the omission to amend the pleadings accordingly works some substantial prejudice to the losing party no ground of reversal results. What is to be determined, therefore, is not whether the petition should have been amended so as to show the injury to the plaintiff growing out of the contract and its nonperformance, but whether the absence of such amendment in any way hampered the defendant in meeting that issue. This question may be considered in connection with those growing out of the contention that there was no evidence to support the two items for which damages were allowed, other than the agent’s commission, which were — $200 on account of the farm having remained idle for a year by reason of the controversy, and $250 as an attorney's fee in the trial of the case.
It is conceded that there was abundant evidence that the plaintiff paid the real-estate agent a commission of $200, and there is no suggestion that the defendant did not have an opportunity to contradict it, or that he desires to do so, or that it was in fact false. This expense was one for which upon the theory adopted by the court it was proper to reimburse the plaintiff, and it is evident that no prejudice resulted to the defendant from its not having been pleaded.
The petition alleged that the plaintiff was in the possession of the town lots, claiming to own them under the contract. It is stated in behalf of the plaintiff that the amount allowed by the court because of the farm having remained idle for a year was arrived at after taking into account the value to him of his occupancy of the lots during that time. No evidence was introduced on this subject. In the plaintiff's brief it is said (and the statement has not been challenged) that the defendant admitted that if the question of damage was open to investigation at all the value of the use of the farm, taking into consideration the use of the lots, was such that the balance in favor of the plaintiff was $200. We think circumstances may have existed such as to entitle the plaintiff to compensation for the nonuse of .the farm and this admission dispenses with the occasion for evidence and renders immaterial the omission of the petition to refer to the matter.
. Inasmuch as in the absence of a statute a judgment for the plaintiff cannot include his attorney’s fee for services in the action in which it is obtained, even where fraud is the basis of the recovery (Evans v. Insurance Co., 87 Kan. 641, 125 Pac. 86), we think no allowance should have been made on that account in this action.
The judgment is modified by reducing it to $400, and as so modified it is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The insurance company issued a policy for $1,500 on the life of Homer M. Jenkins, payable to his mother, Mary C. Jenkins, at his death, or to his executors, administrators and assigns, if she should not survive him. The policy was to be fully paid up when twenty annual payments were made. It matured on September 15, 1920. It contained an option for a cash settlement on that date by legal surrender to the company in lieu of its reserve value in cash with four per cent interest. In the application the insured was asked: “If an endowment, to whom shall it be paid if you live to the end of the endowment period?” Answer: “Myself.” In June, 1911, his mother reassigned the policy to him. Afterwards he assigned it to his then wife, Edna Dialtha Jenkins. They were divorced in the district court of Labette county on December 21, 1916. The assured thereupon notified the insurance company of the divorce, and that he had terminated her rights as beneficiary in the policy, and had changed the 'beneficiary to Catherine Margaret Jenkins, his daughter, a minor, and had appointed S. J. Mattox, of Oswego, trustee for his daughter, to collect any moneys that might become due on the policy “in case of my death, .. . . reserving, however, my right to any moneys due thereon during my lifetime or due at the maturity thereof should I be living.” This was on April 29, 1918. Subsequently, he married the plaintiff and assigned the policy to “my present wife, Myrtle Ransom Jenkins,” notifying the insurance company. In this latter assignment he expressly assigned to plaintiff all benefits under the policy when they matured “the same as I could do; she to have and retain all of said receipts as her own and individual property.”
After the policy matured, Myrtle Ransom Jenkins, the present wife, brought this action on the policy tovrecover the endowment. The company resisted because of the claims of the other assignees. Homer M. Jenkins interpleader as a plaintiff for the purpose of establishing the fact that he is still living. The former wife remarried after the divorce, and her name is now Edna Dialtha White. She filed an answer claiming the right to collect the endowment, alleging that she had never released, surrendered, assigned, transferred or waived any right or interest she had obtained by virtue of the assignment; that she had never elected to surrender the policy and to receive a cash consideration, and was entitled to receive all sums that are now or may hereafter become due under the policy. The answer alleged that the contract contains an agreement that it is to be held and construed to have been made in Ohio and all rights thereunder were fixed and determined by the laws of that state, and that under those laws she became and is now the owner of a vested interest in the policy. The answer also set up the decree of divorce and an order made by the district court of Labette county, adjudging that Homer M. Jenkins pay to his former wife, for the support and education of their minor child, $25 a month beginning January 15, 1917, and to continue during the minority of the child or until the further order of the court. It was alleged that the child was still a minor and that he had never paid any money under the order; that an execution had been issued to the sheriff of Labette county, which remains unsatisfied. She asked that if the court should find- that plaintiffs or either of them have no rights in the policy and that an option of cash settlement has been exercised in a lawful manner, Homer M. Jenkins be adjudged to be the owner of any sums now due; that his coplaintiff be adjudged to have no interest therein, and that the court order the amount paid upon the satisfaction of the judgment and decree in the divorce case. The minor daughter also answered and claims under the assignment to her.
The court rendered judgment on the pleadings in favor of Myrtle Ransom Jenkins, plaintiff, for 1890.15, from which the interpleader, the former wife, and Catherine Margaret Jenkins, the daughter, appeal.
We see no reason why Homer M. Jenkins could not assign to his second wife all of his rights under the policy, including the right to collect the endowment. If the assignment transferred the property to the plaintiff, Myrtle Ransom Jenkins, it could not be applied to the payment of judgments or debts owed by the husband. The insurance itself was exempt at the time it was assigned.
The plaintiff was the beneficiary in the policy of insurance and the assignee of the endowment by virtue of the assignment. Section 5237, General Statutes, 1915, provides:
“All such policies and their reserves of the present value thereof shall inure to the sole and separate use and benefit of the beneficiaries named therein, and shall be free from the claims of the assured.”
A copy of the judgment in the divorce action was attached to the answer, from which it appears that the court ordered certain payments to be made to the clerk by the defendant in'the action for the support and education of his minor child or until the further order of the court. The decree did not attempt to make this part of the judgment a lien on any property of the defendant in that action. The proper way to secure the enforcement of the order is in the court where the decree was granted. (See Fey v. Johns, ante, p. 385, 210 Pac. 1107.)
The assignment to the defendant, Edna Dialthá White, is by an instrument making her the beneficiary under the policy in case of the death of Homer M. Jenkins. The assignment contains the following statement:
“In case this policy matures as an endowment this assignment is of no effect.”
A similar policy issued by the same company, with a reserve value payable to assured after twenty years, was construed in Robison v. Insurance Company, 96 Kan. 237, 150 Pac. 564. It was held that in the application, which was made a part of the policy, the insured stipulated that the reserve should be paid to himself, and that he can enforce payment of the reserve to himself by surrender of the policy after it matured, even if the beneficiary refuses to consent to such surrender on payment. In that case Robison sought to surrender the policy and recover $932 reserve without the consent of the beneficiary, who had, since the policy was issued, obtained a ■divorce from him. All premiums were paid by the plaintiff. The insurance company offered to pay the plaintiff the reserve upon a surrender of the policy with a receipt or release from the beneficiary. A judgment for the plaintiff against the company for the full amount of the reserve was affirmed. It was held that the beneficiary had no right to the reserve part of the policy nor any right to defeat the plaintiff in his effort to compel the defendant to pay it according to the terms of the policy.
In the present case the assignment to Catherine,, the minor daughter, contained the same reservation, “reserving, however, my right to' any monies due thereon during my lifetime or due at the maturity thereof should I be living.” He is living; and neither his former wife nor daughter can assert any claims to the proceeds of the policy." As suggested in the brief of plaintiffs, he might have assigned it to his creditors or other parties and appellant’s rights would in no way thereby have been affected.
The court ordered judgment on the pleadings. The former wife, Edna Dialtha White, alleged in her answer that the contract of insurance was executed in and to be fully performed in the state of Ohio, as an Ohio transaction and governed by the laws of that state, and contains a clause which reads:
“Which contract shall be held and construed to have been made in the city of Cincinnati, Ohio.”
Upon this statement of the undisputed facts in the policy itself, she then alleges that all rights under the policy were fixed and determined by the laws of Ohio when the policy was issued, and that under the laws of Ohio she became and is now the owner of a vested interest in the policy which cannot be affected or said policy assigned or surrendered without her consent, which consent has never been given. It was unnecessary for the court to inquire into the laws of Ohio on this pleading. It is a mere conclusion of law — and not good law at that. Were it conceivable that the laws of Ohio attempt to deny to the insured or his lawful assigns the right to recover the reserve due him in case he survived the endowment period and kept the policy alive, the courts of this state would refuse to follow such law. The right to the reserve fund under the contract of insurance is a chose in action which can be the subject of an absolute assignment. The assignee is entitled to maintain an action to collect the reserve. Knapp v. Eldridge, 33 Kan. 106, 5 Pac. 372, where it was said:
"Any right under the contract, either express or implied, may be transferred; this is so whether the amount is due . . . or to become due.” (p. 108.)
We have been referred to no other clause in the policy which could reasonably be construed as the answer alleges. It should be observed that the insurance company made no such claim.- It plead the various assignments and alleged that the controversy could not be settled without the former wife, the minor daughter and her trustee being made parties; and when the judgment of the court was pronounced the insurance company promptly paid the money into court. Plaintiffs were entitled to judgment on the pleadings.
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|
The opinion of the court was delivered by
Porter, J.:
Katherine Tackett recovered a judgment in the district court against the Kansas City Railways Company for $15,000. This is an action on a supersedes bond given by the surety company, defendant. The petition alleged that for the purpose of staying execution and superseding the judgment, the defendant herein executed the bond, which was filed in the office of the clerk of the district court; that the railways company served notice of appeal, and that the bond stayed execution and the collection of the judgment.
The answers, besides a general denial, admitted the rendition of the judgment but alleged that at the time the bond was executed the railways company was contemplating an appeal, and as a means of staying execution during the pendency of the appeal, should any be taken, procured the defendant’s signature on the bond; but that no proceedings were taken toward an appeal further than the service of a notice of appeal; that the notice was never filed in the office of the clerk of the district court and that the time never arrived when the bond could or did prevent the issuance of an execution or stay the proceedings; that neither defendant nor the railways company ever received any benefit by reason of the bond, plaintiff was never in any way prejudiced by reason thereof, and, therefore, there was no consideration for the bond.
Another defense alleged was that after the bond was executed an arrangement was entered into between Katherine Tackett and the railways company to the effect that judgment should be entered in favor of plaintiff’s husband in another suit then pending in the same court against the railways company; that no appeal should be taken in Katherine Tackett’s case, and that the judgment in her favor should be paid in monthly installments of $1,000; that payments were made in pursuance of this arrangement until her judgment was reduced from $15,000 to $9,500, at which time further payments ceased by reason of the insolvency of the judgment debtor.
The answer alleged that the surety company was not a party to the agreement which it is claimed was entered into by plaintiff and the railways company under which the proceedings were stayed in consideration of the payment of the judgment in monthly installments.
The court sustained a demurrer to the second defense — based on the failure to perfect an appeal; and at the close of the evidence on the third defense, directed a verdict in favor of plaintiff for $9,500. From this judgment defendant appeals.
Briefly stated, the defendant’s contentions respecting the defense, to which the court sustained the demurrer, are these: The bond was not an absolute promise to pay, because on appeal the judgment might be reversed, which would inure to the benefit of the surety; and the chance that there might be a reversal or modification of the judgment constituted part of the consideration for the bond. In this connection, it is argued that, after making it impossible for the railways company to secure a reversal of the judgment, plaintiff is now claiming the same right to which she would be entitled if the judgment in that case had been affirmed.
It is urged that the surety is in no manner estopped, by reason of any recitals in the bond, from alleging and proving, that no appeal was taken, the recital in the bond being: “And, whereas, the said, The Kansas City Railways Company, intends to prosecute” an appeal — not that it has taken an appeal. The defendant concedes that if there had been an actual appeal which was afterwards dismissed for some failure to comply with the requirements of a perfect appeal, it would be liable on the bond.
In defendant’s brief it is said:
“The supersedeas is not an agreement that no execution shall issue. That execution shall be stayed is an incident which the law attaches . . . during the pendency of the appeal. Here there never was an appeal and the incident never did attach. The right to a stay of execution is purely statutory. The only authority for a stay is the provision that no appeal shall operate as a stay unless a supersedeas be given.”
The manner in which an appeal is taken under the new procedure (1909) is provided for in section 569 of the code. (Gen. Stat. 1915, § 7473.)
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, stating that the party filing the same appeals from the judgment, order or decision complained of to the supreme court. ... A copy óf such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal. ... or their attorneys of record.”
The appeal is perfected by the filing of the notice with the clerk of the trial court, and from that moment the supreme court has jurisdiction. (Schmuck v. Railway Co., 85 Kan. 447, 116 Pac. 818; Thisler v. Little, 86 Kan. 787, 121 Pac. 1123; The State v. Roselli, 106 Kan. 689, 189 Pac. 136.)
A notice of appeal was served upon the attorneys of Katherine Tackett, but no notice of appeal was ever filed with the clerk. The supersedeas bond was filed with the clerk. The statute further provides that no appeal from a money judgment “shall operate to stay execution unless the clerk of the court in which the record of such judgment or final order shall be, shall.take a written undertaking, to be executed on the part of the appellant to the adverse party, ... to the effect that the appellant will pay the condemnation money and costs in case the judgment or final order shall be affirmed in whole or in part.” (Civ. Code, § 586; Gen. Stat. 1915, § 7490.) •
Under the old “case-made” practice, which required several months before proceedings in error could be perfected, no one supposed that execution was stayed until the proceedings in error were complete and ■ the supreme court had acquired jurisdiction. A situation often arose by which, after notice had been given that an appeal was to be taken and after a supersedeas bond had been given and filed, the party appealing was obliged to procure an order of the district court staying execution until the appeal could be perfected. The order of the court staying proceedings made the bond effective and furnished a sufficient consideration for the bond, pending the appeal. Under the present practice, an attorney upon whom a notice of appeal has been served would naturally take for granted that the paper handed him was a copy of an original filed with the clerk. Can it be said that in order to protect the-interests of his client he is required to inspect the records in the clerk’s office from day to day to discover whether the notice of appeal has been filed? Of course, he can avoid any uncertainty by making a single inquiry, and if he learns that the notice has not been filed he may cause execution to issue.
Numerous decisions by other courts are relied upon holding that the judgment is not suspended from the time of filing the bond and that there must be an appeal before it is suspended, and that until an appeal is actually taken there is no consideration for the bond. (See 4 C. J. 1268 and cases cited in the notes.)
In Land Co. v. Ansley, 6 Tex. Civ. App. 185, it was said in the opinion:
“It is true that the plaintiff probably in deference to this bond did not have process issued for some time, but that can be attributed to his forbearance rather than to necessity.” (187.)
To the same effect see Inspiration Con. Copper Co. v. Mendez, 19 Ariz. 151; Ellis v. Hull et al., 23 Cal. 160; Chase v. Beraud, 29 Cal. 138; and see authorities cited in 2 Cyc. 932.
The same point was suggested in Powell v. Bradley, 86 Kan. 198, 119 Pac. 543, but not decided as it was not directly involved. It was held that a supersedeas bond is an essential part of the appeal, in all cases where it is sought to stay execution pending appeal. It was also said:
“The mere filing and approval of such bond where there has been no service of notice of appeal will not operate to stay execution upon the judgment. (Syl. 112.)
In the opinion it was said:
Suppose no appeal is taken within the year and no affirmance of the judgment obtained, might not the sureties urge that as a defense to' an action on the bond?” (p. 200.)
In Steele v. Crider, 61 Fed. 484, there was an appeal from an Indian territorial court to the circuit court for the district of Kansas, and, the appeal not being authorized by law, the appeal bond was held invalid notwithstanding the fact that the appellee forebore to issue execution upon the appeal. It was said:
“The plaintiffs in the case in the territorial court could have sued out an execution.” (p. 486.)
It was held there was no consideration for the bond.
It has been held that the obligors may inquire into the validity of an appeal for the purpose of relieving themselves of liability on their undertaking where the appellant derives no benefit from the invalid appeal. (4 C. J. 1270; Brown v. The Mo. Pac. Ry. Co., 85 Mo. 123.) In Mueller v. Rice, 149 Wis. 548, 550, it was said:
“The advantage or delay which would have resulted from a valid appeal was never secured; hence there is no room for the application of the doctrine of estoppel laid down in the cases cited.”
Manifestly, however, where the condition of the bond is in the alternative, and contains a condition to prosecute an appeal with effect or to secure a reversal of the judgment, the surety becomes liable to pay the judgment. Moreover, the courts have been quite liberal in construing what will constitute an affirmance. All that is necessary is that there be a substantial affirmance of the judgment.
The doctrine that if the appeal is not taken within the statutory-time the supreme court acquires no jurisdiction and that the appeal bond thereby becomes void is opposed to the decision in Cooperative Ass’n v. Rohl, 32 Kan. 663, 5 Pac. 1, relied upon by the plaintiff. The case is not directly in point, but portions of the opinion have some bearing. The action was on a supersedeas bond, the defense being that the bond was without consideration. After the judgment in the district court in favor of plaintiff, he and defendant entered into an agreement by which defendant was not to take an appeal, plaintiff was not to issue execution prior to June 1, 1881 (which was a year and three days after the rendition of the judgment), and defendant agreed that within the year he- would pay the judgment. No execution was issued, but the defendant not only failed to pay the judgment but thirty days after the year expired he instituted proceedings in error for a reversal of the judgment. The supersedeas bond was given to stay the judgment. Afterwards plaintiff moved to dismiss the proceedings in error in the supreme court for the reason that they were not instituted within one year after the rendition of the judgment, and for the further reason that Rohl had agreed to pay the judgment and costs. The proceedings were dismissed. In an action on the bond the surety set up the defense that the bond was void because it was more than a year after the rendition of the judgment before the appeal was taken, and when the defendant had no right to institute such proceedings. The court held that defendant had no right to institute proceedings in error at the time he did for two reasons: first, because more than a year had elapsed from the rendition of the judgment; second, because he had agreed for sufficient consideration that he would not institute proceedings in error. It was held that, notwithstanding the fact that defendant had no right to take an appeal, that fact would not render the bond void. It was held, therefore, that there was sufficient consideration for the bond. In the course of the opinion, Judge Valentine said:
“The plaintiff had no right to ignore the proceedings in error. It was necessary for the plaintiff to appear in the supreme court and defend as to such proceedings; and in the meantime it would have been highly improper for the plaintiff to have had an execution issue to enforce such judgment,”
The foregoing comment forms no real part of the decision, and to the writer hereof it seems that where an appeal has been taken after the time allowed by statute it may be wholly ignored by the judgment creditor and an execution might issue. It might happen that there was danger that the surety would become insolvent and that the only way the judgment creditor could.be protected would be to have an execution issue before a motion to dismiss the appeal could be heard. There was in that case an appeal, although after the time in which a valid appeal,could be taken.
Few cases are to be found in which the facts were identical with those in the present case. In many of them the supersedeas bond contained a recital to the effect that an appeal had been taken, thereby estopping the surety from asserting the contrary. It is apparent also that decisions in cases where the bond contained a condition that the principal would “prosecute the appeal with effect” furnish little aid in solving the problem here. It is suggested in defendant’s brief that to hold this bond valid would permit a judgment debtor to connive with the judgment creditor to purchase a supersedeas bond, have it filed, with the express intention that no appeal should be taken, or that an appeal should be taken after the time allowed by statute which would be abortive, with the result that the judgment debt would be loaded upon an innocent surety company. The answer to this is that if such state of facts were shown it would establish fraud which would destroy the right of the principal in the bond to recover. (See 4 C. J. 1286, and cases cited in Note; Ingersoll v. Seatoft, 102 Wis. 476, 72 A. S. R. 892.)
While it has quite generally been held that one of the considerations for the bond is the chance that the appellate court might reverse or modify the judgment, which would inure to the benefit of the surety; the surety is deprived of this right in all those cases holding him liable where the appeal is defective, or where the appellant dismisses the appeal after it has been taken. Those- decisions apparently disregard the fact that the surety may have lost something by the failure to have judgment rendered on the merits. The surety has no control over the taking, preparation or disposition of the appeal. In the absence of fraud or connivance between the appellant and the appellee, the surety ought to be held bound in case the appellant sees fit to compromise the judgment or for any reason to dismiss the appeal.
In Peck v. Curlee Clothing Co., 63 Okla. 61, 162 Pac. 735, the supreme court of Oklahoma in construing the effect of a statute copied from our section 586 of the code, held that an order dismissing an appeal on the ground that it was filed out of time amounts to an affirmance of the judgment and constitutes a breach of a supersedeas bond. In the opinion it was said:
“By the making of the bond, its filing and approval, the surety stayed the hands of the judgment creditor, in so far as its right to issue execution in satisfaction of its judgment was concerned. In such circumstances the surety ought not to be permitted to escape the payment of his obligation, because of- the subsequent neglect or failure of the principal to prosecute, within the statutory time, his proceedings in error. Any other conclusion would enable a financially embarrased creditor, by the giving and official approval of a supersedeas bond, and a failure to appeal, to dispose of his property and defeat a satisfaction of the judgment.” (p. 63.)
(Citing Illinois Surety Co. v. Hendrick, 170 Ky. 347; Coon v. McCormack et al., 69 Iowa, 539.)
The decisions which hold that the abandonment or dismissal of the appeal is the equivalent of an affirmance of the judgment are well supported by the reasoning upon which they are based. As early as 3 Illinois (2 Scam.), and long before surety companies were heard of, the supreme court of Illinois in an action on a supersedeas bond said:
“This court does not entertain a doubt but that the dismissal of an appeal or certiorari is equivalent to a regular technical affirmance of the judgment so as to entitle the party to claim a forfeiture of the bond and have his action therefor.” - (McConnell v. Swailes, 3 Ill. 571, 572.)
The bond given in that case was conditioned “to pay the debt and costs, in case the judgment shall be affirmed on the trial of the appeal,” which is substantially the provision of the supersedeas bond under our statute. Proceeding further the supreme court of Illinois said:
“What is the object of this requirement and what its meaning and intention? Manifestly, to secure the opposite party in his debt and costs in case the judgment shall not be reversed; in case he shall be in the circuit court the successful party. By a dismissal of the appeal, either by the court, or by the act of the appellant himself, the appellee is the successful party; he has not lost what he gained before the magistrate. He is placed in the same situation he occupied before the appeal was taken; and we see no propriety in attributing to such a judgment of dismissal less efficacy than to a more formal and technical one of affirmance.” (Italics ours.) (p. 572.)
We do not lose sight of the contention of the defendant in the instant case that no appeal was taken by the railways company, but the reasoning of the opinion cited and others from which we shall quote spell out the real intention of the parties in the execution and acceptance of the supersedeas bond. In Coon v. McCormack, supra, it was said:.
“The word ‘affirm’ as used in the statute and bond, should not be construed in a narrow and strictly technical sense but a broad and conprehensiye meaning should be attached thereto; that is to say, if the legal effect of the dismissal is to affirm the judgment, then the latter includes the former and both mean the same thing.” (p. 540.)
It should be observed, however, that the' opinion “in this case conceded “that there may be cases where a dismissal would not amount to an affirmance, as when an appeal has not been perfected by the service of the requisite notice.” The court in that case went as far as it was necessary to go on the facts before it to discover the reasonable intention of- the parties to the bond. As we shall show, other courts have applied the same principle to cases where there had been no appeal perfected. We cite the Coon case for what it is worth, because it shows the disposition of modern courts to hold the surety notwithstanding the literal provision of the bond that he is to be liable in case of an affirmance of the judgment.
In a case where the bond was conditioned for the "prosecution of the appeal to effect and without unnecessary delay,” and where no transcript was filed in the appellate court and no attempt made to perfect the appeal, it was held that the appeal deprived the appellee of the right to have his judgment satisfied by execution against the property of the judgment debtor, and the effect, if not the language of the promise of the surety, was to make good to the appellee his judgment if it should remain unreversed. (Flannagan v. Cleveland, 44 Neb. 58.) We cite the decision as one construing the obligation of the surety as a promise to satisfy the judgment if it should remain unreversed. Possibly the numerical weight of the authorities hold that if, after perfecting the appeal, it is dismissed by the appellant there is not such an affirmance as to make the surety liable. We think the weight of the reasoning of the modern cases is the other way.
The surety company in the instant case knew that it had no control over the appeal, and we think it is clear that the surety, the judgment debtor and the judgment creditor understood that the giving of the bond contemplated an appeal. Some things required by the statute to perfect an appeal and to stay proceedings were taken. The bond was executed, notice to the plaintiff in the action was given to the effect that the defendant appealed, and in our opinion it is only reasonable to say that the rights of the parties are no different than if an abortive appeal had been taken; that is to say, an appeal which, upon its face, was subject to dismissal, .or in which some necessary step was taken too late to give the appellate court jurisdiction to do anything but dismiss the appeal.
In Morgan v. Soisson, 21 Pa. Sup. Ct. 141, it was held that failure to enter the appeal operated as an affirmance of the judgment appealed from so as to render the surety on the appeal bond liable. In that case the condition of the bond, as provided by the statute, was for the payment of the debt, interest and costs on the affirmance of the judgment. In answering the contention of the surety that the meaning of the word “affirm” should be confined to the ratification of the judgment by the appellate court, the superior court held that it had a much broader meaning than this, “and that the judgment could be affirmed either by the act of the appellant in failing to enter the appeal or by the formal action of the court; that such failure was an implied affirmance by the appellant of the judgment appealed from and bound it and the surety whose bond made an appeal possible, and, at least for the time, valid.”
It was held in Winchester v. Rich, 40 Pa. Sup. Ct. 46, where the appeal was dismissed not for any defect in the bond but because of the failure of the appellants to perform a collateral act, that this constituted an affirmance of the judgment within the meaning of the appeal bond conditioned for payment of the debt on affirmance of the judgment in the appellate court.
In Dunterman v. Storey, 40 Neb. 447, more than a year had elapsed since the making of the last final order and judgment in the district court, and no bill of exceptions had been settled, and there was no proceeding in error or appeal pending in the supreme court at the time action was brought on the bond. It was held that the surety having solemnly asserted in the bond that a transcript and petition in error had been filed to obtain the reversal of the judgment, was estopped from disputing the truth of that statement. To that extent, of course, the case is not in point here. The court said, however:
“It is true that the contract of a surety is to be construed strictly in his favor but such a construction as the one contended for in this case would be too technical. Bernhart promised that if the judgment rendered against Dunterman should be affirmed in whole or part he would pay it. This was, in effect, a promise on his part to pay the Storey judgment unless the supreme court should reverse it. Bernhart cannot allege as a defense the failure of his principal to successfully and properly prosecute his petition in error.” (p. 453.)
Notwithstanding there was an admission in the bond that an appeal had been taken, the reasoning of the court upon what is meant by a promise to pay the judgment in case it should be affirmed was not based upon that fact. In the course of the opinion the court expressed disapproval of the old case of Drummond v. Hussen, 14 N. Y. 60, in which Selden, J., who delivered the opinion of the court, held that “a dismissal of the appeal for want of posecution is clearly not an affirmance of the judgment.” (p. 61.) The Nebraska court said in the opinion:
“This case from New York is in point; but we are constrained to say that we do not think it sound.” (p. 452.)
(Citing McConnel v. Swailes, 3 Scam. [Ill.] 571; Sutherland et al. v. Phelps, 22 Ill. 91; Clark v. Miles and another, 2 Pinn. [Wis.] 432; Ellis v. Hull et al., 23 Cal. 160.) In the last case cited the California court held that where an appeal is taken to the supreme court by filing notice of an appeal and undertaking, and the appeal is after-wards dismissed, by the supreme court for failure of the appellant to send up a transcript, the sureties are liable on the supersedeas bond.
We think that the abandonment of the appeal under the circumstances of the present case had the same effect on the liability of the surety as if an appeal had been actually instituted by filing the original notice with the clerk of the trial court and subsequently dismissing without a trial upon the merits in the supreme court because of the failure of the railways company to comply with some requirement necessary to review the case on its merits; the same as if under the old procedure the appellant had neglected to cause a , summons in error to be issued within one year from the rendition of the judgment. In such a case the surety would have been deprived of the right to have the case tried upon its merits which the surety is presumed to have, contemplated as a consideration for the bond when it was executed. In other words, in the contemplation of the parties, the surety in this case was obligated to pay the judgment unless it was reversed. This seems reasonable and fair to all the parties when we consider that the surety has no control over the taking of the appeal, and that he executes the bond, contemplating that his principal will take care of the appeal; and yet, as we have seen, many things may occur which will render the attempt to take an appeal of no account whatever.
In First State Bank v. V. E. Stevens Land Co., 119 Minn. 209, the supreme court of Minnesota held a stipulation for an affirmance oí an order or judgment appealed from, made in good faith, does not release the surety on the appeal bond. The opinion referred to the authorities holding that an affirmance of the appeal by active consent of the litigants releases the surety because it precludes the happening of the implied condition precedent to liability on the bond; namely, that the appeal shall be heard on its merits; and cases holding that by stipulating for affirmance of the appeal a condition not contemplated is added to the contract of the surety and he is released ; and that the surety in assuming the contract has a right to rely on the chance that he will be relieved from liability if the appellate court considers the appeal on its merits. The Minnesota court said:
"We are however, not inclined to the views taken in the foregoing decisions. The surety on an appeal bond has no voice in the conduct of the litigation, nor any interest in the matters involved. It is understood that the appeal is for the sole benefit of the principal in the bond. He alone has the right to carry on or terminate the appeal in the manner he chooses, if not prevented by his adversary or the court. Therefore, if at any time he concludes that continuing the litigation will be of no advantage to him, or will entail useless expense, he should have the right to stipulate for an- affirmance or dismissal of the appeal without thereby releasing the surety on the bond. All authorities are agreed that intentional neglect of an appellant to take the steps necessary for a consideration of the appeal on the merits does not affect the liability of the surety on the appeal bond. And what is such neglect but doing by indirection what was here accomplished by the stipulation? We are of opinion that the right of a litigant to terminate litigation, and which should be favored by courts, is an incident annexed to bonds on appeal, so that when this right is exercised in good faith it does not in any wise release the surety on the bond. We do not here consider a case where the parties have colluded to work a fraud on a surety, for the stipulation for affirmance appears to have been prompted by a laudable desire to avoid certain defeat for one of the parties and needless trouble and expense for the other. As supporting the rule we adopt, see Chase v. Beraud, 29 Cal. 138; Drake v. Smythe, 44 Iowa, 410; Ammons v. Whitehead, 31 Miss. 99; Bailey v. Rosenthal, 56 Mo. 385; Howell v. Alma, 36 Neb. 80.” (p. 213.)
It must be conceded that the books are full of cases to the contrary: See Hill v. Keller, 157 Mo. App. 710-717. The opinion in that case quotes the supreme court of Ohio in State v. Medary, 17 Ohio St. 565, where the old rule was applied in its strictness, and it was said: “There is no construction against sureties.”
We have no doubt that our conclusion in the present case would have startled the legal profession forty years ago, when the rights of a surety were guarded by all courts with the most jealous care and his contract construed with utmost strictness in his favor.
We hold that the demurrer was properly sustained to that part of the answer which set up as a defense the failure to perfect an appeal.
As the defendant was bound by the obligation, it is unnecessary to consider the other defense upon which the court directed verdict in favor of the plaintiff, and which raised the question of an arrangement entered into between Katherine Tackett and the railways company by which payments were to be made upon the judgment from time to time. It may be said, however, that the payments upon the judgment inured to the benefit of the surety and reduced its liability to the extent of $6,000.
It is conceded by the plaintiff that there was a mistake in entering the judgment and that it should be reduced in the sum of $500.
The judgment will be modified to that extent, and as modified, affirmed. | [
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The opinion of the court was delivered by
MaRShall, J.:
In this action, the plaintiff questions the validity of the organization of rural high-school district No. 4 in Rice county, and questions the authority of Jefferson Dunham and the other de fendants to act as the school board of that school district. Judgment was rendered in favor of the plaintiff on its demurrer to the answer of the .defendants. Defendants appeal.
The school district was organized under chapter 254 of the Laws of 1921. It is contended that the act violates section 17 of article 2 of the constitution of this state. That section reads:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to the constitution shall be construed and determined by the courts of the state.”
Section 1 of chapter 254 of the Laws of 1921 reads:
“That whenever a petition signed by two-fifths of the electors residing in the territory of a proposed rural high-schóol district containing a city of not less than 600 nor more than 900 population, according to the United States census of 1920, in which has been maintained an accredited high school for five or more years next preceding the presentation of such petition, shall be presented to the county commissioners within six months from the taking effect of this act, requesting the county commissioners to call a special election to vote on establishing a rural high school, it shall be the duty of county commissioners of counties of not less than 14,800, nor more than 17,500 population, according to the United State census of 1920, to forthwith call a special election in said proposed rural high-school district to vote on establishing a rural high school. The first school meeting for the election of officers and the first meeting of the high-sc)iool board to make the necessary levy for taxes shall be held at such time and place as shall be designated by the county superintendent of public instruction. The provisions of chapter 284 of the Session Laws of 1917, except section 3 thereof, shall govern in the formation and regulation of any high school formed under this act in so far as not in conflict herewith: Provided, That no farm the residence on which is more than five miles from said city limits by the nearest traveled road shall be included within the boundaries of the said proposed district unless the owner thereof consents and shall sign the petition.”
It must be noticed that the act is general in its terms but that it is so hedged about with restrictions and conditions that it is special in its application. The act discloses that it is a deliberate attempt to avoid passing a law that would have general application throughout the state. The subject matter treated is one that can be treated generally; in fact, it is one that has been treated generally by the legislature, and a general act has been passed. If there were no general act governing the organization of rural high-school districts, a general one could be passed. The subject is one that should be treated generally and not otherwise.
Classification of cities and counties according to population for the purpose of legislation is entirely proper and often necessary, but a classification according to population made for the purpose of avoiding the existing provisions of a general act or for the purpose of making an act special in its application where a general law can be made applicable, is a direct violation of the constitutional prohibition. Many cases could be cited to show that this act violates the constitution, but no good purpose would be served by citing them or quoting from them.
Special acts are not entirely prohibited. Where a special act is necessary, it can be passed as such. It is not necessary to make it appear to be general when its application is intended to be special. A special act, in form general, cannot be upheld where a direct special act would be invalid.
The trial court held that the law violates the constitution. The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by W. J. Sturgeon against the Hanover Eire Insurance Company, upon a policy insuring a silo against wind and tornado. The silo was destroyed by a windstorm during the life of the policy. The plaintiff recovered and the defendant appeals.
It was alleged and the proof showed that the policy was issued on March 14, 1918, and that in March, 1919, the silo was blown over and totally ruined by a windstorm. It was shown that about a week after the storm a representative of the defendant inspected the remains of the silo and admitted that it was a total wreck. There was an admission that the plaintiff gave defendant written notice of the loss and made proof of the extent of it as required by the conditions in the policy.
Two grounds of error are assigned. One is that the insurance policy was received in evidence when neither the policy nor a copy thereof had been filed with the pleading. In his petition the plaintiff set forth the number and form of the policy, the date of its execution, its duration, the consideration, the property insured and the amount of insurance, but did not file or attach a copy of the policy to the petition. The code provides that if an action is founded on a written instrument which is an evidence of indebtedness, a copy thereof must be attached to and filed with the pleading. (Civ. Code, § 120.) It may be questioned whether an insurance policy is an evidence of indebtedness, but, if it be assumed to be such an instrument, the failure to set out a full copy of it and the admission of the policy in evidence, is not necessarily a ground of reversal. Every departure from code rules cannot be regarded as material error. The essential elements and the basis of the alleged liability of defendant upon the insurance contract were set forth. It was alleged to be of the stand ard form of tornado policies, and from its records the defendant knew as well as the plaintiff its terms and conditions. No prejudice to the defendant could have resulted from the omission to file the copy of the policy. Besides, the defendant raised no objection that the allegations of the petition were indefinite or insufficient, nor did it ask for an inspection of the policy but treated the pleading as stating a cause of action and joined issue on the right of plaintiff to recover upon the policy described in the petition. There could have been no surprise of the defendant, no lack of information as to the terms of the policy, and no embarrassment in making its defense. The code provides that defects which do not affect substantial rights are to be disregarded, and the objection made must be overruled. The other contention is that the recovery was unwarranted because the plaintiff did not have complete ownership of the property insured. It appears that plaintiff purchased the silo about three years before the policy was issued, for $541, and it was then delivered and set up on his farm. He paid $150 and gave his notes for the remaining consideration. In the contract of sale no specific reference was made to a retention of title in the particular silo sold, but at the end of the contract there was a clause stating that “all silos to remain the property of Columbian Steel Tank Co. until paid for.” It does not appear that the notes contained any reservations as to title nor does it appear whether they were held by the seller or had been transferred to others. The silo was purchased July 12, 1915, and the cash ,and notes were accepted as payment. Although the plaintiff had possession and used the silo since that time, the seller has made no claim of ownership or for the return of the silo. The purchase of the silo by the plaintiff without misrepresentation or fraud, the holding of possession of the same for so many years without question, the procuring of the policy, the payment of the premiums on it and the fact that the destruction of the property would cause the insured a direct pecuniary loss, make it clear that he had an insurable interest in the silo, and having sustained an actual loss is entitled to recover the insurance for which he paid.
Judgment affirmed. | [
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The opinion of the court was delivered by
MasoN, J.:
I. H. Jenness obtained a judgment under the forcible entry and detainer statute against H. C. Jenness and wife, who appeal. H. C. Jenness is the plaintiff’s son, and will be spoken of as the defendant, the claim to a right of possession being made by him.
The property involved is a part of a three-story building occupying two lots (that on the east being numbered 1 and that on the west 2) having stairways half on one lot and half on the other between the first and second and the second and third floors. On the second floor, and on the third as well, there is a room directly over the stairway, half of which is on one lot and half on the other. The controversy is over the right of possession of the east half of each of these two rooms — the part of each room situated on lot 1.
In 1911 the plaintiff owned the building. He and his wife were divorced and lot 1 was set apart to her. In February, 1912, she executed to the defendant a fifty-year lease covering so much of the two rooms referred to as are upon lot 1 (the property in controversy) , but the lease was not recorded. In 1914 the plaintiff and his former wife were remarried and she executed to him a full warranty deed in the usual form covering the whole of lot 1. An arrangement was shortly made between the plaintiff and the defendant that the latter should look after other portions of the property in consideration of the use of the two rooms already referred to. About May 1, 1920, the plaintiff demanded possession of the part of the rooms in controversy, and upon refusal brought this action.
The defendant claims a right of occupancy under the fifty-year lease, contending that' under the undisputed evidence the omission to record it is immaterial because he had such possession at the time lot 1 was reconveyed as to charge'the plaintiff with notice of his title. The plaintiff denies that the defendant’s occupancy was of that character, and asserts that in any event by the agreement between them the defendant became his tenant, recognized his ownership, and is not in a position to claim an adverse possessory right.
The evidence tended to prove these facts: The plaintiff had no actual knowledge of the lease until after this proceeding was begun. After the property was divided between the plaintiff and his wife the doors connecting the rooms referred to with his side of the building were closed and they were used in connection with the part of the building on lot 1, being occupied, when that lot was reconveyed to the plaintiff, by the defendant, who was taking care of the other parts of the building for his mother, the plaintiff being aware of this situation. When the plaintiff told .the defendant that lot 1 had been deeded back to him the defendant did not tell him about the lease, or about any claims under which he.had possession of the rooms, nor did he do so at any time prior to the beginning of this action. After lot 1 was reconveyed to the plaintiff he and the defendant entered into ■ an agreement that the defendant was to take care of all the rooms on the second and third floors for the use of the two rooms of which the space in controversy is a part, and the agreement was acted upon for some five months, after which the plaintiff looked after the building himself, the defendant continuing to occupy the rooms.
1. The defendant testified that at about the time lot 1 was re-conveyed he told his father that he had possession of. the rooms and had arrangements with his mother in regard to them. If necessary to sustain the judgment, which was based on a general finding in favor of the plaintiff, it would have to be assumed that the court did not credit the testimony. Apart from that consideration, in view of the peculiar situation presented we think the evidence did not require a finding.that the occupancy of the two rooms by the plaintiff while his mother was the owner of lot 1 gave the plaintiff notice of an independent claim on his part to any portion of them, the appearances being entirely consistent with his holding under his mother’s right. Possibly the evidence required (under the authority of Penrose v. Cooper, 88 Kan. 210, 128 Pac. 362) a decision as a matter of law that the plaintiff exercised due diligence with respect to learning the character of the defendant’s occupancy; but if not it at least presented a fair question of fact in that regard for the determination of the trial court, as was held in the original decision to be the situation in the case cited. (Id., 86 Kan. 597, 121 Pac. 1103.)
2. Moreover, the evidence justified a finding that the defendant became the plaintiff’s tenant under an agreement by which he was to have the use of the two rooms which included the area for the possession of which the action is brought, in consideration of his caring for other portions of the building, and that by reason thereof he cannot be heard to assert an adverse title. The rule that a tenant may not deny his landlord’s title is peculiarly applicable in a summary action for possession. (24 Cyc. 942.) We accept the majority view that the fact that the tenant is in possession of the premises at the time his tenancy is created does not affect his disability in this regard (24 Cyc. 938; 16 R. C. L. 659-660), ñot-withstanding some courts have held to the contrary, usually under exceptional conditions, not here present. (16 R. C. L. 661.)
3. The defendant urges that the action has been barred by the two-year statute of limitations (Gen. Stat. 1915, § 6905, subdiv. 5), a question, however, which the plaintiff asserts was not raised in the district court. The relation of landlord and tenant having been established, the defendant.holding under contract with the plaintiff, and having disclosed no claim of his own, his mere continued occupancy, although the services he was to render had ceased, did not put the statute in operation. (Moran v. Moran, 54 Kan. 270, 38 Pac. 268; Donahoe v. Mitchem, 13 Okla. 383; 26 C. J. 844.) Such occupancy of the rooms by the defendant without objection by the plaintiff and without any demand on his part for possession did not start the running of the statute.
The judgment is affirmed. | [
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The opinion of the court was delivered by
BueCH, J.:
Joe Miller was convicted of robbery, and appeals. A messenger, carrying a package of money from a bank to his employer’s place of business, waited at a street corner for a street car. An automobile, carrying two men besides the driver, approached the place where the messenger was standing and stopped at the curb. The two men alighted, robbed the messenger, reentered the automobile and were driven away. The driver of the automobile was Joe Miller. A bystander who saw what was taking place made quick effort to take the license number of the automobile, and was afterwards able to identify the car and the defendant. The only other person who was able to identify the defendant as driver of the automobile was Ruby Taylor, a waitress in a restaurant, who witnessed the robbery from a window of the restaurant. Ruby Taylor was not present at the trial, and her testimony given at the preliminary examination was read over objection of defendant. The objection was that proper diligence had not been used to secure attendance of the witness.
. The preliminary examination was held in August, 1920. The trial began on January 2, 1921. Six weeks before the trial commenced the assistant prosecutor in charge of the case learned that’ the wait ress was no longer employed at the restaurant, learned she no longer lived at the address she gave at the preliminary examination, and was unable to find her. On January 3 he issued a subpoena for her, which came into the hands of the sheriff at 5:20 p. m., and the sheriff was unable to find her. On January 4 her testimony given at the preliminary examination was offered in evidence. In an investigation of the admissibility of the evidence it was disclosed that some months before the trial Ruby Taylor left the restaurant, telling the proprietor she 'was going home to Coffeyville, and that after-wards a dishwasher in the restaurant told the proprietor he had seen her in Coffeyville. There was some dispute concerning the information given out by the proprietor of the restaurant with respect to the whereabouts of Ruby Taylor. The court directed the sheriff to send telegrams to Coffeyville in an effort to locate her, and adjourned the trial. Telegrams were sent to the sheriff and the chief of police at Coffeyville. The sheriff did not reply and the chief of police answered he was not able to find her. When the trial was resumed the offered evidence was read to the jury.
We do not have here, as in the case of The State v. McClellan, 79 Kan. 11, 98 Pac. 209, the simple return of a subpoena, non est, as the basis for an offer of testimony previously given. To prevent a possible failure of justice the court undertook to deal with the situation, and by the best means at its command obtained fair information that attendance of the witness could not be procured. There is nothing to indicate that the witness ought to have been placed under bond to appear at the close of the preliminary examination, or that a subpcena for her ought to have been issued before the assistant prosecutor made his inquiries for her, preparatory to trial of the case. If the witness had then been available, neglect to issue a sub-pcena for her would not raise a presumption of bad faith or amount to such lack of diligence as of itself to forbid use of the testimony given at the preliminary examination. (The State v. Nelson, 68 Kan. 566, 574, 75 Pac. 505.)
There are many statements in the decisions, including those of this court, to the effect that when the whereabouts of a witness is unknown, diligent search must have been made for him before his testimony 'previously given may be used. It may be conceded that after the assistant prosecutor learned the witness no longer worked and resided at the accustomed places hé should have tried to find her, and if she could not be found, should have prepared himself to show the fact as a 'foundation for using previous testimony. The ultimate question, however, was not whether effort to locate the witness, made some time before the trial, had been unsuccessful, but whether presence of the witness in court at the time of the trial could be procured. In the case of The State v. Stewart, 85 Kan. 404, 116 Pac. 489, the court quoted, as stating the rule, section 1402 of volume 2 of Wigmore on Evidence, as follows:
‘‘The principle upon which depositions and former testimony should be resorted to is the simple principle of necessity, i. e., the absence of any other means of utilizing the witness’ knowledge. If his testimony given anew in court cannot be had, it will be lost entirely for the purposes of doing justice if it is not received in the form in which it survives and can be had. The only inquiiy, then, need be, Is his testimony in court unavailable?” (p. 413.)
In this instance, the court with wise discretion halted the trial and undertook to find out if testimony of the witness in court was available. The witness was sought at the place where the latest information regarding her indicated she might be. The telegram to the chief of police gave her name, indicated her sex, stated she formerly lived in Kansas City, and indicated the occupation in which she formerly engaged. The chief responded that he had made search for her and was unable to find her. Under these circumstances, the court is of the opinion the testimony of the witness previously given was competent.
At the preliminary examination Ruby Taylor was cross-examined fully respecting the certainty of her- identification of the defendant and was examined generally respecting conversations she had had ■with others about that subject. . At the trial the defendant undertook to impeach the witness by showing a particular statement which it was claimed she had made at a particular time to a particular person. The court refused to admit the impeaching evidence for the same reason it would not have been admitted at the preliminary examination. The particular statement had not been called to her attention. Ruby Taylor was a witness in a case tried in June, 1920. She declined to answer certain questions propounded to her, relating to her character, on the ground her answers might tend to incriminate her. The defendant asked permission to read to the jury the questions and the declinations to answer. The request was properly denied, although counsel for the defendant stated they had not discovered the impeaching evidence until they were preparing for the trial. The fact that the witness was not present at the trial did not change the rules relating to impeachment of witnesses.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a passenger to recover for personal injury received while alighting from a train. A demurrer to the plaintiff’s evidence was sustained, and she appeals.
The train stopped ,at the platform of the station of Geneseo. The platform was about two feet below the bottom car-step, and a step-box about nine inches high was provided for use of passengers in alighting. The plaintiff was the last person to leave the car in which she had been riding. Her husband had gone before her, carrying their luggage, and she followed a man from the smoking car down the car steps. She placed the ball of her left foot on the edge of the step-box next to the car. The step-box turned over, and she saved herself from falling under the car by catching the handrail, but she suffered a severely sprained ankle.
■ The station platform was of brick. There was no evidence that it was not level, or smooth, or that it was defective, or that its condition contributed to the injury. The plaintiff said the step-box was “oblong” in shape. The base was broader than the top, and there was no evidence that it was too small, or was defective in any particular. While the plaintiff was alighting, the train porter stood near, about three feet away, but with his back toward her. There was no evidence that she appeared to need or that she desired assistance in alighting. It was dusk, or, nearly dusk, when the train arrived at Geneseo, and the station lights were turned on soon after the plaintiff was injured. She could not see distinctly, but she did see the step-box, and could see where it was located when she went down the car steps.
Step-box cases are collated in the article on carriers in 10 C. J., at page 934. In the case of Scott v. Vicksburg, S. & P. Ry. Co., 150 La. 538, the court said:
“As to the law of the ease, we are of the opinion that, where a carrier of passengers furnishes a step-box or foot-stool, to facilitate them in boarding or alighting from its train, it is bound to see that such appliance is safe as to strength, is so constructed as not to be readily overturned, is kept in proper condition, and when set out for use of passengers is placed upon a level and stable surface. ...” (p. 546.)
All these requirements were complied with in the present case. Cases are cited in which the train did not stop at the platform, and the step-box, placed on stony ground, was tendered to an alighting passenger as a substitute for the platform; in which the box was placed too far under the" car, and the passenger, who needed assistance, was not properly helped; in which the box was placed on soft ground; in which the box was placed on ground rough and uneven, so that it was unsteady and insecure. None of these cases is of'any assistance here.
It may be said generally that a step-box ought to be placed substantially in front of and neither too far from nor too near to the car steps. These, statements are too indefinite to furnish a standard, and the court knows of no mathematical rule for locating a step-box. The practice is for the porter or other train employee to set the box down and, if thought necessary, to move it to what seems to him to be a proper position. Passengers will necessarily have different physical proportions; some will hold to the handrail on the right, while lowering themselves, and some will use the handrail on the left; the skirts of women’s dresses may or may not allow full freedom of movement; and some variations in the position of the step-box is unavoidable. The result is, it is not possible to be dogmatic about just where a step-box should be placed to accommodate a number of alighting passengers.
Negligence must be proved, and when the inference of negligence is to be derived in part from physical conditions, the conditions must be proved. In this instance, the plaintiff’s .testimony did not locate the step-box with any certainty, beyond the fact that it was on the station platform, and she reached the edge of it next to the car with the ball of her left foot. Whether she stepped directly downward, or stepped outward as well as downward, or stepped somewhat toward the right or toward the left, she did not say. Under 'these circumstances, the jury would not have been warranted in concluding the railroad company was at fault, merely -because the' plaintiff did not step securely.on the top of the box. The court is confirmed in this opinion by the fact that the accident appears to have been the result of the plaintiff’s inattention, at a time when it was her duty to watch her step. She testified as follows:
“Q. Did you notice when j'ou stepped down on this stool, whereabouts it was setting with reference to the steps on the car? A. No, sir; I didn’t notice it.
“Q. Could you see where it was located? A. Yes, sir.
“Q. Tell the jury how you came down off of those steps onto this stool. A. Well, I just came down just naturally down the steps. I supposed I was stepping in the center of the stool.
“Q. Did you look to see where the stool was with a view of stepping on it? A. I don’t remember.
“Q. When you went down did you look to see if the box was there? A. I saw the box there sure. /
“Q. Did you look to see if it was there? A. I didn’t take particular notice. •I supposed it would be there.
“Q. Is it not a fact that you saw others, some others get off and step down, and because there generally was a step-box to step on, you just supposed it was there, and stepped on down? A. Sure.
“Q. Didn’t you just suppose, as you went down the steps, having seen others go down the steps and step down safely, and off, that they had stepped on a step-box, and that there was a step-box there? A. I suppose I did. I .don’t remember thinking anything about it.
“Q. You don’t remember thinking anything about it? A. No, sir; about someone else stepping on it. I didn’t have it on my mind when I went down the steps. I supposed it was there in proper place.
“Q. You don’t know in what position it was, as to being the end of the box or the side of the box? A. No, sir; I didn’t pay any attention.”
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The opinion of the court was delivered by
Mabshall, J.:
In this action, the plaintiff seeks to recover on a promissory note. Judgment was. rendered in favor of the defendants, and the plaintiff appeals.
An opinion in this case was filed March 11, 1922, but it has not been published. A rehearing was . granted on account of an error in the record of the judgment from which the appeal was taken. That record has been corrected by the trial court, and the judgment, as corrected, appears in another part of this opinion.
Defendants John H. Baker and J. F. Reel executed a promissory note payable to F. W. Casner or order for $12,408.43, dated March 4, 1909, and due June 1, 1909. The note was indorsed to the plaintiff by F. W. Casner: This action was commenced on November 10, 1919, more than ten years after the note became due. To avoid the operation of the statute of limitations, the plaintiff pleaded that John FI. Baker had not been within the state of Kansas for an aggregate period of five years since the maturity of the note, and that the defendant J. F. Reel, on or about January 21, 1914, “wrote to said Casner a letter wherein he distinctly and unquali-fiedly acknowledged said promissory note to be an existing liability at the time of writing said letter, and expressed his willingness and purpose to pay the same, but stated that he was overwhelmingly in debt and had no funds to pay said note.” The plaintiff also pleaded that defendant J. F. Reel had concealed himself so that service of summons could not be made on him. Each of the defendants denied those allegations of the petition that pleaded facts to avoid the running of the statute of limitations, and each pleaded that the note was barred by the five-year statute of limitations. A jury was impanelled to try the cause; but, at the conclusion of the evidence of the plaintiff, the court instructed the jury to return a verdict in favor of the defendants.
1. The plaintiff contends that “there is no Kansas statute of limitation applicable to this case.” This contention is based on the fact that the old civil code, including the statute of limitations, was repealed in 1909. The plaintiff argues that the old statute never started to run on this note, and -that the new statute does not apply to it. In support of his argument, he cites the following language taken from section 754 of the code of .civil procedure, as it was enacted in 1909: “But no rights acquired shall be affected by the passage of this act, nor shall a remedy be denied by reason thereof.”
The argument of the plaintiff overlooks this cardinal principle of . statutory construction:
“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.)
Another fault with the argument of the plaintiff is that the code of 1909 did not change any right of the plaintiff. His rights after the passage of that statute were the same as they were before.
Still another fault in the argument is that the new code of civil procedure was in effect when this note became due. If there had been a change in the statute of limitations, the new statute would have prevailed, but there was no change. The new statute of limitations is exactly the same as the old.
2. Another contention of the plaintiff is that “as- defendants moved for a directed verdict without proof of the statute of limitations, judgment should go for the plaintiff.” The plaintiff also argues that the answer of defendant Reel did not state that he had been within the state of Kansas five years since the maturity of the note and that therefore the answer failed to set up the statute of limitations. With these contentions the court cannot agree. The note showed on its face that as to both defendants it was barred. The plaintiff; to avoid the statute, pleaded certain facts. Each of the defendants denied those facts and alleged that the note was barred by the five-year statute of limitations. That constituted a sufficient answer to the petition and placed on the plaintiff the burden of proving the facts alleged to show that the note was not barred. The burden was not on the defendants to prove that'the statute had run; it was on the plaintiff to prove that it had not run. (Easter v. Easter, 44 Kan. 151, 24 Pac. 57; 25 Cyc. 1426, 1427.)
3. Another argument of the plaintiff is that “defendant Reel absconded and concealed himself in order to prevent action on the note sued on.” The evidence of the plaintiff — there was no other— tended to show that early in 1908 J. F. Reel went to Dighton, Kan., and there openly engaged in the mercantile business, and continued in that business until in December, 1913, when he sold it and went to Blaine, Kan., where he remained a couple of months, after which he removed to Mayetta, Kan., and lived there until this action was commenced. At Mayetta, J. F. Reel and his wife, J. L. Reel, engaged in business under the name of his wife, the owner thereof. The plaintiff, through his then attorney, F. W. Casner, knew that J. F. Reel was at Dighton from the time of the execution of the note until the latter left that place. The plaintiff’s attorney, J. M. Stark, learned about December 1, 1918, eleven months before this action was commenced, that J. F. Reel was at Mayetta. For more than five years after the maturity of the note the plaintiff knew the whereabouts of J. F. Reel and could have commenced an action against him and caused summons to be served on him. There was no evidence to show that he attempted to conceal himself at any time after the maturity of the note, and there was no evidence to show that John H. Baker had been absent from the state at any time between the maturity of the note and the commencement of this action.
4. The plaintiff argues that by the letter of January 21, 1914, written to F. W. Casner by J. F. Reel, the latter acknowledged the existence of the debt evidenced by the note and promised to pay it. The letter was not introduced in evidence. The testimony concerning its contents was not clear. Even if it did contain such an acknowledgment of the debt or promise to pay it as would start the statute of limitations from the date of the letter, the action was not commenced until more than five years after- that date.
5. The plaintiff contends that “defendant Reel is estopped to plead the statute of limitations” for the reason that in the letter dated January 21, 1914, Reel made false statements concerning his financial condition and that he concealed himself by going under an assumed name and disguising his signature subsequent to that date. It has been noted that there was no evidence to show concealment. The evidence as to the signatures concerned the name under which the business was conducted at Mayetta. There was no evidence concerning his financial condition at the time the letter was written. Even if all that is contended for by the plaintiff were true, it did not constitute any ground of estoppel.
6. The judgment now recites:
“The plaintiff begins the introduction of his evidence, and thereupon, the plaintiff moves the court to dismiss this case as to the defendant John H. Baker, and stated at the time that he would proceed to try the case as to the defendant J. F. Reel, and the court overruled said motion. ...
“Plaintiff introduced all. of his evidence and rested, and the defendants introduced no testimony. The defendants moved the court for an instruction directing the jury to find for the defendants. The court thereupon reviewed the evidence and announced that there was no evidence introduced which would entitle the plaintiff tp recover in this case. The plaintiff then moved the court to dismiss the case as to each of said defendants in order that he might commence another case in the state of Missouri, which motion of the plaintiff was overruled by the court, and the court, thereupon, instructed the jury to find for the defendants.”
Was there error in overruling plaintiff’s motions to dismiss? The governing statute, section 395 of the code of civil procedure, reads:
“An action may be dismissed without prejudice to a future action:
“First, by the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.”
From the judgment, it clearly appears that the motion to dismiss as to John H. Baker was made before the evidence was concluded. That motion should have been sustained. (U. T. Rld. Co. v. Rld. Comm’rs, 54 Kan. 352, 357, 38 Pac. 290; Wehe v. Mood, 68 Kan. 373, 75 Pac. 476; Taylor v. Danley, 83 Kan. 646, 649, 112 Pac. 595.)
7. The motion to dismiss as to J. F. Reel is governed by an entirely different legal principle. That motion was not made until the action had been submitted to the court for judgment on a question of law and the decision on that question had been announced. The plaintiff’s right to dismiss was controlled by the principle found in the following authorities:
“A motion to direct a verdict in favor of the defendant is substantially equivalent to a demurrer to the plaintiff’s evidence.” (Sullivan v. Phenix Ins. Co., 34 Kan. 170, syl. ¶ 5, 8 Pac. 112.)
“After a demurrer to evidence has been sustained, the plaintiff has not the right to dismiss the action without prejudice to a future action.” (St. Jos. & D. C. Rld. Co. v. Dryden, 17 Kan. 278, syl. ¶ 3.)
“While a court is considering a demurrer to plaintiff’s evidence and giving reasons why it must be sustained, but before announcement is made that it is sustained, it is error to deny an application by the plaintiff to dismiss his case without prejudice.” (Pugsley v. Railway Co., 69 Kan. 599, 77 Pac. 579.)
The exact question under discussion has been before the supreme courts of Kentucky, Nebraska, and Ohio. The Kentucky court, in Vertrees’ Adm’r v. Newport News, &c., Co., 95 Ky. 314, used the following language:
“After the court has sustained a motion by defendant for a peremptory instruction to the jury, but before such an instruction has been given, the plaintiff has a right to dismiss his action without prejudice, as there has been at that time no ‘final submission’ of the case to the jury, within the meaning of subsection 1 of section 371 of the civil code.” (Syl. If 1.)
The supreme court of Nebraska, in discussing this question in Bee Bldg. Co. v. Dalton, 68 Neb. 38, said:
“The principal question to be decided is whether there was, within the meaning of this section, a final submission of the case upon defendant’s motion. The contention of counsel for plaintiff is that the trial was to the jury and that there could be no submission of the case until the jury had complete authority to deal with it. This argument is plausible, but we cannot believe that it is sound. It is true a jury was impanelled, but it is equally true that the case was tried by the court, and not by the jury. The case was submitted upon an issue of law, and the determination of that issue eliminated the jury and ended the controversy. After it had been adjudged that the plaintiff had no case, and that there was no issue of fact to be decided, the direction, reception and recording of a verdict would have been mere ceremonial acts. These acts would, we know, be in accordance with conventional procedure; they would satisfy the requirements of judicial formalism, but they would be as useless and idle, and almost as absurd as the archaic practice of withdrawing a juror in order to secure a continuance. To direct the jury to return a verdict in favor of the defendant would have been to command the triers of fact to ratify a decision already made by the court upon a question of law.” (p. 39.)
The Ohio court, in Turner v. Pope et al., 79 Ohio St. 153, said:
“Where the plaintiff has introduced his evidence and rested, and each of the defendants has moved the court for a directed verdict on the ground that the plaintiff has failed to make a case for the jury, upon which motions the cause has been submitted to the court and its conclusions thereon announced, the plaintiff has not the right to dismiss the action without prejudice to a future action.” (Syl. ¶ 2.) •
The case was decided before the plaintiff presented his last motion to dismiss. It was not necessary to have the verdict of the jury before rendering judgment. That judgment could have been rendered by the court, and practically was so rendered, without the verdict of the jury. The last application to dismiss came too late.
The judgment as to J. F. Reel is affirmed, and is reversed and remanded with directions to dismiss the action as to John H. Baker. | [
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The opinion of the court was delivered by
PORTER, J.:
In the spring of 1918, H. D. Mollohan began the erection of a dwelling house in Wichita to cost about $50,000. The appellant, P. J. Sonner, was employed to superintend the construction, purchase the material, hire the workmen, and he was to receive as his compensation ten per cent of the cost. Mollohan became financially embarrassed, and as a result the work was interrupted several times, and Sonner advanced some of the money to pay for material. In July, 1919, the carpenters left, the painters were about finishing their work, and Mollohan with his family moved into the house.
For six or eight months thereafter, Sonner tried to get a settlement for the services rendered and money advanced for material. Mollo-han had employed Sonner under a similar contract to superintend the construction of some other buildings in Wichita. A dispute arose over their accounts, each claiming the other was indebted to him. An auditor was employed who went over the books and a final settlement was reached about May 1, 1920, resulting in Mollohan giving Sonner two promissory notes, each for a thousand dollars. Mollohan in the meantime had sold the property, and in the spring of 1920 the purchaser was insisting that the walks and driveways should be reconstructed or repaired. They had been completed late in the fall of 1919 and the cement had frozen. Mollohan claimed that Arnold, who had the contract for the driveways and walks, should make the repairs. Arnold, however, refused to do this, and an arrangement was made between Mollohan and Sonner by which the latter agreed to purchase the material and have the work done for $125, which Mollohan paid to him. Sonner purchased some material but failed to have the work done.
On August 12, 1920, he filed his lien statement, attaching as exhibits thereto copies of the notes given by Mollohan at the time of the settlement. This action was brought to foreclose the lien. The answer alleged that the building was completed more than four months before the lien was filed, and that the material furnished about May 1, 1920, to be used on the premises, was under a contract between appellant and Mollohan by which the former agreed to accept $125 for the work and material to be furnished by him to repair certain walks and driveways on the property, not to be used in the building. It was also alleged that the appellant did not perform his agreement for which he received the $125.
The court sustained a demurrer to the evidence in support of the mechanic’s lien, but Sonner was given judgment on the two promissory notes. The appeal is from the judgment sustaining the demurrer.
The appellant is correct in the statement that the real question to be decided is whether or not the services performed and material furnished were under a continuing contract or under several disconnected or separate contracts. If they were furnished under separate contracts the claimant would be required to file liens for each contract. (Baxter v. Oil Co., 111 Kan. 621, 208 Pac. 568.) In that case a supply company agreed to give an oil company a line of credit. The oil company made purchases of material from time to time without any arrangement or contract to purchase additional material, and the supply company was under no obligation to furnish more. Each purchase and sale was a separate transaction. The oil company had given a mortgage upon its leasehold interest. The original contract called for the drilling of two wells, which had been commenced before the mortgage was executed. Subsequently a verbal arrangement was made by which it was agreed that other wells might be drilled under the terms of the first contract. It was held that the furnishing of material under the oral arrangement could not be tacked to the prior contract so as to extend the time for filing a lien that would give priority over the mortgage.
It is argued in appellant’s brief that the court made merely a general ruling against the lien, without stating any reason therefor; and various theories are suggested upon which the court might have based its ruling. We have no doubt that upon the evidence the court held that any services rendered by the appellant with respect to the cement work in the spring of 1920 were furnished in connection with repair work which was not contemplated in the original contract.
There is no real dispute between the parties as to the law. The real controversy is over a question of fact, whether the work of repairing the walks and driveways was performed under the original contract. The court decided this question against the appellant, and ’ we think the evidence -fully justified that finding. The evidence shows without dispute that Arnold constructed the walks and driveways under a contract and that his work was fully completed in the fall of 1919. The appellant at this time was endeavoring to get a settlement with Mollohan, - presumably upon the theory that the work of constructing the dwelling house was completed. Moreover, the appellant was under no contract guaranteeing the cement work, nor was he obligated to do anything with respect to repairing that work unless some new contract or arrangement was entered into between him and Mollohan. It appears from the evidence that he laid the blame for the defective cement work where it belonged, upon Arnold, who had the cement contract. Arnold declined to have anything to do with repairing the work, and a new contract was made early in 1920, which it seems was entered into before the final settlement. It was clearly separate and apart from the original contract, and no services performed under it could have the effect of extending the time in which to file a lien for services rendered under the original contract.
The appellant calls attention to a decision of this court holding that while the right to a mechanic’s lien is statutory, yet the foreclosure and adjustment of such liens are not governed exclusively by the rigid rules of law, and familiar principles of equity are often applied. (Mercantile Co. v. Investment Co., 100 Kan. 597, 165 Pac. 279.) Appellant asks: “Under this rule why should Mr. Sonner be deprived of his lien?”
Equitable rules cannot help the appellant, for the reason that he has no lien — not having complied with the statutory requirement by filing his lien statement within four months from the time the last services were performed. If he had a lien to foreclose, requiring adjustment of claims between him and other lien claimants, or between him and the owner or purchaser of the property, occasion might arise for applying the doctrines of equity as between him and the other parties; but the court has found upon the facts that he never acquired any lien.
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The opinion of the court was delivered by
DawsoN, J.:
This was an action in ejectment by the plaintiff holders of a tax deed against the defendant holder of the fee title and his tenants. The property involved was one and a fraction town lots in Mankato.
The principal defendant, L. D. Raynolds, filed an answer containing a general denial, and alleging that the plaintiffs went to the county treasurer on August 27, 1920, and “paid illegal, excessive and confiscatory taxes, unlawfully assessed against said real property,” and that on August 28, 1920, the county clerk executed and delivered to plaintiffs—
“A purported tax deed . . . without authority of law, purporting to convey . . . said real estate ... by reason of sale of said property for taxes for illegal, excessive and confiscatory taxes, unlawfully assessed against said premises; . . .
“That said payments so made . . . was voluntary and made wantonly, wilfully and maliciously, for the purpose of distressing this answering defendant and embarrassing him in the enjoyment and use of his said real property and to cloud and defeat his title by a wrongful, wilful and unlawful payment of illegal, excessive and confiscatory taxes, assessed against the real property . . . described . . .”
Accompanying this answer was a cross-petition in which defendant alleged that he was and at all times had been ready, able and willing to pay “all just, lawful and legal charges, assessments, taxes and any and all legal claims . . . lawfully chargeable against the real property” for the year 1914 and subsequent years; and he “hereby offers and tenders to pay the same into court ... to the full amount . . . and asks that the same be found and determined by the court.” He also alleged that plaintiffs’ tax deed was null and void and a cloud on his title, and prayed for judgment to that effect.
Plaintiffs'prevailed, and the principal defendant appeals.
The first point urged upon our attention is that the tax deed was void on its face because it did not recite that the property was bid off by the county treasurer for the county. As this tax deed was only a few months old when this action was begun, that defect under our precedents might have been serious (Jackson v. McCarron, 77 Kan. 776, 95 Pac. 402; Perkins v. Berry, 104 Kan. 104, 177 Pac. 530); but it is quite clear that no such issue was raised by the pleadings; and plaintiffs quote excerpts from the transcript which demonstrate that this particular infirmity in the recitals of the tax deed was not called to the attention of the trial court, and of course this court cannot say that the trial court erred on a point upon which its ruling was never invoked. (Robbins v. Brower, 74 Kan. 113, 116, 85 Pac. 815.)
In John v. Young, 74 Kan. 865, 867, 86 Pac. 295, another deed case, it was said:
“It is claimed the description contained in the deed is defective, but nowhere in the pleadings is the description assailed, and the conduct of the trial court cannot be questioned concerning matters not submitted to it for decision.”
In Vogler v. Stark, 75 Kan. 831, 89 Pac. 653, it was said:
“The fact that the deed did not state the residence of the grantee was not submitted to the district court, and only such questions as were decided by that court can be reviewed here. In his pleading plaintiff points out specifically the supposed defects in the tax deed, and this was not one of them. There can be no reversal upon a question upon which there was no ruling in the district court.”
(See, also, Crebbin v. Wever, 71 Kan. 445, 80 Pac. 977; and Kelly v. Insurance Co., 101 Kan. 636, 168 Pac. 686.)
An objection urged against the tax deed in the trial court was that the recital of taxes, interest and costs clue and unpaid was for $134.58 and that it was bid off by the couty treasurer for said sum of $134.54, — “a variance between the amount of taxes assessed and claimed to be due at the time the property was offered for sale and a different amount being bid by the county treasurer in his bid for the county.” When counsel for defendants had urged that defect on the trial court’s attention, the record reads:
“By the Court: Are you through?”
Counsel for Defendants: “Yes.”
“By the Court: Objection overruled.”
It has repeatedly been held that a slight and unintentional miscalculation of the amount of taxes, interest and costs included in a tax deed will not vitiate- it. (Ireland v. George, 41 Kan. 751, 21 Pac. 776.)
In Troyer v. Beedy, 79 Kan. 502, 503, 100 Pac. 476, the tax sale certificate pusuant to which the tax deed was issued was for $26.10, while the exact sum then due was $26.147, and should have been entered as $26.14 or $26.15. This court said:
“Therefore the difference, presumably at least, was occasioned by an error in computation or in carrying out the figures. It would seem that in a total of the amount here involved an unintentional variation of less than five cents might under any circumstances be disregarded in accordance with the rule requiring the ignoring of trifles. At all events the rule should be applied here.”
Another point urged against the validity of the tax deed is now sought to be made by presenting the result of defendants' calculation of what the legal charges should have been, but the mathematical operation from which this result is reached is not shown, and it does not- appear that this point was urged at the trial. Therefore it cannot be considered in this appeal.
A final contention is that there was included in the sum for which the tax deed was issued two items of twenty cents each for advertising the lots in the delinquent tax list. Quite a persuasive showing was made to the effect that the printer’s affidavit required by section 11411 of the General Statutes of 1915 had not been lawfully included in the amount for which the lots were sold and conveyed to plaintiffs by the tax deed. The substance of this showing was the testimony of'the county clerk and other county officials and deputies that no pertinent affidavit of printer’s fees could be found. The statute provides (Gen. Stat. 1915, § 11425) that “the county treasurer shall file with the county clerk all affidavits, notices of papers or reference to such tax sale, to be preserved by him.” The county treasurer testified that he did not remember whether he had complied with that statute or not. The county clerk testified that he could not find the printer’s affidavit in his office vault, but he also testified that it “may be down in the vault below, underneath, which is locked up and we have to get Mr. Pease to get in and get it, the vault, the combination is in shape that we can’t get in.” In view of this uncertain state of the testimony, and giving due regard to the presumption that officials do their duty in conformity with the law, and considering also the recitals in the tax deed that—
“The said unredeemed real property having been advertised and notice given that it would be conveyed unless redeemed by a certain day named, said advertisement and notice having been made in substantial conformity with all the requisitions of the statute in such case made and provided,”
it cannot be said that the trial court erred in refusing to find that the twenty-cent items for advertising had been improperly included in computing the sum lawfully chargeable against the property.
The other matters urged in defendants’ behalf have been carefully noted, but ho plain, palpable error made by the trial court can be discerned, and therefore its judgment must stand.
Affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a criminal action in which the defendant pleaded guilty to the chages of burglary in the second degree and grand larceny, in violation of K. S. A. 21-515 and 21-533, respectively. The trial court accepted the defendant’s plea and found him guilty as charged, sentencing him to the penitentiary under the habitual criminal act for one prior felony conviction. Appeal has been duly perfected by the defendant.
The appellant is an indigent and was represented by competent court-appointed counsel throughout these criminal proceedings. Counsel who represented the appellant in the trial did not represent him on appeal, and his present counsel was appointed to represent him on the appeal of this action.
The appellant contends he was not subject to sentence under the habitual criminal act (K. S. A. 21-107a) because the only record used to invoke the act was a felony offense for which he was sentenced to the reformatory and not to the penitentiary.
K. S. A. 21-107a provides in part:
“Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, . . .” (Emphasis added.)
This question has been settled adversely to the appellant's contention in a number of cases. It is well settled in this state that it is the nature of the offense not the manner of punishment, which determines the applicability of the habitual criminal act. In Perrin v. State, 198 Kan. 650, 426 P. 2d 39, the holding of this court was stated as follows:
“We have considered the term conviction as used in 21-107a, supra, when the application of the statute was questioned under various circumstances. In State v. Frizzell, 137 Kan. 35, 19 P. 2d 694, the application of 21-I07a was objected to because even though conviction was for a felony, sentence to the state reformatory rather than the penitentiary, we said:
“ We think the fact of the former conviction of a felony committed by the prisoner is the controlling factor irrespective of the particular punishment that might have been imposed.’ (p. 37.)
“The rule as stated in Frizzell has been consistently adhered to since its pronouncement. . . .” (p. 652.)
Other cases holding to the same effect are Current v. Hudspeth, 173 Kan. 694, 250 P. 2d 798, cert. den. 345 U. S. 943, 97 L. Ed. 1369, 73 S. Ct. 837; and Murray v. Hand, 187 Kan. 308, 356 P. 2d 814.
The appellant next contends his plea of guilty was entered because he understood he would be paroled on a sentence of only five years, and that the habitual criminal act would not be invoked.
This fact is not borne out by the record and appears only as the uncorroborated statement of the appellant in his brief. The record of the proceedings in the trial court are fully set out in the abstract. The record discloses the trial court fully and carefully advised the appellant of his rights and questioned him closely with reference to his plea of guilty to each of the charges and his reasons therefor. On this point the following appears in the record:
“The Court: Why do you wish to plead guilty to these offenses?
“Mr. Shepley: In hopes of a parole, sir.
“The Court: Well, of course, you understand the Court may or may not grant a parole?
“Mr. Shepley: Yes, sir.
“The Court: That is a matter that is entirely in the discretion of the Court. The Court has certainly not promised you any parole or consideration of that sort, is that correct?
“Mr. Shepley: No, sir.
“The Court: Do you understand that neither the county attorney nor your attorney nor the sheriff nor the clerk or anyone else can commit the Court to a certain—
“Mr. Shepley: Yes, sir.
“The Court: —course of conduct. And the Court may or may not grant probation later on. But with reference to the offenses that are charged, burglary in the second degree, the nighttime entry of a dwelling house, with the intent to commit larceny therein and the theft of certain property from the described dwelling house, do these facts exist? In other words, is that what occurred?
“Mr. Shepley: Yes, sir.
“The Court: And did you commit the acts that are charged in the Information?
“Mr. Shepley: Yes.
“The Court: You have not been threatened, I take it, by anyone?
“Mr. Shepley: No, sir.
“The Court: You have not been promised a parole or anything of that nature?
“Mr. Shepley: No, sir.
“The Court: And you make this plea voluntarily and understandingly, is that correct?
“Mr. Shepley: Yes, sir.”
Lastly, the appellant contends the warrant issued, and his subsequent arrest and prosecution, were illegal because the warrant contained the names of other accused parties who were not arrested and not prosecuted.
These facts are not borne out by the record, but assuming them to be true, they do not afford the appellant a legal basis for complaint.
While there appears to be no Kansas statute expressly providing for the joinder of two or more persons in the same complaint and warrant, there likewise is no prohibition of such joinder in the statutes. The procedure of which the appellant complains is recognized in Kansas as it was at common law. That such procedure is recognized and permitted in Kansas is indicated by K. S. A. 62-1429, making provision for separate trials of persons jointly accused of crime. It has been held in State v. Uhls, 121 Kan. 377, 247 Pac. 1050, that this right of separation does not extend to preliminary examination, since it is not a part of the trial.
Whether the other parties named in the complaint and warrant were arrested and prosecuted on that complaint and warrant is immaterial.
Finding nothing in the record to warrant a reversal, the judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This appeal stems from an order of the District Court of Russell County, Kansas, dismissing a petition for the allowance of demand filed in probate court against the estate of Charles W. Shaffer and denying a motion for leave to file an amended petition.
Mr. Shaffer died March 1, 1966. On March 15, 1966, Helen M. Holland and Wilmer R. Shaffer, the decedent’s sole and only heirs,, were appointed joint administrators of his estate, and published notice of appointment two days later. On November 18, 1966, some eight months thereafter, an unverified petition for allowance-of demand was filed by Irene E. Mills and Florence E. Mahoney, as co-administratrices of the Lutie M. Sawhill estate, seeking specific performance of a contract for the purchase of real estate allegedly made by Mrs. Sawhill and Mr. Charles W. Shaffer during their lifetimes. Notice of filing the petition was served by mail on Mrs.. Holland, on Mr. Wilmer R. Shaffer, and upon their attorneys,. Holland and Holland. For convenience, we shall refer herein to-Mesdames Mills and Mahoney as claimants or plaintiffs, and to Mrs. Holland and Mr. Shaffer as defendants.
For reasons not disclosed by the record the claimants’ petition lay dormant in probate court until September 27, 1967, at which time it was heard. In the meantime, and on September 21, 1967, answers, were filed by the defendants, in both their individual and representative capacities, denying the allegations of the petition, setting; up certain defenses and alleging that the petition failed to comply with statutory requirements. On the day of trial, identical motions, to strike the plaintiffs’ petition were filed by the defendants, predicated on two grounds: (1) Failure to state a cause of action, and (2) failure to comply with statutory requirements for filing claims.
Following the probate court hearing, briefs were filed and on-October 6, 1967, that court disallowed the claim and sustained the-motions to strike on the sole ground that the petition was not verified as required by K. S. A. 59-2201. Shortly thereafter the-plaintiffs appealed to district court where they were met by a mo tion to dismiss the appeal for a variety of reasons. Subsequently, and on December 6, 1967, the plaintiffs filed a motion in district court for leave to file an amended allowance of demand, and accompanied their motion with an amended petition which had been duly verified.
A hearing was held in district court on December 11, 1967, which resulted (1) in the dismissal of the plaintiffs’ petition for allowance of demand and (2) in the denial of plaintiffs’ motion for leave to amend. The action of the district court was based essentially on findings that the petition was not verified as required by statute and that the appeal from probate court had not been properly effected. As previously indicated, the plaintiffs have appealed.
The plaintiffs’ first challenge is directed against the trial court’s finding that no valid claim was filed within the time required by the nonclaim statute. (K. S. A. 59-2239.) This finding was predicated on the claimant’s failure to verify their original petition. The trial court’s view of the matter is reflected in its Finding No. 5, which reads:
“A verification is an affidavit verifying the truth of statements made in the petition and is a separate instrument, although it may be typed following the end of the petition. It is not a part of the form of the petition and its absence is not a defect of form. The verification is essential to the ‘application in a probate proceeding,’ just as a petition and signing thereof are essential to such application.”
After arriving at this conclusion the trial court proceeded to rule that “the motion of the [plaintiffs] for leave to file an amended petition is now moot.” In our judgment the trial court erred both in finding that no valid claim had been filed within the statutory time and in concluding that plaintiffs’ motion for leave to amend was moot.
K. S. A. 59-2201, on which the defendants have relied in defense ■of the plaintiffs’ claim, provides as follows:
“Every application in a probate proceeding, unless made during a hearing ■or trial, shall be by petition signed and verified by or on behalf of the petitioner. No defect in form shall impair substantial rights; and no defect in the statement of jurisdictional facts actually existing shall invalidate any proceedings.”
This court has held that the failure to verify a pleading which, by statute, is required to be verified does not constitute a jurisdictional defect. In Patterson v. Patterson, 164 Kan. 501, 190 P. 2d 887, the plaintiff filed a motion to vacate as void, a judgment of divorce granted her husband on his unverified cross-petition some thirteen years before. This court held the judgment was not void even though the cross-petition was required by statute to be verified. In deciding that the trial court had erred in vacating the judgment, the court declared:
“. . . it has been repeatedly held that an imperfect verification, or a lack of verification, does not oust the court of jurisdiction. . . .” (p. 504.)
In Pulliam v. Pulliam, 163 Kan. 497, 183 P. 2d 220, it was held that an improper verification of a petition for divorce was voidable at best and was subject to amendment which would relate back to the date of the original petition.
While both the Patterson and Pulliam cases were governed by the code of civil procedure rather than by the probate code, the legal principles involved in applying the provisions of the two codes are not in conflict, nor is any distinction to be drawn between the rules of law relating to matters of jurisdiction, regardless of which code is being considered. The same legal philosophy with respect to statutory construction and interpretation is germane to both codes.
A later case concerning the same subject matter, In re Wilkinson. 192 Kan. 285, 387 P. 2d 152, involved a claim filed against a decedent’s estate. In this case, a verified claim was filed in probate court within the nine months permitted by the nonclaim statute. After the time for filing had expired, an amended unverified petition-was filed. The case was subsequently transferred to district court,, where the first amended pleading was found to be defective for want of verification, and the district court permitted a second amended petition to be filed — which was verified.
The administratrix of the estate contended that the original petition, being superseded by the first amended petition, had been-eliminated for all practical purposes, and that the first amended pleading, being unverified, was not subject to further amendment. Therefore, it was argued, the claimant had no petition whatever on-file within the time permitted by statute. In rejecting that argument this court said:
“G. S. 1949, 59-2201, provides that every application in a probate proceeding shall be by petition signed and verified by or on behalf of the petitioner, and that no defect in form shall impair substantial rights. When this matter was transferred to the district court that tribunal was authorized to require-pleadings to be filed or amended (G. S. 1949, 59-2408) as though it had original jurisdiction of the matter. Under the broad power given by G. S. 1949, 60-759, the court was authorized to permit the amendment of the first amended petition hy verification. Examination of the original petition which was filed within the statutory time for filing claims establishes that it fully apprised the administratrix of the facts and nature of the claim against the estate. The two amended petitions were merely an enlargement and amplification of the original petition, and all were based upon the same claim for relief. . . .” (Emphasis supplied.) (pp. 286, 287.)
The rationale which undergirds the foregoing decisions is in complete harmony with the modern view followed in many, if not most, jurisdictions. In 1A Barron and Holtzoff, Federal Practice and Procedure, § 333, pp. 270, 271, the authors say:
“. . . The trend of enlightened opinion is away from ‘the all too barren formality of an oath to pleadings’ . . .” (quoting Clark, Simplified Pleadings, 1942, 2 F. R. D. 456, 463.)
“Even if the statute requires verification, the filing of an unverified complaint will commence the action so as to toll the statute of limitations. Despite the requirement of verification, the law is definite and well settled that any ■objections to lack of verification must be raised immediately or not at all. Imperfect verification of a pleading is not a jurisdictional defect and is amendable under Rule 15.”
A federal case, In re Royal Circle of Friends Bldg. Corporation, 159 F. 2d 539, is cited by Barron and Holtzoff in support of the foregoing text. In that case, the United States Circuit Court of .Appeals, for the 7th Circuit, stated:
“We conclude that the requirement of verification is not jurisdictional in •the strict sense. . . .” (p. 541.)
The general rule appears well stated in 41 Am. Jur., Pleading, ■§ 279, p. 483, in this language:
“With the object of securing good faith in the averments of a party, modern •codes under the reformed system of procedure contain provisions requiring the verification of pleadings. The verification, however, constitutes no part of a •pleading, unless it is otherwise contemplated by statute, and is not ordinarily necessary to vest jurisdiction in the courts.”
Cases from numerous jurisdictions announce adherence to this rule. In Board of Education v. Mulcahy, 50 C. A. 2d 418, 123 P. 2d 114, the California court spoke in these words:
“. . . While it is true that in certain actions, such as to quiet title, and practically all special proceedings, the law requires the complaint or petition to be verified, it is the established rule that failure to do so constitutes only a ■defect in pleading not affecting the jurisdiction of the court . . .” (p.423.)
In adjudicating the same issue in Dean et al v. First Nat’l Bank et al., 217 Or. 340, 341 P. 2d 512, the Oregon Supreme Court said:
“We have before said that a verification is merely a formal matter and described a want of a proper verification as a mere irregularity. . . .” (p. 349.)
A recent case from New Jersey, Preparatory Temple, etc. v. Seery, 81 N. J. Super. 429, 195 A. 2d 900, involved an in rem tax foreclosure action in which a judgment of foreclosure had been entered against the property owner despite the fact that the complaint had not been verified. In holding the requirement of verification was directional only, the court declared:
“. . . It is a purely procedural direction which is formal but does not go to the essence of the law with regard to requirements for jurisdiction of the courts. The plaintiff has received no lesser day in court, and has not shown to the satisfaction of the court that he has been in any way prejudiced or harmed by the omission . . .” (pp. 433, 434.)
(See, also, People ex rel. N. Y. City Omnibus Corp. v. Miller, 282 N. Y. 5, 24 N. E. 2d 722; Jacobs et al. v. Allister, 122 N. Y. S. 2d 826; Crist v. Tallman, 190 Iowa 1248, 179 N. W. 522; Wise v. Outtrim, 139 Iowa 192, 117 N. W. 264, 130 Am. St. Rep. 301; Gregerson v. Collins, 80 Nev. 452, 396 P. 2d 27; 71 C. J. S., Pleading § 345, pp. 744,745.)
It must be conceded that this court, under early decisions, has held that an unverified petition filed pursuant to K. S. A. 59-2201 is subject to a motion to strike. (Warner v. Warner, 11 Kan. 121; Clawson v. McCune’s Adm'r., 20 Kan. 337.) However, we have never held nor do we now view an unverified petition to be a nullity, defying amendment. The prevailing rule in this respect is set forth in 41 Am. Jur., Pleading, § 286, p. 487:
“Pleadings are ordinarily signed and verified prior to their filing. But a failure properly to verify a pleading may ordinarily be remedied thereafter. Thus, statutes permitting amendments have been held to be sufficiently broad to permit a pleading, defectively verified, to be verified in open court at the trial. . . .”
This principle was recognized in Kimel, Executor, v. Briggs, 183 Kan. 315, 328 P. 2d 746, where the district court had granted the defendant leave to verify his answer and had overruled the plaintiffs’ motion for judgment on the pleadings. In dismissing an appeal taken from those rulings, this court observed that “the record did not disclose whether the defendant complied by filing the verification. Presumably the defendant may still comply.” Further recognition of the rule is found in Dubbs v. Haworth, 102 Kan. 603, 171 Pac. 624, where it was held that the failure to verify a claim filed in probate court is a defect which may be waived.
Moreover, the view is generally held that when an amendment is made, it dates back to the time of the original petition. (Pulliam v. Pulliam, supra.) The rule is phrased in 71 C. J. S., Pleading, § 358, p. 761, in this fashion:
“The verification of a complaint, as well as the complaint itself, speaks as of the time when the action was commenced by filing the complaint. It is sufficient if it was then true.”
The same principle finds expression in Dean et al. v. First Nat’l Bank et al., supra, at pages 349, 350:
“The verification of a complaint speaks as of the time when the action was commenced by filing the complaint or petition and is sufficient if it was then true. . . .
“. . . But the verification does not constitute any part of the pleadings and cannot render it defective. 1 Bancroft, Code Pleading, 716 § 500. It adds no allegation. It tenders no issue. It is, as we have said, a formal matter, the omission or imperfection of which does not rise above the status of a mere irregularity that may be waived or cured by amendment. Its defects do not vitiate jurisdiction. . . .”
Our conclusion is that verification of a petition under K. S. A. 59-2201 is not a prerequisite to its being filed, but is a matter of form which falls under the aegis of that part of the statute providing that “no defect in form shall impair substantial rights.” We further conclude that the claimants’ motion for leave to file an amended petition was not moot but should have been considered and ruled on by the trial court in the exercise of its judicial discretion.
We now turn to the procedural aspects of the appeal from the probate court to district court. Three grounds of deficiency were listed by the trial court, none of which appear meritorious. Those grounds are:
First, that the appeal was not taken in time. The record shows that while the hearing in probate court was September 27, 1967, the judgment was not made until October 6, 1967. Notice of appeal was filed October 12, and bond was filed on November 2, 1967. The appeal was thus perfected within the required 30 days from date of judgment.
Second, that the bond was not approved. No specific approval is shown of record, but bond was provided in response to a letter from the probate judge setting the amount of the bond and outlining its requirements. The bond was returned to the probate judge and filed by him. The judge’s acceptance and filing of the bond indicates tacit approval on his part, at least in the absence of evidence to the contrary.
Third, that notice of appeal was not properly served. The record discloses that service of notice was had both on the probate judge and on the attorneys for the defendants. This court has previously held that service either upon opposing counsel of record, or upon the probate judge, was sufficient under the provisions of G. S. 1949 (now K. S. A.) 59-2405. (In re Estate of Kruse, 170 Kan. 429, 226 P. 2d 835; In re Estate of Waugh, 183 Kan. 120, 325 P. 2d 38; In re Estate of Patterson, 185 Kan. 135, 340 P. 2d 369.) Both methods of service appear to have been accomplished in this appeal.
Other matters mentioned in the brief of the defendants have not been overlooked but are not deemed to warrant further discussion.
The disposition of this appeal has caused some scratching of heads. It is familiar law that a motion for leave to file an amended petition is addressed to the sound judicial discretion of the trial court (See 4 Hatcher’s Kansas Digest [Rev. Ed.] Pleading, § 122.) and this court may not direct the manner of its exercise. However, as we have heretofore pointed out, the motion for leave to file an amended petition in this case was not moot, and it is our opinion that the plaintiffs were, and are now, entitled to have the trial court rule thereon in the exercise of its judicial discretion.
To this very date the trial court has not made a ruling on the basis of its discretionary power, for its action was predicated on other grounds. As a consequence, the plaintiffs have never received the benefit of the trial court’s exercise of discretion in its consideration of their motion.
We believe the pattern for disposing of this appeal is provided by In re Royal Circle of Friends Bldg. Corporation, supra, a case which closely parallels the instant action. The appellate court remanded that case to permit the district court to exercise its discretion in allowing or not allowing the petitioners to verify their amended petition. This action accords with what was said by this tribunal in Dubbs v. Haworth, supra, where, on appeal, the administratrix contended that a claim filed against the estate was defectively verified. In pointing out that this issue had not clearly been raised below, the court announced:
. . What the defendant should have done was to point out the defect clearly, so that plaintiff might have had an opportunity to amend the affidavit. . . .” (Emphasis supplied.) (p. 606.)
The judgment of the court below is reversed and this cause is remanded with directions that the order of December 11, 1967, dismissing plaintiffs’ petition for allowance of demand and denying, as moot, their motion for leave to file an amended petition, be set aside, and it is further directed that plantiffs’ motion for leave to file an amended petition be reinstated and that the trial court rule thereon as to allowance or disallowance in the exercise of its sound judicial discretion. | [
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The opinion of the court was delivered by
Fatzer, J.:
The defendant was convicted by a jury of robbery in the first degree (K. S. A. 21-527) and sentenced to a term of from twenty to forty-two years pursuant to K. S. A. 21-530 and 21-107a. He has appealed.
The facts are not in dispute, and those pertinent are summarized: On September 20,1964, defendant and another person robbed the Farha Red Bud Store No. 3, in Wichita, taking $4,400 from two employees at gun point. Subsequently, the defendant was identified by the same two persons, first, from photographs shown them by the Wichita police, and second, by means of a lineup conducted on October 27, 1964, in Camden, Missouri. As a result of the identification, and on November 4, 1964, a complaint was filed in the Court of Common Pleas, Sedgwick County, Kansas.
In September, 1967, defendant (having been incarcerated in the Missouri penitentiary) was duly extradited from Missouri and on October 13, 1967, he and his retained counsel were present at the preliminary examination held before the Magistrate of the Court of Common Pleas. Following the preliminary examination, the defendant was bound over for trial in the district court.'
On December 27, 1967, an information was filed charging robbery in the first degree, and trial was set for February 12, 1968, at which time the defendant appeared with retained counsel and complained he did not have his evidence and did not want to go to trial. The district court treated the defendants statements in the nature of a motion for continuance and conducted a hearing thereon. The defendant’s counsel was candid with the court and stated in the record that the defendant had given him the names of various witnesses to contact who would show he had an alibi, and was not in the state of Kansas at the time of the robbery. He stated five letters were sent to those witnesses and their wives, and nine persons returned answers not favorable to the defendant’s defense of alibi. He further stated that at the defendant’s request, he called Sheriff Collins of St. Clair County, Missouri, but the sheriff was unable to say that defendant was in Missouri on September 20, 1964, in connection with criminal activity occurring in that county. The defendant referred the court to an issue of True Detective magazine and to a story therein concerning Sheriff Collins of St. Clair County, Missouri, in which the article stated that on the night of September 21, a large quantity of food had been stolen from a farm house. The defendant advised the court the story concerned his criminal activities in that county on that date, which he claimed attested to his presence in that county on September 21. The court advised the defendant that he was charged with robbery in Wichita on September 20, and that the story in the detective magazine was the rankest hearsay.
Counsel further related to the court he had received a long distance telephone call from Missouri from “an A1 Morgan who had spent some time with Mr. Hemminger around” the time of the robbery in Wichita. Morgan stated the defendant was trying to establish his alibi that he had been in Missouri “committing other crimes” on September 20, 1964, and that he, Morgan, would not come into Kansas to testify because he would incriminate himself by testifying on the defendant’s behalf. Counsel also stated he visited with the defendant several times in the county jail and “advised him that I had tried everything that I could to establish an alibi for this man, for himself, and that unless he could produce some witnesses to fully put him in the State (Missouri) at around that time (the time of the robbery), I didn’t think his defense looked too good for him.”
No notice of alibi was filed, and after the contact with Morgan, no effort was made to obtain his testimony either by deposition, interrogatory, or under the provisions of K. S. A. 62-2803, either before trial or at the hearing on the motion for a new trial.
At the conclusion of the hearing, the district court found the defendant had ample time and opportunity to secure his evidence and that he was seeking, without reason, to delay the proceedings, and that he must stand trial or be released.
The defendant asserts error in denying his request for a continuance in order to obtain his evidence, and also complains of the court’s failure to compel the attendance of Morgan by means of the Uniform Act to Secure Attendance of Witnesses from Without State. (K. S. A. 62-2801, et seq.)
The well-established rule in this jurisdiction is that the granting or denial of a continuance in a criminal prosecution is largely within the sound discretion of the district court, and its ruling will not be disturbed in the absence of a showing that there has been an abuse of discretion which has prejudiced the defendant’s substantial rights. (State v. Patterson, 200 Kan. 176, 434 P. 2d 808; State v. Brown, 193 Kan. 654, 396 P. 2d 401; State v. Hickock & Smith, 188 Kan. 473, 363 P. 2d 541, appeal dismissed 373 U. S. 544, 10 L. Ed. 2d 688, 83 S. Ct. 1545.)
The record shows the defendant was well aware of the charges pending against him while he was confined in the Missouri State Penitentiary. On April 4, 1966, the Clerk of the Court of Common Pleas, Sedgwick County, sent the defendant, at his request, a copy of the complaint filed against him, and later, on October 26, 1966, the clerk furnished him another copy at his request.
In light of the foregoing, and since the defendant had from the time of the preliminary examination on October 13, 1967, to the time of the trial on February 12, 1968, to secure his evidence, and no prejudice to the defendant having been made to appear, his contention that the district court erred in denying a continuance is without merit.
Likewise, the defendant’s claim the district court erred in denying him the benefit of K. S. A. 62-2803 is not well taken.
At no time did the defendant or his counsel make any request to the court that any witness be subpoenaed to testify on his behalf, nor did they make application to the court to secure the attendance of any witness from without the state pursuant to the statute. As may be seen from the provisions of 62-2803, the Act does not provide for the delivery of witnesses residing in another state as a matter of course. In State v. Lesco, 194 Kan. 555, 400 P. 2d 695, cert. den. 382 U. S. 1015, 15 L. Ed. 2d 529, 86 S. Ct. 628, it was said:
“. . . The Uniform Act to Secure the Attendance of Witnesses from Without State does not provide for the delivery of a witness residing in another state as a matter of course. After a judge of a court of record of this state has certified to a judge of a court of record in the county in which the person is found that he is a material witness in a criminal prosecution, a hearing is held and a summons to attend and testify is issued by the judge in the foreign state only if he ‘determines that the witness is material and necessary, [and] that it will not cause undue hardship to the witness to be compelled to attend and testify in the prosecution . . .” (K. S. A. 62-2802.) It would appear that the judge before whom the prosecution is to take place should have some discretion to determine under what circumstances resort should be had to the Uniform Act. The Uniform Act was intended as a matter of comity between states to enable states to obtain material witnesses for criminal prosecutions . . .” (l.c. 559, 560.)
In People v. Newville, 220 Cal. App. 2d 267, 33 Cal. Rptr. 816, it was held where the unsupported averment of the defendant that the testimony of his wife and child would be material, and a letter written by the wife indicated uncertainty as to the defendant’s alibi, the lower court was not required to exercise its discretion in favor of the defendant’s motion to compel the attendance of his wife and child from out of state.
Where, as here, the defendant makes no request for the attendance of an out of state witness and makes no effort to comply with statutory requirements by showing such witness would be material, he cannot successfully claim that he was denied compulsory process. (Midgett v. State, 223 Md. 282, 164 A. 2d 526, cert. den. 365 U. S. 853, 5 L. Ed. 2d 817, 81 S. Ct. 819; Lancaster v. Green, 175 Ohio St. 203, 192 N. E. 2d 776.)
The defendant next claims he was denied effective assistance of counsel in violation of his constitutional rights. We do not agree. The claim is founded upon counsel’s failure to request the attendance of a “favorable” witness from without the state, but it was never shown such witness would in fact be “favorable.” As indicated, at the hearing before trial, counsel stated his doubts as to whether Morgan would testify, and if so, whether he would testify favorably on behalf of the defendant. The burden of showing denial of effective assistance of counsel to the extent necessary to overcome the presumption of regularity of the conviction is upon the defendant, and is not sustained by the unsupported, uncorroborated statements of the one convicted. (Wisely v. State, 201 Kan. 377, 440 P. 2d 632; Goodwin v. State, 195 Kan. 414, 407 P. 2d 528.)
The record demonstrates counsel was diligent in his efforts before trial to secure evidence to establish the defendant’s alibi, and when he was unable to do so, he advised the defendant and the district court to that effect. He was not obligated to stultify his legal integrity in an effort to support an apparent frivolous alibi based upon a story in True Detective magazine. The honest exercise of discretion was involved, and it may not be held counsel was remiss or that he did not fully and adequately represent the defendant in the absence of proof of bad faith. (Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978, and cases cited.) On the contrary, counsel diligently prepared and handled the case. It is evident counsel was of the opinion he was justified in his belief and action in not proceeding under 62-2803 to attempt to secure the attendance of Morgan from the state of Missouri. Moreover, any measure of representation of counsel must recognize the factual situation and the sufficiency of the state’s evidence against a defendant. The reality of the situation with which counsel is confronted must be recognized as part of such representation. In this case, the defendant was positively identified by the two employees from whom the money was taken. While no plea of alibi was filed, the defendant was permitted to testify he was not in the state of Kansas on September 20, 1964, however, his evidence on cross-examination was of such nature that it would permit a jury to doubt his veracity and afford it sound ground to discount his testimony.
It is next claimed the district court erred in failing to issue subpoenas for witnesses requested by the defendant to appear at the hearing on his motion for a new trial. The claim is without merit. The defendant’s supplemental abstract filed in this court just prior to the hearing of the appeal on the merits, contained a document entitled “Motion for New Trial” and “Motion for Subpoena’s Ad Testificandum.” The pro se motion named four witnesses and requested they ‘Tie subpoenaed To Testify For cross-examinations and avaluations (sic) herein.” It would appear the defendant prepared and forwarded the document to the clerk of the district court while he was in the county jail awaiting transfer to the state penitentiary. The clerk of the district court filed the defendant’s motion, but the defendant did not advise his counsel, or the district court, or the county attorney, of the filing of the pro se motion.
Counsel for the defendant filed a motion for a new trial containing, among other grounds, “newly discovered evidence.” At the hearing on the motion, counsel stated the newly discovered evidence alleged therein was the testimony of four witnesses the state had endorsed on the information and had subpoenaed for trial, but they were not called to testify. Counsel candidly stated he knew about the four witnesses, of their presence at the trial, and that he was not prevented in any way from calling them to testify on the defendant’s behalf.
We think no prejudicial error resulted to the defendant’s substantial rights by reason of the district court not having specifically considered the defendant’s pro se motion. In the first place, the defendant was present at the hearing and failed to call his motion to the court’s attention. In the second place, it appears the witnesses the defendant referred to in his motion were the same witnesses counsel referred to at the hearing for a new trial, and the defendant’s motion was in fact ruled upon. As indicated, the testimony of the witnesses listed would not have afforded grounds for a new trial since counsel candidly admitted that it was not newly discovered evidence since the witnesses sought to be called were known to him at the trial, and that nothing prevented the defendant from calling them to testify on his behalf. (State v. Oswald, 197 Kan. 251, 417 P. 2d 261; State v. Eaton, 199 Kan. 192, 428 P. 2d 847.)
The state’s evidence at the trial was clear and convincing with respect to the identification of the defendant, and where, as here, the defendant failed to produce affidavits of the witnesses, or account for their absence at trial, the district court did not abuse its discretion in denying the motion for new trial. (State v. Long, 189 Kan. 273, 369 P. 2d 247; State v. Pinkerman, [Mo.], 349 S. W. 2d 951; United States v. Soblen, 203 F. Supp. 542, 301 F. 2d 236, cert. den. 370 U. S. 944, 8 L. Ed. 2d 810, 82 S. Ct. 1585.)
Included in the defendant’s supplemental abstract is a document entitled “Sworn Affidavit” purportedly executed by one Lloyd O.. Holsey on March 7, 1969, in Leavenworth County, Kansas, wherein he stated he robbed the Farha Red Rud Store No. 3, in Wichita, on September 20, 1964, and that the defendant “is not guilty of the robbery.”
Holsey’s third party, out of court confession was never submitted to the district court, and it may not be considered in determining the merits of the defendant’s appeal. A similar question was presented in Martin v. Edmondson, 176 Kan. 374, 270 P. 2d 791, where it was said such a statement might be a “talking point” in an application for executive clemency, but it affords no grounds for release or for the granting of a new trial. See, also, State v. Rieman, 118 Kan. 784, 786, 236 Pac. 641; State v. Mosley, 163 Kan. 530, 183 P. 2d 877, and State v Larsen, Idaho 42, 415 P. 2d 685.
We have carefully examined the record and find no error. There was ample evidence to support the jury’s verdict, and the district court did not err in overruling the defendant’s motion for a new trial. It follows that the judgment and sentence of the district court should be affirmed.
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Madison Stein, was charged with second degree burglary and grand larceny. He was convicted on both charges and has appealed.
Two points, only, are raised on this appeal: (1) that the defendant’s motion to suppress evidence was erroneously overruled, and (2) that the evidence was insufficient for a conviction.
A summary of certain evidence introduced by the state is essential to an understanding of both contentions.
On the night of January 22, 1968, the Butler’s Music Store in Ottawa was broken into and certain property was taken from the safe, including more than $200 in cash and currency, a paper sack of Kennedy half dollars, a 1798 silver dollar, other silver dollars, foreign coins, three revolvers and keys. Only insurance papers re mained. At the time the burglary was committed the defendant was a student of the Ottawa High School.
On the day following, two police officers visited the high school principal who, at their request, and with Mr. Stein s consent and on his own judgment, opened Stein s school locker and brought its contents to his office. The defendant agreed that the officers might look through the contents of the locker and a search thereof revealed a key in the bottom of a pack of cigarettes. The defendant said the key was to a locker in the Kansas City Union Station in which he had left some clothing on his return from Texas and that his parole master had refused to let him go to Kansas City to return his clothes.
When the officers suggested they would help him in getting his clothing, Stein accompanied them to the police station where a phone call to Kansas City disclosed there was no such locker at the station. Further investigation revealed that the key was to a locker at the Lawrence Bus Depot. A search warrant was obtained and the Lawrence locker yielded a considerable amount of cash and currency, a 1798 silver dollar, 8 other silver dollars, 52 half dollars, a paper sack with Butler’s name thereon containing keys and foreign coins and a silver dollar with “Beth Butler” stamped therein. All this property was identified by Mr. Butler.
At the trial the property taken from the Lawrence locker was admitted into evidence after the court first heard testimony at an out of court hearing on the defendant’s motion to suppress the evidence. This ruling is alleged to be error, the contention essentially being that Mr. Stein was not given a Miranda warning before he consented to the search of the school locker.
It is conceded that no such warning was given Stein prior to the time his school locker was opened by the principal and his effects brought to the school office. Despite this fact, we believe the defendant’s argument must be rejected on two grounds.
In the first place we have recently held, in State v. McCarty, 199 Kan. 116, 427 P. 2d 616, that the Miranda rule is not applicable to a search and seizure situation; that the validity of a consent to the search of private premises does not depend on the owner’s having first been given the warning delineated in Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
The rationale of the McCarty case is exemplified in cases from jurisdictions other than our own. (State v. Oldham, 438 P. 2d 275 (Ida.); State v. Forney, 181 Neb. 757, 150 N. W. 2d 915; State v. Forney, 182 Neb. 802, 157 N. W. 2d 403; State v. Baker, 183 Neb. 499, 161 N. W. 2d 864; Lamot v. State, 2 Md. App. 378, 234 A. 2d 615.)
It is true that in McCarty this court said that a consent to a search must be voluntary. However, no claim is made here that Stein’s consent was coerced or other than voluntary. We think it clear from the record that Stein agreed to the search without a word of complaint or objection and in a setting which is not to be equated with the aura of oppressiveness which oft pervades the precincts of a police station. The trial court held the physical evidence to be admissible, and we cannot say it erred in so doing.
Secondly, the defendant’s argument must fail because of the nature of a high school locker. Its status in the law is somewhat anomalous; it does not possess all the attributes of a dwelling, a motor vehicle, or a private locker. As to the latter, the possessor’s right of possession is exclusive; it is protected from unwarranted intrusion as against the world. The principal of the Ottawa High School testified that he has custody and control of, and access to, all lockers at the school; that he has a master fist of all combinations to all combination padlocks, and a key which will open every locker. He testified also that he opened Stein’s locker on his own judgment.
Although a student may have control of his school locker as against fellow students, his possession is not exclusive against the school and its officials. A school does not supply its students with lockers for illicit use in harboring pilfered property or harmful substances. We deem it a proper function of school authorities to inspect the lockers under their control and to prevent their use in illicit ways or for illegal purposes. We believe this right of inspection is inherent in the authority vested in school administrators and that the same must be retained and exercised in the management of our schools if their educational functions are to be maintained and the welfare of the student bodies preserved.
A quite analogous situation arose in New York, where a vice principal gave his voluntary consent to the search of a school locker by police officers, the search resulting in the seizure of marijuana. In holding that the search was valid, having been based on the school official’s consent, the Court of Appeals, in People v. Overton, 20 N. Y. 2d 360, 229 N. E. 2d 596, spoke in this wise:
“The power of Dr. Panitz to give his consent to this search arises out of the distinct relationship between school authorities and students. The school authorities have an obligation to maintain discipline over the students. It is recognized that, when large numbers of teenagers are gathered together in such an environment, their inexperience and lack of mature judgment can often create hazards to each other. Parents, who surrender their children to this type of environment, in order that they may continue developing both intellectually and socially, have a right to expect certain safeguards.
“Indeed, it is doubtful if a school would be properly discharging its duty of supervision over the students, if it failed to retain control over the lockers. Not only have the school authorities a right to inspect but this right becomes a duty when suspicion arises that something of an illegal nature may be secreted there. When Dr. Panitz learned of the detectives’ suspicion, he was obligated to inspect the locker. This interest, together with the nonexclusive nature of the locker, empowered him to consent to the search by the officers.” (pp. 362, 363.)
The evidence which we have already set out effectively refutes the defendant’s assertion that the evidence was insufficient to sustain the conviction. This court has held, in cases too numerous to mention, that its appellate function, where the sufficiency of evidence is questioned, is simply to determine whether the conviction is supported by competent evidence of a substantial nature. (See cases in 2 Hatcher’s Kansas Digest (Rev. Ed.) Criminal Law, § 438.)
Measured by that test, it is clear to us that the evidence of record, only a part of which has been recited, is entirely adequate to support the jury’s verdict of guilty. The defense of alibi offered by Stein obviously failed to impress the jury, as did his tale that the property found in the locker at the bus station had been filched from Mr. Butler’s safe two or three years ago.
No error has been made to appear and the judgment is affirmed. | [
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The opinion of the court was delivered by
Fromme, J.:
This is a direct criminal appeal. It stems from an order denying defendant’s motion to withdraw pleas of guilty after judgment and sentence.
The appeal presents one primary question. Were the guilty pleas involuntary because of plea discussions leading to a plea agreement? The plea agreement resulted in not invoicing the Habitual Criminal Act (K. S. A. 21-107a) and in a six month jail sentence for aiding in an escape from jail when the maximum penalty is five years at hard labor. (K. S. A. 21-106.)
A recitation of events leading to the order denying permission to withdraw the guilty pleas is necessary.
Defendant was charged with forging a check and with issuing the forged check. The information contained two separate counts. Pending arraignment on these charges defendant took part in a jail break. He was picked up and returned to jail. A separate action was filed against him for aiding in “an escape”. Defendant has never asked to withdraw his guilty plea to aiding in the escape. He has completed serving the six month jail sentence. We are concerned with this charge only because it was considered by the parties during the plea discussion on the forgery charges.
On September 11, 1967, defendant was arraigned in both cases and entered pleas of not guilty to the three charges. On that day the county attorney served notice upon the defendant and his attorney of an intention to invoke the Habitual Criminal Act. All three charges were set for trial to a jury for October 4.
On September 25 the defendant asked leave and was granted permission to withdraw all three pleas of not guilty. He then entered pleas of guilty on all charges in the two cases. He was found guilty and sentenced to six months in the county jail for aiding in “an escape”. He was found guilty and sentenced to ten years in the penitentiary on each of the forgery charges. (K. S. A. 21-631.) The six month jail sentence was made to precede the forgery sentences. The forgery sentences were made to run concurrently and the Habitual Criminal Act was not invoked.
Defendant began serving his jail sentence. He then wrote three letters to the trial judge asking that his guilty pleas on the forgery charges be set aside. On October 19 present counsel for defendant was appointed. A motion to withdraw the guilty pleas was filed. This motion was fully heard by the court. The evidence included the testimony of defendant and his sister. A stipulation of certain facts was agreed to by the county attorney.
The county attorney stipulated he did not seek to invoke the Habitual Criminal Act because the defendant, through his attorney, agreed to enter guilty pleas to all three charges. He stipulated he agreed to recommend to the court a six month jail sentence on the charge of aiding in the escape. It was understood the forgery sentences should be served following the jail sentence. The county attorney stated the plea discussion was initiated by defendant’s attorney and he would have asked to invoke the Act if a trial to jury had been necessary in these cases.
At this hearing on the motion to withdraw the pleas the county attorney offered to join in the motion provided defendant would include his plea to the jail break charge in the motion to withdraw pleas. Defendant declined to do so. The trial court considered this fact together with the inquiry during the sentencing.
The court’s inquiry during sentencing in both cases indicates a thorough effort to protect the defendant. The colloquy at sentencing in the forgery case reads:
“The Court: He is charged with two counts of Forgery in the second degree and that carries with it not more than 10 years confinement in the state penitentiary, that is, for each count, Mr. Byrd. Do you understand that?
“A. Yes sir.
“Q. Have you had a preliminary hearing in this matter?
“A. Yes sir.
“Q. Are you satisfied with the manner in which that preliminary hearing was conducted?
“A. Yes sir.
“Q. Do you have any objections to make or protests to make over anything concerned with your case up to this point?
“A. No sir.
“Q. Under the law, Mr. Byrd, you have certain rights. You have the right to remain silent; to say nothing at all; to plead not guilty to any part of the charges leveled against you and if you do so plead you have a right to a trial by jury with the burden on the state to prove your guilt beyond a reasonable doubt, or you may choose to plead guilty, and if you do so plead, the court will fix the sentence. Do you understand that?
“A. Yes sir.
“Q. Have you consulted with your lawyer as to what the penalty and the legal aspects of your case, including any possible defenses you may have?
“A. Yes.
“Q. Are you satisfied with the manner in which your attorney has represented you and is representing you?
“A. Yes.
“Q. Are you now ready to plead to these charges?
“A. Yes.
“Q. Then I will ask you how you plead to Count I of the Information?
“A. Guilty.
“Q. How do you plead to Count II of the Information?
“A. Guilty.
“Q. Mr. Veeder, I will ask you if the accused has told you the facts from his side of the case?
“Mr. Veeder: (Mr. Veeder was defendant’s trial counsel.) He has and we have very fully checked them, your Honor.
“The Court: Is this plea that he offers the court consistent with the facts as you understand them to be and the advice that you have given to this defendant?
“Mr. Veeder: It is, your Honor.
“The Court: Mr. Byrd, I will ask you if these pleas you offer are voluntarily and understandingly made?
“A. Yes sir.
“Q. You understand that this plea of guilty, you must be in fact, guilty. You cannot be threatened or intimidated or coerced or promised into pleading guilty. The only way you can plead guilty is if you are in fact guilty, do you understand this?
“A. Yes.”
The defendant testified at the hearing on the motion to withdraw pleas that the county attorney advised him he would not invoke the Habitual Criminal Act if guilty pleas were entered. He said this occurred before counsel was appointed. The argument is now made the absence of counsel at this critical stage of the discussion rendered the plea involuntary. Assuming the conversation took place it is not contended that any agreement was reached at this time.
The record before us indicates the plea discussion resulting in the plea agreement was initiated by defendant’s counsel and was with knowledge and understanding of the facts available to counsel and the defendant. The pleas were consistent with those facts. The county attorney entered into this plea discussion in good faith and without improper motives. No charge is made that the trial court participated in the plea discussion. It is within this frame of reference we examine the propriety of such discussion and agreement.
Disagreement has existed on the propriety of plea discussions and agreements. The judges who frown upon the practice say “justice and liberty are not the subjects of bargaining and barter”. Those who approve the practice under proper safeguards say “the practice is pervasive, guilty defendants expect it and the overburdened criminal system must use the prize of leniency to induce the great mass of guilty defendants to forego the delay of a jury trial”. A detailed analysis of the thinking in this area has been set forth by Donald J. Newman in his book, Conviction: The Determination of Guilt or Innocence Without Trial (1966).
Several of our reported cases have discussed the function of a prosecuting attorney in the use of the Habitual Criminal Act. Usually the matter has risen in collateral attacks on a plea of guilty because of coercion claimed by a defendant when he pled to avoid the enhanced penalty. (See Fields v. State, 195 Kan. 718, 720, 408 P. 2d 674; Addington v. State, 198 Kan. 228, 424 P. 2d 871.)
The discretion to invoke the Act rests with the county attorney. In Addington v. State, supra, we said:
“The good faith of the county attorney is a material issue bearing upon his motives when invoking the Habitual Criminal Act, since the exercise of discretion in the performance of his duties implies conscientious judgment rather than arbitrary action, and takes account of the law and particular circumstances of each case. Such discretion must be exercised fairly, wisely, and in accordance with the established principles of law; and includes the right to select a course of action, not willfully or in bad faith, but only with respect to what is right under the circumstances.” (198 Kan. 228, Syl. f 4.)
A guilty plea induced by a prosecuting attorney’s promise not to invoke the Habitual Criminal Act is not rendered involuntary for that reason alone. To render such a plea involuntary the discussion and circumstances leading to the guilty plea must be of a nature to deprive the plea of a voluntary character. There is nothing in the facts and circumstances of the present case to render these pleas involuntary.
The plea discussions in the present case were carried on with competent counsel for defendant after counsel had been fully advised by his client of the facts. Counsel had made a further investigation of these facts. He determined the plea was consistent with the facts as he understood them. The sentences received by defendant were what he expected and understood from the plea discussion. His denial of guilt at the present time is in direct contradiction to previous statements made to court and counsel when he entered his guilty pleas. He attempts to explain this contradiction by saying he lied to his counsel and to the court when he first entered guilty pleas.
In Brown v. Beto, 377 F. 2d 950 (1967), Judge Wisdom speaking for the Fifth Circuit Court of Appeals said:
“No federal court has held that a guilty plea induced by a prosecutor's promise for that reason alone is involuntary. In Machibroda v. United States, 1962, 368 U. S. 487, 493, 82 S. Ct. 510, 513, 7 L. Ed. 2d 473, the Supreme Court said that a ’guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act is void/ But in Machibroda the defendant alleged that the United States Attorney had promised the defendant a more lenient sentence than the court imposed and had cautioned the defendant not to tell his attorney of their plea arrangement.” (p. 953.)
Plea discussions are held and plea agreements are reached in a majority of criminal cases disposed of by pleas of guilty. Properly safeguarded these discussions and agreements between an attorney for an accused and a prosecuting attorney are consistent with the fair and effective administration of justice. (Brown v. Beto, supra.)
Standards regulating the practice of negotiating a plea of guilty were recommended by the Advisory Committee on the Criminal Trial to the American Bar Association Project on Minimum Standards for Criminal Justice in February 1967. This project recognizes the place of plea discussions and agreements where they are carried out and are consistent with the fair and effective administration of criminal justice.
These standards distinguish between the role of the trial judge and that of the prosecutor. The trial judge should not participate in plea discussions. Such discussions between the trial judge and the defendant give the appearance of improper bargaining between a malefactor and Justice.
The importance of maintaining this rule was stated in Brown v. Beto, supra, as follows:
“. . . The judge, almost all-powerful in his sentencing capacity, has the duty of protecting an accused’s constitutional rights as well as the duty of protecting society’s interest in law enforcement. Prosecuting attorneys, however, traditionally have had broad authority to institute criminal charges and to evaluate the charges in terms of society’s interest in individual cases. When the prosecutor and the accused enter into an agreement their conflicting interests merge. And, with the aid of both counsel and judge, an accused is protected from improvident or involuntary agreements.” (377 F. 2d 957.)
All plea discussions and agreements should be premised upon an understanding that such agreements are not binding upon ihe trial judge. When a plea of guilty is tendered or received as a result of a prior plea agreement the trial judge may give the agreement consideration, but notwithstanding its existence he should reach an independent decision on whether to approve the charge or sentence concessions. If a plea of guilty is not entered by the defendant the fact that plea discussions and agreements were tentatively negotiated should not be received in evidence against or in favor of the defendant. (State v. McGunn, 208 Minn. 349, 294 N. W. 208; Kercheval v. United States, 274 U. S. 220, 47 S. Ct. 582, 71 L. Ed. 1009.)
It is time we recognize the propriety of plea discussions and plea agreements in cases when it exists. The interest of the public in effective administration of criminal justice will be served if proper guidelines are followed. A county attorney may in proper instances engage in plea discussions for the purpose of reaching a plea agreement. He should engage in such discussions with the defendant only through defense counsel, except when the defendant is not eligible for or does not desire appointment of counsel and has not retained counsel. (See Holt v. State, 202 Kan. 759, 451 P. 2d 221; Arsenault v. Massachusetts, 393 U. S. 5, 21 L. Ed. 2d 5, 89 S. Ct. 35.)
The prosecuting attorney while engaging in plea discussions must keep in mind his primary objective, the effective administration of criminal justice. The prosecuting attorney should be convinced of the defendant’s guilt and defendant’s willingness to assume responsibility for his criminal conduct. He must keep in mind the nature of the crime and have good reasons for believing a public trial is unnecessary. He should afford similarly situated defendants equal plea agreement opportunities. Charge and sentence concessions may be utilized to aid in ensuring the prompt and certain application of correctional measures to the defendant for rehabilitative purposes. The prosecuting attorney must not sacrifice faff and effective administration of criminal justice in an effort to quickly dispose of cases.
It should be noted in passing the conscious exercise of some selectivity in enforcement in criminal cases is not in itself a federal constitutional violation. (Oyler v. Boles, 368 U. S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501.)
Any plea agreement by a prosecuting attorney must depend upon the circumstances of the individual case. He may agree to make or not to oppose favorable recommendations as to sentence which should be imposed if the defendant enters a plea of guilty. He may seek or not oppose dismissal of the offense charged if the defendant enters a plea of guilty to another offense reasonably related to defendant’s conduct. He may seek or not oppose dismissal of other charges or potential charges against the defendant if the defendant enters a plea of guilty. He should not initiate the plea discussions and should avoid any action which might reasonably appear to make justice and liberty subjects of bargaining and barter.
We turn now to the question of withdrawal of a plea after sentence. It is well settled that once a plea of guilty has been entered by defendant and sentence pronounced, the question of whether or not he can later withdraw his plea is directed to the sound discretion of the trial court and the trial court’s judgment will not be disturbed on appeal unless the defendant shows an abuse of such discretion. (Addington v. State, supra; State v. Nichols, 167 Kan. 565, 207 P. 2d 469.)
The question of what constitutes abuse of discretion by a trial court in connection with refusal to permit a defendant to withdraw his plea has been before this court on several occasions. Generally speaking the court has attached substantial significance to whether or not the defendant was represented throughout by competent counsel; whether or not he was misled, coerced, mistreated or unfair advantage was taken and whether or not his plea was freely, fairly and understanding^ made.
A defendant should be permitted to withdraw his plea of guilty if his. plea was given under a misapprehension of the nature of the charge and the court was under the same misapprehension. (State v. Bowser, 155 Kan. 723, 129 P. 2d 268.) In State v. Oberst, 127 Kan. 412, 273 Pac. 490, it was held material error to permit a seventeen year old boy to plead guilty to seven charges of murder without an attorney to counsel with and advise him.
On the other hand, this court has consistently held that when the accused is represented by capable counsel and the plea is freely, fairly and intelligently made and its consequences understood it should not be set aside. (Addington v. State, supra; State v. Nichols, supra.) This court has held this to be true even though the defendant may be under some misapprehension. (See State v. Yates, 52 Kan. 566, 35 Pac. 209; State v. Garrett, 78 Kan. 882, 98 Pac. 219; State v. Finney, 139 Kan. 578, 32 P. 2d 517; State v. Beasley, 133 Kan. 438, 300 Pac. 1103.)
An analysis of our decisions indicates permission to withdraw a plea depends upon the facts and circumstances of each case. Generally it is a question of fact for the trial court to determine if the plea was voluntarily and understandingly made. The issue to be determined is whether the ends of justice will be served by permitting the withdrawal. If a manifest injustice to the defendant would result from refusal then permission to withdraw should be granted. (Farnsworth v. Sanford, 115 F. 2d 375 [5th Cir. 1940]; Taylor v. United States, 182 F. 2d 473 [9th Cir. 1950].)
Defendant received the effective assistance of counsel guaranteed to him by the constitution. The plea was entered by the defendant after meaningful inquiry by the court. It was entered with knowledge of the charges. The sentences actually imposed were understood by defendant as possible under the charges. Defendant did receive the sentence concessions contemplated by the plea agreement and the prosecuting attorney recommended or did not oppose the concessions as promised in the plea agreement. No manifest injustice appears in refusing to permit withdrawal of the guilty pleas in the present case.
The defendant initiated the plea discussion involving three potential felony sentences. He now seeks to withdraw only those pleas which resulted in ten year concurrent sentences. He desires to retain the advantages gained in the plea agreement and reject that part which is onerous. We fail to see how the ends of justice would be served by permitting withdrawal of two of defendant’s guilty pleas.
The judgment of the trial court is affirmed. | [
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Per Curiam:
Within the authority of the cases of The City of Salina v. Oscar Seitz, 16 Kas. 143, and The State of Kansas v. Young, 17 Kas. 414, the judgment of the district court will be reversed, and the cause remanded with directions to the court below to overrule the motion of said appellee to dismiss the case against him. | [
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The opinion of the court was delivered by
Horton, C. J.:
The reformation of deeds is one of the most familiar doctrines pertaining to equity jurisprudence; but in all cases of relief of this character the party asking it must stand upon some equity superior to that of the party against whom he asks redress. If the equities are equal, a court of equity is silent and passive. If the party asking equity fails to do equity, he must be dismissed without relief. The statement of this cardinal principle, which underlies the whole system of equity jurisprudence, clearly shows that the ruling of the district court was in direct conflict therewith, and ought not to stand. Plaintiff in that court admitted that he had promised to pay $800 for the purchase price of the land; that the time for all the payments but one had expired long before the commencement of this suit; that he had not paid any of the purchase. money, and avowed his determination never to pay more than $345; that he had forcibly seized the premises, and ousted without legal process the defendants. This conduct is without excuse. Instead of deserving the assistance of a court of equity, he ought to have been denied its interposition as one coming before it with unclean hands. So long as the answer of the defendants in that court remained unchallenged, Gore was in no condition to ask the active interference of the court in his behalf. When relief was granted him, it was in utter disregard of the maxim that “he who seeks equity must do equity E In the present condition of the case, it is unnecessary to discuss the other questions presented.
The judgment of the district court will therefore be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Before proceeding to the principal inquiry involved in this action, we will dispose of the preliminary objections presented on the part of the defendants to our consideration of the merits of the cause. These are: First, that the state is not the party in interest, and hence, that the suit cannot be maintained in its name; and, second, if the suit can be maintained in the name of the state, it cannot be done on the relation of the county attorney. Neither of these objections is tenable. The suit is being prosecuted by the proper •officer, and in the name of the proper party plaintiff; and in justification of this conclusion we need only refer to the prior decisions of this court: Craft v. Comm’rs of Jackson Co., 5 Kas. 518; Bobbett v. State, 10 Kas. 9; Bartlett v. State, 13 Kas. 99; State v. Faulkner, 20 Kas. 541.
The main question at issue is, whether a board of county ■commissioners have the power to use or appropriate the fund raised by taxation to defray county charges and expenses for the construction of permanent county buildings? Counsel for defendants contend that under the express authority given by §§ 4 and 16, eh. 25, Gen. Stat., the county commissioners of Marion county had ample power to make the order of the 9th of August, 1878, and build the county building therein referred to, and also to furnish the means of paying for it from the revenue levied to defray the county charges and •expenses, and further contend, that the1 only restrictions or limitations upon this power are the conditions in §§17 and 18 of said chapter 25, which they assert merely prohibit the •commissioners from borrowing money or assessing special taxes for permanent buildings without first having submitted the question to a vote of the electors of the county.
On the other hand, it is claimed on the part of the counsel for the plaintiff, that the commissioners have no right to expend the yearly levies intended for county charges and •expenses to build permanent county buildings, and that the right to incur obligations for the erection of this class of buildings includes the right to use the means necessary to ■create a fund to pay the same, and if the necessary prerequisites prescribed by the statute, to wit, the obtainment of the consent of the electors expressed through the ballot-box, have not been fully complied with, in order to give the right to •create a fund with which to pay such obligations, then the right to incur such obligations does not exist.
This latter view seems to us the better construction of the various provisions of the statute upon the subject, and more in consonance with the letter and spirit of the law. The revenue collected from the levy provided for in section 1, Gen. Stat. 295, was evidently intended to be used only for •ordinary and current expenses.
The words “county charges and expenses,” employed in said section 1, are synonymous with the phrase “current expenses” in §§16 and 181, ch. 25, Gen. Stat. These phrases only include such charges and expenses as are incidental in conducting the business of the county government for the current year. It would be a strained construction of language to say that the erection of permanent county buildings, costing thousands of dollars, is the ordinary current expense of a county. It is in fact an extraordinary and exceptional expense. When permanent county buildings are once erected and completed, the benefits to the county are permanent and continuous; and while the erection of such buildings is a county charge and expense in the sense that the county, under proper conditions, must pay the cost of them, it is not a county charge in the meaning of said section 1 of Gen-. Stat. 295, nor a part of the “current expenses” referred to in the fourth subdivision of sec. 16, and in sec. 181, ch. 25, Gen. Stat. That the legislature did not understand that “current expenses” included the “erection of county buildings,” is manifest from the language of the said fourth subdivision of sec. 16, which' reads as follows: Apportion and order the levying of taxes as provided by law, and to borrow, upon the credit of the county, a sum sufficient for the “erection of county buildings,” or to meet the “current expenses” of the county when there is a deficit in the county revenue. In this subdivision, county buildings and current expenses are placed in an antithetical relation to each other, and, as used, express different purposes for which money may be borrowed. If the funds needed to defray the current expenses could be applied to the erection of county buildings, then1 the lawmakers were guilty in adopting said subdivision four of repeating therein the same meaning in different words. Such is not the true construction, nor even a.reasonable one. In addition, it is not necessary to give a forced and extended definition to county charges and expenses in order to furnish commissioners with funds to build county buildings, as it appears that other and ample provisions have been made by the legislature for the creation of a fund, distinct from the general revenue of a county, out of which to erect these buildings. This power is found in the authority to borrow money, or assess special taxes therefor, under the condition that a majority of the electors of the county first sanction the creation of a fund to construct such buildings. (§§16, 17, 18, 19 and 20, ch. 25, Gen. Stat.) As it was not designed or intended to include in the levy for county charges and expenses the means to erect county buildings, and as the constitution of the state prohibits the diversion of taxes from the object for which they are levied, it seems to us that the commissioners of Marion county have no power to employ the current-expense fund of the county for the building proposed to be constructed under their order of last August. All proceedings by them in that direction, without a direct vote of the electors of their county, are an exercise, or an attempt to exercise, power on their part unauthorized by law. Such illegal and unauthorized acts of officers, tending to aggrieve the whole community alike, are the proper subjects of the preventive jurisdiction of equity, when its exercise is invoked by suitable authority. The conclusion we have reached leads necessarily to the other inference, viz.: that before county buildings are constructed at the charge of the county, the sanction of the electors of the county must be first obtained. No funds can be secured by borrowing for this purpose without a vote; nor can any special tax be levied for like object without an appeal to the ballot.'
With occasional exceptions, county buildings are constructed at the expense of the tax-payers, and as this class of buildings is often costly and usually intended to be permanent, the legislature, in its wisdom, has restricted the power of the county commissioners over their erection, and deposited - with the electors the decision whether improvements of this character .shall be made. If the current-expense -fund can be drawn upon for this purpose, the restrictions would be nugatory, as each year taxes could be assessed in violation of said section 18 to build permanent county buildings, under the name of “ county charges and expenses.” It is a well-settled rule, that the law does not permit that to be done indirectly which may not be done directly. That the present county buildings are insufficient, and many of the public offices unsafe; that there is no jail or jury room in the county; that it is inconvenient for the commissioners to rent rooms for county purposes; and, finally, that the proposed buildings are greatly needed in Marion county, are no arguments in favor of the commissioners’ proceeding to make any contract therefor, without first submitting the question to a vote. The officers of the county are the mere agents and servants of the people, and if new buildings are needed and demanded by the electors, the board has been derelict in not obtaining from such electors the authority to erect such buildings in the manner provided by the statute.
A further argument against the right of the commissioners to erect permanent county buildings, without a vote, is found in ch. 26, Gen. Stat. 296. Section 2 of this chapter provides that —
“ When the county seat of any county has been located by a vote of the electors of the county, or when county buildings have been erected, donated or purchased at the county seat at a cost of at least two thousand dollars, the board of county commissioners upon the petition of three-fifths of the legal electors of the county, or where county buildings have been erected at the county seat at a cost to the county of ten thousand dollars, the board of county commissioners upon the petition of three-fourths of the legal electors of the county shall order an election for the re-location of such county seat.”
The erection of the new permanent buildings will cost nearly $7,500. The building now in use cost about $3,000. If the county commissioners are permitted to proceed with the construction of the building, the county will have paid out over $10,000 for its public buildings. Such action will result in directly aiding the continuance of the county seat at Marion Centre, as then no election can be had for the relocation of the county seat unless three-fourths of the electors petition therefor. If this building is not erected, a vote for a change of the county seat can be had if three-fifths of the electors sign a petition. Thus, the difficulty of a vote on a change of the county seat is increased. As the question of the location of county seats was intended to be within the control of the electors of a county, with certain restrictions on calling elections, it is not strange that the legislature purposely provided that the commissioners could not add to the restrictions by the expenditure of public funds at their own pleasure. The electors are the parties most interested. They must be consulted and their assent given in a legal way, if permanent county buildings are erected.
The application of the plaintiff for an injunction to restrain the defendants from letting a contract to erect county buildings should have been allowed.
The order of the district judge will therefore be reversed, and the case remanded with directions to said judge to grant the injunction.
All the Justices concurring. | [
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Per Curiam:
The above case is affirmed, on the authority of Patee v. Parkinson, 18 Kas. 465. | [
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The opinion of the court was delivered by
Horton, C. J.:
The defendant, as receiver, brought an action of replevin in the court below, to recover certain property from J. G. Kennedy, one of the plaintiffs in error. Kennedy, as principal, and the other plaintiffs in error, executed a bond as required by law, to the effect that the defendant should perform whatever judgment might be rendered against him in the action.
The court rendered judgment in the replevin action in favor of the plaintiff, expressly finding all the issues in his favor, and specially finding that at the beginning of the action plaintiff was entitled to the immediate possession of the property, and that the same was unlawfully detained by the defendant, and that said property was taken by the sheriff on the order of delivery, and redelivered to the defendant upon the execution of a redelivery undertaking, and the court adjudged that the plaintiff have and recover said property of the defendant, together with costs and damages. The judgment remaining unsatisfied, the defendant, as receiver, commenced an action in the district court on the redelivery undertaking, and thereon recovered judgment against the plaintiffs in error. To reverse such judgment, the plaintiffs in error bring this action. The undertaking was as follows:
State of Kansas, County of Wilson.
In the Seventh Judicial District Court of the State of Kansas, sitting within and for Wilson county.
Henry Brown v. J. G. Kennedy.
We bind ourselves to the above-entitled plaintiff, Henry Brown, in the sum of six thousand dollars, that the defendant, J. G..Kennedy, will deliver the property in dispute in this action — to wit, ninety-seven head of neat cattle, three years old — to the plaintiff, if such delivery is adjudged, and that he will pay all costs and damages that may be awarded against him.
Dated this 23d day of May, 1876.
J. G. Kennedy. Wm. Stevens.
E. M. Foster. S. E. Ferguson.
On the trial, defendant in error put in evidence the sheriff’s return in the replevin action, which was in the following words:
“Eeceived this writ May 26, 1876, at 10 o’clock A. M., and on the same day executed the same by taking into my possession the property therein mentioned; and within twenty-four hours the said J. G. Kennedy executed an undertaking to the plaintiff, with sureties in double the amount of the value of the property, as stated in affidavit of plaintiff, to the effect that the defendant would deliver the property to the plaintiff if such delivery be adjudged, which undertaking was approved by me, and I did immediately return said property to the defendant.”
And defendant in error also put in evidence the proceedings and judgment in that action.
The sureties, for a defense, offered to prove:
“That at the time the defendant in error commenced the action of replevin against Kennedy, the property sought to be recovered in the action and described in said petition, affidavit and order of replevin, was not and never had since been in the county of Wilson, nor was it at that time, nor since that time, in the possession of Kennedy; that said order of delivery in that case was never actually served by the sheriff of Wilson county or any other officer; that said sheriff’s return on the order of delivery was and is wholly untrue; that the sheriff in fact never took said property into his possession or any part thereof at the time mentioned in said return, or at any other time, nor did he at the time mentioned in the return, or at any other time, redeliver the property or any part thereof to Kennedy, or to any person for him; that said sureties, and each of them, at the time they signed the undertaking aforesaid, believed that the said sheriff by virtue of said writ of replevin had taken the property described therein from the possession of Kennedy, and that he had the same in his own possession by virtue of said writ; that on the execution of the undertaking to the plaintiff, the sheriff would immediately deliver the property to Kennedy, and that they executed the undertaking with that understanding; that at the time of the execution of the undertaking, the plaintiff well knew that the sheriff by virtue of the writ of replevinhad not taken the property mentioned and described in the order into his possession, or any part thereof, and that he did not and would not redeliver the same to tbe said Kennedy by reason of the undertaking.”
This offer was refused, the testimony held incompetent, and the action of the court below is now assigned as error.
We perceive no error in this ruling, as the proposed testimony was immaterial, and constituted no defense to any of the parties in the action. Wherever the surety lias contracted in reference to the conduct of his principal in a suit or proceeding in the courts, he is concluded by the judgment, in the absence of fraud or collusion between the prosecuting party and him whom they are bound for. In this case the sureties agreed under the penalty of $6,000 that Kennedy would deliver to Brown the property in dispute, in the action of Brown and Kennedy, then pending in the district court of Wilson county, if such delivery was adjudged; and they further agreed that Kennedy would pay' all costs and damages in that action that might be awarded against him. The action in which the undertaking was given was duly triedj the delivery of the cattle was adjudged to Brown, and costs and damages awarded against Kennedy. Now in an action on this undertaking, the sureties, by signing the same, assumed such a connection with the original action that they are concluded by the judgment .in it, so far as the same-issues were involved. They could no more prove in their defense that the cattle had never been in the possession of Kennedy, than they could have introduced evidence showing Kennedy was the owner thereof and that the judgment in the replevin action ought to have been for him instead of Brown. In other words, they had no right to retry the issues settled in the former suit. If, in truth, the order of delivery in the replevin action was never actually served, it may have been to save costs and expenses, and if Kennedy was willing to waive the formalities of service by executing tbe undertaking provided by law upon a redelivery, ample consideration existed to bind all the parties thereto. The bond was substituted for the property. The defendant in error had the right to rely exclusively upon the validity of such bond, and was undoubtedly induced by it to forbear going through all the forms of an actual seizure of the cattle by the sheriff. The action and conduct of Brown and Kennedy having been in good faith, the waiver of an actual seizure by Kennedy tending neither to enlarge nor change the liability of his sureties, affords no basis for the release of such sureties from the obligation they signed, and no way impairs the judgment in the replevin action. The effect of the undertaking was to allow the property in dispute to remain under the control of Kennedy in the action brought to recover possession of it, and the result was the same as if the sheriff had actually seized it, and on the acceptance of the undertaking, redelivered it to Kennedy. As the sureties are bound by the judgment in that case, they were estopped from alleging or proving that Kennedy was the owner of the cattle, and that he did not wrongfully detain them when that action was commenced. The rejected testimony was immaterial, and no error was committed in refusing to admit it. (Freeman on Judg., § 180; Rapelye v. Prince, 4 Hill, 119; Coleman v. Bean, 3 Keyes, 94; Harrison v. Wilkin, 69 N. Y. 412.)
The judgment of the district court'must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The only question in this case for our consideration is, whether the voluntary assignment of Luther & Bond of September 25th, 1876, operated as a transfer and conveyance of the individual property of Bond ? I f it did so operate, then White, as assignee, was clothed with all the necessary power to obtain possession of the property, and entitled to it wherever it might have been, or in whosesoever hands. Against such assignment, counsel contend that the use of the word partners therein was intended to designate the capacity in which the assignors were making the assignment, and to limit the assignment to partnership property for the benefit of partnership creditors, and was solely the assignment o'f Luther & Bond, partners, as C. M. Luther & Co. of the partnership property in trust for their partnership creditors. Therefore it did not include the property in dispute, which was the individual property of Bond. We do not think the assignment will bear this construction. It purports to assign all the property of C. M. Luther and Nathaniel Bond, both real and personal, of every kind and description (excepting such as was exempt), and directs the assignee from the proceeds of the sale of such, property and collections of their claims, to pay and discharge in full all and singular the debts due and owing from said C. M. Luther ■and N. Bond, and if the net proceeds are not sufficient for the payment of these debts in full, then- the assignee is required to apply the same ratably and in proportion to the amount of the indebtedness without distinction or preference. The assignment was executed by both Luther and Bond, and their respective wives released all right, title and interest in the real estate thereby conveyed. It is true that in the body of the instrument where appear the names of Luther & Bond, “copartners” or “partners” follow, but these words may be justly treated as descriptive of the persons of the assignors, and not as limiting the assignment to a partial one. Under this view the assignment was general. The partnership effects of the partners and their separate property (not exempt) were conveyed by it. An attempt is made by counsel for plaintiff in error to present the question of the right of an assignee of a voluntary assignment to impeach or set aside a fraudulent gift or transfer of property, but with no special findings and only a general finding, we cannot assume that the court below found that Bond prior to the execution of the assignment had ever parted with the property. The court may have found that there was no gift thereof to the daughter, at least not such a transfer as gave her any title.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The first claim of the plaintiffs' in error is, that the admission of Lee and the settlement had with him on November 24th, 1875, were not legal evidence against the sureties, and were impropérly received as competent to establish the demand of Brown & Co. against all of the plaintiffs in error. The general rule is, that if the declarations of the principal were made during the transaction of the business for which the party was bound, so as to become part of the res gestae, they are admissible against the surety, otherwise not; and that all declarations of the- principal made subsequently should be excluded, by analogy, to the case of agency. (Greenleaf on Ev., 12th ed., vol. 1, '§ 187, p. 215; Brandt on Suretyship and Guaranty, §518; Stetson v. Bank of New Orleans, 2 Ohio St. 167.)
The question therefore arises, whether these admissions and the settlement were made in the progress of any business intrusted to Lee, so as to become part of the res gestee. The evidence showed that after the date of the written undertaking sued on, Brown & Co. opened a lumber ánd furniture store in Fredonia, Wilson county; that Lee was placed in charge, as their agent; that on'November 24th, 1875, Brown ■& Co. learned that Lee had sold out all the lumber and furniture furnished him by B. & Co. and had paid but little money to the firm; that on said 24th of November, Lee admitted to a member of said firm that all the furniture he .had received of them was gone, and that thereupon a settlement was had between the firm of B. & Co. and Lee, which was put in writing and signed by both parties, to the effect that there was due from Lee to the firm $2,357.85.
This admission and settlement were after the default of Lee. These matters referred to past occurrences; they had no connection with the acts to which they related, except as a narrative or admission of what Lee had done at dates prior "thereto, and ought not to have been received as evi-, dence so as to bind his sureties; for it was the acts of Lee, and not his admissions or declarations, for which his sureties were bound.
Counsel for defendants in error attempt to avoid this conclusion as applicable in the case at bar, by the argument that the admissions sought to be introduced occurred before the breach of the bond. The evidence is the other way. The goods and merchandise of Brown & Co. were all disposed of prior to Nov. 24th, and before said date they had many times demanded their return. This had been refused, and Lee had failed to pay the differences which had already cccurred. It seems that, instead of acting honorably and faithfully with his principals, he had used their money to buy furniture in St. Louis and Kansas City. All of this was before his admissions and the written settlement. These declarations were after the breach, and no part of the res gestee.
The same counsel cite several cases to the effect that the general rule stated by us concerning the non-admissibility of the declarations of a principal, does not control here, as the action against the plaintiffs in error (defendants below) was against them jointly, and on a joint bond. These authorities do not apply, as they are all based upon the theory that if the plaintiffs below failed against one of the defendants, they must have failed entirely in their action, and if they recovered against one, they must have recovered against all. The bond was several, as well as joint, and evidence competent against Lee would not necessarily be competent and admissible against his sureties. The plaintiffs below could • have recovered against Lee, and yet failed in their claim against the sureties.
The judgment against Lee will be affirmed, and reversed as to the sureties, Messrs. Hough, Jackson, and Craig. The case will be remanded for a new trial as to the latter parties.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action on the covenant , of warranty in a deed of conveyance from defendants in error to plaintiff in error, to recover the sum of $2,000, for taxes, interest and penalties alleged to have been incumbrances upon the pro.perty.at the time .it was conveyed, and which plaintiff claimed she had paid after defendants had refused so to do. ' Defendants for answer filed a general' denial; and alleged that in 1872 one Morris Finks was owing defendants $150; that it was agreed between plaintiff and defendant that plaintiff should.collect this money and pay off all the taxes due on the land; that in pursuance of this arrangement, plaintiff collected the money, but failed to pay the taxes. Defendants also set up an account in the way of a set-off, of $480. The case was referred, and the referee reported the following conclusions of fact:
“1. There was a written contract’ made between the parties to this action for the exchange, in part, of the real property described in plaintiff’s petition, and delivered in escrow to Dr. McNeal, of St. Jo., Mo.; and on same day plaintiffs, on their part, in consideration, thereof, made, executed and delivered in like manner to the defendants a deed conveying to them a certain house and lot in Lacón, 111.
“ 2. That under said contracts and deed, the parties were put by the grantors in. the immediate possession of the premises each had thus conveyed to the other.
“3. That on the 22d day of July, 1872, the said defendants and their wives, as grantors, made and delivered to plaintiffs the deed of warranty, conveying to them the said lands, according to the terms of their agreement.
“4. That on the said 22d day of July, 1872, at the time said lands were so conveyed to plaintiff by the defendants, there remained liens for unpaid taxes, which amounted to (costs, penalties and charges incurred) the sum of $131.36, which were evidenced by said exhibits Nos. 15, 17, 24, 183 and 185, and tax deed marked eL.’
“5. I find that John A. Perley, (n all these transactions with the defendants, was the acting and recognized agent of his wife, the plaintiff, as to her interest in all of said matters, and had so acted for more than ten years.
“6. And that at or just prior to the time said deed of said lands was by defendants made to plaintiff, (July 22, 1872,) the said plaintiff, by her said agent, collected from-one Finks, of Lacón, 111., $150 in money, that was due then to these defendants.
“7. That about said time said plaintiff agreed to and with these defendants that the said plaintiff would use the same in paying off and discharging all of said tax liens then unpaid on the lands defendants had conveyed to plaintiff.
“8. That the claim' of plaintiff for these taxes, July 22, 1872, being for $131.36, was offset and fully discharged by the moneys plaintiff had then belonging to defendants, leaving a balance in the hands of the plaintiff of $28.64, as the weight of evidence shows.
• “9. That the testimony shows that defendants were employed by plaintiff in two actions pending in Brown county, Kansas, wherein these plaintiffs were defendants, and one Jphn G. Spencer and Spencer & Letson were the plaintiffs; that said suits were commenced prior to and terminated at the October term of the district court for said Brown county, Kansas, in 1874, and that said services were worth $250, including money paid as expenses; that no payment has been made thereof by the plaintiff to defendants, or any one else for them.
“ 10. I find that the plaintiff, within three years past, employed these defendants as attorneys to prosecute an action against John G. Spencer for damages plaintiff claimed that said Spencer had done to his premises and crops, and that a suit in pursuance of said employment was undertaken by defendants as such attorneys in the case, by preparing the papers and writing the bond for costs, but not filed, on account of failure of plaintiff to furnish security for costs; and that the services therein were worth the sum of $15, and that the same remains .due and unpaid.
“11. I further find that since the commencement of this suit, plaintiff obtained a tax deed, hereto attached as exhibit ‘L,’ upon' two quarter-sections of land, which covers that much of the lands described in plaintiff’s petition, and conveyed to plaintiff by defendants by warranty, July 22,1872, and said deed is duly recorded as provided by law.”
And thereon the referee found among others the following conclusions of law:
“1. I am of the opinion that the defendants are entitled to have and recover of and from the plaintiffs aforesaid the sum of money so severally found due, amounting to $265, together with their proper costs to be finally taxed in the case.
“2. I am of the opinion it was the duty of plaintiff to pay the taxes that were due thereon on the 22d day of July, 1872; and that she could not acquire title under the same, and by her own neglect create a breach of the warranty for which these defendants would be liable; and that the doctrine of merger of the titles set out must apply so far as these defendants are concerned.”
Plaintiff moved the court to set aside the report of the réferee, and the defendants asked for judgment for the $265 and costs. Upon the hearing of these motions, the district court confirmed the report in all matters, except it reduced the claim of defendants to $130, for which judgment was rendered in their favor. Plaintiff duly excepted to the judgment, and defendants objected to the reduction of their claim. The plaintiff in that court brings the case here on error.. .
.. Several questions are attempted to be presented for our consideration, in a very lengthy written brief on the part of plaintiff in error; but as many of these questions relate solely to whether the findings of the referee are supported by sufficient evidence, and as there is ample and apparently credible testimony- in their favor, we must pass over a discussion of the testimony and confine ourselves to the question whether, upon the facts found, the plaintiff has been prejudiced by the judgment of the court-.
■ The deed was delivered July 22d, 1872, and as between any grantor and grantee, if the land is conveyed prior to November 1st, the grantee is to pay the taxes. (Railroad Co. v. Jaques, 20 Kas. 639.) So in this case, the plaintiff was liable for the taxes of 1872. On July 22d of that year, there remained liens for unpaid taxes, including costs, penalties and charges, $131.36; and this sum defendants would have-been liable for, together with the additional amounts due thereon at the time of the payment of taxes, on or about April 16th, 1874, but for the collection of the said $150 belonging to defendants, and which, by the agreement of the parties, was to be used in paying off and discharging these tax liens. The plaintiff had no right to retain this $150 and suffer the tax lien to increase at the rate of fifty per cent, per annum, nor wait till the lien had.ripened into a title. Such action would have been a gross fraud upon the rights of the-defendants. If any of the tax liens due on July 22d, 1872, continued unpaid-after the collection of the said $150, it was solely owing to the fault and negligence of plaintiff. She-should have complied with her promises, and satisfied the liens .from the moneys paid over to her for this purpose. The conclusions of law on this point by the referee were correct, and the district court committed no error in affirming them.
After the evidence was closed, plaintiff made an application for a continuance of the case for fifteen days, to permit him to obtain additional evidence, on the ground that he was surprised at the evidence offered on the part of the defendants. It did not appear that the evidence was material to the issues, and the referee did right in overruling the motion.
Costs-were properly allowed .to the defendants by the court, under §§ 589 and 590, Gen. Stat. 747, notwithstanding the claim of the defendants was reduced from the sum reported by the referee to $130. If any error was committed in reducing this claim, it was in no way prejudicial to the rights of the plaintiff. She was benefited instead of being injured thereby.
Counsel for the defendants ask us to modify-the judgment so. as to allow them the $265 reported their due by the ref eree. They have filed no cross-petition alleging error, and we cannot vary the judgment at their instance to the prejudice of plaintiff. (Waterson v. Devoe, 18 Kas. 223.)
We cannot perceive that plaintiff has any reason to complain of the judgment upon the findings of fact, and 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 on a note and mortgage. Service of summons was made by publication only. The affidavit upon which the service of summons was made-stated that the service could not be made on any of the defendants within the state, and that the action was one for the foreclosure of a certain mortgage on real estate, but the affidavit did not state or show that the defendants were nonresidents of the state, or that they in any manner attempted to avoid the service of summons. In this we think the affidavit was defective.
The affidavit concerning the publication of the notice stated that' the notice was published in a weekly newspaper, and then stated that the notice “was published in said paper for three consecutive weeks, the first publication being made on the 13th day of April, 1877, and the last publication being made on the 20th day of April, 1877.” This affidavit we think was defective in showing that the notice was not published for the period of three weeks.
Judgment was rendered in the court below on default (none of the defendants appearing in the case) in favor of the plaintiffs and against the defendants, and the mortgaged property was ordered to be sold immediately, although the mortgage contained the words “appraisement waived.” In ordering an immediate sale of the mortgaged property we think the court below erred.
Upon these proceedings, the defendants below, as plaintiffs in error, then brought the case to this court and asked for a reversal of the judgment below, because of said defective affidavits, and because of the order for the immediate sale of said property. With reference to the first affidavit, they cite the cases of Shields v. Miller, 9 Kas. 390; Ogden v. Walters, 12 Kas. 282; and Claypoole v. Houston, 12 Kas. 324; with reference to the second affidavit, they cite the General Statutes of Kansas of 1868, page 643, section 74; and with reference to the immediate sale of said property, they cite Reynolds v. Quaely, 18 Kas. 361.
After this case was brought to the supreme court, the defendants in error, plaintiffs below, discovered the said defects and errors in their case, and, after due notice to the adverse party, and with leave of the court below, amended the defective and erroneous proceedings in the following particulars to wit: they amended the first affidavit by filing a new and amended affidavit, stating and showing that at the time of the commencement of this suit all of the defendants were non-residents of the state, and that service of summons could not be made upon any of them within this state, and that the action was and is one to foreclose a mortgage, &c. This amended affidavit was sufficient. They'amended the'other affidavit by filing a new and amended affidavit, showing that said notice . was published in said weekly newspaper “for three conseou tive weeks, to wit, April 13th to April 27th, 1877” — that is, we construe the affidavit to mean, that there were three in•sertions of the notice in the said newspaper, to wit, one on April 13th, one on April 20th, and one on April 27th, 1877, and, with this construction, we think the affidavit as thus amended was sufficient. With reference to the publication •of notices in newspapers, see Reed v. Sexton, 20 Kas. 195, 200, 201. Said judgment was amended so as to stay all proceedings under it for six months from the rendition thereof.
After these amendments were made, and before the case was heard in this court, the defendants in error, plaintiffs below, filed in this court, and with the papers in the case, a -certified transcript of such amendments, and of the proceedings of the court below connected therewith. Now with these amendments we think the judgment of the court below •ought to be affirmed.
That affidavits may in many cases be amended, we suppose will not be controverted. (Code, §139; Burton v. Robinson, 5 Kas. 287; Robinson v. Burton, 5 Kas. 293; Foreman v. Carter, 9 Kas. 674, 680, et seq.) And that both the affidavits in this case may be amended, see last case above cited. The original affidavit for service by publication was not void. (Ogden v. Walters, 12 Kas. 283, 293, 294.) And neither was the publication of notice void because of the defective proof ■of such publication. (Foreman v. Carter, ante, and Challiss v. Headley, 9 Kas. 684, 687.) And as to amending the return on original process so as to make it show that the defendant was regularly served, see Kirkwood v. Reedy, 10 Kas. 453. The affidavit of publication and the publication together were sufficient in this case to bring the defendants into court. ■Such affidavit and publication were at most only voidable; and as the affidavit for publication and the affidavit in proof of publication were both amended and made sufficient before •either of the affidavits or the publication was set aside or voided, neither of them will now be set aside or voided. That is, the first affidavit was defective, but not void. The publication of the notice taken by itself was regular and valid, but taken in connection with the affidavit for publication, was irregular and voidable, but not void. The service, therefore, though defective, was sufficient until set'aside by some direct proceeding instituted for that purpose. If the first affidavit or the publication of notice had been void, then the proceedings could not have been amended. For where defendants are not brought into court by the original proceedings, then no amendments can be made that will bring them into court, and the proceedings will remain void. Whether the second affidavit, that is the affidavit in proof of publication, was void or only voidable, makes but little difference; for defendants are brought into court not by the proof of service, but by the service.itself. It therefore makes but little difference whether we consider the amendment to this affidavit as an amendment or as a new and original affidavit, for the amended affidavit was sufficient in and of itself.
We shall affirm the judgment of the court below in this case, for upon the record of the case as it now appears in this court (including said supplemental proceedings), it ought to be affirmed. We shall, however, require that the defendants in error pay all costs that accrued in this court prior to the filing of said supplemental transcript; for, as the record of the case appeared in this court up to that time, and as it appeared in the district court at the time the case was brought to this court, and up to the time when said amendments were made, the judgment should have been reversed, and the defendants in error should have paid all costs accruing in this court. The plaintiffs in error will be required to pay all costs accruing in this court since said supplemental transcript was filed.
Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The parties to this action were respectively candidates at the November, 1877, election, in Cherokee county, for the office of register of deeds. The canvass by the county board gave defendant 1070, plaintiff 1014, and one John Whitcraft, 117 votes. Defendant, having received 56 plurality, was declared elected; received the certificate of election, and entered upon the duties of his office. Plaintiff brought this action in this court, claiming that he was in fact elected and entitled to the office. The contest he makes is on the returns from the second and third wards of Empire ■City, the validity of which he challenges in tolo, and claims that said returns should be entirely rejected. The returns from those precincts were: 2d ward, Jones 8, Caldwell 117, and Whitcraft, 4 votes; 3d ward, Jones 11, Caldwell 118, Whitcraft, 4 votes. Several witnesses have been examined who testified that they voted in these precincts and voted for plaintiff, but it is not claimed that enough has been shown to change the result by a mere correction of the returns.
It is not pretended that fifty votes are shown to have been cast for Jones in these precincts, and there is no testimony other than the returns showing how many were cast for Caldwell, so that unless the testimony brings the case within the authority of Russell v. The State, ex rel., 11 Kas. 308, and compels the rejection of the entire poll, judgment must go in favor of the defendant. We must therefore examine the testimony, which is quite voluminous. Certain irregularities are shown, as follows: One of the clerks in the second ward was a resident of the first ward. The judges and clerks in these precincts were appointed by the mayor of Empire City, and were not the councilmen, and were not chosen by the voters at the polls. At noon there,was an adjournment for dinner, the polls were closed and the ballot-box taken by one of the judges while he went to dinner; and again at night, after the polls were closed, the box was taken away from the polls by one of the judges while he went to supper. So far as these irregularities are concerned, there is not enough to vitiate the election or disturb the returns. We have more than once adverted to the cardinal rule of elections, that mere irregularities on the part of election officers are not sufficient to disfranchise the electors or prevent the will of the people from being carried into effect. (Gilleland v. Schuyler, 9 Kas. 569; Morris v. Vanlaningham, 11 Kas. 269; Russell v. The State, ex rel., 11 Kas. 308.)
We pass, therefore, to a consideration of the testimony which, in addition to that of these irregularities, is offered to show the falsity of the returns. Twenty witnesses testify that they voted in the second ward and voted for plaintiff, and nineteen testify that they so voted in the third ward. In the second ward no votes were returned as cast for Denison, republican candidate for sheriff, and one hundred and twenty-six were returned for Balmey, his democratic opponent, while several of the above witnesses are positive that they voted for Denison. Two lay stress upon the fact, that prior to the election they played a game of cards to see for which candidate they both should vote, and that the republican won, and in pursuance thereof they both voted for Denison. While the poll-books and the returns in the second ward show only 129 voters, yet 130 ballots were found in the box and returned to the county clerk’s office. The regular nominee of the democratic convention for sheriff was, after the adjournment of the convention, taken off the ticket by the county central committee, and Mr. A. J. Balmey substituted. This was done at the instance, in part at least, of Mr. Cheney, the mayor of Empire City, who appointed the judges and clerks at the two contested polls, and seems to have been very active in support of Mr. Balmey’s election. The principal fact is, of course, that so many witnesses in the two precincts testify to having voted for Messrs. Jones and Denison, and indeed, the entire republican ticket, when the returns show so few votes. Yet notwithstanding this significant fact, we are constrained to hold, from an examination of the entire testimony, that we are not warranted in summarily striking out the entire returns and giving the office to the plaintiff. And these are briefly the reasons, for we cannot give anything like a detail of the testimony, covering, as it does, over six hundred pages. It is clear that the ballots, which were counted on the night of the election, show the result returned to the county board. In other words, the election officers correctly counted the ballots which were in the ballot-boxes at the time they commenced counting. Unlike the case of Hudson v. Solomon, 19 Kas. 177, where the ballots corrected the returns, ballots and returns^here agree.. For this we have the testimony of the three judges in the second ward, and of two judges and two clerks in the third ward; the testimony of the several officers charged with the preservation and custody of the ballots; and lastly, the ballots themselves, which have been produced and examined by ,us. In the second-ward ballots we found one more democratic ticket than the returns called for; but with that exception, the ballots and returns in both wards agreed. And as in each ward certain candidates on each ticket were scratched, and to a considerable extent, the agreement between the returns and the ballots produced before us makes very strongly in favor of their genuineness. Thus, for instance, in the third ward the republican candidates for state officers received eleven votes and the democratic one hundred and nineteen, while the republican candidate for county treasurer received one hundred and twenty and his democratic opponent but nine. An examination of the ballots shows that this immense change was made by pencil erasures and interlineations on the printed ballots, and not by means of entirely printed split tickets. Such a change could not have taken place without a general knowledge on the part of the electors of the fact and the manner of its accomplishment; and if it was not done, and done in the way it appears to have been done, many witnesses would have been easily found to so testify. In the same ward take the case of the county surveyor, where the republican candidate received seventy-six and his .democratic opponent but fifty-eight: the ballots show pencil erasures and interlineations; and these erasures and interlineations are not all in the same handwriting, nor are the names spelled alike, nor are they placed in the same manner upon the tickets. Again, in the second ward the returns show for A. J. Balmey for sheriff, 126 votes, and for J. A. Balmey, two votes. ¥e find two republican tickets in which Mr. Denison’s name is erased and J. A. Balmey’s written. We shall have something to say in reference to these tickets in another connection ; we are now noticing the evidences that the ballots presented to us are the.ballots actually counted by the judges and clerks. And in reference to these erasures, some are on one ticket and some on another. If the ballots, presented to us are not the ballots which were counted 'on the night of the election, some one has taken considerable time and a good deal of pains to fix up a series of ballots to correspond with the returns. Moreover, it appears that during the counting, friends of candidates on each side, as well as some of the candidates themselves, were present and watched the counting, so that if it was not fairly and correctly done, some one of ■the parties interested would have been apt to discover the error. Indeed, we do not understand counsel to claim that the ballots were not correctly counted, or that we do not have .■before us the-very ballots which were in fact counted; but the claim is, that during the election day the ballots were changed, and, as during both dinner and supper time the ballot-boxes were removed from the polls, and carried by one or other of the judges to his' meal, an opportunity for chauge was afforded, which was improved by the judge in charge. That this opportunity for wrong existed, is clear, but that the wrong was in fact done, there is not the slightest direct evidence. Each judge who had charge of the box during meal time testifies positively that nothing of the kind was done; that he kept the box in such place and manner that no outsider could have interfered therewith. It is true, the ballot-boxes had no special marks upon them; they were simply cigar boxes, with a hole cut in one end to put the ballots in, over which, before adjournment, a piece of paper was pasted. Doubtless, similar boxes were easily accessible, and could have been substituted by the judge in charge with but little danger of detection by his associates on the board at his return. But this is mere surmise. The positive testimony of the only parties shown to have actual knowledge is, that nothing of the kind was done. Other surmises are equally plausible. The judge receiving and depositing ballots in the box might, unless very closely watched -by his associates, have substituted another ballot for the one given him by the voter and deposited the substitute for the ballot given him. The’ three judges and both clerks might beforehand have arranged a fraud, and wrought it out through the day without detection from the outsiders. But there is not a syllable of testimony to this effect. Such of the officers as were sworn testify squarely to a fair election and an honest count. Moreover, it appears that the place where the box was kept during the election, and in which were the judges and clerks, was open to view; that persons were around electioneering, as is usual about a poll; so that the direct and positive testimony is to the effect of an honest election, and the only substantial thing bearing against it is, that the result is not such as to correspond with the recollection of the voters as to the persons for whom they voted. No one-can, from the testimony, place his finger on the time, place and manner of the wrong, if wrong there was. But again: two of the judges in the second ward testify that when they voted one of them took two ballots in his hand, and opened them to give one to his associate, and just then some tobacco juice rolled upon the ballots, and, after some joking remarks about those ballots being marked so that they could be identified, they each voted one of these ballots. We find, among the ballots from that ward brought before us, two such discolored ballots. Again, as we have before remarked, the writing on the scratched tickets was evidently done by different parties. The form of the writing, the differences in the spelling of names, and the way in which the names are placed on the ballots, all tend to show that many persons assisted in preparing those ballots; and yet there are many in which the interlineations are evidently in the same handwriting, as we should expect where some one was at the polls electioneering for a particular person. In short, so far as the ballots themselves can speak— and there are many things which an examination of a parcel of ballots suggests to one who is familiar with elections — they testify to the integrity of the election.
Rut what shall be said of these various witnesses who have testified to their votes ? Are they all wrong ? Is their testimony unworthy of credit? We are far from imputing intentional misstatement to these gentlemen, and yet we cannot but think many of them are mistaken, and these things must be borne in mind in considering their testimony. The election was in November, and the examination of witnesses did not commence until the succeeding April. True, there was a contest instituted soon after the election, and the attention of the public and of many of these witnesses doubtless was early called to the matter; and yet persons who have no' special interest may easily forget the form of the ticket, or the names of the candidates for whom they voted, especially when, as in many instances, the candidates were entire strangers to them. Again, some of the witnesses base their knowledge of the tickets they voted from the statements of other parties, being themselves unable to read; and others doubtless imagined they voted the straight party ticket, because they received it from some one understood by them to be of their party, and glancing perhaps at the heading and finding that right, voted without further inquiry, and so in fact voted a split ticket. Some of such tickets we find among the ballots. We have referred to the two witnesses who played cards to determine for whom they should vote for sheriff. One, the democrat, testified that he took a republican ticket, which contained state, county and township officers, tore off the township part, pasted the democratic state ticket over the republican state ticket, erased the name of Hubbard for county commissioner, and wrote the name of Cowan in its place. The republican testified that he voted the straight republican ticket, except that he erased Hubbard’s and wrote Cowan’s name. They prepared their tickets together. The republican further testified, that after he had voted he received tickets from Mr. Cheney, the mayor, who seemed to be interested in the election of the democratic candidate for ■sheriff, and distributed them at the polls. Now, among the ballots, we find two republican tickets, one with the township officers torn off, each with Hubbard’s name erased and Cowan’s written in its place; 'and these are the two tickets in which Denison’s name is erased, and J. A. Balmey instead of A. J. Balmey written as the candidate for sheriff. Evidently these two tickets were prepared together. They bear no little similarity to the tickets these gentlemen describe in their testimony. It is an easy matter for a portion of a ticket pasted over another to fall off; and we have half a suspicion that the democrat won at that game of cards.
Still further, there is no imputation on the integrity of the poll-books, or any intimation that the parties named therein did not in fact vote. Nor is there any suggestion that the great bulk of those who voted were democrats, or did not vote the democratic ticket, or were not legally entitled to vote. Should not their choice be respected? Even had the officers done wrong, should the innocent voter be disfranchised? The defendant received fifty-six votes more than his opponent. Conceding that fifty persons voted for plaintiff in these two precincts, and still the defendant received more votes than he. Moreover, or perhaps by way of offset or counter-claim, or to show the unreliability of plaintiff’s testimony, the defendant challenges the vote in Crawford township, in which the returns gave him two votes, the plaintiff fifty-six, and Whitcraft sixty-seven, and introduces five witnesses who testify that they voted in that township at that election, and voted for him’. The reasons they give for their recollection are as satisfactory as those given by the witnesses for the plaintiff from the precincts which he challenges. And yet we cannot but believe that there was misrecollection or mistake, rather than intentional wrong.
Upon the whole testimony, therefore, in view of the large plurality received by the defendant, and notwithstanding the significant and weighty testimony of the various witnesses of the plaintiff as to whom they voted for, we are constrained to hold that plaintiff has not shown that defendant was not elected, and therefore judgment must go in favor of the defendant.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action for rents; but the only question presented to this court is whether, upon, the facts of the case, the plaintiff below, Mary E. Olsen, is, as against the defendant below, Dennis Mooney, the owner of the real estate for which said rents are claimed. Originally, both parties claimed to own said real estate, and both claimed title thereto under one Lydia Mooney Foster. The plaintiff, Mary E. Olsen, claimed as the half-sister and only heir of said Lydia Mooney Foster, and the defendant, Dennis Mooney, claimed as the devisee of the said Lydia Mooney Foster.
It seems from the oral arguments of counsel, that Dennis Mooney was the uncle of both said Lydia Mooney Foster and said Mary E. Olsen, and that they were the daughters and only heirs of his deceased brother.
It appears that the will of the said Lydia Mooney Foster, devising said property to said Dennis Mooney, was, after he took possession of the property under it, duly set aside by proper judicial determination. This ended Mooney’s claim under the will; but he now sets up the claim that said Lydia never owned the property, and therefore that it could not have descended from her to the plaintiff Olsen, and therefore that the plaintiff Olsen cannot maintain this action. He claims that Foster’s first wife is still living; that neither she nor Foster was ever divorced from the other; that the marriage of Foster and said Lydia was therefore void; that at Foster’s death, the property descended by law to Foster’s first wife, and not to Lydia, and that Foster’s first wife still owns the property. The plaintiff, however, contends that this second claim of the defendant, that the property descended to Foster’s first wife and not to Lydia, is not available, for several reasons.
1. The plaintiff contends that as both parties claimed originally under said Lydia, that the defendant cannot now abandon that claim and set up a new and different claim inconsistent with his first claim, denying that said Lydia ever had any interest in the property. (Gaines v. New Orleans, 6 Wall. 642; Myrick v. Wells, 52 Miss. 150, 154.)
2. The plaintiff also contends that the defendant cannot dispute the validity of said marriage between said Foster and said Lydia. (Carroll v. Carroll, 20 Texas, 731; Greensborough v. Underhill, 12 Vt. 604.)
3. And the plaintiff also contends that even if said marriage betwen Foster and Lydia .was void; even if Foster’s first, wife was still living at the time of his second marriage, and that neither he nor his first wife was ever divorced; even i-f the title to the property descended to Foster’s first wife and not to his second wife Lydia; even if his first wife is still living, and, as against the plaintiff, is the paramount owner of the property — still, as between the plaintiff and the defendant, the plaintiff must be considered as the owner of the property. And the plaintiff so contends because the plaintiff’s ancestor, Lydia, had the peaceable, quiet and exclusive possession of-the property, under color of title, claiming to be the owner thereof, and the plaintiff succeeded uuder the law of descents and distributions, (Gen. Stat. 394, 395,) to all of Lydia’s rights — and the defendant is a mere subsequent intruder and trespasser upon the premises.
Without expressing any opinion as to the first and second contentions of the plaintiff, we would say that we think the third is sound. The plaintiff has unquestionably succeeded to all of Lydia’s rights, whatever they may be, and prior possession, even in ejectment, will prevail over a subsequent possession acquired by entry without any lawful right: 5 U.S. Dig. (F. S.) 141 Par. 129, and cases there cited. See, also, Ludlow v. McBride, 3 Ohio, 241; Ludlow v. Barr, 3 Ohio 388; Devacht v. Newsam, 3 Ohio, 57; Newnam v. Cincinnati, 18 Ohio, 323; Phelan v. Kelley, 25 Wend. 389; Jackson v. Harder, 4 Johns. 202; Hoey v. Furman, 1 Penn. St. 295; Perkins v. Blood, 36 Vt. 273; Piercy v. Sabin, 10 Cal. 22; Williams v. Swetland, 10 Iowa, 50. This is certainly true where the possession is coupled with a claim of ownership. Possession with a claim of ownership is not only evidence of title, but it is title itself in a low degree. (2 Black. Com. 195.) And it is such a title as will descend to heirs. (2 Black. Com. 196; Ludlow v. McBride, 3 Ohio, 241; Phelan v. Kelley, 25 Wend. 389.) With reference to what interest in land will enable a plaintiff to recover in ejectment in this state, see Duffey v. Rafferty, 15 Kas. 9; O’Brien v. Wetherell, 14 Kas. 622; Simpson v. Boring, 16 Kas. 248.
In our opinion the plaintiff must recover. If the defendant claims under said Lydia, then the plaintiff’s right to the property is unquestionably the best, for she has succeeded to all of Lydia’s rights, and he has succeeded to none of them. But if the defendant does not claim under Lydia, then he is a mere intruder and trespasser, having no rights as against the plaintiff; for whatever supposed right the defendant may have obtained as against others, by virtue of his possession and claim of ownership, yet as against the plaintiff, his possession, claim of ownership, and right derived therefrom, are subsequent in time, and therefore inferior in efficacy to those of the plaintiff, inherited from her sister Lydia. Lydia not only had possession of the property, and claimed to own it, but she also had color of title, and the only way in which it is attempted to be shown that she did not in fact have title, is by showing that her marriage with Foster was invalid. We do not think that a subsequent intruder can show this for the purpose of invalidating her title.
The judgment of the court below will be affirmed.
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The opinion of the court was delivered by
Brewer, J.:
This was an action on a criminal recognizance. Judgment was rendered in the district court in favor of the state, and the defendant brings the case here for review. His counsel has filed a brief, in which many points are presented and discussed at length. Unfortunately for him, most of the points made have been already decided by this court adversely to his claims, and we see no reason to de-part from those rulings. He filed a motion to set the summons aside, on the ground that the return-day was less than ten days from its date. Such a summons.has been adjudged sufficient. (Clough v. McDonald, 18 Kas. 114.)
A demurrer was filed, on the ground that the petition did not state facts sufficient to constitute a cause of action; that there was a defect of parties defendant, and that there was a variance between the allegations of the petition and the bond sued on. The petition alleges in substance that Joseph H. Brown was arrested and brought before a justice of the peace of the county, and duly charged with the crime of grand larceny; that he waived an examination, and was required to give bail; that, failing to give bail, he was committed to jail, and that the justice issued a mittimus therefor, with the amount of the bail indorsed thereon; that while he was legally committed in the jail and in the custody of the sheriff, the' defendant entered into a recognizance as surety, a copy of which was attached to the petition and made a part thereof, which recognizance was taken and approved by the sheriff and by him forthwith certified- to the clerk of the district court, and by that pfficer filed and recorded as provided by law; that upon the execution of said recognizance the sheriff discharged said Brown from custody. The petition then further alleges that Brown failed to appear as required, and that a forfeiture of the recognizance was had. The instrument attached to the petition as an exhibit was in form a penal bond, executed by Brown as principal and Swerdsfeger as security, recited in full the charge, and was conditioned for Brown’s appearance at the next term of the district court. The allegations in the petition, as well as the recitals on the bond, were full, specific and definite.
Such a petition within the adjudications already made by this court, as well as the plain language of the statute, is sufficient. (McLaughlin v. The State, 10 Kas. 586; Ingram v. The State, 10 Kas. 630; Jennings v. The State, 13 Kas. 90; Barkley v. The State, 15 Kas. 99; Gen. Stat., p.844, § 154.) That an action may be maintained against the surety alotie without joining the principal as defendant, is clear. Though the obligation may have been joint at common law, yet by our statute it is joint and several. (Gen. Stat., p. 183, §1.) - And in all cases of joint obligations, suits may be brought against one or more of those who are liable. (Gen. Stat., p. 183, §4.) Section 470 of the code-only applies where the principal debtor is one of the defendants, and does not take away the right given elsewhere to sue the surety alone. (Jenks v. School District, 18 Kas. 356.) There was no variance between the allegations of the petition and the bond attached, for the latter was a several obligation of the surety, as well as an obligation of the principal and surety.
■ We cannot say that the court erred in refusing to grant leave to file an answer. The court is to be satisfied that the party did not demur for- delay, as well as that he has a mer itorious defense. Whether any showing by affidavit or otherwise was made upon the application for leave to answer, we are not advised. The answer tendered was not verified. The party seemed, by his motion to set aside the summons and his demurrer, more anxious to delay any inquiry than to meet the case upon its merits; and the court may well have thought, in the absence of further showing, that the filing of an answer was also simply for delay. At any rate, error is not shown in the matter, for the mere tender of an answer does not entitle a party to the right to file it out of time and after he has exhausted all other" efforts to delay and defeat the action.' (Spratly v. Ins. Co., 5 Kas. 155; Neitzel v. Hunter, 19 Kas. 221.) Interest • from the day of forfeiture was properly allowed. (Laws 1871, p. 250, §1.) ’
Upon the whole record we see no error, and the judgment must be affirmed.
All the Justices concurring. | [
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Green, J.:
This sentence appeal involves a question of restitution. Daryl J. Casto pleaded guilty to misdemeanor theft, misdemeanor criminal damage to property, and criminal trespass. He was sentenced to consecutive 30-day terms for each count, 2 years’ probation for each count, and ordered to pay restitution. On appeal, he challenges the amount of restitution ordered for damage to a 1976 series 4030 John Deere tractor.
The tractor was taken from the farm of the victim, Lester McClintock. Later, the tractor was recovered from a local creek. McClintock had purchased the used tractor in 1989 for $9,750. McClintock received $9,900 ($10,000, less a $100 deductible) from his insurance company. This amount represented the full limit of his insurance policy for the tractor. McClintock repurchased the tractor from the insurance company for $3,000. He then paid $1,202.52 to repair the tractor.
At the hearing to determine the value of the tractor, Casto argued that restitution should include the $3,000 salvage value plus $1,202.52 for repairs. On the other hand, McClintock testified that the tractor was worth $14,000 before it was damaged. In addition, Dennis Buchman, a farm equipment dealer, testified that the tractor was in excellent condition before it was damaged. He further stated that he could have sold the tractor for $14,250 before it was damaged. He offered no estimate as to what the tractor was worth after the repairs had been made.
In determining the amount of restitution, the trial court added the insurance payment of $9,900, the salvage amount of $3,000, and the repair costs of $1,202.52. Those amounts totaled $14,102.52. The trial court later subtracted the salvage value of $3,000 from that amount, which left a total of $11,102.52.
As a condition of probation, K.S.A. 21-4610(d)(l) requires that a trial court order that the defendant “[mjake reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime, in an amount and manner determined by the court and to the person specified by the court.”
A sentencing court has substantial discretion when ordering the amount of restitution. State v. Hinckley, 13 Kan App. 2d 417, 418, 777 P.2d 857 (1989). Moreover, the method of determining the amount of restitution is a matter within the discretion of the trial court. State v. Wells, 18 Kan. App. 2d 735, 737, 861 P.2d 828 (1993). Judicial discretion is abused only where no reasonable per son would take the view adopted by the court. State v. Massey, 242 Kan. 252, 264, 747 P.2d 802 (1987).
Casto points out that McClintock purchased the tractor used for $9,750 in 1989. He argues that the tractor logically depreciated in value and cannot now be worth $14,000. However, Terry Winsky, a defense witness, agreed with the testimony of the earlier witnesses and stated that such a tractor could conceivably appreciate in value. Casto further asserts that the amount of restitution ordered is excessive in light of his misdemeanor crimes. He argues that the trial court failed to establish á reasonable present, value for the tractor.
We find no Kansas case which provides a formula for determining restitution in criminal cases. Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court’s determination of restitution must be based on reliable evidence which yields a defensible restitution figure. A victim of a property crime is entitled to restitution only up to the amount of his or her loss. State v. Hinckley, 13 Kan. App. 2d, at 419.
Here, the trial court’s restitution amount is not defensible because it fails to consider the value of the tractor after repairs were made. Did the repairs return the tractor to its former condition before it was damaged? If the tractor was restored to its previous undamaged condition, the appropriate restitution amount would have been: (1) the reasonable cost of repairs plus (2) the reasonable amount necessary to compensate for the loss of use of the tractor while being repaired.
, If the tractor could not be restored to its previous undamaged condition, the appropriate restitution amount would have been the difference between the tractor’s reasonable market value immediately before it was damaged and the reasonable market value of the tractor after the damage.
In both situations, the restitution amount should not exceed the reasonable market value of the tractor immediately before the damage.
Reversed and remanded with directions. | [
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Rulon, J.:
Ray Winger, M.D., defendant, appeals an order of the district court approving a settlement agreement between his malpractice insurer and the plaintiff. Defendant argues the court erred in approving the setdement because his insurance policy did not expressly grant the insurer the right to settle without defendant’s approval and he expressly objected to the settlement. We reverse and remand with directions.
FACTS
The facts of this case are not in dispute. This is the second time this case has been presented to the Kansas appellate courts. The background facts leading up to this dispute are detailed in Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1993).
Plaintiff Lydia Saucedo originally sued defendant for alleged medical malpractice surrounding the death of her husband, Pablo. The case was tried to a jury which found that, although defendant’s actions fell below the required professional standard of care, his actions or lack thereof, did not cause or substantially contribute to Pablo’s death. Consequently, the trial court entered a verdict in favor of defendant.
Plaintiff sought to set the judgment aside, claiming juror misconduct. The district court denied her request for a new trial and this court affirmed that decision in an unpublished opinion. Our Supreme Court granted review and reversed and remanded for a new trial. 252 Kan. at 733.
On remand, before a new trial could be held, defendant’s malpractice insurance carrier, Medical Protective Company (Medpro), entered into a settlement agreement with plaintiff. Defendant filed a motion asking that the settlement not be approved on the basis that Medpro was not a party to the suit and did not have authority to settle. The district court rejected defendant’s argument and approved the settlement. The insurance company agreed to settle for $145,000. The policy limit was $200,000.
THE SETTLEMENT AGREEMENT
“Interpretation of an insurance policy, like the construction of any written instrument, is a question of law. . . . The appellate court’s review of questions of law is unlimited.” Levier v. Koppenheffer, 19 Kan. App. 2d 971, 976, 879 P.2d 40, rev. denied 255 Kan. 1002 (1994). When an insurance policy is not ambiguous, the court may not make another contract for the parties. Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456 (1992). Whether ambiguity exists in a written instrument is a question of law to be decided by the court. 251 Kan. at 691.
“The language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties. Where the terms of a policy of insurance are ambiguous or uncertain, conflicting, or susceptible of more than one construction, the construction most favorable to the insured must prevail. Since the insurer prepares its own contracts, it has a duty to make the meaning clear.” 251 Kan. at 693.
“The test to determine whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean.” Farm Bur. Mut. Ins. Co. v. Winters, 248 Kan. 295, Syl. ¶ 1, 806 P.2d 993 (1991). “A contract of insurance should not be construed through the magnifying eye of the technical lawyer but rather from the standpoint of what an ordinary [person] would believe it to mean.” Wheeler v. Employer's Mutual Casualty Co., 211 Kan. 100, 104-05, 505 P.2d 768 (1973).
The outcome of this case turns on what authority the insurance carrier, MedPro, did or did not have under the terms of the policy with defendant. The policy reads in material part:
“In Consideration of the payment of the premium, receipt of which is hereby acknowledged, and subject to the limits of liability and other terms of this policy, the Company hereby agrees to DEFEND and PAY DAMAGES, in the name and on behalf of the Insured or his estate.
“B. Upon receipt of notice the Company shall immediately assume its responsibility for the defense of any such claim. Such defense shall be maintained until final judgment in favor of the Insured shall have been obtained or until all remedies by appeal, writ of error or other legal proceedings deemed reasonable and appropriate by the Company shall have been exhausted at the Company’s cost and without limit as to the amount expended. However, the Company shall not be obligated to defend any claim after the applicable limit of the Company’s liability has been exhausted by payment of judgments or settlements.
“2. The Insured shall not (a) make any hold harmless agreements or contract any expense nor voluntarily assume any liability in any situation nor (b) make or contract any settlement of a claim hereunder, except at his own cost and responsibility, without the written authorization of the Company. The Insured shall at all times fully cooperate with the Company in any claim hereunder and shall attend and assist in the preparation and trial of any such claim.”
In district court, defendant argued that most insurance policies explicitly provide that the insurer has the right to settle without the insured’s consent. This policy, however, does not have such a provision. According to defendant, Medpro was without authority to settle this action without defendant’s consent and, consequently, the district court should not have approved the settlement. Importantly, Medpro did not intervene and offered no argument either in district court or on appeal. The only opposing argument in the district court came from plaintiff, whose position was that any dispute over the terms of the insurance policy were between defendant and Medpro and that she had no interest in such dispute because she had a valid settlement agreement with the insurer. Plaintiff further argued that the policy provides both express and apparent authority for Medpro to settle this suit and all that was left for the district court to do was to approve the attorney fees.
Under the terms of the policy before us, defendant could not make any hold harmless agreements or voluntarily assume liability. Defendant could not, except at his own expense, settle without the written consent of Medpro. Finally, defendant was required to fully cooperate with Medpro in any claim and attend and assist in the preparation of any trial.
Medpro, in consideration of payment of the premium paid by defendant, was required to assume the responsibility to defend any claim which was covered by the policy. Such defense was required to be maintained until a judgment favorable to defendant was obtained or until all appeals had been exhausted. However, Medpro was not obligated to defend any suit after the extent of the company’s liability had been exhausted by payment of judgment or settlement.
Clearly, the policy before us does not give Medpro the express right to settle without defendant’s consent. The policy does not specifically require that defendant give his consent to any settlement. This policy, however, specifically prohibits defendant from settling without Medpro’s consent unless he assumes all responsibility for such a settlement.
There are several treatises that discuss the issue before us in general terms.
One treatise states:
“An insurance company is free to exercise its own judgment as to whether to enter into a settlement. It can, therefore, absent an express policy provision to the contrary, settle a ease despite the insured’s request that it not do so. The only limitation is that the insurer act in good faith.” 1 Windt, Insurance Claims & Disputes: Representation of Insurance Companies and Insureds § 5:03, pp. 306-07 (3d ed. 1995).
Interestingly, none of the cases this source relies upon states such a legal proposition. All the cited cases involved situations where the insurance policies expressly gave the insurer the right to settle within policy limits at the insurer’s discretion. See Ins. Co. of North America v. Medical Protective Co., 768 F.2d 315 (10th Cir. 1985); Puritan Ins. Co. v. Canadian Universal Ins. Co., 586 F. Supp. 84 (E.D. Pa. 1984), rev’d on other grounds 775 F.2d 76 (3d Cir. 1985); Mitchum v. Hudgens, 533 So. 2d 194 (Ala. 1988); Transit Casualty Co. v. Spink Corp., 94 Cal. App. 3d 124, 156 Cal. Rptr. 360 (1979); Sharpe v. Physicians Protective Trust, 578 So. 2d 806 (Fla. Dist. App. 1991); Emp. Surplus Line Ins. v. City of Baton Rouge, 362 So. 2d 561 (La. 1978); Olson v. Union Fire Ins. Co., 174 Neb. 375, 118 N.W.2d 318 (1962); Feliberty v. Damon, 72 N.Y.2d 112, 531 N.Y.S.2d 778, 527 N.E.2d 261 (1988); Marginian v. Allstate Ins. Co., 18 Ohio St. 3d 345, 481 N.E.2d 600 (1985).
Similarly, 7C Appleman, Insurance Law and Practice § 4711, pp. 367-69 (1979) states:
“It was early stated that an insurer has the right to make a compromise or settlement of any claims against the insured, and that it is not bound to consult the interests of the insured to its own prejudice. The law favors settlement without recourse to litigation.
“Liability insurance contracts have been held to give the insurer absolute authority to settle claims within the policy limits, and the insured has no power either to compel the insurer to make such settlements, or to prevent it from doing
Another authority notes:
“[C]ertain types of liability policies, such as medical malpractice and similar professional liability policies, may require the consent of the insured to the insurer’s proposed settlement. This gives the insured a greater role in the settlement process. The ‘consent’ requirement is specifically designed for this purpose because claims arising out of professional negligence or misconduct do not only result in judgments or settlements against professionals but may also affect the professionals’s reputation and thereby his future livelihood. . . .
“In the absence of a provision giving the insured the right to consent to the settlement, the insured cannot complain if the insurer settles the claim within policy limits even though the claim is groundless, false, or fraudulent.” 1A Long, The Law of Liability Insurance § 5A.01, pp. 3-4 (1993).
Again, the cases cited for the principle that the insured cannot complain if the insurer settles for equal to or less than policy limits do not support that position. In these cases the insurance policy in question had express language giving the insurer the right to settle at its discretion. See Martin v. Levinson, 409 N.E.2d 1239 (Ind. App. 1980); Marginian, 18 Ohio St. 3d 345. Long also notes that most medical malpractice policies contain provisions requiring the insurer to obtain the insured’s consent prior to settling with a plaintiff. 2 Long, The Law of Liability Insurance § 12.05[2], p. 12-99 (1993).
There is, however, one reported case that supports the position that an insurer can settle a claim with a plaintiff even though the policy does not give the insurer the express power to do so. In Kaudern v. Allstate Insurance Company, 277 F. Supp. 83 (D.N.J. 1967), the plaintiff sued his insurer Allstate, alleging it had improperly investigated a case arising out of an automobile accident in which the plaintiff was involved.
After the initial investigation, Allstate determined that this was a “no liability” case. Allstate, however, was obligated under the terms of its- policy to provide legal assistance to its insured in the matter.
During two setdement conferences, after receiving statements of damages, medical reports, and depositions, Allstate refused to make any contribution towards any setdement. Allstate’s insured was not informed of the existence of these conferences. Subsequentiy, the injured parties sent a letter to the attorney hired by Allstate and offered to settle for $10,000, Allstate’s policy limits. Allstate did not answer the offer or inform its insured of the offer. Just prior to trial, Allstate offered to setde for $5,500. The offer was rejected. The case subsequendy went to trial and a verdict was entered against Allstate’s insured for damages totaling $175,000. Allstate appealed the decision, lost, and then made payment of $24,575 on behalf of its insured. The payment consisted of its $10,000 policy liability limit plus interest.
The insured then sued Allstate, alleging that Allstate exercised bad faith in the preparation, investigation, and settlement negotiations which resulted in a judgment greatly in excess of the policy limits. The court discussed the two competing standards of conduct in judging an insurer’s action in deciding whether to settle a case— the negligence theory and the bad faith theory. At the start of its analysis of the insurer’s duty, the court stated:
“The problems in this area arise from the standard clause in a liability insurance policy, present here, which provides that the insurer will defend in the name of and on behalf of the insured any claims for injuries to persons by reason of the operation of the motor vehicle owned by the insured. This clause naturally encompasses the negotiation of any settlement claim prior to trial.” (Emphasis added.) 277 F. Supp. at 87.
Kaudem is distinguishable for several reasons. First, the issue of whether Allstate had the right to settle was not at issue; thus, the above highlighted sentence is dicta. Second, the trial court made this statement without citation to any authority. Third, nowhere in the case were the actual terms of the policy enumerated. Last, this involved an automobile liability policy, and if Allstate had settled there would be virtually no financial impact on its insured.
We believe the rule is more appropriately stated as, where an insurance policy explicitly reserves the right to settle to the insurer, an insured cannot complain that the insurer settles or refuses to settle within policy limits absent a showing of bad faith or negligence on the part of the insurer. However, where the policy requires the consent of the insured prior to entering into a settlement with the plaintiff, the insured should not be allowed to withhold consent except at his or her own risk. See 1 Windt, Insurance Claims & Disputes: Representation of Insurance Companies and Insureds § 5.03, p. 307 (3d ed. 1995).
The question remains, what rule applies where there is no policy language expressly giving either the insurer or the insured the express right to settle?
A somewhat analogous situation was presented in Lieberman v. Employers Ins. of Wausau, 84 N.J. 325, 419 A.2d 417 (1980). In Lieberman, a physician brought an action against his medical malpractice liability insurer, alleging the insurer settled a claim against him without his consent in violation of the terms of the policy. The facts of that case show that the policy expressly provided that the insurer was empowered to investigate and negotiate settlement of any claim with written consent of the insured.
Initially, Lieberman gave his consent for the insurer to discuss setdement with the plaintiff. However, Lieberman subsequently obtained information that indicated that the plaintiff was not injured to the extent claimed. Lieberman then sent a certified letter to the insurer withdrawing his consent to settle and expressing his wish that the case proceed to trial. The insurer replied that because negotiations had already been commenced, it was unable to comply with Lieberman’s request. Employers subsequently settled the case with the plaintiff.
At trial, Employers argued that it had relied on Lieberman’s initial consent and was not required to accede to any attempt to revoke said consent. Therefore, its settlement with the plaintiff was proper.
On appeal, in reviewing an insured’s right to withdraw his or her consent to settle, the court concluded:
“When the insurance contract calls for the consent of the insured as a condition for settlement but is silent as to the irrevocability of that consent, we must be guided in the interpretation of the insurance contract by the overriding fiduciary responsibilities of the insurer. In terms of whether the insured has the contractual right to revoke a consent once given, our interpretation of the insurance policy should be harmonized with the fundamental notion that the insurer acts as a fiduciary for the insured and must in good faith be responsive to die insured’s interests. [Citations omitted.]
“In this case, it should be emphasized that the insurance contract contained no express provision that would either render the insured’s consent to settlement irrevocable or prevent such a consent from being withdrawn once it has been given. The omission of such an express provision in a policy which explicitly requires the insured’s consent to settle creates at the very least an ambiguity as to the revocability of an insured’s consent. That ambiguity is to be resolved in favor of the insured. [Citations omitted.]
“We therefore hold that consent of the insured to authorize the insurer to effect a settlement is revocable in the absence of a contrary provision.” 84 N.J. at 336-37.
As we understand, the New Jersey court said that if the insurance policy is silent on an issue of consent to settle or consent to withdraw a consent to settle, the interpretation must be resolved in favor of the insured.
We note that in Harrison v. Long, 241 Kan. 174, 734 P.2d 1155 (1987), a physician, Dr. Long, argued that certain provisions of the Health Care Provider Insurance Act, K.S.A. 40-4301 et seq., were unconstitutional. Specifically, Dr. Long argued that the provision of the statute authorizing the Fund to settle with a plaintiff, without the health care provider s approval, after the primary insurer had tendered the policy limits of its liability, deprived him of a property right and was a denial of his right to due process of law. The Harrison court concluded that the Kansas Constitution did not require that a plaintiff’s action be allowed to continue to trial to allow the defendant to vindicate himself or herself. Thus, there was no property right. 241 Kan. at 179. The court further concluded that the Act provides a procedural framework that allows the physician an opportunity to represent his interest to the court at a settlement hearing, thus maintaining due process of law. 241 Kan. at 181. Finally, the court found that where the primary insurer had settled for its policy limits, the physician could not complain that the Fund setded with the plaintiff because the State had a significant overriding countervailing interest in making sure that there was adequate liability insurance available to health care providers in the' state. The Harrison court said:
“It is the public policy of the State to assure an adequate supply of health care providers and provide protection to patients who may be injured as a result of medical malpractice. Under the Act, it is the Fund, not the provider, which is responsible for paying any difference above the coverage of liability insurance. It is, therefore, implicit in the Act that the provider relinquish his right to prevent a settlement. To allow physicians to control the defense of malpractice claims against them and reach their own decisions to continue or to setde the action would undermine the whole purpose and the financial structure of the Act.” 241 Kan. at 181.
Harrison is also distinguishable from the facts presented here. In Harrison the question involved the Fund’s ability to settle with a plaintiff when the primary insurer had already tendered the policy limits. Language in the opinion suggests that Dr. Long’s policy with his insurer gave the insurer the exclusive right to settle at its discretion. See 241 Kan. at 180. Here, Medpro has not tendered its policy limits. Also, in Harrison there was a distinct public policy in protecting the Fund against actions that could lead to its financial downfall. Here, Medpro is not a state-created fund, and there is no significant, countervailing, or overriding interest in protecting it.
In the final analysis, this case boils down to a simple matter of contract interpretation. As stated above, if the language is ambiguous, the policy must be interpreted in favor of the insured — in this case, defendant. The policy at issue simply does not say if Medpro has the exclusive right to settle and consequently must be interpreted to mean that Medpro cannot settle for less than the policy limits without the consent of defendant. This court is not free to insert terms and conditions that the parties did not provide for themselves. See Koehn v. Central National Ins. Co., 187 Kan. 192, 196-200, 354 P.2d 352 (1960).
At the settlement hearing, plaintiff argued that Medpro had apparent authority to settle this case and therefore the district court should approve the settlement. However, faced with defendant’s expressed opposition to settlement of the case prior to and at the settlement hearing, plaintiff could not reasonably rely on Medpro’s apparent authority. As such, defendant cannot be estopped from challenging the settlement. See Tucker v. Hugoton Energy Corp., 253 Kan. 373, 382-83, 855 P.2d 929 (1993).
Reversed and remanded with directions that the district court vacate the order which approved the settlement between plaintiff and Medpro. | [
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Royse, J.:
This appeal concerns a post-divorce order modifying child support. Cheryl Denning refused to allow Thomas Denning to claim both of the parties’ minor children as exemptions for income tax purposes, despite the fact that Cheryl’s minimal income prevented her from benefiting from the exemptions. The district court ruled it would adjust Thomas’ child support obligation unless Cheryl agreed to assign both exemptions to Thomas.' Cheryl refused, and the district court reduced Thomas’ child support obligation. SRS, as assignee of Cheryl’s child support rights, appeals.
A trial court’s order determining the amount of child support will not be disturbed on appeal absent an abuse of discretion. Discretion is abused when no reasonable person would take the view adopted by the trial court. In re Marriage of Case, 19 Kan. App. 2d 883, 889, 879 P.2d 632, rev. denied 255 Kan. 1002 (1994).
Section V.E.3 of the Kansas Child Support Guidelines (Guidelines) provides:
“Income Tax Considerations (Line E.3)
“If the parties agree to share the economic benefits of the income tax exemption for a minor child, this section shall not be used. If the parties are unable to agree to share or alternate the exemption or, after agreeing the custodial parent refuses to execute IRS Form 8332, the court shall consider the economic effect to both parties and may adjust the child support. The court may also consider any other tax impacts. (Appendix VI).” (1995 Kan. Ct. R. Annot 98.)
Appendix VI provides:
“Dependent’s Exemption:
“If the parties share or alternate the income tax exemption, this appendix should not be used. If the custodial parent elects not to share or alternate the income tax exemption for the minor child by executing IRS Form 8332, the Court then shall consider the effect of the failure to share the exemption on the noncustodial parent’s monthly Child Support Income and may adjust child support accordingly.
“Generally, the parent with the higher income will benefit more from the tax exemption. The parties should be encouraged to maximize tax benefits and adjust child support equitably.
“The party requesting the alternation or sharing of the exemption shall have the burden of proving the effect of the alternation or sharing. The amount considered should be entered on Line E.3.” (1995 Kan. Ct. R. Annot. 128.)
Failure to follow the Guidelines is reversible error. In re Marriage of Schwien, 17 Kan. App. 2d 498, 511, 839 P.2d 541 (1992) (citing In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, Syl. ¶¶ 1, 2, 809 P.2d 1251 [1991]).
On appeal, SRS argues the district court erred in taking into account income tax considerations under the Guidelines. SRS contends that because Cheryl agreed to continue sharing the exemptions, the district court was not allowed to consider income tax considerations. This contention misconstrues the Guidelines.
As noted above, Section V.E.3 permits the court to adjust child support if the parties are unable to agree to share the benefits of the exemption. In this case, there was no agreement between Thomas and Cheryl about alternating or sharing the exemptions. Cheryl’s offer to share the exemption on a bi-yearly basis does not constitute an agreement to do so. Given the clear language of the Guidelines, as well as the direction in Appendix VI that “[t]he parties should be encouraged to maximize tax benefits and adjust child support equitably,” the district court did not abuse its discretion in considering the economic impact of Cheryl’s decision and modifying child support accordingly.
There is no dispute that Thomas could benefit from the tax exemptions and that Cheryl could not. In 1994, Thomas lost more than $800 because he was not allowed to claim both exemptions. Contrary to Cheryl’s assertion, this was money that could have ultimately benefited the children. Cheryl refused to let Thomas use both exemptions. No reason for her refusal has ever been presented. Instead, she opted to let an exemption be wasted, to the detriment of Thomas and the children. In light of Cheryl’s refusal, the district court did not err in reducing Thomas’ child support obligation. A reasonable person could agree with the district court’s decision.
SRS points out that if the parent with higher income is allowed to claim both exemptions, the district court should increase child support to reflect the tax benefit from that allowance. Certainly, from the children’s point of view, that alternative is preferable to the result here. Thé difficulty is that Cheryl had that alternative available to her and she rejected it. Moreover, the record does not indicate that Cheryl asked for an increase in child support in exchange for letting Thomas claim both exemptions.
SRS also contends the district court’s findings are inadequate to permit the court to consider income tax considerations. SRS did not make this argument below and it is not properly before us. See Hephner v. Traders Ins. Co., 254 Kan. 226, 231, 864 P.2d 674 (1993). Additionally, SRS ignores the fact that Section I of the Guidelines states that “[u]se of Section E of the worksheet shall constitute sufficient written findings” to comply with the requirements for specific findings. (1995 Kan. Ct. R. Annot 83.)
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Marquardt, J.:
General Motors Corporation (GM) appeals from the order of the Workers Compensation Board (Board) which affirmed the administrative law judge’s (ALJ) award to Jerry R. McKinney. GM argues that the Board erred in admitting the independent medical examiner’s report as evidence without requiring testimony from the doctor concerning the report. Alternatively, GM argues that if the evidence is sufficient to support the award, the evidence is sufficient to support an assessment of liability against the Kansas Workers Compensation Fund (Fund).
McKinney was employed by GM and was injured when a container of chemicals fell from a forklift onto his right lower leg and foot.
Approximately 3 weeks after the accident, McKinney began to complain of right hip and lower back pain. Although McKinney received steroid injections which relieved his back pain for several months, by October 1993 McKinney had constant pain in his lower back on the right side.
At a prehearing settlement conference, the parties could not reach an agreement as to McKinney’s functional impairment rating. The ALJ appointed Dr. Roger W. Hood to perform an independent medical examination of McKinney and to prepare a report. At the regular hearing, the ALJ informed the parties that they would be free to cross-examine Dr. Hood about his report, which none of the parties did.
Based on the evidence in the record, the ALJ found that McKinney possessed an 18 percent “permanent partial disability to the body as a whole.” The ALJ also found:
“Although the medical report of Dr. Hood would indicate that the claimant possessed pre-existing impairment of both the right leg and low back, the respondent has not proved by a preponderance of credible evidence that it had knowledge of such impairment, or that it considered the claimant to be a handicapped employee prior to April 28,1992. K.S.A. 44-566(b) and K.S.A. 44-567. Therefore, the Kansas Workers Compensation Fund should be relieved of all liability in this matter.”
The Board adopted the ALJ’s findings of fact and conclusions of law.
GM argues that a medical report is not competent evidence in a proceeding to determine compensation unless' the report is supported by the admissible testimony of the health care provider who prepared the report. See K.S.A. 44-519. McKinney responds that K.S.A. 44-510e(a) allows the ALJ to. appoint a neutral health care provider to evaluate the claimant and to prepare a report as to the claimant’s functional disability. This report must then be . considered by the ALJ regardless of whether there is supporting testimony.
The parties agree that this court’s scope of review in workers compensation cases is to determine whether the award is supported by substantial evidence. See Miner v. M.. Bruenger & Co., 17 Kan. App. 2d 185, 188, 836 P.2d 19 (1992).
The issue argued by the parties, however, requires this court to interpret and reconcile two statutes. Interpretation of a statute is a question of law over which this court has unlimited review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 283, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
K.S.A. 44-519 provides:
“No report qf any examination of any employee by a health care provider, as provided for in the workers compensation act and no certificate issued of given by the health care provider making such examination, shall be competent evidence in any proceeding for the determining or collection of compensation unless supported by the testimony of such health care provider, if this testimony is admissible, and shall not be competent evidence in any case where testimony of such health care provider is not admissible.”
K.S.A. 44-510e(a) provides in part:
“If the employer and the employee are unable to agree upon the employee’s functional impairment, such matter shall be referred by the administrative law judge to an independent health care provider who shall be selected by the administrative law judge from a list of health cafe providers maintained by the director. The health care provider selected by the director pursuant to this section shall issue an opinion regarding the employee’s functional impairment which shall be considered by the administrative law judge in making the final determination.”
GM also points to K.A.R. 51-3-5a, which provides in part:
“Medical reports or any other records or statements shall be considered by the administrative law judge at the preliminary hearing. However, the reports shall not be considered as evidence when the administrative law judge makes a final award in the case, unless all parties stipulate to the reports, records or statements or unless the report, record or statement is later supported by the testimony of the physician, surgeon or other person making the report, record or statement.”
This court is confronted with competing mandatory language from each statute. K.S.A. 44-519 states in absolute terms that “[n]o report . . . shall be competent evidence in any proceeding for the determining or collection of compensation” unless the report is supported by the admissible testimony of the health care provider who prepared the report. See Boeing Military Airplane Co. v. Enloe, 13 Kan. App. 2d 128, 130, 764 P.2d 462 (1988), rev. denied 244 Kan. 736 (1989). At the same time, K.S.A. 44-510e(a) states that if the employer and the employee are unable to agree upon the functional impairment rating, the ALJ “shall” refer the matter to an independent health care provider whose report “shall be considered by the administrative law judge in making [a] final determination.”
The Board found that “[t]he language of K.S.A. 44-510e(a) appears to supersede the language of K.S.A. 44-519 in that the independent medical examination report ‘shall’ be considered by the administrative law judge. The statutory language in this instance is clear and unambiguous.”
In Foulk, 20 Kan. App. 2d at 283-84, this court summarized the rules of statutory interpretation:
“When interpreting a statute, this court should give effect to the intent of the legislature to the extent that intent can be ascertained. Martindale v. Tenny, 250 Kan. 621, 626, 829 P.2d 561 (1992). If the language of the statute is plain and unambiguous, this court ‘must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.’ 250 Kan. 621, Syl. ¶ 2. In doing so, the court should give words in common usage their ordinary and natural meanings. Bank IV Wichita v. Plein, 250 Kan. 701, 705-06, 830 P.2d 29 (1992). However, if interpreting one section of an act according to its literal import 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 strict letter of the law.’ Jackson v. City of Kansas City, 235 Kan. 278, 319, 680 P.2d 877 (1984).”
Because K.S.A. 44-510e(a) and K.S.A. 44-519 arguably conflict, this court should consider the statutes in the context of the entire Workers Compensation Act (Act). See Foulk, 20 Kan. App. 2d at 283-84. When interpretation of one section of the Act appears to conflict with another section of the Act, the entire Act should be construed according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law. See Foulk, 20 Kan. App. 2d at 284.
GM reasons' that the purpose of K.S.A. 44-510e(a) is to permit an ALJ to utilize a third physician’s report when the claimant and the employer have offered into evidence conflicting medical reports with supportive testimony. GM offers no support for this analysis other than it is GM’s supposition.
GM ignores the fact that medical evidence is not essential to the establishment of the existence, nature, and extent of an injured worker’s disability. See Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 201, 547 P.2d 751 (1976). While it may be routine and advisable for a claimant to present admissible medical evidence in order to establish the extent of the claimant’s disability, it is not required.
In workers compensation cases, the ALJ and the Board are not bound by the technical rules of procedure and are to give the parties a reasonable opportunity to be heard and present evidence. K.S.A. 44-523; see Box v. Cessna Aircraft Co., 236 Kan. 237, 243-44, 689 P.2d 871 (1984).
The policy, structure, and intent behind the Act supports construing K.S.A. 44-510e(a) and K.S.A. 44-519 to allow the neutral medical report to be admitted into evidence without requiring supportive testimony. Under an integrated interpretation of K.S.A. 44-510e(a) and K.S.A. 44-519, the absence of testimony supporting the report does not make it inadmissible. GM’s interpretation of these statutes, after deciding not to cross-examine Dr. Hood, is the equivalent of inviting error.
GM notes in its reply brief that the relevant portion of K.S.A. 44-510e(a) became effective on July 1, 1993, and that McKinney was injured prior to that date. See L. 1993, ch. 286, § 34. GM argues that applying the language of K.S.A. 44-510e(a) to the instant action is an improper retroactive application of the amendment.
This argument is apparently raised for the first time on appeal— in a reply brief. This court generally will not consider an argument that is raised for the first time on appeal. See Hephner v. Traders Ins. Co., 254 Kan. 226, 231, 864 P.2d 674 (1993). GM does not argue that any of the exceptions to this rule apply. See Baumann v. Excel Industries, Inc., 17 Kan. App. 2d 807, 810, 845 P.2d 65, rev. denied 252 Kan. 1091 (1993) (quoting recognized exceptions from In re Conservatorship of Marcotte, 243 Kan. 190, 196, 756 P.2d 1091 [1988]). This argument is not properly before this court.
Atematively, GM argues that if the evidence is sufficient to support the award of compensation, the evidence is also sufficient to support an assessment of liability against the Fund.
“Our scope of review in a workers compensation case requires that we view the evidence in a light most favorable to the prevailing party and that we determine whether the [Board’s] findings are supported by substantial competent evidence.” Grizzle v. Gott Corp., 19 Kan. App. 2d 392, 393, 872 P.2d 303 (1993).
The ALJ and the Board found that GM had not met its burden of proof to show knowledge of a preexisting handicap.
“ ‘A negative finding indicates that the party upon whom the burden of proof is cast did not sustain the requisite burden, and on appeal the negative finding wifi not be disturbed absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice.’ [Citation omitted.]” Rodriguez v. Henkle Drilling & Supply Co., 16 Kan. App. 2d 728, 730, 828 P.2d 1335, rev. denied 251 Kan. 939 (1992).
See Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 58, 913 P.2d 612 (1995).
In order for GM to be either completely relieved of liability or entitled to an apportionment of the award from the Fund, GM has the burden of showing: (1) it knowingly retained a handicapped employee as defined in K.S.A. 44-566, and (2) either (a) the injury probably or most likely would not have occurred “but for” the preexisting handicap or (b) the injury was contributed to by the preexisting handicap. K.S.A. 44-567.
In Denton v. Sunflower Electric Co-op, 12 Kan. App. 2d 262, 265, 740 P.2d 98 (1987), aff’d 242 Kan. 430, 748 P.2d 420 (1988), this court noted that “K.S.A. 44-567(b) emphasizes that liability shifting under the authority granted by K.S.A. 44-567(a) requires that it be proved that hiring or retention of the employee occurred after the employer acquired knowledge of (knew of) an impairment causing the employee to be a handicapped employee.” See Guerrero, 22 Kan. App. 2d at 58.
The employer bears the burden of proving by a preponderance of the credible evidence that it knowingly hired or retained a handicapped employee. K.S.A. 44-508(g); K.S.A. 44-567; Denton, 12 Kan. App. 2d at 264. Whether the worker s impairment constitutes a handicap in obtaining employment is a question of fact. Johnson v. Kansas Neurological Institute, 240 Kan. 123, 127, 727 P.2d 912 (1986), overruled on other grounds Denton v. Sunflower Electric Co-op, 242 Kan. 430, 436, 748 P.2d 420 (1988). Knowledge of a particular accident or injury is not necessarily knowledge of an impairment that constitutes a handicap. Johnson, 240 Kan. at 128.
K.S.A. 44-566(b) defines a “handicapped employee” as follows:
“ 'Handicapped employee’ means one afflicted with or subject to any physical or mental impairment, or both, whether congenital or due to an injury or disease of such character the impairment constitutes a handicap in obtaining employment.”
GM states that an entry in its plant medical records for August 18, 1986, reflects that McKinney had taken sick leave for a lower back injury. The cited portion of the record, however, involves an abdominal disorder. The retum-to-work slips contained in the medical records do not show an arbitrary disregard of undisputed evidence that GM had knowledge of an existing handicap.
GM has failed to prove Fund liability for any portion of the award.
The Fund filed a motion to strike Volume III from the record on appeal. Volume III consists of medical records which were submitted by GM to the Division of Workers Compensation the day after the ALJ’s award. GM is asking this, court to consider medical records, without the benefit of testimony, that were never submitted by any party as evidence. GM’s presentation of these medical records after the award goes far beyond the admissibility issue that GM is arguing against in this appeal.
These records were not a part of the record before the ALJ and must be stricken from the record.
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BURR, J.:
Dr. Vinod Patel appeals from the district court’s refusal to enjoin the Kansas Board of Healing Arts (Board) from revoking his license to practice medicine. Because the Board had previously cancelled his license, Patel contends that it could not later revoke his license through a disciplinary action.
On February 14, 1992, the Board filed a petition to revoke, suspend, or limit Dr. Patel’s license to practice medicine in Kansas. On July 10, 1992, the Board filed an amended petition which contained 19 counts of alleged sexual misconduct. The same day, Dr. Patel tendered a letter to the Board voluntarily surrendering his license.
On July 20, 1992, Dr. Patel filed a motion to dismiss the disciplinary action on the grounds that the Board lacked jurisdiction to proceed because he had surrendered his license. On August 24, 1992, the Board denied the motion to dismiss. The Board also rejected Dr. Patel’s argument that the case was moot. Subsequently, Dr. Patel filed a motion for reconsideration which was also denied.
Kansas law provides that medical licenses must be renewed annually. K.S.A. 1995 Supp. 65-2809. On June 30, 1993, the Board notified Dr. Patel that he had until July 31, 1993, to renew his license. Dr. Patel did not renew; consequently, on August 9,1993, the Board cancelled his license.
On February 14, 1994, Dr. Patel filed a motion to dismiss the disciplinary action. Dr. Patel argued that the Board had divested itself of jurisdiction by canceling his license. The presiding officer concluded that Dr. Patel had committed a unilateral act by allowing his license to expire and be canceled and that Dr. Patel’s unilateral action could not destroy the Board’s jurisdiction.
Subsequently, Dr. Patel sought injunctive relief against the Board by filing a petition for judicial review in district court. Dr. Patel also filed a motion for a temporary injunction to prohibit the Board from proceeding with the disciplinary action.
The district court denied Dr. Patel’s motion for temporary injunctive relief. Because jurisdiction was proper at the time the disciplinary proceeding was commenced, the court found that the subsequent cancellation of Dr. Patel’s license did not affect the Board’s jurisdiction. The district court reached the same conclusion in denying Dr. Patel’s petition for judicial review. The Board continued the disciplinary action and revoked Dr. Patel’s license. Dr. Patel filed a timely notice of appeal.
Dr. Patel argues that the Board lost jurisdiction when it canceled his license. The Board’s jurisdiction is provided by the Kansas Healing Arts Act, K.S.A. 65-2801 et seq. (KHAA), specifically K.S.A. 65-2838(a), which states:
“The board shall have jurisdiction of proceedings to take disciplinary action authorized by K.S.A. 65-2836 and amendments thereto against any licensee practicing under this act. Any such action shall be taken in accordance with the provisions of the Kansas administrative procedure act.”
The KHAA defines “licensee” as a person licensed under the act. K.S.A. 65-2802(d).
Whether the Board had jurisdiction to revoke Dr. Patel’s license is a question of law involving interpretation of the KHAA, and this court’s scope of review is unlimited. See University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354, 355-56, 887 P.2d 1147 (1995).
The Board only has jurisdiction to take disciplinary action against a licensee. K.S.A. 65-2838(a). “An agency has no authority or jurisdiction beyond that conferred by authorizing statutes.” Kansas for Fair Taxation, Inc. v. Miller, 20 Kan. App. 2d 470, 479, 889 P.2d 154 (1995). Dr. Patel contends that the Board lost jurisdiction when the Board canceled his license and he, therefore, ceased to be a licensee.
Dr. Patel’s argument assumes that jurisdiction is measured at every stage of a proceeding. However, the general rule is that jurisdiction is acquired at the beginning of a case.
“In general, a court’s acquisition of jurisdiction over a case depends on the facts existing at the time its jurisdiction is invoked. Accordingly, in a civil suit, acquisition of jurisdiction depends on the facts existing at the time of the commencement of the suit as they appear from the complaint or other original pleading of the plaintiff. When, in view of the facts existing at the beginning of the proceedings, the court has acquired jurisdiction over a case, that jurisdiction is ordinarily not ousted by subsequent events.” 20 Am. Jur. 2d, Courts § 102, p. 406.
Kansas also follows the rule of continuing jurisdiction. In State ex rel. Owens v. Hodge, 230 Kan. 804, 813, 641 P. 2d 399 (1982), our Supreme Court stated: “It is a general principle of law recognized throughout the United States that once a court has acquired jurisdiction of a case, that jurisdiction continues until the court has determined all the issues involved and has granted such complete relief as is within its jurisdictional power to grant.” Similarly, in considering federal diversity jurisdiction, the United States Supreme Court stated: “We have consistently held that if jurisdiction exists at the time an action is commenced, such jurisdiction may not be divested by subsequent events.” Freeport-McMoRan Inc. v. K N Energy, Inc., 498 U.S. 426, 428, 112 L. Ed. 2d 951, 111 S. Ct. 858 (1991). See Chapman.v. Currie Motors, Inc., 65 F.3d 78, 81 (7th Cir. 1995).
It is undisputed that the Board had jurisdiction over Dr. Patel when it initiated the disciplinary proceedings in February 1992. At that time, Dr. Patel held a valid license to practice medicine in Kansas and, therefore, jurisdiction existed pursuant to K.S.A. 65-2838(a). Under the rule of continuing jurisdiction, the Board maintained jurisdiction regardless of whether Dr. Patel remained a licensee.
While Kansas courts have not directly addressed the issue, this court did deal with a similar issue in Schowengerdt v. Kansas Dept. of Revenue, 14 Kan. App. 2d 147, 784 P.2d 387 (1989). Schowengerdt was driving with an expired license when he was arrested for speeding. Schowengerdt subsequently failed an Intoxilyzer breath test, and his license was suspended. On appeal, Schowengerdt argued that the Department of Revenue could not suspend his license because it was expired, , and he, thus, had no license to suspend. Rejecting Schowengerdt’s contention, this court held that if a license or privilege to drive exists, the Department of Revenue may suspend it. The court distinguished between the license to drive and the privilege to drive and held that “[i]t is the privilege to drive that is suspended. The license itself merely represents that privilege.” 14 Kan. App. 2d at 149.
Applying the Schowengerdt rationale, one could conclude that Dr. Patel’s license merely represents his privilege to practice med icine in Kansas and that the Board may revoke the privilege regardless of whether the license exists. The Schowengerdt court construed the driver’s licensing law liberally in order to effectuate the purpose of protecting the public. 14 Kan. App. 2d at 149. Similarly, the KHAA is entitled to a broad and liberal construction. In State v. Mountjoy, 257 Kan. 163, 177, 891 P. 2d 376 (1995), our Supreme Court commented on the KHAA:
“Among all the objects sought to be secured by government, none is more important than the preservation of the public health. [Citation omitted.] It is fundamental that where a statute is designed to protect the public, the language of that statute must be construed in the light of the legislative intent and purpose and is entitled to a broad interpretation so that its public purpose may be fully carried out.”
Following the Schowengerdt rationale, we conclude that the legislature intended to give the Board jurisdiction to revoke, suspend, or limit an individual’s privilege to practice medicine, regardless of whether the license representing that privilege is valid.
Dr. Patel also contends that the district court should not have allowed the Board to proceed since any action taken by the Board would be moot. Because his license was canceled and did not exist, Dr. Patel reasons that any action by the board to revoke his license would have no effect.
Our Supreme Court discussed the concept of mootness in Allenbrand v. Contractor, 253 Kan. 315, Syl. ¶ 1, 855 P.2d 926 (1993): “Courts are statutorily and constitutionally without authority to render advisory opinions in cases found to be moot. A cáse is moot when no further controversy exists between the parties and where any judgment of the court would be without effect.”
In this case, we find that controversy between these parties continued to exist because the action of the Board affected Dr. Patel’s privilege to practice medicine in Kansas. The action of the Board was, therefore, not moot.
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Elliott, J.:
Lesa Aubuchon appeals the trial court’s order changing residential custody of their minor children to Stephen Aubuchon and ordering Lesa to pay child support in an amount greater than the guidelines provide.
We affirm in part, reverse in part, and remand with directions. The facts necessaiy for our decision are not disputed. In the original divorce decree, the trial court granted joint custody of the parties’ two children, with Lesa as the primary residential custodian. The court also divided responsibility for the debts of Lesa and Stephen. Later, Lesa sought permission to move with the children to the state of Washington. Stephen responded with a motion to change custody.
The trial court awarded Stephen custody of the children because of the children’s health problems and Lesa’s smoking around the children. The trial court then calculated Lesa’s child support ob ligation to be $242 per month under the guidelines and increased that amount by $100 per month “because [Lesa] has taken bankruptcy and that means that she has no debts or has very few debts.” Because Stephen remained personally liable for at least some of the discharged debts, he will end up paying those creditors. At the time, Lesa’s income was from unemployment compensation of about $1,075 per month — a figure only slightly above the poverty level according to the child support guidelines. See Kansas Child Support Guidelines, 1995 Kan. Ct. R. Annot. 109.
A trial court may deviate from the presumptive amount under the guidelines only if it makes specific written findings explaining the deviation, and our standard of review is abuse of discretion. In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, 505, 507, 809 P.2d 1251 (1991).
In the present case, the trial court did make specific findings for the deviation, but they were geared to Lesa’s bankruptcy rather than to any specific consideration of whether the deviation served the best interests of the children. See 1995 Kan. Ct. R. Annot. 83.
In setting child support pursuant to K.S.A. 60-1610(a), a trial court is to consider all relevant factors, including financial resources and needs. Further, one of the child support adjustments listed in the guidelines is a party’s overall financial condition. 1995 Kan. Ct. R. Annot. 98. We hold that a person’s indebtedness would fall under the category of financial resources and needs and is a part of a party’s overall financial condition.
The present case involves a bit more than mere indebtedness, however. Here, some of Lesa’s debts were discharged in bankruptcy, and Stephen will most likely end up paying those debts. We have found no Kansas case determining this question, but other courts have held that a bankruptcy discharge may constitute a sufficient change in circumstances to justify a modification of a child support order.
For example, in Minnesota, a court may modify previous support and alimony orders on a showing of a substantial change in circumstances rendering the original order unreasonable and unfair. In Coakley v. Coakley, 400 N.W.2d 436 (Minn. App. 1987), the court upheld such a modification where husband’s income had increased and his bankruptcy filing had shifted debt obligations to wife. Accord Kruse v. Kruse, 464 N.E.2d 934, 937-38 (Ind. App. 1984); see. generally Annot., 87 A.L.R.4th 353.
As a general proposition, then, a trial court may consider a party’s bankruptcy filing in setting child support. But any deviation in child support from the guidelines figures must serve the best interests of the children. See 1995 Kan. Ct. R. Annot. 83.
In the present case, the trial court did not make any findings justifying the increased support as being in the best interests of the children. Instead, it appears to us the court was simply devising a method to force Lesa to reimburse Stephen for debts he will probably have to pay as a result of Lesa’s bankruptcy. This was error.
. Lesa also contends the trial court abused its discretion in changing residential custody because of Lesa’s smoking. In effect, Lesa argues that Stephen failed to prove her smoking caused the children’s illnesses. Lesa confuses the concepts of harm and causation. The trial court did not find that her smoking caused the children’s health problems.
Instead; the trial court found that Lesa’s smoking had harmed the children. That finding is supported by the testimony of three doctors that secondhand smoke aggravated the children’s health problems and placed them at risk for further health problems.
Based on our review of the record, the trial court did not abuse its discretion in finding it to be in the children’s best interests to change residential custody.
Affirmed in part, reversed in part, and remanded for further proceedings in accordance with this opinion. | [
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Pierron, J.:
Glenn O. Davis appeals from the district court’s imposition of sentence. He argues the district court erred in calculating his criminal history score as A rather than B. We affirm.
Davis pled guilty to one count of aggravated indecent liberties with a child, a severity level 3 offense. Prior to sentencing, Davis filed a challenge to the criminal history as set forth in the presentence investigation report. Specifically, he challenged the inclusion of two person misdemeanors from 1964 and 1966. The inclusion of those crimes raised Davis’ criminal history score from B to A.
At sentencing, Davis challenged the 1966 conviction of giving liquor to a person under the age of 21. The State produced a journal entry for that conviction which Davis alleged was difficult to understand. The gist of his challenge appeared to be that the offense was improperly scored as a person misdemeanor rather than a nonperson misdemeanor. He did not challenge the other misdemeanor conviction. Davis did not include the journal entries of the prior convictions in the record on appeal.
The district court denied Davis’ challenge to the criminal history score and both parties’ motions for departure sentences. Davis was sentenced to 194 months’ incarceration, which fell within the presumptive range for a severity level 3 offense with a criminal history score of A. Davis has requested that we resolve his appeal by summary disposition without briefing pursuant to K.S.A. 21-4721(g) and (h).
Davis contends the district court erred by including the 1964 and 1966 misdemeanor convictions without requiring the State to show proof of identity. He had the opportunity to review the journal entries of those convictions and raise the identity issue before the district court, but failed to do so. “ ‘A point not raised in the trial court cannot be raised for the first time on appeal.’ ” State v. Solomon, 257 Kan. 212, 222, 891 P.2d 407 (1995) (quoting State v. McDaniel, 255 Kan. 756, 765-66, 877 P.2d 961 [1994]).
Davis also contends the district court erred in treating his 1964 conviction of furnishing liquor to person under the age of 21 as a person misdemeanor. He argues the State should have provided more proof to establish the person/nonperson classification. Davis failed to establish, however, what proof was lacking, and the journal entxy reflecting this conviction was not included in the record on appeal.
Under the Kansas Sentencing Guidelines Act, a defendant’s criminal history score includes “convictions and adjudications for violations of municipal ordinances or county resolutions which are comparable to any crime classified under the state law of Kansas as a person misdemeanor.” K.S.A. 21-4710(a). Under current state statutes, furnishing alcoholic liquor to a minor is classified as a class B person misdemeanor. K.S.A. 21-3610(b). Furnishing any cereal malt beverage to a minor is also a class B person misdemeanor. K.S.A. 21-3610a(b). Classifying such offenses as person offenses is consistent with the general design of the guidelines, which include as person crimes those “[cjrimes which inflict, or could inflict, physical or emotional harm to another.” State v. Fifer, 20 Kan. App. 2d 12, 15, 881 P.2d 589, rev. denied 256 Kan. 996 (1994).
For these reasons, the district court did not err in accepting the presentence investigation report which classified Davis’ prior mu nicipal conviction of furnishing liquor to a person under the age of 21 as a person misdemeanor for criminal history purposes. This conviction, when combined with Davis’ two adult convictions for person felonies, one adult conviction for a nonperson felony, and two other adult convictions for person misdemeanors, resulted in a criminal history score of A. See K.S.A. 21-4709; K.S.A. 21-4711(a).
Affirmed. | [
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Hill, J.;
Harold Torrance appeals his conviction and sentence for aggravated assault, pursuant to K.S.A. 21-3410 (Ensley 1988). On September 6, 1994, Torrance was sentenced to the custody of the Secretary of Corrections for an indeterminate term of imprisonment, a minimum of 2 years and a maximum of 10 years. He was convicted by a jury on March 24, 1994. The jury found Torrance guilty of aggravated assault as a result of an incident that occurred on June 24, 1993.
Torrance owns Green Acres Enterprises, which sells mobile home lots. Masimo Maldanado Vargas purchased such a lot from Torrance on a contract for deed. On June 24, 1993, Vargas met with Torrance to discuss his remaining payments. Vargas’ wife accompanied him but remained in their van the entire time.
During the course of their discussions, Torrance and Vargas disagreed. Vargas offered to pay Torrance the remaining two contract payments totalling $450. However, Torrance refused to accept the payments and deliver the deed to the mobile home lot until Vargas paid a disputed water bill. These discussions took place in Torrance’s office. After the argument started, both men left the office.
Vargas testified that Torrance said to him, either in a low voice or by whispering, “I’m going to kill you.” Torrance denies this. Other witnesses testified that Torrance said something to Vargas, but they could not make out what had been said. Vargas then began speaking in Spanish, which Torrance does not understand. Vargas did shout several times in English, “Kill me, kill me.” Torrance testified that Vargas did shout, “Kill me,” but stated he did not know why.
One of Torrance’s employees, Roberto Torrez, came up and began to argue with Vargas in Spanish. Torrance turned and left the two men and walked toward his office. He went to his own van and retrieved a .12 gauge shotgun. Torrance pumped the action on the gun.
Torrance testified that he pulled the gun out of the van because he was thinking, “I might save Roberto’s life.” Later in his testimony, he stated that he knew that Torrez could take care of himself. Furthermore, he admitted that he had pulled it out as a “scare tactic.”
The sound of the shotgun being pumped was loud enough for all to hear. Vargas and the other witnesses saw Torrance pump the gun and turn toward Vargas. Vargas then turned his back to Torrance to leave. Torrance then pointed the shotgun at Vargas, but Vargas never did see Torrance point the shotgun at him. At this point, Vargas’ wife told Vargas, “Let’s go. He are [sic] going to kill you.” Vargas’ wife saw Torrance point the gun at Vargas. Torrance denied pointing the gun, and Torrez denied seeing Torrance point the shotgun at Vargas.
Vargas thought that Torrance was going to shoot him when he heard him pump the shotgun. He stated, “I got scared. I was mad and nervous, but in that moment my stomach, I had something in my stomach.” Vargas left the scene and reported the incident to the sheriff.
Torrance raises seven issues in his appeal. He argues that the trial court erred when it allowed Mrs. Vargas’ statement into evi dence. Further, Torrance argues that the court erred when it excluded evidence of a transaction that occurred between Vargas and Torrance 4 days after the incident in question. Third, Torrance argues that the trial court erred when it admitted Torrez’ testimony concerning Torrez’ lack of apprehension. Fourth, Torrance argues that the trial court erred when it denied his motion to dismiss or for acquittal at the close of the State’s case. Fifth, Torrance argues that the court failed to instruct on a lesser included offense. Sixth, Torrance believes that the trial court erred when it did not consider his motion for a new trial on the merits. Finally, Torrance argues that the trial court erred when it did not properly consider certain matters at his sentencing.
We will deal with these issues in order and will provide additional facts when necessary.
The trial court admitted, over the objection of Torrance, the statement of Vargas’ wife. He states that the effect of the admission of her statement into evidence substitutes Mrs. Vargas’ apprehension for Vargas’ own apprehension of immediate bodily harm. Vargas stated that when he was approaching the van, Mrs. Vargas said, “Let’s go. He are [sic] going to kill you.” Torrance objected to this statement on the basis of hearsay. Initially, the trial court admitted the evidence as part of the res gestae and then, later, as an exception to the hearsay rule as an excited utterance.
Hearsay evidence is “[ejvidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated.” K.S.A. 60-460. The State argued that Vargas could retell what his wife told him because of three exceptions to the hearsay rule. K.S.A. 60-460(a) allows a hearsay statement if the person is available for cross-examination “provided the statement would be admissible if made by declarant while testifying as a witness.” Furthermore, K.S.A. 60-4670(d)(l) allows a statement from a declarant made while perceiving an event. And, finally, K.S.A. 60-460(d)(2) allows a statement made while a declarant was under “the stress of a nervous excitement caused by such perception.”
Clearly, Mrs. Vargas was available for cross-examination at the trial. She was a witness to the confrontation between her husband and Torrance. Although Mrs. Vargas does not understand English, she could certainly perceive what was happening. She could see Torrance going to his van and retrieving the shotgun. She could see Torrance pumping the shotgun and pointing it at her husband. Any statement she gave while she was perceiving such an event is admissible pursuant to K.S.A. 60-460(d)(l) and (2).
Despite the fact that Mrs. Vargas was available for cross-examination, Torrance argues that her statement was not relevant. His argument goes to the crux of the offense. It is his position that Mrs. Vargas was frightened and that because her statement was admitted, the jury could substitute her fear for that of her husband, since his back was turned to Torrance when he pointed the shotgun at him. While it is true that Mrs. Vargas’ fear cannot be used to show Vargas’ apprehension, her statement proves the contention that Torrance was intentionally threatening Vargas and that he did so with a deadly weapon.
The trial court also admitted Mrs. Vargas’ statement under a res gestae theory. Res gestae and the hearsay exception of K.S.A. 60-460(d) are separate avenues by which evidence may be admitted; both avenues need not be satisfied in order for the evidence to be admissible. State v. Sanders, 258 Kan. 409, 419, 904 P.2d 951 (1995). Sanders also provides a test for res gestae which trial courts may employ. The trial court “must first determine whether the evidence constitutes part of the res gestae. If it does, the evidence may be admitted if it is relevant to show the relationship of the parties or the defendant’s motive, opportunity, intent, or identity.” 258 Kan. at 422. In this case, Mrs. Vargas’ statements can be used to show Torrance’s motive, opportunity, intent, and identity.
Even though Mrs. Vargas does not speak English, Torrance’s actions were sufficient for her to understand his intent. While it is true that Mrs. Vargas’ statements did have the potential to mislead the jury as to who was in apprehension of the threatening actions of Torrance, the testimony of Vargas and the other witnesses clearly indicated that Vargas was shaken and understood the threat that was made against him. It is in the discretion of the trial court whether to admit evidence after weighing its probative value against its prejudicial value. This court will not reverse unless judicial discretion is abused.
“Judicial discretion is abused if judicial action is arbitrary, fanciful, or unreasonable, which is another way of stating that discretion is abused only if no reasonable person would take the view adopted by the trial court. If reasonable persons could differ regarding the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion.” State v. Warden, 257 Kan. 94, 116, 891 P.2d 1074 (1995).
We find no abuse of discretion or error of the trial court in admitting Mrs. Vargas’ statements. Her statements were admissible under the hearsay exceptions and the res gestae theory stated above. Her statements were relevant to show Torrance’s intent to threaten Vargas and that he did so with a deadly weapon.
Turning to the second issue, we find that the trial court did not abuse its discretion when it excluded evidence of a transaction between Vargas and Torrance 4 days after the incident with the shotgun. Torrance wanted to admit evidence that Vargas returned 4 days after the argument to pay his water bill. Torrance believes that evidence was relevant to contradict Vargas’ testimony that he was scared. The trial court determined that what happened 4 days after the event could not negate any immediate apprehension of bodily harm that Vargas may have experienced earlier.
We agree that such evidence is not relevant, and we find no abuse of discretion by the trial court in refusing to admit it.
In his third issue, Torrance alleges that the court erred when it allowed into evidence testimony that Roberto Torrez was not scared at the scene. Torrance argues that whether Torrez felt he was in danger was irrelevant to whether Torrance thought Torrez was in danger. This centers upon the defense raised by Torrance, the defense of another. The validity of the defense of another defense requires the application of both a subjective and objective test. The first test is whether Torrance believed it was necessary to defend Torrez. The second test is whether Torrance’s belief was reasonable. See State v. Rutter, 252 Kan. 739, 746, 850 P.2d 899 (1993). In this case, Torrez’s testimony concerning whether he was afraid was admissible to show whether Torrance’s subjective opinion was objectively reasonable.
We find the admission of this evidence is proper and not an abuse of discretion.
The fourth issue raised by Torrance is whether the trial court erred in denying his motion to dismiss or for acquittal at the close of the State’s case. A motion for judgment of acquittal is substantially the same as a motion attacking the sufficiency of the evidence. When the sufficiency of the evidence is challenged, the standard of review on appeal 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. Cruz, 15 Kan. App. 2d 476, 488, 809 P.2d 1233, rev. denied 249 Kan. 777 (1991).
K.S.A. 21-3410 (Ensley 1988) defines aggravated assault as “[u]nlawfully assaulting or striking at another with a deadly weapon.” Assault is defined in K.S.A. 21-3408 (Ensley 1988) as “an intentional threat or attempt to do bodily harm to another coupled with apparent ability and resulting in immediate apprehension of bodily harm.” (Emphasis added.)
Here, Vargas testified that Torrance told him, “I’m going to kill you.” Furthermore, Torrance told Vargas to “[g]et out of here, off of my land and move away.” Several witnesses saw Torrance retrieve the shotgun from his van, heard and saw him pump the shotgun, and saw him point the gun at Vargas. While it is true that Vargas did not personally see the shotgun pointed at him, the act of pumping the shotgun communicates a threat in this situation far more eloquently than words. Communication does not require verbal action. K.S.A. 21-3110(24) defines threat as a “communicated intent to inflict physical or other harm on any person or on property.” In the case of In re T.K., 11 Kan. App. 2d 632, 633, 731 P.2d 887 (1987), this court found sufficient evidence of a communicated threat when the victim heard the defendant “click the action on the gun as if he were loading a shell.”
K.S.A. 21-3410 (Ensley 1988) does not require verbal threats to be made at the same time as the apparent ability to carry out the threat. The term “coupled” which is used in K.S.A. 21-3408 (Ensley 1988) denotes a close time but not necessarily actions that are simultaneous. In this case, Torrance made the verbal threats, went to his van, pulled out the shotgun, jacked the pump action on the shotgun, and pointed the shotgun at Vargas’ back. The acts and words are so closely related that they constitute the same intentional threat.
Furthermore, Vargas testified that he was scared and that he thought Torrance was going to shoot him. When viewed in the light most favorable to the prosecution, there is sufficient evidence that a reasonable factfinder could, beyond a reasonable doubt, find Torrance guilty of aggravated assault. We find no error in the trial court denying Torrance’s motion to dismiss or for an acquittal at the close of the State’s case.
For his fifth issue, Torrance argues that the trial court should have instructed the jury on the elements of the lesser included offense of assault. The State argued that Torrance was either guilty of aggravated assault or not guilty. The trial court did not instruct upon the theory of assault.
It is well established that a trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. K.S.A. 21-3107(3). Instructions on lesser included offenses must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. An instruction on a lesser included offense is not given however, if the evidence at trial excludes a theory of guilt on the lesser offense. The duty of the trial court to instruct on the lesser included offense is applicable only when the evidence introduced at trial is such that the defendant might have reasonably been convicted of the lesser offense. State v. Deavers, 252 Kan. 149, 151, 843 P.2d 695 (1992), cert. denied 508 U.S. 978 (1993).
A review of the evidence introduced at Torrance’s trial does not support a jury instruction on the theory of assault. Although Torrance argues that the lesser included offense was the verbal threat when he did not have the shotgun in his hand, the State correcdy points out that if Torrance did not have the apparent ability to inflict bodily harm at that point, he could not have been found guilty of assault. In this case, if the jury did not believe that the actions of Torrance with the shotgun was sufficient to communicate a threat, then Torrance was not guilty of any crime. We find no error in the trial court refusing to give a lesser included offense instruction on assault.
As his sixth issue, Torrance argues that the trial court erred when it refused to rule upon his motion for a new trial on its merits. In this case, the jury returned a verdict on March 24,1994. The journal entry of conviction was filed on April 27, 1994. Torrance filed his motion for a new trial on May 5, 1994. He later amended his motion for a new trial on June 16, 1994. The State challenged the court’s jurisdiction to hear the motion, claiming that it was not timely filed under K.S.A. 22-3501. The trial court agreed and dismissed Torrance’s motion for a new trial for being untimely filed.
This is an issue of law, and this court’s jurisdiction over questions of law is unlimited. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). The statute is clear that motions for new trials in criminal cases must be filed within 10 days of the verdict and not within 10 days of the filing of a journal entry containing the verdict.
Torrance argues that it was the common practice of the “local legal culture” within the 16th Judicial District to file motions for new trials within 10 days of the filing of the journal entry that contained the verdict or finding of guilty. He argues that the language in K.S.A. 22-3501 allowing for “such further time as the court may fix” suggests that it is discretionary for the trial court and that it can extend the time for filing. That is incorrect. K.S.A. 22-3501 requires a motion for a new trial be filed within 10 days of a “verdict or finding of guilty.” It is discretionary for the trial court to grant an extension of time for this filing if such application for an extension was made within the 10-day statutory period. Here, the trial court followed the statute and denied the motion. Torrance’s motion was not timely filed within 10 days of March 24, 1994.
Finally, Torrance argues that the trial court erred at his sentencing. He argues that the impeachment by the prosecution of his character witnesses was a prejudicial attempt to introduce hearsay at his sentencing. Furthermore, he argues that it was manifestly unjust to impose mandatory imprisonment for his use of a firearm pursuant to K.S.A. 1992 Supp. 21-4618.
At the sentencing, Torrance called several witnesses. During cross-examination of the witnesses, the State asked if they-had ever heard of R.L. and whether they knew that she had obtained a protective custody order against Torrance. The State also asked the witnesses whether they knew about past incidents in which Torrance was investigated for allegedly receiving stolen property, an accusation of unlawful dumping of refuse on his property, a disturbance of the peace call, and an investigation for theft.
Torrance claims that the State was attempting to introduce this evidence in order to prejudice the court at his sentencing. .
We think that Torrance ignores the differences between a trial and a sentencing.
“There is a marked difference between application of the rules of evidence in that portion of the trial dedicated to the determination of guilt or innocence and that portion of the trial dedicated to sentencing. This court has never required a strict application of the rules of evidence in the sentencing phase of a trial. To do so in many instances would deprive the court of the information necessary to fülfill its responsibilities under the provisions of K.S.A. 21-4601 and K.S.A. 21-4606.” State v. Sims, 256 Kan. 533, Syl. ¶ 8, 887 P.2d 72 (1994).
We do not find any evidence in the record that these questions and answers prejudiced the court. The sentencing court had no discretion to impose any sentence other than a term of imprisonment pursuant to K.S.A. 1992 Supp. 21-4618 because this crime was committed with a firearm.
In the second part of his argument, Torrance argues that the imposition of imprisonment in his case was manifestly unjust. He believes that incarceration is too harsh in his case. The determination whether a sentence has resulted in manifest injustice must be made on a case-by-case basis under a “shocking to the conscience” consideration; that is, whether the trial court has abused its discretion by imposing a sentence that is obviously unfair and shocks the conscience of the court. State v. Coleman, 19 Kan. App. 2d 412, Syl. ¶ 2, 870 P.2d 695, rev. denied 255 Kan. 1004 (1994).
In this case, the sentencing court acknowledged cases regarding manifest injustice. The court specifically examined each statutory factor as set out in K.S.A. 21-4606. It noted, in passing, that Torrance did not feel like he had done anything wrong and that he has the tendency to “get agitated.” The trial court also found that Torrance acted in a retaliatory fashion towards the people involved in the case and concluded that it would not be manifestly unjust to impose a term of imprisonment of 2 to 10 years. The judge stated unequivocally, “Well, I’m not pre-supposing anything” and, even though the trial court did refer to Torrance’s “contacts with'the law,” the court noted that the contacts did not result in any convictions. The court did not appear to be prejudiced. Rather, the sentencing court considered the statutory factors and imposed the sentence within the statutory guidelines. The sentence is within statutory limits and is not obviously unfair, nor does it shock our conscience. We find no abuse of discretion or manifest injustice in the sentence received by Torrance.
The trial court did calculate Torrance’s sentence pursuant to the Kansas Sentencing Guidelines Act (KSGA) and, although neither of the parties raised the issue that Torrance would be eligible for a sentence conversion, the Department of Corrections (DOC) clearly could require that Torrance serve the lesser of the two sentences pursuant to State v. Fierro, 257 Kan. 639, 651, 895 P.2d 186 (1995). According to Fierro, the DOC should also apply K.S.A. 21-4724(b) to provide Torrance the same opportunity for retro-activity as offenders sentenced prior to July 1, 1993. The firearms provisions under K.S.A. 21-3410 (Ensley 1988) and K.S.A. 21-4704(h) do not preclude conversion in this case. See State v. Sidders, 20 Kan. App. 2d 405, Syl. ¶ 2, 888 P.2d 409, rev. denied 257 Kan. 1096 (1995). We find no errors in the sentencing imposed by the trial court in this case.
We affirm the conviction and remand the case with directions for the DOC to evaluate this case for conversion to a KSGA sentence. | [
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LEWIS, J.:
Appellants Robert L. Wiggins and Michael White were both employees of the Housing Authority of Kansas City. Appellants were both fired by their employer. They sued the Housing Authority for wrongful termination of their employment, alleging breach of contract and retaliatory discharge.
In 1993, the trial court granted summary judgment in favor of the Housing Authority on all claims. That decision was appealed to this court, and we affirmed the trial court on all issues with the exception of a claim based on implied contract. Wiggins v. Housing Authority of Kansas City, 19 Kan. App. 2d 610, 873 P.2d 1377, rev. denied 255 Kan. 1007 (1994).
On remand to the trial court, the only issue remaining was whether an implied contract existed as to the term of employment. The court, on remand, granted summary judgment to the Housing Authority on this issue. It held that the Housing Authority had no power to enter into an implied contract with appellants for a stated tenure. Thus, appellants were employees at will and had no basis for an action for wrongful discharge.
Factually, this case is unremarkable. The only real issue is whether the Housing Authority had the power to enter into an implied contract with appellants concerning their job tenure.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. All reasonable facts and inferences which may reasonably be drawn from the evidence must be viewed in favor of the party against whom the ruling is sought. Where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 166, 872 P.2d 252 (1994).
In reaching its decision, the trial court relied on the contents of the statute which authorized the creation of a housing authority and on the ordinance of the city which created this particular housing authority.
K.S.A. 17-2340, as enacted in 1957, authorized the city to create an agency known as a “housing authority,” and it reads in pertinent part as follows:
“Sec. 4. Creation of housing authorities. Every city in addition to other powers conferred by this or any other act, shall have power, by proper resolution of its governing body, to create as an agent of such city authority to be known as the ‘housing authority’ of the city. The city may delegate to such authority any or all of the powers conferred on the city by this act, and may authorize it to employ an executive director, technical experts and such other officers, agents and employees, permanent and temporary, as it may require, and to delegate to one or more of its agents or employees such powers or duties as the authority may deem proper.” L. 1957, ch. 132, § 4.
The City of Kansas City created the defendant Housing Authority by the passage of resolution No. 15872. Insofar as that resolution is pertinent to the issues under consideration, it reads as follows:
“2. The Board of Commissioners of the City of Kansas City, Kansas, pursuant to Section 4 of the Municipal Housing Law, hereby empowers and authorizes the said Housing Authority of the City of Kansas City, Kansas, to employ a secretary (who shall be executive director), technical experts and such other officers, attorneys, agents and employees, permanent and temporaiy, as such authority may require, to determine their qualifications, duties, and compensation, and to delegate to one or more of them such powers or duties as the authority may deem proper . . . .”
It is of utmost significance that defendant is a municipal corporation, an agency of the City of Kansas City, Kansas. Under the law of this state, a city is a creature of the legislature; it has only such powers as are conferred by law or as may necessarily be implied to give effect to powers specifically granted. James v. City of Pittsburg, 195 Kan. 462, 465, 407 P.2d 503 (1965). The Housing Authority, as an agency of the City, has only such power and authority as are granted to it by its enabling legislation, and its power to contract is limited to those powers specifically granted or necessarily implied. See Wichita Public Schools Employees Union v. Smith, 194 Kan. 2, 4, 397 P.2d 357 (1964).
The question as to whether the Housing Authority had the power to enter into implied contracts with appellants requires that we examine the law as it relates to municipal corporations.
A municipal corporation cannot in any manner bind itself by any contract which is beyond the scope of its powers, and all persons contracting with the corporation are deemed to know its limitations. Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, 416, 479 P.2d 875 (1971). The law has made it clear that persons contracting with a municipal corporation must inquire into the power of the municipal corporation and must at their peril know the authority of the municipal corporation. Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, Syl. ¶ 9, 834 P.2d 1344 (1992); State, ex rel., v. City of Coffeyville, 127 Kan. 663, 666, 274 Pac. 258 (1929). An attempt by a governmental agency to enter into a contract in violation of its authority will be considered void. Gragg v. U.S.D. No. 287, 6 Kan. App. 2d 152, 155, 627 P.2d 335 (1981). In the event a municipal corporation enters into a contract it has no power to make, the contract is ultra vires and unenforceable, and no further inquiry into the contract’s validity is necessary. Blevins, 251 Kan. at 383. In addition, any reasonable doubt as to the existence of a particular power must be resolved against its existence. Wichita Public Schools Employees Union, 194 Kan. at 4.
The first step in our examination must begin with whether the power to enter into an implied contract is specifically granted by legislation. We have examined K.S.A. 17-2340 and resolution No. 15872, and it is apparent that there is no specific power granted to the Housing Authority to enter into employment contracts for a stated term. That being the case, the next question is whether that power can be necessarily implied. We conclude that it cannot.
Kansas is an “employment-at-will” state in which the general rule is that, absent an express or implied contract between employer and employee governing the tenure of employment, either party may terminate the employment relationship at any time with or without cause. Johnson v. National Beef Packing Co., 220 Kan. 52, 54, 551 P.2d 779 (1976); Pilcher v. Board of Wyandotte County Comm’rs, 14 Kan. App. 2d 206, 209, 787 P.2d 1204, rev. denied 246 Kan. 768 (1990).
It is pointed out that in K.S.A. 17-2340, the City is empowered to authorize the Housing Authority to hire employees, both temporary and permanent. The use of the term “permanent” in the statute is not significant. The Kansas Supreme Court, in Johnson v. National Beef Packing Co., considered the term permanent in the context of tenure of employment. The court rejected the concept that the term meant employment for a fixed or definite period of time. The court indicated that all the term meant was that the job would be of some permanence as distinguished from being temporary. 220 Kan. at 55.
Article 15, section 2, of the Kansas Constitution provides as follows: “The tenure of any office not herein provided for may be declared by law; when not so declared, such office shall be held during the pleasure of the authority making appointment.” See Stoldt v. City of Toronto, 234 Kan. 957, Syl. ¶ 2, 678 P.2d 153 (1984); Riddle v. City of Ottawa, 12 Kan. App. 2d 714, Syl. ¶ 4, 754 P.2d 465, rev. denied 243 Kan. 780 (1988).
The foregoing provision of our constitution has been construed, rather literally, to mean that in the absence of clear evidence to the contrary, a job for a governmental agency is governed by the employment-at-will doctrine.
In Riddle v. City of Ottawa, this court dealt with an employee of the City of Ottawa who was suspended without pay. He sued the City, claiming he had a protected property and liberty interest in his employment tenure which could not be taken without due process. We did not agree and concluded:
“Riddle does not have a constitutionally protected property right in his job as a public safety officer for the City of Ottawa. He cannot point to any state statute, city code, or contract which addresses the duration of his employment or the criteria for his suspension. Therefore, he was not entitled to procedural due process before he was suspended for ten days without pay.” 12 Kan. App. 2d at 718.
The Kansas Supreme Court dealt with a similar issue in Stoldt v. City of Toronto, and the court in that case, said:
“The Kansas Supreme Court has held only vested rights have a sufficient property interest to require due process protection. See Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975). In Leek, this court held the tenure of any office not provided for in the constitution may be declared by statute, and when not so declared such office shall be held at the pleasure of the appointing authority. ‘Kansas law clearly establishes the incumbent to a public office enjoys no property or vested interest in public office.’ 217 Kan. at 811. The applicable Kansas state law in this case is K.S.A. 15-204, which provides:
‘The mayor, with the consent of the council, may appoint ... a marshal-chief of police, policemen . . . and such other officers as deemed necessary .... A majority of all the members of the council may remove any such officer; or, for good cause, the mayor may remove any such officer, with the consent of the council.’
This statute does not provide for any term of office. It additionally allows a mere majority of the members of the city council to remove any such officer at will. There is no requirement that the council have or give cause for the termination. The appellant in this case had no constitutionally protected property right in his position as night watchman.” 234 Kan. at 964-65.
It appears to us that Stoldt and Riddle stand for the proposition that a public employee serves at the will of his or her employer unless that employer is specifically empowered to contract for employment on other terms.
We conclude that the Housing Authority had no specific power to contract for employment for a specified tenure. At the time the enabling legislation creating the Housing Authority was passed, the employment-at-will doctrine was well established in the law of Kansas. Neither the statute nor the resolution creating the Housing Authority show any intent to change the generally accepted rule in this state.
In order for the Housing Authority to have the power to enter into an implied contract for a specific duration, it would have to be demonstrated that that power is necessary in order to effectuate the power specifically granted. In this case, there is no indication whatsoever that the Housing Authority cannot function and carry out its duties under the employment-at-will doctrine. We are further bound by the proposition that any doubt concerning the existence of a nonspecified power is to be resolved against its existence.
We hold that the Housing Authority had neither the specifically expressed power nor the implied power to enter into an employment contract specifying the tenure of its employees.
It is the position of the appellants that they had an implied agreement concerning their employment tenure and that whether such an agreement existed is a question of fact for the trier of fact. That would ordinarily be an accurate observation; however, in this case the terms of the implied contract are basically irrelevant.
Our conclusion is that the Housing Authority had no power to enter into an implied contract specifying the tenure of employment. The net result of that conclusion is that even if it did enter into such a contract with appellants, that contract was absolutely void and unenforceable, and its terms are basically irrelevant.
In Blevins v. Board of Douglas County Comm’rs, 251 Kan. at 383-84, the Supreme Court said:
“Here, the County did not have the power and authority to call a binding election. Plaintiffs claim the statements made regarding holding an election created an implied contract to follow through with that promise. If a municipal corporation enters into a contract it has no power to make, it is ultra vires and unenforceable and no further inquiry into the contract’s validity is necessary. 10 McQuillin, Municipal Corporations § 29.02 (3d ed. rev. 1990).
‘Contracts which a municipal corporation is not permitted legally to enter into are not subject to ratification, and a city may not be estopped to deny the invalidity of a contract that is ultra vires in the sense that it is not within the power of the municipality to make. In other words, no ratification or estoppel can make lawful a municipal contract which is beyond the scope of the corporate powers, or which is not executed in compliance with mandatoiy conditions prescribed in the charter or statutes, or which is contrary to a declared policy adopted to protect the public. The notice imputed to all persons dealing with a municipal corporation of the limits of its powers, is in some cases advanced as the reason upon which these rules are based.
The fact that the other party to the contract has fully performed its part of the agreement, or has expended money in reliance of its validity, does not estop the city from asserting ultra vires, nor is a municipality estopped to aver its incapacity to make a contract because it received benefits under it. That is, it cannot be made liable either on the theory of estoppel or implied contract, where it had no capacity to make the contract or where it was made in express violation of law.’ 10A McQuillin, Municipal Corporations § 29.104.30 (3d ed. rev. 1990).” (Emphasis added.)
See Miller v. U.S.D. No. 470, 12 Kan. App. 2d 368, 372, 744 P.2d 865 (1987), aff’d 242 Kan. 817, 752 P.2d 113 (1988).
We hold that any implied contract entered into with appellants was ultra vires and unenforceable and that no further inquiry into the contract’s validity or terms is necessary.
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Lewis, J.:
In 1991, petitioner pled guilty to a charge of indecent liberties with a child and was sentenced to a term of 5 to 20 years. The record suggests that the victim was the 10-year-old daughter of petitioner. In 1993, petitioner filed two 60-1507 motions, literally opening the floodgate on a variety of motions and orders which have made this case a procedural nightmare. Petitioner appeals, among other things, the refusal of the trial court to dismiss his original motions and let him start over.
We will not attempt to describe in detail the variety of pleadings filed in this action. Suffice it to say, between July 1993 and May 1994, there were at least 24 separate court orders, motions, and other items filed in case No. 93-C-1699. In the process of this litigation, petitioner has added a variety of lawyers as defendants and has even included the Attorney General of the State of Kansas. All but one of the pleadings filed by petitioner were filed pro se. In April 1994, the present counsel was appointed to represent petitioner and has done so ever since.
Petitioner’s court-appointed attorney filed a motion to amend the original 60-1507 motion and has raised new constitutional issues. In addition, he has alleged that it is necessary that he obtain a transcript of the plea hearing in which petitioner entered his plea of guilty. The trial court denied the motion to amend and refused the request for a transcript. On the surface, it appears that the last pleading has raised a legitimate question concerning petitioner’s conviction and that sooner or later petitioner’s request for a transcript must be considered on its merits and, in all probability, granted.
In addition to all of the pleadings filed in the trial court, there have been two notices of appeal filed to this court. The first notice of appeal has never been properly docketed and is hereby dismissed. We deal with the second notice of appeal.
Although petitioner raises a variety of issues on appeal, we have concluded that we need deal with only one. On August 3,1993, at a time when no adverse party had served an answer or a motion for summary judgment, petitioner filed a document entitled “Motion to Dismiss.” This document was prepared pro se and is rather unartfully drawn but clearly seeks to dismiss case No. 93-C-1699 so that petitioner could refile his litigation as a habeas corpus action. The motion to dismiss apparently went unnoticed until July 1994, when the trial court refused to grant it because it was not labeled “Notice to Dismiss” but was captioned “Motion to Dismiss.”
The issue we must resolve on this appeal is whether the document filed by petitioner in August 1993 had the effect of dismissing his previously filed 60-1507 motion. We conclude that it did and that all orders entered by the trial court after August 3,1993, were made without jurisdiction and are void.
A proceeding under K.S.A. 60-1507 is civil in nature and is governed by the rules of civil procedure. See Kansas Supreme Court Rule 183 (1995 Kan. Ct. R. Annot. 181); Taylor v. State, 251 Kan. 272, 280, 834 P.2d 1325 (1992). K.S.A. 60-241(a)(l) provides:
“[A]n action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (ii) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Where the dismissal is by stipulation the clerk of the court shall enter an order of dismissal as a matter of course. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.”
In the event an answer or motion for summary judgment is filed and served by an adverse party, a party may only dismiss the action by filing a motion to dismiss and seeking an order of the court. There is no question in this case that petitioner filed a document which was captioned “Motion to Dismiss.” It is also undisputed that when petitioner filed his “Motion to Dismiss,” none of the adverse parties in the action had served an answer, motion for summary judgment, or any other pleading.
The question is whether, under the circumstances, we should recognize petitioner s motion to dismiss as a notice of dismissal. There is also some question as to whether K.S.A. 60-241(a)(l) has application to a 60-1507 proceeding.
These are questions of apparent first impression in this state.
K.S.A. 60-241(a)(l) is identical to Rule 41(a) of the Federal Rules of Civil Procedure. See Sumner v. Law Offices of Jerry Berg, P.A., 20 Kan. App. 2d 572, 574, 890 P.2d 742 (1995). Under these circumstances, we have, in the past, relied upon the federal court’s interpretation of Rule 41(a) to guide us in interpreting K.S.A. 60-241(a)(1). See 20 Kan. App. 2d at 574. We have researched the federal decisions on this issue and find at least three decisions which have concluded that under Rule 41(a) a notice of dismissal captioned as a motion to dismiss operates as an effective dismissal at the time of filing. These cases take a common sense approach to the issue and conclude that once the document is filed within the time frame stated by the statute, neither the court nor the adverse party can prevent dismissal, and the fact that the document is captioned “Motion” rather than “Notice” is without legal significance. Williams v. Ezell, 531 F. 2d 1261, 1263 (5th Cir. 1976); Sanchez v. Vaughn Corporation, 282 F. Supp. 505, 506-07 (D. Mass. 1968); Wilson & Co. v. Fremont Cake & Meal Co., 83 F. Supp. 900, 902-03 (D. Neb. 1949).
We believe the reasoning of the federal decisions on this issue is sound. We can think of no good reason for concluding that the caption of a pleading should control over its content. This is particularly true in the case of a pro se pleading. Under these circumstances, we have long held that substance must control over form. In reading petitioner’s “Motion to Dismiss,” there is no doubt that petitioner wants to dismiss his motions filed under K.S.A. 60-1507. The document was filed within the time frame in which ex parte dismissal is permitted under 60-241(a)(l), and such dismissal is automatic. To permit the substance of a pleading to be trumped by its caption is neither legally sound nor supportive of judicial economy. We have in the past indicated that the trial courts should consider certain pleadings as motions filed under 60-1507 regardless of the caption or even the relief sought by those motions. See State v. Mejia, 20 Kan. App. 2d 890, Syl. ¶ 3, 894 P.2d 202 (1994). These decisions recognize that something more than a strict adherence to form is occasionally necessary in the interests of justice and judicial economy. It is clear to us that in this case a great deal of confusion, not to mention time, could have been avoided by recognizing the substance of petitioner’s motion to dismiss and by dismissing the action and allowing him to start the process anew. The rule we announce in this case is designed to give preference to substance over form in dealing with pro se motions under K.S.A. 60-1507.
We also see no particular reason why K.S.A. 60-241(a)(l) should not apply to a motion under K.S.A. 60-1507. It is true there are no Kansas decisions which specifically say that it does, but that may be due more to the obvious answer to the question than to its complexity. In federal habeas corpus proceedings under 28 U.S.C. § 2254 and § 2255 (1994), the federal courts have routinely allowed the application of Fed. R. Civ. Proc. 41(a), at least as to motions to dismiss without prejudice under 41(a)(2). See, e.g., Clark v. Tansy, 13 F. 3d 1407, 1410-11 (10th Cir. 1993); Hurd v. Mondragon, 851 F.2d 324, 328-29 (10th Cir. 1988); Kramer v. Butler, 845 F.2d 1291, 1294 (5th Cir. 1988); Estep v. United States, 251 F.2d 579, 582-83 (5th Cir. 1958). It is true that all of these cases deal with the application of 41(a)(2), although Rule 41(a) is often quoted in its entirety without excluding the possible application of 41(a)(1). However, Potts v. Zant, 638 F.2d 727 (5th Cir. 1981), concedes that there is a right to dismiss a habeas petition under Rule 41(a)(1).
We have no problem with concluding that K.S.A. 60-241(a)(l) is applicable to proceedings under K.S.A. 60-1507. The dismissal is, by statute, without prejudice and, in the absence of other significant facts, should not be considered, in and of itself, as evidence of an abuse of the process when a subsequent motion is filed.
We hold that a proceeding pursuant to K.S.A. 60-1507 may be voluntarily dismissed under K.S.A. 60-241(a)(l) by the filing of an appropriate document. We further hold that when a document seeking dismissal is filed within the time frame set out in K.S.A. 60-241(a)(l), it will operate as an automatic dismissal of the action upon filing even though it may be labeled “Motion to Dismiss” rather than “Notice to Dismiss.” We intend that the application of this rule should have principal application in cases involving pro se proceedings under K.S.A. 60-1507.
The effect of our decision is that any holding made by the trial court after August 3, 1993, was made without jurisdiction and is void. Since a dismissal is, by statute, without prejudice, petitioner is free to begin anew the procedure under K.S.A. 60-1507.
This case is remanded with directions to dismiss case No. 93-C-1699 as of August 3, 1993.
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Lewis, J.:
Plaintiff sued defendant for damages sustained in an automobile accident. During the trial of the action, plaintiff called as witnesses her two treating physicians. These physicians charged plaintiff a total of $3,171 in witness fees and mileage. The jury returned a verdict in favor of plaintiff in the amount of $13,000 and found defendant to have been 60% at fault. Plaintiff then sought to have the trial court assess as costs to defendant the $3,171 her physicians charged to appear and testify at the trial. The trial court refused to do so, and plaintiff appeals from that ruling.
The only question to be resolved on appeal is whether the trial court erred in failing to assess to defendant the witness fees charged by plaintiff’s treating physicians. We hold that it did riot.
This appeal comes to us on facts stipulated to by the parties and approved by the trial judge. In such instances, we have de novo review. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, Syl. ¶ 1, 744 P.2d 840 (1987). In addition, the question presented is one of statutory interpretation, which is a question of law over which we have unlimited review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
The issue in this case is controlled by three statutory enactments. These statutes are, in relevant part:
K.S.A. 60-2003:
“Items which may be included in the taxation of costs are:
(4) Statutory fees and mileage of witnesses attending court or the taking of depositions used as evidence.
(8) Such other charges as are by statute authorized to be taxed as costs.”
K.S.A. 28-125:
“(a) Witnesses shall receive the following fees:
(1) For attending before any court or grand jury, or before any judge, referee, or commission, $10 per day.”
K.S.A. 28-141:
“All fees and sums paid by either party for fees of witnesses and other necessary expenses in any civil action or proceeding shall be proved by the affidavit of the party, or of some person knowing the same to have been paid; and all such fees shall be taxed and collected from the party ordered or adjudged to pay the costs.”
The fee of an expert witness may not be charged to the losing party unless specifically authorized by statute. See Divine v. Groshong, 235 Kan. 127, 679 P.2d 700 (1984). In Divine, our Supreme Court indicated that K.S.A. 60-2003 does authorize the assessment of costs against the losing party but not “expenses” such as “paralegal time, attorney fees, deposition expense, phone calls, expert witness fees and the like.” (Emphasis added.) 235 Kan. at 141.
Fees are compensation for the performance of services, while “costs-” are expenses incurred in the maintenance of a lawsuit. Barnes v. Employment Security Board of Review, 210 Kan. 664, 681, 504 P.2d 591 (1972). The taxation of costs is a matter controlled by statute, and a court has no inherent power to award costs beyond statutory authorization. Hodges v. Lister, 207 Kan. 260, 266, 485 P.2d 165 (1971); Brown v. Zackert, 10 Kan. App. 2d 466, 468, 701 P.2d 711 (1985).
There is nothing in the statutory provisions controlling this issue which would permit the taxation of fees charged by an expert witness as costs. Plaintiff argues that since the fees in this case were charged by her “nonretained” treating physicians, they are somehow different and somehow taxable as costs. Plaintiff argues that these fees can be taxed as costs to the losing party as “sums paid” under K.S.A. 28-141. We do not agree.
Plaintiff’s position has no statutory support. K.S.A. 28-125 clearly limits a witness to a fee of $10 per day. Plaintiff argues that this statute only applies to “lay witnesses” and not to treating physicians. Plaintiff’s argument is without merit. The statute does not limit its application only to “nonretained lay witnesses.”
K.S.A. 60-2003 is clear and unambiguous. It permits statutory fees and mileage of witnesses to be taxed as costs. The statutory fees are $10 per day. There is nothing in any of the statutes in question permitting the assessment of expert witness fees as costs. ‘When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
K.S.A. 28-125 refers to fees of witnesses. Witness fees are limited in this state to $10 per day.
We hold that the fees treating physicians charge for their appearance and testimony at trial may not be assessed against a losing party as costs. We affirm the decision of the trial court to that effect.
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Gernon, J.:
Michael L. Davenport appeals the district court’s refusal to allow jail time credit on his previously imposed sentence for time spent imprisoned for civil contempt.
Davenport was originally charged with first-degree murder and aggravated robbery. As part of a plea bargain, he pled guilty to second-degree murder and received a sentence mandated by the Kansas Sentencing Guidelines Act of 68 months in the custody of the Secretary of Corrections.
A material component of the plea bargain was Davenport’s agreement to testify at other hearings or trials concerning the events and participants surrounding the murder.
Davenport was requested to testify at the preliminary hearing of Devonshay Bregettcy on November 23,1994. He refused to testify and tried to invoke his Fifth Amendment protections, despite the fact that he had already been sentenced pursuant to the plea bargain. He also asked to have counsel appointed. The hearing was continued.
On January 18, 1995, the hearing was reconvened, and Davenport, while not asserting his Fifth Amendment rights, still refused to testify. A district court judge ordered Davenport to testify and, when he still refused, found him in direct contempt and ordered him imprisoned until such time as he agreed to testify or died, whichever came first.
The sole question on appeal is whether Davenport should receive credit on his original sentence for any time served on the contempt citation. We conclude he should not and affirm.
K.S.A. 20-1203 authorizes a district court to find persons in direct contempt of court. This authority is not only found in statute but has deep historic roots.
“ ‘Independent of authority granted by statute, courts of record of superior jurisdiction [district courts in Kansas], whether civil or criminal, possess inherent power to punish for contempt of court. Such power is essential to the due administration of justice, and the legislature can not take it away or abridge it, although it may regulate its use. Statutes conferring the power are simply declaratory of the common law.’ ” State v. Marshall, 95 Kan. 628 (1915) (quoting 9 Cyc. 26).
Our standard of review for an order of contempt is whether the trial court abused its discretion. State v. Williams, 20 Kan. App. 2d 185, 187, 884 P.2d 755 (1994).
Here, Davenport does not suggest that he is not in contempt but simply contends that he should be given credit on his original sentence for the contempt sentence.
Jail time credit is permitted only for the time a defendant is held in custody on those charges for which the sentence was imposed. See Campbell v. State, 223 Kan. 528, 530-31, 575 P.2d 524 (1978); State v. Thorn, 1 Kan. App. 2d 460, 461-62, 570 P.2d 1100 (1977).
Several federal and state courts have addressed this very argument and have upheld the interruption of sentences to impose civil contempt penalties. See, e.g., In re Garmon, 572 F.2d 1373, 1374-76 (9th Cir. 1978) (recognizing the circuits which have addressed this issue and noting “that there exists no common law rule against the interruption of a prison sentence as a result of the imposition of a contempt penalty”); United States v. Mitchell, 556 F.2d 371, 382-85 (6th Cir.), cert. denied 434 U.S. 925 (1977); Anglin v. Johnston, 504 F.2d 1165, 1167-69 (7th Cir. 1974), cert. denied 420 U.S. 962 (1975); Ramos v. U.S., 569 A.2d 158, 161 (D.C. 1990) (citing cases); and People v. Sanders, 115 Ill. App. 3d 364, 366-67, 450 N.E.2d 896, appeal denied 96 Ill. 2d 548 (1983). These courts further emphasize that allowing a defendant to credit the time served in contempt against the criminal sentence would remove all incentives to comply with the court’s order.
Civil contempt is a coercive remedy, the sole purpose of which is to compel a party into providing information pursuant to court order. See Electronic Realty Assocs., Inc. v. Gomez, 18 Kan. App. 2d 122, 125, 848 P.2d 458 (1993).
“The power to punish for contempt of court does not arise from legislative action, but is inherent in the court itself.” Cyr v. Cyr, 249 Kan. 94, 99, 815 P.2d 97 (1991).
Here, Davenport can mitigate his circumstances on a moment’s notice by agreeing to testify. His conduct carries with it the consequences of continued incarceration for contempt or the opportunity to begin serving his original sentence.
Orders of contempt are necessary to maintain the dignity of, the respect toward, and the power of the courts, their orders, and their decrees. To suggest that anything less is acceptable is to invite disrespect, noncompliance, and, eventually, serious damage to the fabric of our system of justice. To hold otherwise is to invite the disregard of orders and render any punishment for such disregard meaningless.
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The opinion of the court was delivered by
BxjeCH, J.:
The action was one for damages for injuries to person and property, sustained by an automobile driver in a collision at a highway crossing with one of the defendant’s trains. The plaintiff recovered, and the defendant appeals.
The railroad track extends from northeast to southwest, and the highway from east to west. The train approached the crossing from the southwest,, and the plaintiff from the west. About'a half mile southwest of the crossing the train came through a cut between two bluffs. ‘ At the crossing, the railroad track is four feet above the general level of the ground, and is reached by an approach thirty feet long. The crossing was very rough, and there was a depression between the rails. The plaintiff was familiar with the crossing, and knew it was dangerous. The plaintiff testified he traveled at a good rate of speed until he was within 200 feet of the track. He then slowed down, looked for a train and saw none, shifted his gea-rs, and proceeded slowly, at the rate of three or four miles per hour. He testified he had traveled about two-thirds of the distance to the track from the point -where he. slowed down, when- he looked for the last time toward the southwest for a train. His excuse for not looking again was that he could not take his eyes from the rough crossing long enough to turn around far enough to see if a train were coming. The jury returned the following special findings of fact:
“1. How fast was the train running at the time of the accident? A. 50 to 60 miles per hour.
“3. Was the country generally level along both the road and the railroad for at least one-half mile from the place of the accident? A. Yes.
“5. Is it a fact that the plaintiff could if he had looked have seen the defendant’s train all the time after it came out of the cut about one-half mile from the crossing?» A. Yes, if crossing and approach had been constructed as required by law.
“6. How far west of the crossing where the accident happened was the truck when Mr. Reader last looked along the railroad track in the southwesterly direction? A. 60 to 75 f.eet.
“7. Was the defendant railroad company or any of the employees negligent? A. Yes.
“8. If you answer the above question in the affirmative, state if you .can which employee was negligent and state in what respect he was negligent. A. Yes, the railroad company by not building proper approach and crossing at point of accident, and engineer and fireman in not sounding proper whistle and ringing of bell.”
The plaintiff submits with his brief a plat, drawn to scale, showing the locations of the train and of the plaintiff at the times mentioned in the testimony. The plat shows the train was 900 feet from the crossing when the plaintiff was 60 feet from it. If, as the plaintiff testified, and as the jury found, he looked for a train when he was approximately 60 feet from the track, he should have seen the train, because it was out of the cut and in plain sight only a little more than one-sixth of a mile away.
The plaintiff testified as follows:
“At the Santa Fe crossing of the township road the top of the rails is about four feet above the level of the road. I was driving east approaching the crossing from the west. The west approach to the crossing is .about 30 feet long. The approach will go up the four feet in about 30 feet. The decline begins right at the west rail, drops off from the rail.”
The plaintiff testified he shifted his gears because the grade was steep and in bad condition and the crossing.was unsafe. He testified his attention was occupied with the grade and with the crossing, and the jury found he could have seen the train but for the condition of the approach and crossing. When the plaintiff was at the foot of the approach, and just before he started up the grade, the train was only 450 feet away. He was then in a place of safety, which he was.about to leave for a place of danger of such character he could no longer watch for the on-coming train. Leaving out of account the fact that he had seen, or must be held to the consequences of having seen, the train when he was 60 or 75 feet from the crossing, he ought to have looked before he proceeded to render himself helpless by starting up the 30-foot approach.
The fact that the plaintiff would have been obliged to turn in his seat and look backward is of no consequence. A traveler approaching a railway crossing must be vigilant in trying to see. (Railway Co. v. Jenkins, 74 Kan. 487, 488, 87 Pac. 702.) Ordinary prudence requires that an automobile driver use his faculty of sight near the track, where it will be of most benefit to him. (Gage v. Railway Co., 91 Kan. 253, 258, 137 Pac. 938.) The time to. look is .when he is about to cross. That is the time When he is about to encounter the danger portended by a railway crossing, and it is not enough that he look at a point some distance from the crossing, when looking on nearer approach would reveal danger. (Railway Co. v. Wheeler, 80 Kan. 187, 191, 101 Pac. 1001; Beech v. Railway Co., 85 Kan. 90, 95, 116 Pac. 213.)
The condition of the grade and crossing did not excuse the plaintiff’s negligence. (Bunton v. Railway Co., 100 Kan. 165, 163 Pac. 801.) When 200 feet from the crossing the plaintiff looked for a train. He could see as far as the cut, and no train was in sight. It is argued that if he misjudged the time it would take to cross the tracks and the time it' would take for the train to come, he was not negligent as a matter of law. In support of the argument, the following is quoted in the opinion in the Bunton case:
“If the plaintiff, in the exercise of due care, had assured himself that there was no train coming within reasonable distance and had then. attempted to cross and had been stopped and held by this hole or depression in the track until a train not then in sight or hearing within a reasonable distance had come along and wrought this damage, of course the railway company would be liable (Baughman v. Shenango & Allegheny Railroad Co., 92 Pa. St. 335; Retan v. Railway Co., 94 Mich. 146), but that is not the case we have to consider.” (p. 170.)
Because the case put was hypothetical, and was not before the court for consideration, no decision of it was rendered. In the Pennsylvania case cited, a horse was trapped on a railroad crossing by defective planking. It could not be extricated before a train came. The track was visible for “a long distance in both directions,” and no train was in sight or hearing when the owner of the horse drove him upon the crossing. The court said the rule of stop, look, and listen was-not involved, and the only question was whether or not the railroad company was guilty of negligence. In the Michigan case, a pedestrian was trapped on a railroad, crossing by defective planking. The accident occurred at a sidewalk crossing in a city. When the plaintiff found he could not extricate his foot, he signalled the train, which was 584 feet away, and was running at a "speed of 12 miles per hour, but was gaining speed. The court held the question of the plaintiff’s negligence in going on the track in front of a train so far away was one for the jury, but said the case was not like one in which a person attempts to drive a team across a railroad track in front of an approaching train. The Pennsylvania case was decided in 1879, and the Michigan case in 1892. They were both clear cases of entrapment and, neither singly nor considered together, furnish the basis for modification of any of the rules heretofore announced by this court involving automobile accidents at railroad crossings. Besides this, the court has been called on to consider the subjects of error in judgment and miscalculation of speed by an automobile driver who goes upon a crossing in front of a railroad train, and has held the rule in street-railway crossing cases does not apply. (Kirkland v. Railway Co., 104 Kan. 388, 393, 179 Pac. 362; Moore v. Railways Co., 108 Kan. 503, 196 Pac. 430.) In the Moore case it was said:
“One who attempts to cross a railroad track when he knows a train is approaching does so at his peril, and if a collision results it is deemed to be the consequence of his own negligence, notwithstanding he may have miscalculated the distance of the train.” (p. 504.)
In this instance, when the plaintiff was 200 feet from the crossing he was bound to anticipate that a train might emerge from the cut the next instant and reach the crossing in thirty seconds. When he was 60 feet from the crossing he looked along the track toward the southwest for a train. He had not yet reached the approach, and should have seen the train, which was 900 feet away. He should have improved the opportunity to look when he was 30 feet from the crossing, and before he was obliged to devote his faculties to surmounting the difficulties presented by the grade crossing. The result is, the plaintiff was guilty of contributory negligence, as a matter of law.
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the Manhattan State Bank to recover upon a promissory note for $8,750, and to foreclose a mortgage on real estate executed by George McLaren and his wife, Alice H. McLaren, to secure the payment of the note. Judgment was given against the makers of the note for the amount due thereon and for the foreclosure of the undivided interest owned by George Mc-Laren and his wife about which there was no question, subject to a life estate in the defendant Catherine Charlotte McLaren. It was further determined that the deed which the latter had given to George McLaren conveying her life estate to him before the mortgage was executed was null and void, and as to that interest a foreclosure was refused. The plaintiff appeals, and contends that the deed of Catherine to George cannot be regarded as void as against the bank, that it had no knowledge or notice of the incompetency of' Catherine to make a deed, and the finding of the court, that it had knowledge of facts and circumstances sufficient to constitute notice, that the deed was improperly obtained by George was without support in the evidence.
Hannah Hice McLaren, the mother of the parties owned one-half section of land at the time of her death. She had made a will in which she gave a life estate to Catherine and the remainder in fee to her sons, George, John and James, in equal shares. From the evidence adduced, the court found, that when the deed was executed by Catherine to George she was then and for a long time had been a drug habitué, 'and was mentally incapable of managing her affairs or of understanding the nature of a conveyance. Subsequently, and on January 20, 1920, she was adjudged to be incompetent by the probate court, and a guardian of her person and estate was appointed. As to the knowledge of the plaintiff of the incompetency of Catherine, the court found:
“At the time of the execution, of the deed and the $8,700.00 mortgage the defendant George McLaren was insolvent, and the plaintiff bank knew that he was in financial straits. The plaintiff also knew that said Catherine Charlotte McLaren was at said time the owner of a fife estate in the land in controversy; th^at said life estate was of the value of $500.00 a year; that said George McLaren had no means with which to purchase said life estate and that the deed obtained from said Catherine Charlotte McLaren was without consideration. Also plaintiff at said time knew the value of the land.
“Plaintiff had knowledge of facts and circumstances sufficient to constitute notice that the deed from said Catherine Charlotte McLaren to said defendant George McLaren was obtained by said George McLaren by improper means and that as between said Catherine Charlotte and said George said deed was null and void.”
The turning point in this appeal is whether evidence was intro- dueed showing that the bank had knowledge of the incompetency of Catherine; of the fact that the deed she executed was obtained, by improper means, or that it had knowledge of facts and circumstances sufficient to constitute notice of the fraud. If it had such knowledge or notice, the deed would not only be void as between George and Catherine but without validity as to the bank in respect to Catherine’s interest, and the mortgage obtained by the bank would be ineffectual as to that interest. (Waller v. Julius, 68 Kan. 314, 74 Pac. 157.) When the mortgage was executed Catherine had not been adjudged to be incompetent. As between George and Catherine it may be assumed that he had knowledge of the incompetency and of the invalidity of the deed, but a conveyance or mortgage obtained in good faith from one not previously declared insane is only voidable and will not be set aside unless he had knowledge of the insanity and fraud. (Gribben v. Maxwell, 34 Kan. 8, 7 Pac. 584.) In Myers v. Knabe, 51 Kan. 720, 33 Pac. 602, it was said:
“A contract or conveyance made fairly and in good faith with a lunatic who is apparently sane, and before any finding of lunacy is made, cannot be annulled by a mere showing of incapacity at the time it was made. If the other party entered into the contract without any knowledge of the insanity, his equitable rights must be protected before there can be a rescission or annulment.”
The deed in question may have been void as to George and only voidable as to the bank. He paid no consideratioñ for the conveyance, but the bank paid full consideration for its mortgage. If it took the ¡mortgage in good faith, having paid .full consideration and without notice of the fraud of George in obtaining the deed to the property on which the mortgage was given, it would be in the attitude of an innocent purchaser from a grantee who had fraudulently obtained the .conveyance. In such a case it has been held that, “the title of a purchaser for value without notice from the grantee of a lunatic is good against the heirs of the lunatic. (See Odom v. Riddick, 104 N. C. 515.)
In a leading English case it was held that if a conveyance is fraudulently obtained from an alleged lunatic and for an inadequate consideration, a purchaser from such grantee for a sufficient consideration and without notice would be protected the same as any other purchaser for value without notice of the fraud from a fraudulent alienee. (Greenslade v. Dare, 20 Beav. Rep. 284.) In Phillips v. Murphy and Gary, 186 Ky. 763, where it was claimed that a party had fraudulently procured a deed from one mentally incapable of making a conveyance, and such party afterwards conveyed the land to a grantee who had no knowledge of the incapacity or of the fraud of his grantor and was not in possession of such facts or circumstances as should have put him on inquiry, the latter would acquire a good title. See, also, Lack v. Brecht, 166 Mo. 242; Arnett’s Committee v. Owens, 23 Ky. Law Rep. 1409; Abbott v. Creal, 56 Ia. 175. From these authorities it is seen that the trial court rightly held that to deprive the bank of its lien upon the interest of Catherine it should be shown that it had knowledge of the incapacity of Catherine or of the fraud of George in procuring the deed from her, or of facts and circumstances sufficient to constitute notice of such incapacity or fraud. From the evidence it does not appear that the bank or its officers had learned from any source that Catherine was an habitual user of narcotics and incapable of making a conveyance. The most that the officers of the bank knew was that George was in financial straits, that he was already indebted to the bank for more than $3,000,'and that in order to clear up his indebtedness to the bank and others, it would require an advance to him of more than $5,000, making a total of $8,750. It was unwilling to accept as security a lien on the interest held by George in the land unless he obtained the conveyance of the life estate of Catherine to which his interest was subject. He agreed to procure it, and one of the officers of the bank -prepared the deed and therefore knew the consideration ($1.00) named in the deed was inadequate. It knew the value of the land and that the life estate was valuable, said to be worth $500 per year, and that George had no money with which to pay for that interest. These are the facts and circumstances upon which defendant relies to show that the bank had notice of the improper means employed by George in obtaining the deed. While courts carefully scrutinize the circumstances attending the obtaining of contracts or conveyances from one mentally incapable of making it, and circumstances which tend to show knowledge or notice of the incapacity or fraud) we conclude that the evidence produced at the trial is not sufficient to support the finding that the bank had knowledge or notice of the incapacity of Catherine or that the deed from her was obtained by improper means. Starting with the conceded fact that the officers of the bank had no notice of the incapacity of Catherine, the question arises, do the circumstances that George was in financial straits and that only a nominal con sideration was named in the deed warrant an inference that improper means were used to procure the execution of the deed? Catherine lived and the land was situated in another county, eighty miles or more distant from Manhattan, where the bank was engaged in business. While the officers of the bank had learned of the value of the land and necessarily knew that the consideration named in the deed was nominal, and also knew that George was without means to pay its actual value-, may they not have inferred that his sister was willing to aid him in clearing up his indebtedness so that he might continue his mercantile business? The circumstance that one in financial straits should appeal for and receive aid from members of his family is not uncommon. They may be willing to give him money or property to save him from business failure or to protect his credit and reputation, trusting him to reimburse them after his credit is reestablished. If the bank had had an inkling of the incompetency of Catherine, the circumstances mentioned would seem more material. It advanced George a large credit beyond the amount he owed the bank, for which the mortgage was given, but the testimony is that the entire amount was used to pay his obligations. He was a customer of the bank and was asking it to help him square with his creditors and enable him to go forward with his business. They agreed to make the loan upon a mortgage upon his land in case he acquired a complete title to it. This he undertook to do. Notwithstanding his lack of means to purchase, it could have been done honestly through the friendly assistance of his sister if she had been capable and actuated by desire to accommodate him. Under the circumstances, should dishonesty have been inferred? O'ur view is that the evidence is not sufficient'to show that the bank was chargeable with notice that the deed was obtained dishonestly.
There not being sufficient evidence to sustain the findings of the court as to that element of the case, the judgment will be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Buroh, J.:
The action was one to recover on a conditional offer of additional discount on sales of motor cars. A demurrer to the petition was sustained, and the plaintiff appeals.
The selling agreement was dated September 20, 1919, but for reasons which need not be stated, was effective between the parties from August 1, 1919, to July 31, 1920. The defendant agreed to supply models which it manufactured to the plaintiff. From September 1, 1919, to July 31, 1920, the plaintiff was to be allowed certain discounts from list prices. The agreement contained the following provision, applicable to specified models:
“In addition to the above discounts, providing your selling agreement is in force July 31, 1920, an additional 2 per cent, payable on or before September 1, 1920, will be allowed on the net volume of business of [specification] new cars purchased from us and paid for from August 1, 1919, to July 31, 1920, providing, further, you have taken delivery of your full and complete allotment each month as due from October 1, 1919, to March 31, 1920, inclusive.”
The agreement provided it might be canceled on five days’ written notice by either party, and the defendant canceled it, by notice dated April 24, 1920, taking effect five days from that date. The plaintiff made claim for the extra two per cent discount, in the sum of $1,191.30. The defendant replied as follows:
“The facts stated in your letter are not in accord with the facts as I understand them. I am of the opinion that you are under no circumstances entitled to the sum you claim by reason of the express terms of our agreement. On the other hand, as you know, there was full and just cause for the action taken by our company in canceling your contract.”
The plaintiff pleaded the selling agreement, the price list, the discounts, the shipping order which embraced the monthly allotment of cars, and the correspondence between the parties. The petition also contained the following:
“Plaintiff alleges that within the period provided for in said contract, to wit, between September 12,1919, and March 24, 1920, inclusive, plaintiff . . . purchased from defendant, under the terms and provisions of said written contract, motor cars of the models last above referred to, to the extent of a net volume of business of fifty-nine thousand five hundred sixty-five ($59,565.00) dollars, on which it was entitled to an additional 2% discount to the amount of eleven hundred ninety-one and 39ioo ($1,191.30) dollars, as provided for in said contract. . . .
“Said contract was terminated by defendant on or about April 24, 1920, and plaintiff avers that the fact that said contract was not in force and effect July 31, 1920, was not due to any fault or default of the plaintiff and its said predecessors, but was due wholly to the voluntary termination and discontinuance of said written contract by defendant in accordance with clause VIII of said agreement and by Written notice from said defendant company under date of April 24, 1920, . . .”
The number of cars allotted to the plaintiff for the months October 1, 1919, to March 31, 1920, inclusive, was 100. The plaintiff did not see fit to make a clean-cut statement that it took the allotment, as due, and resorted to a general allegation that it “duly performed all matters and things.” It will be assumed the plaintiff took the allotment. Since no claim was made for additional discount on any cars taken after March 24, it will be assumed none were taken. The allotment for March was 21 cars, and the allotment for April was 22 cars. The allotment from March 31 to July 31 was 80 cars, and the notice terminating the agreement was given one month after the plaintiff ceased taking cars.
The defendant could fix the terms to which it would deliver cars to the plaintiff, and was not obliged to offer any bonus. Having decided to offer a bonus, it could fix the conditions of payment. Two conditions were attached: first, continuance of relations under the selling agreement until July 31, 1920, and second, the acceptance of a specified number of cars monthly between October 1 and March 31. Privilege to terminate the selling agreement at any time was reserved. This provision of the agreement was coordinate with the offer of bonus, and had the effect of reserving privilege not to pay bonus, exercisable by canceling the selling agreement at any time before July 31, 1920. The plaintiff entered into relations with the defendant on those terms. The defendant was guilty of no breach of contract in exercising its privilege, and the plaintiff has no remedy on the agreement.
The plaintiff cites the case of Zwolanek v. Baker Mfg. Co., 150 Wis. 517. In that case, a workman entitled to participate in a profit-sharing scheme as a reward for continuous service, was discharged one day before the reward was due. 'The court said the jury might have found the employer violated the contract by discharging the workman. No such finding would be possible in this case.
The plaintiff cites the case of Scheuer v. Monash, 83 N. Y. Supp. 253. In that case, the plaintiff agreed to work for a year, and was to receive a bonus if his sales exceeded the sum of $20,000. Employment was terminated by mutual agreement at the end of the tenth month. The sales had then aggregated more than $20,000. Termination of the employment by consent made the contract fully executed, in contemplation of law, and of course the bonus was allowed.
The plaintiff cites the case of Haag v. Rogers, 9 Ga. App. 650. In that case, the contract of employment was that it should remain in force while mutually satisfactory, that the workman should receive certain monthly wages, and that he should receive extra pay if he remained in service until the end of the circus season. On November 2 he was discharged for fighting. The contract imposed a fine of five dollars for fighting on the show grounds. The syllabus reads as follows:
“The law will not construe a contract so as to give the debtor the right to destroy it by a simple refusal to comply with it, unless the terms of the contract are so clear and unambiguous as to make irresistible the conclusion that no other result could possibly be reached.” (Syl. ¶[ 1.)
There was no evidence relating to the fight, and the workman may have done no more than defend himself. The court held the question whether' fighting on the show ground was cause for discharge, was a jury question, and said:
“Unless the language of the contract is too clear to admit of any other reasonable interpretation, the employer can not capriciously terminate the contract himself so as to avoid liability for the wages at the higher rate. Here the season was nearly over. To construe the contract as allowing the defendant then to terminate it without sufficient cause, and thereby to deprive the plaintiff of the extra compensation which was being held back as a guarantee against his quitting, would be to give the contract an oppressive and unnatural effect, which can hardly be said to have been within the fair contemplation of the parties.” (p. 654.)
In this instance, the language of the contract is clear and unambiguous. Paragraph VIII reads as follows:
“Either party may cancel this agreement by five days’ written notice to the other. If cancelled, we are to have the privilege of repurchasing at cost of same to you any of our new current models which you have on hand in first-class condition unsold and which have not been used. This does not apply to demonstrating cars, which will not be considered for repurchase by us.”
The plaintiff was not an employee of the defendant, or a wage-earner, or other person for whom the courts are inclined to open to interpretation quite plain contracts, in order to prevent hardship. The selling agreement did not relate to a business affected with a public interest, which may be taken into account in interpretation. The parties were manufacturer and dealer, in ordinary relation appropriate to the nature of the business. They stood on equal footing before the law, and left no doubt of their intentions. The plaintiff agreed the subject of bonus should be left to ■ the defendant’s discretion, exercisable in a stated way, and this court is not permitted to rewrite the agreement.
The Georgia court of appeals spoke of construing a contract to give one party the privilege of destroying it by simple refusal to perform. The language was not well chosen. Parties are not forbidden to make an agreement in which one, or both, reserves the right to cancel at pleasure. Should they make such an agreement, it does not constitute a contract, because it lacks mutuality.
(1 Williston on Contracts, § 105; M’Caffrey v. B. B. & R. Knight, 282 Fed. 334; Ellis v. Dodge Bros., 237 Fed. 860; Velie Motor Car Co. v. Kopmeier Motor Car Co., 194 Fed. 324, 114 C. C. A. 284; Bernstein v. W. B. Manufacturing Co., 238 Mass. 589.)
Such an agreement is not strengthened by inserting the expres sion “for good cause,” or the expression/'for just cause,” as a condition to cancellation. Such expressions furnish no criterion by which to determine what cause or causes the parties had in mind, and cancellation for whatever is considered in good faith as cause, is permissible. (Oakland Motor Car Co. v. Indiana Automobile Co., 201 Fed. 499, and authorities cited in the opinion.)
In the Wisconsin case the court said:
“It is true as a general proposition that a party making an offer of a reward may withdraw it before it is accepted. But persons offering rewards must be held to the exercise of good faith and cannot arbitrarily withdraw their offers for the purpose of defeating payment, when to do so would result in the perpetration of a fraud upon those who in good faith attempted to perform the service for which the reward was offered.” (Zwolanek v. Baker Mfg. Co., 150 Wis. 517, 525.)
If the plaintiff desired to base' recovery on this theory, it should have pleaded facts showing bad faith whereby it was defrauded of a substantially earned bonus. An agreement which by express terms allows either party to cancel at will, binds neither to performance of anything after cancellation. Cancellation ends obligation to perform, and precludes liability for nonperformance. There is no basis on which to predicate default, and of necessity any equities which may have arisen and which would estop the canceling party from denying obligation to perform must be specially pleaded. In this instance the plaintiff pleads nothing which he should not have foreseen when he entered into the selling agreement. The agreement was in effect that, although the plaintiff should take the full allotment of cars between October 1 and March 31, the agreement might nevertheless be canceled on April 24, without liability on the part of the defendant to pay a bonus. In the case of Ellis v. Dodge Bros., 237 Fed. 860, the headnote reads:
“A contract by which a manufacturer of motor cars granted the right to a dealer to sell its cars within a certain territory for its term, with an agreement by the dealer to purchase a stated number of cars each month during the term, but which did not obligate the manufacturer to furnish the cars, and further provided that it might be canceled by either party at any time on 15 days’ witten notice, held void for lack of mutuality, and not enforceable.”
In the opinion, by Newman, district judge, it was said:
“So that we come to the proposition as to whether or not there has been such performance of the contract on the part of the plaintiff as would prevent the defendant, Dodge Bros., from setting up a lack of mutuality in the agreement between the parties. The agreement has the following provision: ‘This agreement shall expire by limitation June 30, 1915, or may be canceled by the manufacturer or dealer upon fifteen days’ written notice. . . .’
“This provision would be fatal to this agreement, as a binding contract between the parties, if it was not otherwise objectionable. [Citations.] It seems to me that, with this provision in the contract for its cancellation by either party, and without any reason given therefor, simply the right to cancel at will, it would be practically no contract at all. Even if there were an agreement here on the part of Dodge Bros, to deliver the cars, this right to cancel would seem to nullify any such agreement. To agree to do something and reserve the right to cancel the agreement at will is no agreement at all.
“As I understand the contention of the plaintiff here, it is that his renting a store on Peachtree street, and employing salesmen and also an office force, was such compliance with the contract on his part as would estop the defendant from setting up lack of mutuality, and, as I presume it is intended. by the plaintiff, also from setting up the right to cancel in this proceeding. I am unable to agree with the plaintiff about this. . . .
“Why the plaintiff incurred the expense claimed, in view of the character of the agreement he had with the defendant, it is difficult to understand. He certainly was not justified in doing so by anything the defendant had undertaken to do, as I read the agreement.” (pp. 867, 868.)
Suppose the petition, without other change of allegation concerning termination of the selling agreement, had shown the notice was served on July 25, to take effect on July 30, one day before the bonus was due. What right to the bonus would the plaintiff have? The question is answered in principle for all cases in which payment of reward is left to the will of the person offering it, by the decision in the case of Campbell v. Holcomb, 67 Kan. 48, 72 Pac. 552. Holcomb accepted the following proposition to employ .him as a commercial traveler:
“Now, we make you this proposition: We are willing to engage you upon a salary of $75 per month and your traveling expenses, and further state that if your connection continues with us for the period of an entire year, and the character of your business as to volume, etc., and the manner of your conducting it is satisfactory to us, we are willing to make this salary equivalent to $100 per month by the payment of the $25 excess at the close of the year, under the conditions named. The determination of this you must leave entirely to us. . . .” (p. 49.)
He continued in service for more than a year, at $75 per month, and sued for the bonus. No fraud was charged or proved. In the opinion the court said:
“The fact that plaintiff continued to work for the company after the expiration of the year was no evidence of such satisfaction with his efforts as rendered the additional sum due. It proved nothing more than that the company was still willing to pay him seventy-five dollars per month for what he was doing. The plaintiff had a perfect legal right, if he so desired, to agree to work for seventy-five dollars per month, and leave it to his employer to say if he should receive more. Having done so, he is bound by his contract. His conduct may have been wise or unwise, but the company plainly told him it would deal with him on no other terms. He accepted the hazard and must abide the result.” (p. 52.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Botch, J.:
The defendant was convicted of forgery, and appeals. T. J. Lawson lives in the northwest part of Franklin county, about eighteen miles from Ottawa. Between nine and ten o’clock on the paorning of December 31, 1921, the defendant appeared at Lawson’s house, and sold him some furs. Lawson paid for the furs with a check to the defendant, on the Peoples State Bank of Michigan Valley. The stub in Lawson’s check book was filled out accordingly. The check and stub were written by Lawson’s wife, as she was in the habit of doing, by his authority. The defendant was at Lawson’s house probably an hour and a half. When he went away he said he was going to Ottawa, and he took the road leading in that direction, driving a Ford coupe. Before three o’clock he was in Ottawa. The defendant testified he went from Lawson’s to Ottawa by way of Pomona, in Franklin county, taking his dinner at Pomona. The defendant had previously given a check to the Rhinehart Motor Company of Ottawa for $203, which had not been paid for want of funds, and he had agreed to pay the Motor company some money on December 31. When he arrived in Ottawa, he indorsed and delivered Lawson’s check to the Motor company. When the check was handed to the Motor company, the Motor company called the Michigan Valley Bank by telephone, to find out if the check was good. The check was read to the bank as Lawson’s check for $87.30 and following the telephone conversation, the Motor company credited the defendant with the amount of the check, $87.30. The Motor company deposited the check with the State Bank of Ottawa, which placed it in the usual channel for collection. It so happened that Mrs. Lawson listened in while the Motor company was talking to the Michigan Valley Bank by telephone. Lawson then told the Michigan Valley Bank to call him, if a check from him to the defendant for $87.30 came in. When the check arrived at the Michigan Valley Bank, on January 6, Lawson was sent for, and he repudiated the check, because the check he gave the defendant was for $37.30. The defendant took the bold stand that the check was written originally for $87.30, and he sued Lawson for $2,000 for slander. The defendant then wanted to settle so it would be satisfactory to everybody concerned, but Lawson said the matter was in the county attorney’s hands, and he could make no settlement.
At the trial there was just one fact in dispute, on which guilt or innocence of the defendant depended. Was the check given originally for $87.30, or for $37.30? If for $37.30, of course the defendant raised it. This being true, all the errors assigned, except one to be considered later, seem very technical and, assuming error to have been committed at all, nonprejudicial. There were some slight discrepancies, in minor formal matters, between the check as described in the information and the instrument itself, but not such as to make identity uncertain in any degree. Venue was sufficiently established by circumstantial evidence. Incorporation of the bank on which the check was drawn was properly proved by oral testimony of a person connected with the bank, who knew the fact. But one handwriting expert was used to prove the forgery, but proof of forgery was not rested on expert testimony alone. The expert was qualified, and the checks which he used as a basis of comparison with the forged check were admitted to be genuine checks of the defendant. The court read to the jury the forgery statute. The statute is plain, and the court did not need to expatiate upon its terms, or to call special attention to the necessity for proof of incorporation of the bank. Some other inconsequential matters are mentioned in the brief.
The motion for a new trial assigned, as grounds for a new trial, misconduct of the jury and reception of unauthorized evidence. At the hearing on the motion, the following affidavit of one of the defendant’s attorneys was read:
“That since the trial of said case, I have had occasion to talk with one of the jurors who was empaneled to try, and did try said case. That the juror so talked to by me admitted to me that some of the jurors procured two magnifying glasses, after being instructed by the court and during their deliberation of said cause, and took said magnifying glasses into their jury room, and there used the same on the check in question in this case, to determine whether or not there was any erasures or interlineations or changes therein.”
The affidavit further stated that the magnifying glasses were procured at the end of the first day’s deliberation of the jury, and were used during the second day’s consideration of the case. The statute reads as follows:
“The court may grant a new trial for the following causes, or any of them:
"First, when the jury has received any evidence, papers or documents not authorized by the court, . . .
"Second, when the jury . . . have been guilty of any misconduct tending to prevent a fair and due consideration of the case.”. (Gen. Stat. 1915, § 8191.)
The affidavit is hearsay, stated in the form of a conclusion, and might be disregarded altogether. Let it be conceded, however, that magnifying glasses were taken to the jury room, and were used in reading the check. The defendant testified that, at the places on the check where alterations were charged, it appeared rubbed and blurred, and that these appearances were given the check after it left his hands. There was no dispute, therefore, that the check disclosed to the naked eye abrasions of the surface of the paper and blurring of the figure 8 and the word eighty. The name “magnifying glass” gives no information respecting a glass, except that presumably it magnifies. If the glasses used were simply reading glasses, such as are comri&only used for reading fine print, they might have rendered the face of the check more distinct; herw much more distinct, depended on magnifying power. Unless they were of such a type that skill in use and experience in interpreting revelations were required, they could not have confused or misled. In no sense could it be said the jury received evidence not authorized by the court, unless the glasses were of such power and the condition of the paper were such that invisible, unerased portions of the figure 3 or of the word thirty were rendered visible, perhaps with the figure 8 or the word eighty superimposed upon them. What the glasses were is not disclosed, and what occurred may have been no more than if a juror, with magnifying lenses in his spectacles, had allowed his fellows to use them.
The statute reads as follows:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Gen. Stat. 1915, § 8215.)
In the case of The State v. Fleeman, 102 Kan. 670, 171 Pac. 618, the court said:
“The code of criminal procedure was framed to supersede the common law with a more rational system. While it is defective in many respects, and in many others exhibits a conservatism which contrasts strongly with its general liberality, it is distinctively modern. The tradition of the common law, however, was so strong that it came near superseding the code. In time the code was rediscovered, and it is the purpose of the court to interpret and apply it according to its true intent and spirit.” (p. 677.)
Formerly, violation of some positive provision of a statute, such as .comment by the county attorney on failure of the defendant to testify, or reception by the jury during its deliberations of unauthorized evidence, required reversal. True to common-law tradition, the court did not inquire beyond the fact. Since rediscovery of the criminal code, this is no longer true. It must appear that a substantial right was prejudicially affected. (The State v. Peterson, 102 Kan. 900, 171 Pac. 1153; The State v. Farrar, 103 Kan. 774, 176 Pac. 987.) The same is true of misconduct of the-jury. Formerly, misconduct required reversal. Then it was said the state must show no prejudice resulted. Now, the court will examine into the matter and, in the absence of a specific showing by the state of no prejudice, the court will not reverse, unless it is able to say the misconduct was such that harm to the defendant naturally would and probably did result. It is not possible to make such a declaration from the meager showing contained in the affidavit presented in support of the motion for a new trial.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
MasoN, J.:
This appeal is taken from a judgment against the Columbian Circle, a fraternal benefit association, in favor of Ellen Shanahan, upon a beneficiary certificate issued to her husband (Michael Shanahan) by the Sons and Daughters of Justice, of which the first-named association is the successor. The insured was a butcher in the employ of a packing-house company. He died of tuberculosis, June 11, 1920. The defense was that in his application he had made false representations and warranties concerning his health. The jury found specifically that the challenged statements were true. The appeal is based upon the contention that these findings were without any support in the evidence. The parties will be spoken of as the plaintiff and the defendant, these terms indicating their relations to each other, although both were in fact interveners.
1. In Glasgow v. Woodmen of the World, 107 Kan. 354, 191 Pac. 470, a judgment in favor of the beneficiary' of a similar certificate was set aside because it involved a finding against the uncontra-dicted testimony of a physician that he had treated him for Bright’s disease prior to his application. In the opinion it was said: “The jury had no right to disregard credible testimony merely because the plaintiff [the wife of the insured] testified that she had no knowledge of such consultation and treatment. Negative testimony of that character is entitled to little, if any, weight, since the insured might have consulted the physicians and been treated by them without her knowledge. Their testimony on these questions can hardly be said to have been contradicted, and is of a very convincing character.” (p. 359.) It was also said: “She [the plaintiff] admitted that the doctor made an examination of his condition and prescribed certain medicine which was given to the insured. The finding that he had not consulted nor been attended professionally by Doctor Clifton was therefore contrary to the evidence of both plaintiff and defendant.” (p. 358.)
The original certificate to Michael Shanahan was based upon an application made August 21, 1918. A later certificate was issued in lieu of this, but the controversy is not affected by the exchange. In the application the answer “none” was returned to each of the following questions: “What illnesses, diseases or injuries have you had since childhood?” “Name of medical attendant?” “State every physician or practitioner who has prescribed.for you or treated you, or whom you have consulted in the past five years?” The certificate warranted the truth of these statements and provided that it should be rendered void if any material representation were false.
The records of the packing house in which the insured was employed showed that on October 26, 1918, he was reported as having Bright's disease, the physician’s report concluding with the entry— “Actual length of disability, from August 24, 1918, to -■— still off, on October 26, 1918.” It was shown that he drew from the packing-house company eight weeks’ benefits, beginning August 24, 1918. The company’s doctor testified that in addition to attending him at this time he had also, several months before — within the preceding year — treated him at his [Shanahan’s] home for Bright’s disease; that he then found him dropsical, short of breath, his heart disorganized, some leakage and some murmurs; that he told him and his wife both of his condition. He was again asked whether at this time he told Shanahan what his illness consisted of, and answered:
“Well now I may have hinted it. The idea is that when a man has Bright’s Disease and he has a heart, we generally take the rest of the family into confidence and tell them first and then get it to him in a manner like this — ‘now you have got a badly disorganized heart, and your kidneys are in a situation of inflammation, popularly known as Bright’s disease; and you must not run upstairs or lift heavy until you get by this. If j'ou don’t take things quietly you might drop off.’ ”
He was then asked — “Did you tell Mike Shanahan that?” and answered “Yes.” He said he did not remember how many calls he made on the occasion of this sickness — “probably two or three . . . it may have been more but it wasn’t very many.”
This evidence made a very strong case, but it was not uncontra-dicted. The plaintiff did not testify merely that she did not know of the doctor having attended her husband some months before he applied for membership in the fraternal association, but specifically stated that the treatment said to have been given at that time never took place. It could not have taken place as narrated without her knowledge, for the doctor said that several visits were made at the home, and that he told the plaintiff of her husband’s condition. Some vagueness of recollection may perhaps be inferred from the doctor’s expression as to telling Shanahan what ailed him — “Well now I may have hinted it,” and from his uncertainty as to the number of visits and the time they were made. The insured had worked at the packing house for some fifteen years, and its records showed that he had received sick benefits for the period from August 24 to October 26, 1918, but did not show benefits paid him at any other time..- His wife testified that he had never lost any time from his work through sickness, and that when she called the doctor for the illness of August 24 he told her that her husband had never previously consulted him. The doctor denied saying this.
The Glasgow case is not controlling, because here-the evidence referred to raised an issue, not necessarily of veracity, but of fact, as to whether the doctor had attended, the insured prior to the issuance of the certificate. However improbable it may have been, it is of course possible that the doctor may have been mistaken in his dates and have attributed the occurrences of August, 1918, to an earlier time.
2. The jury answered “no” to the question — “Did Michael Shana-han at any time in his life since childhood, prior to the 21st day of August, 1918, have any illness, disease or injury whatever?” The defendant urges that the judgment should be set aside because the doctor testified that in 1913 he had treated Shanahan for a cut finger. We do not regard the insured’s omission to refer to that matter in his answer as important. (Farragher v. Knights & Ladies, 98 Kan. 601, 159 Pac. 3.) The provision of the certificate was that it should be void if any representations of the application “material to the acceptance of this risk” were false. The defendant suggests that as the insured was a butcher and died of tuberculosis the information regarding the cut finger affected the risk because tuberculosis may be contracted through contact with a diseased animal. We consider the connection as too remote. Moreover, the answer of the defendant, while pleading in considerable detail the alleged misrepresentations in the application, made no reference to this matter, which cropped out incidentally in the cross-examination of the doctor.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Action in ejectment for a quarter section of Stanton county land. Judgment for plaintiff for half the property. Both parties appeal.
Plaintiff deraigned title from the three daughters of Mary J. L. Maine, deceased. Mrs. Maine was the beneficiary of a trust fund of $1,000 bequeathed by her father to Jeremiah Lillibridge as trustee for her benefit. She was to get the ‘semiannual income of this fund during her lifetime, and at her death the fund was to be divided between her heirs, share and share alike. This fund was invested in a mortgage on the land in controversy, and later in satisfaction thereof the patentee and mortgagor conveyed the land to Lillibridge as trustee for Mary. After the death of Mary, and after the death of the trustee, her three daughters quitclaimed their interest in the , land to plaintiff.
Defendant claimed title through a quitclaim deed from the husband of Mary, and also by a tax deed and judgment to which the trial court attached no significance, and these latter features are not pressed on our attention.
The trial court’s judgment that plaintiff owns a half interest in the land and defendant owns a half interest is apparently based upon the rights of these litigants, by virtue of their respective quitclaim deeds. But it was shown in evidence — and as this action was in ejectment it could properly be so shown — that under the laws of Connecticut, where the will was made and the trust created, and where Mary, her father and her husband resided, the husband is not the heir of the wife, so defendant acquired nothing by the quitclaim deed from Mary’s husband. This fact alone would not'defeat the defendant since he held possession of the land, and it becomes necessary to note the strength of the title held by plaintiff who seeks to supplant him.
The will of Mary’s father created a trust of money, personal property. That this money or part of it was loaned on real estate and the real estate later accepted by the trustee in satisfaction thereof did not alter the character of the trust. It was still to be regarded as personal property for the purposes of the trust. (Weir v. Bagby, 72 Kan. 67, 82 Pac. 585.) And it has been decided on broad principles of equity that where a long period of years has elapsed without assumption and discharge of official duties by an administrator of personal property, the persons on whom such personal property was bestowed by a will may maintain an action in their own behalf to recover it against one who wrongfully withholds such personalty from them. (Campbell v. Durant, 110 Kan. 30, 35, 202 Pac. 841.) Moreover, whether construed as real or personal property, the will itself provided that the trust property should pass absolutely to the plaintiff’s grantors on the death of their mother. It was therefore an executed trust. True, the nominal title was in Jeremiah Lillibridge, trustee for Mrs. Mary J. L. Maine; but at the time her daughters conveyed their interest to plaintiff the trust had become dry or passive; no active duties then remained to be performed by the trustee, no interest for him to guard, no rights for him to protect. Mary’s daughters were then the equitable owners of the property. They have, therefore, some title to it of sufficient potency to prevail over an adversary who has none. One who has an equitable title may maintain ejectment if he pleads the facts upon which it is based (Civ. Code, § 619), or if evidence in extenso is received thereon without objection. (Custer v. Royse, 104 Kan. 339, 343, 179 Pac. 353.)
There was testimony that the trustee paid some money to one of Mary’s daughters and that the son of the trustee told another that she was indebted to his father for board, clothing, etc., and “was given to understand that that was the reason that nothing was paid” to her. Giving this evidence liberal significance, it does not show renunciation or extinction of the daughters’ rights, nor serve to vest beneficial title in the trustee to the exclusion of the three daughters.
It is argued that Mary’s husband was one of her heirs. He would be if the matter wrere governed by Kansas law, but it is not; it is governed by the law of Connecticut, and under the evidence the husband is not the heir of the wife in that state. The will, the mortgage, the deed and the other competent evidence clearly established the fact of the trust and the nature of it; the evidence of payments to two of the daughters and the claims against them by the trustee and by his son are not of sufficient potency to strip them of their interest in this property; and while it is correct that “there could be no trustee for a dead beneficiary,” yet the deed to Lillibridge “as trustee for Mary J. L. Maine, of Litchfield county, Connecticut,” was a competent and significant item of evidence to establish the equitable ownership of Mary’s daughters and of the plaintiff who claims under them. Whatever technical defects inhere in plaintiff’s title the record shows he has a title; the defendant has none; this lawsuit is fourteen years old; it has been here before (89 Kan. 712, 132 Pac. 1002), and the litigation must be concluded. Any lawsuit which has been protracted for fourteen years is a prima facie reproach to those who have to do with the administration of justice. (New v. Smith 97 Kan. 580, 155 Pac. 1080.)
The judgment awarding a half interest in the property to defendant is set aside and the trial court is directed to enter judgment for plaintiff, subject only to defendant’s lien for taxes, which must be satisfied before he is dispossessed.
It is so ordered. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
In this action James W. Hebrlee asked a recovery of damages from Catherine Y. Hawley for injuries and losses sustained through the negligence of defendant during the transportation of her household goods, and also for compensation for services performed. A demurrer to plaintiff’s petition was sustained, from which decision he appeals.
In his petition plaintiff alleged that defendant employed him to transport her household goods from St. John to Liberal, Kan., for which services she agreed to pay him $135. He avers that he loaded the goods in a careful manner and then proceeded on his journey, and when within a mile and a half of Liberal he discovered that.the goods were on'fire. With the aid of a helper he began removing the goods from the truck and continued the task of saving them and the truck until driven away by the excessive heat. While endeavoring to stop the fire and save the goods and the truck, plaintiff avers that his hand was badly burned, which made it necessary for him to employ a doctor and expend $6 for medical attention and caused him a loss of fourteen days’ service of the value of $56. Among the losses due to the fire described in detail in the petition were injuries to his truck, expenses at Liberal, and the loss of a number of articles and accessories belonging to him and used in the transportation which were burned, and also the compensation for the trip which defendant refused to pay, amounting in all to $550. He alleged that the fire originated in a dresser which constituted a part of the load; that the defendant negligently left combustible matter in this dresser, which became ignited and caused the fire and loss of which plaintiff complains. He states that defendant was negligent in delivering the goods to him without removing matter of a combustible nature from them and on account of this negligence the fire was started and the losses were sustained. He further averred that he used due precaution and. diligence in the loading and transporting of the goods and in saving them after discovering the fire, but that the damages sustained were the result of defendant’s negligence.
The only question we have to determine is whether the plaintiff stated grounds of recovery in his petition. No attack was made against the pleading because of indefiniteness or that it included an item for compensation for his services with one for losses sustained through the alleged negligence and wrong of the defendant. In ruling upon the demurrer the trial court stated that the allegations were insufficient and wTere too speculative and uncertain to constitute a cause of action. No brief or argument has been presented here on behalf of the defendant and we are not advised of the particular defect in the pleading upon which the decision of the court was based beyond the statement that the averments were too speculative and uncertain to be the basis of an action.
There can be no question but that plaintiff has set out a cause of action for the services rendered. While the transportation was not completed, the plaintiff alleges that it had been conducted by him without negligence and the fact that he did not reach the terminus was the result of defendant’s wrong. Plaintiff cannot be deprived of compensation for the services rendered merely because they were not completed, where performance is prevented by the hindrance and wrong of the defendant. The fact that a recovery for services was joined with one for damages resulting from the negligence of defendant did not warrant the court in sustaining the demurrer, the only ground of which was that the petition did not allege facts sufficient to constitute a cause of action.
It has been held that the fact that more than one ground of recovery is pleaded in an action, or that the grounds are inconsistent with each other, affords no reason for sustaining the demurrer which challenges only the sufficiency of the facts alleged. (Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396. See, also Hisle v. Railway Co., 91 Kan. 572, 138 Pac. 610.)
In regard to the claim for damages because of the negligence of defendant, the allegations of the petition, although quite general and in some respects indefinite, appear to be sufficient to withstand an attack by a demurrer. There is nothing speculative or uncertain as to the extent of the injuries sustained or as to the -loss of property which resulted from the fire started through the alleged negligence of the defendant. It is distinctly pleaded that the fire occurred by reason of the negligence and wrong of the defendant. That negligence was the placing or permitting to remain in a dresser combustible matter that was ignited and which caused the fire and loss. If the wrongful act or omission of the defendant was the natural or proximate cause of the injury and loss, and one which might reasonably have been anticipated, she is answerable in damages. If the combustible matter left by her in the dresser was of a kind that would easily be ignited by friction or the -motion and jolting of the truck in which the goods were transferred, it would then be a question of fact, whether, according to common experience and the attending circumstances, the ignition and burning which happened was reasonably likely to happen and should have been foreseen. As to the peril of leaving combustibles in the dresser, it may be said that all combustible matter is not easily ignited. The exact nature of the combustible in question is not stated, but it is alleged that it was ignited without fault of plaintiff and did cause the fire. One definition of combustible is:
“Capable of undergoing combustion, apt to catch fire, inflammable.” (Webster’s New International Dictionary.)
Certain combustibles are easily ignited as, for instance, sul-phurous matches, powder, and the like, and if the defendant negligently turned over to him for transportation such combustibles in the manner stated she would be responsible for the consequence. If she had left dynamite or other explosives in the dresser without warning plaintiff and an explosion which resulted in injury had followed, she could not have escaped responsibility. (Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320.) In effect, the plaintiff alleged that defendant placed in the hands of the plaintiff a dangerous substance in a situation where it was likely to produce injury and cause destruction of property and the natural consequence followed as the result of the negligence and wrong. Whether the defendant knew or ought to have known of the dangerously combustible character of the material and should have foreseen that the fire and injuries was a natural and probable consequence of the negli gence are not specifically pleaded. From the general charge of negligence, however, and the allegation as to the consequence of the negligence, it must be inferred upon a demurrer that the material was dangerously combustible and that defendant knew or should have known that the fire and injury were likely to ensue from her acts and omissions. The petition was open to attack on the ground of indifiniteness as to the negligence of the defendant and the nature or kind of combustible that was put or left in the dresser, but instead of challenging the pleading by such motipn the defendant chose to file and stand upon a demurrer, the sole ground of which was that the facts stated did not justify a recovery. In that situation the averments of the pleading are to be liberally construed, and ordinarily mere generality in the allegations of a pleading in a case like this does not require the sustaining of a demurrer. Although not well pleaded, if the essential facts are stated in general terms made up in part of conclusions and no motion is made to make the pleading more definite and certain, a demurrer will not lie. (McPherson v. Kingsbaker, 22 Kan. 646; Bowersox v. Hall. 73 Kan. 99, 84 Pac. 557; Gano v. Cunningham, 88 Kan. 300, 128 Pac. 372; Balmer v. Long, 104 Kan. 408, 179 Pac. 371.) Viewed in this light the averments in the petition are deemed to be sufficient as against the demurrer that was filed and sustained.
The judgment is therefore reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, Raymond Eugene Law, was convicted on charges of burglary and grand larceny. He was sentenced under the Habitual Criminal Act and has appealed. We will refer to the parties respectively as state and defendant, or Law.
During the night of April 9, 1967, the office of Dr. Ohman, in Dodge City, was broken into and some three thousand Didrex tablets were stolen. The next morning city police received a call from a young man by the name of Roger Kunze, who implicated himself and four other men, including Mr. Law, in the crime.
After Kunze’s story was investigated, warrants were issued and all the men were arrested. In due course the defendant was brought to trial and convicted, Mr. Kunze appearing as a state’s witness against him.
A number of points are raised on appeal and will be considered. First, Law claims he was denied a speedy trial. This point is without merit. The first continuance, from May to September, was on motion of defense counsel. The law is well settled that where a delay is occasioned by application or act of the accused, the right to speedy trial is waived. (State v. Stanley, 179 Kan. 613, 296 P. 2d 1088; Moore v. Hand, 187 Kan. 260, 356 P. 2d 809.) Moreover trial was held well within the second term after the information was filed, as required by K. S. A. 62-1431. (Cooper v. State, 196 Kan. 421, 411 P. 2d 652.) A second continuance, of 12 days, was granted on motion of the state because of a missing witness. We see no abuse of discretion on the court’s part in granting the state’s motion. (State v. Stubbs, 186 Kan. 266, 349 P. 2d 936; State v. Stubbs, on reinstated appeal, 195 Kan. 396, 407 P. 2d 215.)
Two days before trial the state was given permission to endorse the name of an additional witness, Annette Gill, on the information. Defense counsel was notified of the endorsement the same day and was able to' interview Mrs. Gill on the day following. We have long held that leave to endorse names on an information after its filing is a matter within the trial court’s discretion. (See 2 Hatcher’s Kansas Digest (Rev. Ed.) Criminal Law, §77.) No abuse of discretion has been shown here. The record reveals the county attorney had not learned of Mrs. Gill until the day of the endorsement. Defense counsel was given prompt notice thereof and had opportunity to consult with Mrs. Gill. Furthermore, no continuance was requested by the defendant.
It is next urged that the value of the pilfered pills was not established. The contention is that Marie Stremel, the doctor’s assistant for seventeen years, was not qualified to testify to their value. This objection is untenable. Miss Stremel kept the books for the doctor, ordered all medication, paid all bills and was in charge of the room where medications were kept. Moreover, she testified she knew what the pills were worth. We believe she was shown to be eminently qualified to testify on the matter of value.
Considerable argument is directed toward three prosecution exhibits marked for identification but not offered in evidence. These exhibits consisted of two plastic bags containing tablets identified as Didrex pills and an envelope containing part of a tablet. The pills were obtained by officers during investigation of the crimes. One of the officers died prior to trial, and the defense insisted that the chain of possession had not been traced, and objected to any reference thereto either by witnesses, while testifying, or by the county attorney in final summation.
We fail to find prejudicial error in this regard. The evidence relating to two of the exhibits clearly had a bearing on the case and those exhibits doubtless would have been admitted had they been offered. But more than that, there is no showing of bad faith on the state’s part in its attempt to connect the exhibits with the defendant. In this respect the case is quite similar to State v. Basher, 198 Kan. 242, 424 P. 2d 535, and what was said there is germane to the issue raised here.
A Miranda argument is advanced with respect to a remark made by the defendant when arrested. The record discloses that the officer who is now deceased immediately advised the defendant, in the presence of a brother officer, that anything Mr. Law said might be used for him or against him in court and that he did not have to say anything until he contacted his lawyer. The record then shows the defendant said “If I knew that you was going to pick me up this quick I would have had a gun.”
It may be conceded that the warning given the defendant did not strictly comply with the standards set by the federal supreme court in Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602. Nonetheless we think no error was committed. The remark bears all the attributes of a spontaneous exclamation not elicited through or made in response to questioning or investigatory techniques. The defendant’s utterance neither confesses guilt nor does it admit any participation or complicity whatever in the offenses charged.
We have previously had occasion to consider spontaneous exclamations or comments as distinguished from inculpatory statements made pursuant to a process of interrogation. In State n Jolly, 196 Kan. 56, 410 P. 2d 267, it was held:
“Inculpatory statements made by an accused contemporaneously with his detention or arrest, under circumstances not coercive, are not rendered inadmissible because he may not have been made aware of his right to remain silent and of his right to counsel.” (Syl. ¶ 3.)
A somewhat analogous situation came under our scrutiny in State v. Little, 201 Kan. 94, 439 P. 2d 387, where we said:
“. . . Even under Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, which was directed against a situation where the police carried out a ‘process of interrogation that lends itself to eliciting incriminating statements’ [p. 491 (L. Ed. 2d 986; S. Ct. 1765)], volunteered statements obtained without any ‘process of interrogation’ on the part of the officers are admissible. (See, LaBlanc v. People, 160 Colo. 575, 418 P. 2d 888, cert denied 388 U. S. 922, 18 L. Ed. 2d 1371, 87 S. Ct. 2125; Maes v. People, 160 Colo. 528, 418 P. 2d 891.) . . .” (p. 98.)
The defendant’s voluntary exclamation in connection with his arrest may not be said, in our judgment, to have been elicited by police officers either through solicitation or by means of investigatory questioning.
At his motion for new trial, which the court overruled, the defendant introduced the testimony of a friendly cell mate, Kenneth Garrison, who had languished in the county jail during his own sojourn there. Garrison testified to statements allegedly made to him by Kunze while both were residing in jail after Law’s trial. Cross-examination of Mr. Garrison brought out facts which may well have tended to becloud his impartiality.
We have said that a new trial should not be granted on the ground of newly discovered evidence unless the trial court is satisfied the evidence would probably produce a different verdict, and that the credibility of the evidence offered in support of the motion is for the trial court’s consideration. (State v. Harris, 126 Kan. 710, 271 Pac. 316; State v. Jella, 132 Kan. 509, 296 Pac. 350.) Our appellate review of the order denying a new trial is limited to whether the trial court abused its discretion. (State v. Jella, supra; Weed v. United States, 380 F. 2d 914.) We find it did not.
We have examined objections to the court’s instructions, as well as the court’s refusal to submit instructions requested by defendant, and are satisfied that no error was committed in either regard. Other points raised on appeal have been fully considered and do not warrant extending this opinion. They simply have no merit.
Before closing this opinion we are constrained to comment briefly on the state’s scant brief. Its two and one-half pages are without a single citation of authority. We suggest that the brief would have been of greater assistance to the court had the author, in preparing it, touched on the law.
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The opinion of the court was delivered by
O’Connor, J.:
This litigation arose as the result of a fire in the Grand Theatre in Topeka on May 15, 1966, causing damage to the building. Plaintiffs are insurance companies licensed to issue fire insurance policies in Kansas, and have brought this action claiming a right of subrogation through their insured, the First National Bank of Topeka. Plaintiffs seek to recover from the defendant, Fox Midwest Theatres, Inc., the sum of $8,727.57, which constitutes the amount of loss plaintiffs were compelled to pay the insured bank under the terms of insurance policies then in effect. Defendant’s liability is predicated on allegations in plaintiffs’ petition that the fire and resultant damages were the result of the negligence of defendant’s employees.
The defendant, as lessee, has been in possession of the theatre building under a lease agreement entered into on March 25, 1960, with the First National Bank of Topeka and other as lessors. Prior thereto a lease agreement with basically identical provisions had been executed on April 29, 1947. The present lessors and lessee are successors in interest to the original parties in the earlier agreement. On May 17, 1963, an extension agreement was executed by the lessors and lessee which extended the agreement of March 25, 1960, for a five-year term ending on June 30, 1971.
For clarity throughout the opinion plaintiffs will also be referred to as the insurance companies, the First National Bank of Topeka as the insured or lesssor, and defendant as the lessee.
After filing an answer, defendant moved for summary judgment, claiming that by virtue of the provisions of the lease agreement, plaintiffs were not entitled to recover against the defendant. Subsequent thereto, counsel were allowed to file additional evidentiary matters to be considered by the court, and also written briefs. Thereupon, the district court sustained the motion and entered judgment for the defendant.
Although plaintiffs argue that the case was premature for summary judgment, it seems apparent to us there was only a question of law for the court to determine — namely, interpretation of the lease agreement in light of the undisputed facts as alleged in plaintiffs’ petition, which, for purposes of the motion, must be taken as true. (See, Goforth, v. Franklin Life Ins. Co., 202 Kan. 413, 449 P. 2d 477.) Therefore, the question for determination in this court, just as in the court below, is whether or not the lease agreement of March 25, 1960, as extended, contained provisions which exculpated the defendant, Fox Midwest Theatres, Inc., as lessee, from any tort liability resulting from fire loss to the building because of the negligence of defendant’s employees.
By the terms of the agreement the lease commenced June 30, 1961, and ended June 30,1966, during which time the lease provided for rental payments totaling $87,439.80, payable in monthly installments of $1,458.33. The extension agreement executed May 17, 1963, extending the term to 1971, contemplated extensive improvements to the theatre in the amount of not less than $40,000, entirely at the expense of the lessee.
Other pertinent portions of the lease agreement are as follows:
“3. Lessee covenants and agrees that Lessee will keep and maintain, at Lessee’s expense, the interior of the leased premises in good and sufficient repair, . . . ordinary wear and tear and damage by fire or other casualty being expressly excepted; . . .
“5. Lessors, at Lessors’ expense, shall provide and maintain insurance in an amount of not less than eighty per cent (80%) of the value of the improvements on the leased premises against loss by fire, with extended coverage.
“It is understood and agreed that Lessors or Lessee shall have the right, at any time during the term hereof, to have the improvements or building constituting a part of the leased premises, appraised by some competent recognized insurance representative, to determine the adequacy of the insurance coverage then in force, and if the same is inadequate, according to such appraisal, the Lessors shall increase the insurance coverage so as to provide for adequate protection, and if the same is over-insured, according to such appraisal, Lessors may decrease the amount of coverage thereon. . . .
“6. In die event said leased premises or any part thereof be so damaged by fire, Act of God, inevitable accident or structural defects, that the same cannot be used for theatre purposes, Lessors shall rebuild, repair or replace the same, at Lessors’ expense, in such manner that the same shall be of the same character and at least of equivalent value to said leased property prior to such damage. In the event Lessors shall not commence said repairs or replacement within sixty (60) days following said damage . . . then Lessee shall have the
right, within an additional period of sixty (60) days ... to elect in writing delivered to Lessors, either (a) to rebuild, repair or replace the leased premises, or (b) to terminate this lease as of the date of such damage.
“In case Lessee elects the aforesaid option (a), Lessors agree to make avail able to Lessee the proceeds of all insurance received by Lessors on account of such, damage, which shall be utilized by Lessee in payment of the cost of restoration, but if the cost of such rebuilding exceeds the amount of the insurance proceeds, Lessee shall not be reimbursed in any manner for such excess. . . . In case Lessee elects the aforesaid option (b), this lease shall terminate as of the date of such damage and thereafter shall be of no further force or effect whatsoever.
“10. Lessee covenants and agrees that, in the operation and maintenance of Lessee’s business to be carried on in said leased premises, Lessee will fully comply with all rules, regulations and laws of any Governmental authority, whether Municipal, State, or Federal, with respect to the occupancy and use of said leased premises by Lessee; and Lessee shall not use leased premises or permit the same to be used in any manner to void the insurance maintained by the Lessors or to increase the rate of said insurance.
“15. Lessee now occupies the leased premises under a certain lease dated April 29, 1947, between The National Theatres Corporation (which has been succeeded in ownership of the leased premises by the Lessors herein), and Fox Kansas Theatre Corporation, a Delaware corporation (which has been succeeded by Lessee herein); said lease which is, in effect, being extended by this lease, is ratified, confirmed and approved in all respects by the parties hereto as successors to the original Lessor and Lessee. . . .” (Emphasis added.)
The record is not clear by whom the lease was prepared. From paragraph 15 above, and an affidavit of an official of the lessor bank, the provisions are identical to those of the 1947 lease between the predecessor lessor and lessee.
The record discloses the insurance policies involved were standard fire insurance policies and covered the theatre building for loss by fire and other casualties, the contents of the building, and any improvements contemplated to be made by the lessee during the term of the lease. The policies contained a subrogation clause which provided the insurance would not be invalidated should the insured waive in writing prior to any loss any or all right of recovery against any party for loss occurring to the property. The fire loss in question was covered by the policies and was fully paid by the plaintiff insurance companies.
The trial judge, in his memorandum opinion, set forth the respective positions of the parties which, in substance, are as follows:
Defendant, in support of its motion for summary judgment, contends: (1) that in consideration of the rather substantial improvements in the property to be made by the lessee and the rental payments, the lessor agreed to carry adequate fire insurance to protect the improvements in which both parties had an insurable interest; (2) that under paragraph 3 of the lease, the lessee’s obligation to maintain the interior of the premises in good condition expressly excepted damage by fire or other casualty; (3) that by reason of paragraph 6 of the lease, the First National Bank, plaintiffs’ insured, was obligated to collect the insurance and either restore the premises for the benefit of Fox Midwest Theatres, Inc., or pay the insurance proceeds to lessee so it could restore them, regardless of the cause of the fire; and (4) that the bank expressly waived any right to assert liability against lessee for its negligence in causing a fire, and that the insurance companies, as subrogees of the bank, stand in no better position.
Plaintiffs, on the other hand, contend that contracts for exemption of liability from negligence are not favored by the law, and that they are strictly construed against the party relying on them; that there is no express provision in the lease whereby the parties agree to exonerate the defendant-lessee from its negligence, and under the strict construction rule, a claim of exemption from liability for negligence should be denied.
The basis of the trial court’s decision sustaining the defendant’s motion for summary judgment is reflected in a well-analyzed, comprehensive opinion which reads:
“. . . The question of law raised in this case on the undisputed facts is one of first impression in Kansas. There is authority to support both positions throughout the United States. ... In reaching a decision in this case the Court has recognized the following basic principles of law:
“1. The right of the plaintiff insurance companies as subrogees under the insurance policies to proceed against a third person causing the loss does not rest upon any relation of contract or privity between the insurer and such third person but arises out of the contract of insurance and is derived from the insured alone. Consequently the insurer can take nothing by subrogation but the rights of the insured, in this case the lessor, and is subrogated to only such rights as the insured possesses. In this regard see 29 Am. Jur., Insurance, Section 1720 and Casualty Co. v. Power Co., 99 Kan. 563, 162 P. 313.
“2. Under the law of Kansas independently of express covenant, the law imposes on a tenant the obligation to return the premises to the landlord at the end of the term unimpaired by the negligence of the tenant. In the absence of a lease agreement to the contrary a lessee is liable to a lessor for damages for destruction of the premises by fire due to his negligence. In this regard see Salina Coca-Cola Bottling Corp. v. Rogers, 171 Kan. 688, 237 P. 2d 218, and In re Estate of Morse, 192 Kan. 691, 391 P. 2d 117.
“3. A covenant in a lease to exempt or exonerate one from the consequences of his own negligence is a valid clause and enforceable between the parties themselves. Such exculpatory or exemption clauses were recognized and held enforceable in Grain Co. v. Railway Co., 94 Kan. 590, 146 P. 1068; Riddle Quarries, Inc., v. Thompson, 177 Kan. 307, 279 P. 2d 266. See also the recent opinion in Talley v. Skelly Oil Co. . . . [199 Kan. 767, 433 P. 2d 425], The Talley case is of particular interest here because it involved an exculpatory clause in a lease which was upheld by the court as a valid clause and enforceable between the parties.
“Considering the lease in its entirety the Court has construed its provisions as constituting an agreement of the parties that the lessor should assume the duty of purchasing fire insurance on the leased premises to protect the interests of both the lessor and the lessee and that such insurance should cover any loss by fire without regard to the cause thereof and without regard to the negligence of the lessee.
“Similar leases have been construed in other jurisdictions. The pertinent cases are cited by counsel in their briefs. From a reading of all these oases the Court has concluded that the trend of modern case law is definitely to construe the ‘exemption of fire’ clauses as an exculpatory provision relieving the lessee from liability for his own negligence. Under the more recent cases the two essential elements to the exculpatory construction are (1) the existence of the exemption of loss by fire and (2) the existence of fire insurance on the premises paid for by the lessor. All of the cases are thoroughly discussed and analyzed in Rock Springs Realty, Inc. v. Waid, 392 SW 2d 270, [15 A. L. R. 3d 774], decided by the Supreme Court of Missouri in 1965.
“The real problem in these cases is to determine the intention of the parties. It seems to this Court reasonable to assume that when a prospective lessor and lessee sit down together to draw up the terms of a complicated lease the question of fire insurance would almost always arise. Who should procure it and who should pay for it? The parties contemplate that any insurance whether purchased by the lessee or the lessor is purchased for the benefit of both parties and the proceeds of any recovery under the policy should be 'applied to the restoration of the premises so that the lease may continue in effect in accordance with its original provisions. At the time an agreement in regard to fire insurance is finally reached, the lessor and lessee would normally assume that there is coverage by the insurance company for the benefit of both parties regardless of the cause or origin of the fire. Such an intention should be found especially where the lease contained provisions such as are contained in the lease before the Court and which have been set forth in the statement of facts above.
“In the present case the lessee covenants and agrees in paragraph 3 that he will keep and maintain the interior of the leased premises in good and sufficient repair. . . . ordinary wear and tear and damage by fire or other casualty being expressly excepted. The lease then provides in other sections for the purchase of fire insurance by the lessor to protect the rights of both parties. Certainly in view of these specific provisions the parties intended to be protected by fire insurance which the lessor was obligated under the lease to provide for the protection of the lessee.
“For the reasons set forth above the motion of defendant for summary judgment is sustained. . . .” (Emphasis added.)
While the question presented in this case has been litigated in other jurisdictions with divergent results, the recent trend of the cases is to construe leases containing similar provisions as relieving the lessee from negligently caused fires by it or its employees. For a compilation and discussion of the decisions, see Anno. 15 A. L. R. 3d 786; 6 K. L. R. 98; 5 DePaul L. Rev. No. 2, p. 305; Ill. L. F., Vol. 1956, p. 301; 18 Ohio St. L. J. 423; and 33 N. Y. U. L. Rev. 585.
Plaintiffs’ main argument centers on the proposition that in determining whether an exculpatory agreement exists, courts are bound to apply the rule of strict construction, and when that rule is applied to the instant lease, the lessee is not exempted from liability for fires caused by the negligence of its employees. While in our recent case of Talley v. Skelly Oil Co., supra, we said that exculpatory contracts are not favored in the law and are to be strictly construed, we recognized that exculpatory agreements voluntarily entered into, by parties standing on an equal footing are enforceable as between the contracting parties themselves.
The primary rule in construction of any contract is to ascertain the intent of the parties, and such intent may best be determined by looking at the language employed and taking into consideration all the circumstances and conditions which confronted the parties when they made the contract. (Stevens v. Farmers Elevator Mutual Ins. Co., 197 Kan. 74, 415 P. 2d 236; Francis v. Shawnee Mission Rural High School, 161 Kan. 634, 170 P. 2d 807; Berg v. Scully, 120 Kan. 637, 245 Pac. 119.)
The rule of strict construction which plaintiffs so strongly urge-in support of their position must give way where it is plain that such construction of a contract does not convey the true intention of the-parties. In discussing a similar principle to the effect that an exemption of a lessee for negligence must be “clearly and explicitly stated,”' the Missouri court, in Rock Springs Realty, Inc. v. Waid, supra, said:
“. . . The principle stated is sound when properly applied, but in a. case such as the present one the intention of the parties must be ascertained' from the whole lease, including its provisions concerning insurance. In other-words, every case like the present one must be decided on its own facts and on the actual terms of the lease. . . .” (p.274.)
The rule of strict construction does not require that the language-used be strained or distorted in order to exclude provisions which the parties clearly intended to bring within its scope. More specifically, the requirement that an exculpatory contract be strictly con strued means simply that the court will not extend its terms to situations not plainly within the language used. But at the same time, such contracts are to be fairly and reasonably construed and will not be given such a narrow and strained construction as to exclude from their operation situations plainly within their scope and meaning.
We, like the trial court, do not believe the rule of strict construction is available to thwart or defeat the obvious intent of the parties to the lease agreement. By the provisions of the lease the parties contemplated that the rental payments made by the lessee apply to the cost of insurance, which was the obligation of the lessor. The terms employed manifest an intention that neither party would have to bear a loss to the building caused by fire, provided, of course, that the provisions pertaining to fire insurance had been complied with and the loss was one which was covered by such insurance. In this respect, the lease is somewhat akin to a contract of indemnity, both parties agreeing that any loss should be paid by the insurance company and the proceeds applied toward restoration of the leased premises. The practical effect of such an agreement exonerates the lessee from liability to the lessor for a negligently caused fire, since such loss was covered by the insurance taken out by the lessor for the benefit of both.
In the landmark case of General Mills v. Goldman (8th Cir. 1950), 184 F. 2d 359, cert. denied 340 U. S. 947, 71 S. Ct. 532, 95 L. Ed. 683, a similar lease was involved. There, among other things, the lessee agreed to return the premises to the lessor at the end of the term in as good condition as they were in, “loss by fire and ordinary wear excepted.” The lease did not contain express provisions regarding the obligation to insure; but evidence was admitted showing there was an understanding between the parties that the lessor carry the insurance, which it did. The court held, in substance, that it was intended by the parties that the rents should pay the premiums, that any fire loss would be satisfied from the insurance, and that the exception “loss by fire” exempted the lessee from liability for any fire loss which was ordinarily covered by insurance. The court, in effect, equated the lease to a contract of indemnity in respect to the insurance and rejected the applicability of the rule of strict construction, saying:
“. . . [T]here is no public policy in Minnesota inimical to resort to fire insurance covering loss by fire occurring with or without negligence and there is no reason for applying any ‘strict construction’ to a lease entered into in contemplation of having a fully appreciated and guarded against fire risk carried by an insurance company. The undisputed evidence in this case presents exactly that situation. The landlords here agreed that the tenant should not be liable to pay for ‘loss by fire’ because it was understood between them that fire insurance would be taken out and a fire insurance company would be required to pay for any ‘loss by fire’ occurring on the premises during the term of the lease. Such insurance company would be required to pay whether the “loss by fire’ was caused by negligence or not as fire insurance universally covers loss by fire occurring from the kind of negligence here involved. The premiums to fire insurance companies are based on actuarial computations of fire losses so occurring. The policies are standardized and we are informed of no other kind of fire insurance in use in this country.
“When the lease here is so read and understood the agreement of the lease is simple, normal and reasonable and such as intelligent men would be expected to agree upon. The fire which occurred and the consequent loss were within the contemplation of the parties and was covered as they meant that it should be by the fire insurance.” (pp. 364-366.)
The court expressed a similar view in Mayfair Fabrics v. Henley, et al., 97 N. J. Super. 116, 234 A. 2d 503, declining to determine the case on the basis of strict construction.
In another leading decision, Cerny-Pickas & Co. v. C. R. John Co., 7 Ill. 2d 393, 131 N. E. 2d 100, in which the lease provided that the lessee should keep the premises in repair and redeliver them upon termination in good condition, “loss by fire and ordinary wear excepted,” and that the lessor should pay for fire insurance but lessee should pay for any increase in rates due to the nature of its business, the court stated:
“The argument most strongly urged against exoneration of the lessee is that the lease does not in so many words provide that the lessee be free from liability for fires resulting from its own negligence. Of course, if the lease contained such an express provision, that would be the end of the matter. But because the contingency was not covered by express language, it does not follow that the instrument may not, when all of its provisions are considered, show that the parties themselves intended that the lessee should not be liable. That determination is to be made upon a consideration of the instrument as a whole.
“. . . In the absence of any contrary expression in the lease, the lessee is not liable to the lessor for damages to the premises from fire which is not the result of his own negligence. . . . Therefore, unless this clause of the lease exempts the lessee from liability for loss by fire resulting from his own negligence, it does no more than restate the lessee’s common-law obligation. . . .” (pp. 396, 397.)
The court concluded that from the lease as a whole the lessee was not to be held liable for loss by fire, regardless of the cause thereof, and that the parties intended that the lessor should look solely to insurance as compensation for damage caused by any kind of fire.
When the provisions of the lease in the instant case are examined in their entirety, the over-all intention of the parties seems clear. They agreed that the lessor should purchase fire insurance protecting the improvements on the premises and providing “for adequate protection” of the building itself. Either party could at any time have the premises appraised and the insurance coverage adjusted to be compatible with the results of such appraisal. The lessee was required to subordinate its activities in order not to void the insurance or increase the rates. Further, and of special significance, are the terms providing that if the premises were damaged by fire, the lessor would “rebuild, repair or replace the same at Lessor’s expense;” but should the lessor fail to make such repairs, the lessee was given the option of rebuilding or repairing the premises, and if such option were exercised, the lessor agreed “to make available to lessee the proceeds of all insurance received by lessor on account of such damage.” The true implication of these provisions is that the landlord’s obligation to insure was an obligation intended to inure to the benefit of both parties. We believe it highly illogical to think that the parties would provide that the proceeds of insurance could be made available to the lessee for purpose of making repair, and at the same time the lessee be required to reimburse the insurer for a negligently caused fire. Such an interpretation would defeat the manifest intention of the parties that insurance was for both the lessor’s and lessee’s benefit.
Where, as here, the lease contemplated that any insurance was for the benefit of both parties, recovery by the insurer from the lessee, if permitted, would indeed be a windfall. For that matter, there is nothing in the agreement disclosing an intent that the lessee should purchase insurance for protection of the premises against its own negligence or that of its employees. In Rock Springs Realty, Inc. v. Waid, supra, the court noted:
“. . . — that if the insurer is permitted to recover by way of subrogation against the lessee, ‘the insurer gets a windfall in that it would have had to stand the loss had it been the lessor who was negligent, although the cost of the insurance ultimately is borne by the tenant in either case because included in the rent.’ In other words, if the lessee had been the named insured or a co- insured, no contention based on its negligence could have been made in any event. . . .” (p. 277.)
The lease provisions in the Rock Springs case were virtually identical to those in the instant lease, including a provision similar to the one here that the lessee agreed to maintain the interior of the premises in good repair “damage by fire or other casualty being expressly excepted.” We subscribe to the reasoning as set forth in the Missouri courts opinion, and particularly with its conclusion expressed in the following language:
“. . . We conclude that the intent of the parties here was that fire insurance should be carried by the lessor in adequate amounts for the benefit of both parties and that the exemption from loss by fire’ included all fires except those which, generally speaking, would be classed as arson. No reasonable businessman so contracting as a lessee would understand this lease to be one exempting him only for loss by fire’ not caused by his negligence; rather, he would interpret it to mean that he was exempted from liability for all fires which could normally be (and were) insured against by the usual fire insurance policy. . . .” (p. 278.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a conviction of robbery in the first degree.
At approximately 2:40 A. M. on July 26, 1967, two men, one armed with a shotgun, entered the Auto Inn Motel in Wichita, Kansas and robbed the night clerk of $157.00. Immediately following the departure of the robbers, the night clerk telephoned the Wichita police department and informed the department that he had been robbed by two colored males, one wearing a yellow shirt and a yellow straw hat, the other wearing a black shirt and a black hat.
At approximately 3:00 A. M. of the same day a police officer, having heard a police dispatch, observed three colored males in an automobile. Two of them were dressed as described above except for the straw hat. The three were arrested. Two of the men, Virgil Jenkins, the appellant, and Thomas Kelly, were tried together and convicted of first degree robbery. They have filed separate appeals.
Virgil Jenkins, the appellant here, contends that evidence was used by the state which was the result of illegal search and seizure, and that evidence of an alibi was improperly rejected.
These two issues are fully discussed in the appeal of appellant’s co-defendant, State v. Kelly, 203 Kan. 360, 454 P. 2d 501. It would serve no useful purpose to reiterate here what was there said. We incorporate herein by reference the opinion in the Kelly case and find the contentions to be without merit.
The appellant further complains that the trial court appointed as his defense counsel an attorney who had prosecuted him on a prior occasion.
It appears that when appellant appeared for his preliminary examination he had as retained counsel a former deputy county attorney who had prosecuted him for a similar offense some years before.
This attorney later withdrew from the case, for reasons not material here, and was then appointed by the trial court to represent the appellant at the trial. He appears to have represented appellant with due diligence and ability. This fact is admitted in appellant’s brief.
We find nothing wrong with the appointment in the absence of any objection at the time of the trial on the part of counsel or the defendant. It is not unusual for the services of an attorney to be solicited by one whom he has defeated in previous litigation. We find no merit in appellant’s suggestion that having once served as deputy county attorney the attorney’s loyalty must still be with the state.
The appellant objects to the introduction of evidence of his conviction for robbery in the first degree during 1961.
It is somewhat difficult to identify the exact nature of appellant’s objection but he appears to contend that the prosecution should have shown the details of the prior conviction before it became relevant to prove any issue in the case. We cannot agree with the appellant’s theory. The fact that the appellant had been convicted of a previous offense of first degree robbery would tend to prove certain elements of the offense charged. K. S. A. 60-455 provides:
“Subject to section 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but, . . . such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
The statutory rule of evidence stated above has not materially changed the case law which has developed in Kansas, (State v. Wright, 194 Kan. 271, 398 P. 2d 339) although there has been some change in the elements which may be established by evidence of a prior conviction. The general rule is that evidence of a previous crime is relevant to prove the elements set out in the statute if the offenses are similar in nature. It is the similarity of the two offenses that makes the previous conviction relevant.
However, exceptions to this general rule must be recognized both as to the similarity of the offenses and the elements to be proven.
A previous offense may under some circumstances tend to prove some of the elements mentioned in the statute although there is little similarity, and, by the same token, a similar crime may not be relevant as tending to prove all of the elements mentioned in the statute. These are matters that must be left to the sound discretion of the trial court, and the admission of evidence of previous crimes must always be accompanied with proper limiting instructions.
It is not good practice to instruct in the language of the statute unless it is clear that evidence of the previous crime is relevant to prove all of the elements mentioned. If the evidence of a previous crime is not relevant to prove all of the elements mentioned in the statute such elements should be omitted from the instruction.
Appellant objects to the following instruction:
“As to the offense charged the State has introduced in its case in chief certain evidence tending to show that the defendant, Virgil Jenkins, has been previously convicted of an offense similar’ to the one charged in the Information.
“You are instructed that such evidence of a prior similiar’ offense was not admitted for the purpose of showing the guilt of the defendant, Virgil Jenkins, but it is competent to show inclination, intent, attitude, tendencies, guilty knowledge, system or mode of operation, malice, and lack of mistake on the part of the defendant, Virgil Jenkins, and it is limited to that purpose.”
The basis for appellant’s objection to the instruction reads:
“Appellant argues that it was error for the court to give this instruction to the jury without, at the same time, advising the jury the purpose for which the evidence was admitted. As stated previously, the State failed to introduce any evidence concerning the facts of the prior case so it was simply impossible for the jury to determine whether the prior case showed appellant’s ‘attitude, tendancies, . . . system or mode of operation, malice.’ Thus, the jury was left to speculate as to this matter. This the appellant urges, is clearly reversible error.”
We find no merit in the contention. As we have previously stated, it was the similarity of the two crimes that made evidence of the previous crime admissible. Contrary to appellant’s contention the trial court did instruct the jury as to the purpose for which evidence of the previous crime was admitted. It was for the purpose of establishing the elements of the crime which the instruction listed.
However, we do not wish to be understood as approving all of the language used in the instruction. The statute (K. S. A. 60-455) specifically states the elements of an offense which may be established by evidence of a previous crime. The trial court in its instructions should not attempt to add to the designated elements. The instruction in listing the elements which evidence of a previous crime is competent to establish notes “inclination,” “attitude,” “tendencies” and “malice.” These elements, although some of them were previously permitted to be mentioned (State v. Casanova, 181 Kan. 498, 312 P. 2d 209), are not mentioned in the statute and therefore should not be mentioned in the instruction. In State v. Wright, 194 Kan. 271, 398 P. 2d 339, we held:
“In a criminal action the rule against the admissibility of evidence of other similar but independent offenses should always be strictly enforced, and to justify any departure therefrom the evidence must come under one or more of the exceptions to the general rule as set forth in the Code of Civil Procedure, Laws 1963, Ch. 303, § 60-455.” (Syl. 1.)
Again in State v. Taylor, 198 Kan. 290, 424 P. 2d 612, we stated in the syllabus:
“K. S. A. 60-455 defines the purposes for which evidence of similar offenses may be considered, and a trial court should limit its instruction thereon to the Durposes set out in the statute and purposes analogous thereto.” (Syl. 2.)
Although we do not approve the instruction, we cannot say, when the instruction is considered as a whole, that the rights o£ the appellant were prejudicially affected. The instruction definitely informed the jury that “evidence of a prior similar offense was not admitted for the purpose of showing the guilt of the defendant.”
Evidently the appellant was of the same opinion because no specific objection was made because of the specific purposes set out in the instruction.
The appellant contends that the trial court erred in requiring his defense counsel to testify on behalf of the state at the time of sentencing for the purpose of identifying the appellant and invoking the habitual criminal act.
Although such practice is deplorable, we can only criticize rather than grant relief under the facts and circumstances in this case. There were three prior felonies established where only two were required for the maximum penalty under K. S. A. 21-107a. Also, the felony conviction which appellants counsel was required to identify was presented in the case in chief and was sufficient evidence to inform the trial court at the time of sentencing. In State v. Watkins, 190 Kan. 446, 375 P. 2d 634, we stated:
“On cross-examination the appellant testified without objection that he had been convicted of giving bogus checks in the state of California and served thirty-seven months at the California Men’s Colony, and that he had been convicted of writing insufficient funds checks in 1958 in the state of Texas where he had served three years for such offenses. By such voluntary testimony without objection by the appellant or his counsel, the appellant waived any right to assert error because the sentence was imposed pursuant to the habitual criminal act. (21-107a, supra; see Oyler v. Boles, 368 U. S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501; and Browning v. Hand, 284 F. 2d 346.)” (p. 447.)
Although we condemn the practice of requiring an attorney to testify against his client at any stage of the proceedings, the appellant was in no way prejudiced.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fromme, J.:
In a personal injury action arising from a two-car collision at a controlled intersection a jury returned a general verdict in favor of plaintiff for $357.95. This sum was the exact amount paid by plaintiff for medical expenses incurred as a result of the collision. Plaintiff, Dora M. Timmerman, appeals from the judgment of the trial court approving the verdict and asks that the judgment be set aside and a new trial ordered on the issue of damages. She contends the verdict was contrary to the evidence and so grossly inadequate as to indicate passion and prejudice.
Plaintiff received extensive facial lacerations from the collision. Seventy-live stitches were required to repair the injuries to her face. The plaintiff is the wife of an attorney and is active in civic, charitable and professional associations. She spent an hour and forty-five minutes in the emergency room of the hospital while the injuries to her face were being repaired. She suffered pain from both bruising and lacerations. She was worried and concerned about her scarred facial appearance. Plaintiff remained in the hospital for two days. She required sedation to relieve her pain. The dressings and stitches were removed one week after the accident. Later, three stitches were required when a piece of glass was removed from plaintiff’s eyebrow. These final stitches were removed two weeks after the accident. During this two week period she remained in bed much of the time. Plaintiff received final treatment for her injuries nine months after the accident occurred. She had complained to her treating physician of pain in her neck. An x-ray of her neck appeared normal. The physician was pleased with the facial repair accomplished by his treatment. In his opinion she had a minimal cosmetic defect at the time of the trial. Scarring was largely confined to plaintiff’s hairline and this could be covered by proper hair styling.
A statement listing the total doctor, hospital and ambulance bills paid by plaintiff as a result of the accident was admitted into evidence by agreement of the parties. The total of these three items of medical expense was $357.95. When this statement of medical expenses was introduced no question was raised as to the reasonableness of the charges. Later a question was posed by defendant as to the final office appointment — was it for treatment or for preparation for trial? Although the record on this question is not clear, the charge was included in the total doctor bill. The separate amount of the item does not appear in the record. The amount could not have been considered by the jury as an allowance for pain, suffering and permanent injuries, for it could not be separately determined from the evidence.
The question here presented is whether a jury verdict which limits damages to the exact amount of medical expenses without allowing any amount for pain, suffering and permanent injuries should have been approved by the trial court when a claim for pain, suffering and permanent damages was made and proven.
The court’s instructions on damages in pertinent part are as follows:
“You are instructed that if you find for the plaintiff, you will then determine the amount of her recovery. You should allow her such amount of money as will reasonably compensate her for her injuries and losses resulting from the occurrence in question including any of the following shown by the evidence:
“(a) Pain, suffering, disabilities, or disfigurement and any accompanying mental anguish suffered by plaintiff to date and those she is reasonably certain to experience in the future;
“(b) The reasonable expenses of necessary medical care, hospitalization and treatment received.”
While the evidence relied upon by the defendant might well serve to minimize an allowance for damages, it certainly does not overcome the positive evidence that plaintiff did endure pain and suffering and would continue to have permanent facial scars.
A verdict in a personal injury action limited to the exact amount of uncontradicted medical expenses incurred as a result of an accident, and which verdict includes nothing for the pain and suffering or permanent injury, shown by uncontradicted evidence is in part contrary to the evidence and should be set aside on motion for new trial. (McCaslin v. Ellsworth Coal Co., 119 Kan. 93, 237 Pac. 658, see also Anno. Verdict Omitting Damages for Pain, 20 A. L. R. 2d 276.) An allowance limited to the amount of medical expenses in such cases disregards the plain instructions of the court on damages.
The defendant relies on Furstenberg v. Wesley Medical Center, 200 Kan. 277, 436 P. 2d 369 and Brown v. Godfrey, 200 Kan. 568, 438 P. 2d 117. The basic rule of law underlying those cases does not give support to defendant’s position. Inherent in both of those decisions is the rule expressed herein, for in upholding the verdicts we there determined the amounts allowed were not conclusively limited to actual medical expenses incurred as a result of the in juries. Some part of the amounts allowed in each of those verdicts was reasonably attributable to damages for pain and suffering or permanent disability.
A jury verdict which manifests a disregard for the plain instructions of the court on the issue of damages, which arbitrarily ignores proven elements of damage and which indicates passion, prejudice or a compromise on the issues of liabilty and damages should be set aside on motion for new trial. (Henderson v. Kansas Power & Light Co., 188 Kan. 283, 362 P. 2d 60; Levy v. Jabara, 193 Kan. 595, 396 P. 2d 339; Corman, Administrator v. WEG Dial Telephone, Inc., 194 Kan. 783, 402 P. 2d 112.)
The granting of a motion for new trial on the grounds set out in K. S. A. 60-259 rests in the judicial discretion of the trial court. (Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 355, 388 P. 2d 832; Landscape Development Co. v. Kansas City P. & L. Co., 197 Kan. 126, 132, 133, 415 P. 2d 398.) The order granting or refusing a new trial will not be reversed unless a clear abuse of discretion is shown. (Slocum v. Kansas Power & Light Co., 190 Kan. 747, 378 P. 2d 51.)
In ruling on the motion for new trial the district court said:
“. . . But, viewing the case as a whole, I am a little bit at a loss because I think they should have allowed her something for her pain and suffering, other items, and maybe even something for the scars that were there, although they didn’t seem to be very bad. But these damages were not in the court’s opinion of the extent that the plaintiif was claiming. They tended to be normal damages rather than be substantial damages; and, therefore, I don’t believe that the court should say it was shocked by the verdict or that it is convinced the jury was under passion and prejudice. I don’t have the feeling this jury was under passion and prejudice. I think maybe they made a mistake of some kind in their verdict, but I don’t believe it was substantial enough to grant a new trial . . .”
It is apparent the trial court was convinced that the verdict included nothing for pain, suffering or permanent injuries. Under these facts and circumstances we hold the verdict was clearly inadequate. The verdict awarded medical expenses which were uncontradicted. In that regard the verdict was supported by the evidence. It awarded nothing for pain and suffering or permanent injuries. In that regard the verdict was contrary to uncontradicted evidence and was arrived at by disregarding the plain instructions of the district court.
We hold the trial court acted unreasonably and arbitrarily in re fusing to grant a new trial and its refusal constituted an abuse of discretion for the reasons stated.
It is next argued a new trial should be limited to the nature and amount of damages.
K. S. A. 60-259 provides a new trial may be ordered on all or a part of the issues when one of the statutory grounds for a new trial exists which affects the substantial rights of a party. The trial court is required to find one of the statutory grounds exists before it is authorized to grant a new trial on all or a part of the issues. (Landscape Development Co. v. Kansas City P. & L. Co., supra.)
A new trial may be limited to the issue of damages in those instances when the issue is separable and when the interests of justice will be served thereby. (Schmidt v. Cooper, 194 Kan. 403, 399 P. 2d 888.)
Inherent in general recognition of the power to limit a new trial to the single issue of damages when the verdict awarded is inadequate is the requirement that the issue of damages be separable from the issue of liability. (Henderson v. Kansas Power & Light Co., supra. See also Anno: New Trial as to Damages Only, 29 A. L. R. 2d §7,1210.)
A new trial on the issue of damages only should not be granted when there appears a strong suspicion that inadequate damages were awarded as a compromise on the issues of liability and damages. Such a compromise infects the entire verdict of the jury and renders it totally invalid. (Corman, Administrator v. WEG Dial Telephone, Inc., supra. See also Anno: New Trial as to Damages Only, 29 A. L. R. 2d § 10, 1214.)
To raise any strong suspicion that a verdict awarding inadequate damages was a result of compromise involving these two issues, there must be a genuine conflict in the evidence on the issue of liability. Our present record omits the testimony relating to this issue. The omission was made by agreement of both parties. The appellee states the issue was vigorously contested and that both plaintiff and defendant insisted at the trial the traffic signal at the intersection was in their favor. It was hardly possible that the signal favored both parties for the plaintiff was going north, the defendant was going west and both entered the intersection at the same time. The plaintiff argues that although liability was denied by the defendant the evidence was clearly against defendant on this issue. To support this conclusion he quotes the following remarks of the trial judge:
“Well, gentlemen, I will confess to being somewhat puzzled by this particular situation. I would be of the opinion that the evidence was somewhat over-whelming as to the question of liability in the case; but the problem of damages is something that is far harder to determine. . . .”
The verdict now questioned was entered by the jury — not by the judge. We are concerned with the jury’s reaction to the evidence. A judge and jury do not always arrive at the same conclusions after hearing the evidence.
The record in this case contains the names of those witnesses who testified on the issue of liability, although their testimony is not shown. We note the jury retired to begin deliberations after lunch. At 5.T7 p. m. they returned to court and asked that the testimony of Mrs. Powers and Mr. Smithers be read to them. The record indicates both of these witnesses testified on the issue of liability and not as to damages. It would appear the jury was not agreed as to liability after four hours of deliberation. Otherwise there was no reason for them to ask for the testimony of Mrs. Powers and of Mr. Smithers. After this testimony was read to the jury it was two hours and twenty-eight minutes before a verdict of $357.95 was agreed upon. We conclude the issue of liability was not easily determined by the jury. There appears a strong suspicion the inadequate damages were awarded by the jury as a compromise involving both issues, liability and damages. In such case the entire verdict is infected and a new trial should be granted on all issues.
The plaintiff-appellant contends the court erred in restricting the use of an argument chart during his closing argument to the jury. He sought to use the chart to present a method for the jury to arrive at a sum for pain and suffering. The chart contained no stated dollar amounts. A life expectancy of 41 years was set out and this was multiplied into the number of months (492) and number of weeks (2,132). The court required the number of months and weeks be stricken and refused to allow the attorney to use months and weeks in his remarks to the jury concerning pain and suffering or permanent injuries. The case of Caylor v. Atchison, T. & S. F. Rly. Co., 190 Kan. 261, 374 P. 2d 53, was used by the court to support this ruling.
In Caylor the formula argument proscribed included the opinion of the attorney as to the per diem value of pain and suffering. When a per diem dollar figure is suggested in such a formula by the attorney this court in Caylor said it amounted to the attorney giving testimony in his closing argument. This was disapproved.
In the present case no dollar amount was suggested or used by the attorney. Argument as to months or weeks of pain and suffering or permanent injuries does not come within the proscription in Caylor if no dollar amounts are used and if there is a basis in the evidence adduced at the trial to infer the pain and suffering or permanent injuries will continue for the period suggested. Suffice it to say the closing argument proposed did not fall within the rule of the Caylor case.
For reasons previously set forth in this opinion the judgment approving the verdict of $357.95 is reversed and a new trial is ordered on all issues. | [
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The opinion of the court was delivered by
Harman, C.:
Although this zoning appeal differs in certain aspects not here material, the controlling issue is identical with that in a companion case (Nos. 45,210 and 45,292, consolidated) Carson v. McDowell, 203 Kan. 40, 452 P. 2d 828, this day decided.
The property sought to be rezoned here is a small tract near the two tracts in the companion case. The zoning action directed toward it was started and conducted separately about three months after the proceedings in the companion case; however, upon appeal to the district court all were consolidated and tried together.
The critical dates here are: The planning commissions statutory (then K. S. A. 1965 Supp. 12-708) notice of public hearing was published in the official city newspaper March 22, 1966. The date fixed for hearing was April 11, 1966. Thus only nineteen clear days ■elapsed between the date of publication and the date of hearing .instead of the requisite twenty.
Under authority of the companion case, supra, the publication notice was fatally defective, and the judgment appealed from is reversed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Price, C. J.:
A retail liquor store was broken into in the nighttime and several bottles of liquor were stolen.
Defendant was convicted of burglarly in the second degree and larceny in connection therewith — and appeals.
At the outset it is noted the state contends there is nothing for appellate review because defendant did not appeal from the order overruling his motion for a new trial and specify such ruling as error, citing State v. Masarsk, 198 Kan. 66, 442 P. 2d 557, and other decisions of like effect. The contention is no longer good — see Rule No. 17 of this court found at 201 Kan. xxvh.
Defendant makes only two contentions.
The first is that evidence relied on by the state — exhibits 3, 4, 5 and 7 — being bottles of liquor allegedly stolen in the burglary— were obtained as the result of an illegal search of defendant’s car and therefore were inadmissible in evidence.
The facts can be summarized briefly.
On August 17,1967, Mrs. Violet Stevens was the owner of a retail liquor store in Wichita. She and her brother lived next door. About 2:15 that morning they were awakened by a crash and the burglar alarm. They saw two men break the store window, jump into the store and leave carrying bottles of liquor. One of the men had a goatee and wore boots. The other was dark-skinned and resembled an Indian, Mexican or negro. They ran from the store to a dark red or maroon colored Volkswagen and drove away.
The police were notified immediately of the break-in, together with the descriptions. The information was broadcast over the police dispatch. Among those who heard the dispatch over his car radio was officer Pope. A few minutes later, as he drove by a tavern, he saw a man standing outside — who appeared to have a goatee. Pope drove around the block and then pulled into the parking lot of the tavern. A maroon Volkswagen was parked there. By means of a registration check through police headquarters he learned that the car s license tag was issued to one Roger Ayres— defendant in this prosecution.
Pope got out of his car and flashed his light into the Volkswagen. He observed spots on the floor board which appeared to be blood. He went into the tavern looking for Ayres. He and another man went outside and had a brief conversation. He then re-entered the tavern and talked to the bartender. In a few minutes he went back out to the parking lot and saw two of his fellow officers — one of them being officer Pogue — looking into the trunk of the Volkswagen. Pogue had arrived at the scene in response to a police alert to check on possible suspects in the burglary. In the trunk were several bottles of liquor. Officer Pope then went back into the tavern and immediately saw defendant Ayres — who had a goatee. At his request Ayres went outside with him. He placed Ayres under arrest and read to him the “Miranda” warning. After a brief discussion as to whether Ayres had bottles of liquor in the trunk of his Volkswagen — during which Ayres made contradictory statements as to where and when he, Ayres, had gotten them — Pope asked if he could search the trunk. Ayres replied that he could. Pope did so and discovered several bottles of liquor, some wadded clothing which was wet and smelled of liquor — and two pairs of heavy construction boots. The bottles of liquor first seen by officer Pogue, and later discovered by Pope when he searched the trunk of the car, were identified at the trial by Mrs. Stevens and her employee as being the bottles stolen in the burglary.
In contending as he does, defendant relies on the rule announced in State v. Blood, 190 Kan. 812, 819, 378 P. 2d 548 to the effect that without a warrant no search for evidence may be made of an automobile unless there is probable cause on the part of the officer to believe that the automobile contains contraband or stolen property, or unless an arrest has been made upon probable cause, in which event the search must be incidental to the arrest — and argues that here the “search” by the officer Pogue was made prior to the arrest by officer Pope, and that it was made without probable cause on the part of Pogue, and therefore the bottles of liquor later found by Pope were the result of such illegal prior search (by Pogue) and thus were inadmissible in evidence.
In State v. Robinson, 203 Kan. 304, 454 P. 2d 527, a somewhat similar question was discussed. It was said that the ability of an automobile to be moved to an unknown location or beyond the jurisdictional reach of the officer makes resort to a search warrant impractical in many instances, and that in such cases if the officer has reasonable cause to believe the vehicle contains contraband or items which offend against the law he may conduct a reasonable warrantless search of the vehicle.
We believe that in view of all the attendant circumstances it cannot be said that the “search” by officer Pogue was without probable cause. He has been alerted to be on the lookout for a maroon Volkswagen used as a get-away car in the burglary. It was in the early morning hours, and such a car was found parked at a tavern across town. Undoubtedly his instincts and training as a police officer aroused his well-founded suspicions that this was the car in question and that it contained bottles of liquor stolen in the burglary. This evidence was not obtained as a result of an illegal search and seizure, and, being properly identified at the trial as having been stolen from the Stevens liquor store — was properly admitted in evidence.
Defendant’s other contention is that state’s exhibit 6 was not properly or sufficiently identified as evidence, and should not have been admitted.
This exhibit was a half-gallon bottle of “Kentucky Gentleman” whiskey, which had been purchased by the tavern bartender from the dark-skinned man who was in the tavern at the same time defendant Ayres was there. This bottle — both by brand, size, and the hand-written price mark on it — was positively identified by the owner of the liquor store and her employee as being one of the bottles stolen. In view of this, and the other evidence in the case, the exhibit was properly identified and admitted in evidence.
Neither of defendant’s contentions is sustained, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
M. B. Countryman, a resident of Elk County, Kansas, died testate March 25, 1964. His widow, Marie Countryman, to whom we shall hereafter refer either by name or as plaintiff, filed a petition for allowance of demand against her husband’s estate. The executors answered, denying Marie’s claim in general and cross claiming for certain sums alleged to be due the estate. The case was tried on all issues in district court, where the claims of both Mrs. Countryman and the executors were allowed in part and denied in part. Marie has appealed, the executors have not.
Mr. and Mrs. Countryman were married in 1943, after executing an antenuptial agreement. Mr. Countryman had two children by a former marriage, Dorothy Lucas and Wilber E. Countryman, who are the executors of his estate and the appellees herein: We will refer to them as defendants, or executors. Marie Countryman had one child by a former marriage, a son, who is not a party to this lawsuit.
Under the antenuptial contract Marie Countryman was to receive
(1) two thousand dollars in cash should she survive her husband,
(2) the household goods, furniture and fixtures used in the home, and (3) the occupancy, use and income from an 1100-acre farm, known as the Home Place, until her remarriage or her death. The agreement further provided that upon her husband’s death, Mrs. Countryman should receive an undivided half-interest in all real estate acquired by the joint efforts of the two parties.
In addition, the contract provided that the property owned by each of the parties at the time of their marriage should remain the separate property of each, and that Marie would execute a written consent to Mr. Countryman’s will so long as the will did not conflict with the terms of the agreement.
On December 21, 1943, Mr. Countryman made a will conforming to the agreement, in which he bequeathed his wife the sum of two thousand dollars in cash and the household goods, furniture and fixtures, and devised the Home Place to her for and during her lifetime or until her remarriage, with remainder over to his grandchildren. The will left the residue of his property to Mr. Countryman’s two children in equal parts. Mrs. Countryman consented to the will in writing, as she had agreed.
During their marriage the Countrymans acquired several pieces of real estate. Those of present concern are as follows: (1) the Richolson farm, (2) the Trail’s End farm, (3) the Moline property, (4) the Horn farm, and (5) the Salt Creek farms. The evidence disclosed that the first three properties were purchased from jointly accumulated funds and titles thereto were taken in the names of Mr. and Mrs. Countryman. The last two properties were paid for by Mr. Countryman and titles were taken in his name alone.
In her petition filed in probate court Mrs. Countryman asserted claims against the estate for the following: (1) Statutory allowances as provided in K. S. A. 59-403. (2) Personal property such as horses, saddles, wagons, motor vehicles and other equipment used in ranch operations. (3) The full undivided interest in the Richolson farm. (4) The full undivided interest in the Moline property. (5) A three-fourths interest in Trail’s End. (6) A one-half interest in the Salt Creek farms. (7) Pasture rent for cattle pastured on the Home Place after Mr. Countryman’s death.
The proceedings were transferred to district court for trial, and in May, 1966, a discovery deposition was taken from Mrs. Countryman. A few weeks later a pretrial conference was held at which the defendants filed a motion for summary judgment, and in June the court issued a memorandum opinion which sustained Marie’s claim for statutory allowances, denied her claims for the personal property, for the Richolson farm and for the pasture rent, and set for subsequent hearing her claims against the Moline and Trail’s End properties. The court also permitted plaintiff to amend her petition by including a claim for a one-half interest in the Salt Creek farms, which was also set for later hearing.
Some two months later, in August, 1966, a supplemental memorandum opinion was entered by the court which overruled the motion for summary judgment in toto and enumerated, in accordance with 60-256 (d), certain material facts as being without substantial controversy. So far as material to this appeal, this supplemental memorandum will be discussed in more detail later in this opinion.
In due course the case was tried and judgment was entered as of February 7, 1967, to the following effect: Plaintiff was given judgment for the statutory allowances provided in K. S. A. 59-403 and was denied judgment on all other claims, while defendants’ cross demands were allowed in part and denied in part. No appeal has been taken by either side from the court’s ruling on the cross demands.
The issues raised on appeal mainly relate first, to Mrs. Countryman’s claim for pasture rent; second, to her claim for the Richolson place; and third, to her claims against the Moline, Trail’s End and Salt Creek properties.
Turning to the first issue, the plaintiff maintains the court erred as a matter of law in denying her claim for pasture rent. The basis for the court’s ruling on this claim appears in its supplemental memorandum opinion of August, 1966, enumerating certain facts as being without substantial controversy, as follows:
“The executors had the right to possession of the real estate for the benefit of the estate during the first year after decedent’s death and the facts indicate that the claimant-devisee has no basis for claiming rental thereon.”
This legal conclusion was subsequently incorporated in the judgment of February, 1967.
It will be recalled that the Home Place was devised to Mrs. Countryman until her death or remarriage. The record reflects that when the executors of the Countryman estate were appointed, about two hundred head of cattle were being pastured on the Home Place, some of which Marie later purchased. It appears that all the cattle remained on the Home Place pasture during the 1965 grazing season, although there was some dispute as to the length of time and as to the circumstances under which they remained there.
The trial court, however, did not determine this issue on the merits. Its ruling was based on a legal conclusion. In this, we are compelled to hold, the court erred.
In the recent case of Riling, Executor v. Cain, 199 Kan. 259, 428 P. 2d 789, the plaintiff, as the executor of an estate, filed an action to recover farm rents paid by the tenant during the period of administration to the owner, who had purchased the farm from the devisees. This court, in denying recovery, held:
“Under the provisions of K. S. A. 59-1401, an executor has a right to the possession of real estate owned by the decedent until the estate is settled, but in the absence of a testamentary plan directing otherwise, the executor’s right to possession is permissive only and does not exclude the possessory rights of a devisee until such time as the executor asserts his right to possession. (Following Peterson v. Peterson, 173 Kan. 636, 251 P. 2d 221.)” (Syl. f 1.)
We are satisfied with the rule as expressed in the Riling case and see no need to pursue the point further. Although the executors argue that Mrs. Countryman should have demanded possession, in case she desired it, our rule is otherwise. As stated in Riling, it is the executor who must assert his statutory right to possession. Before leaving this phase of the case, it is only fair to observe that the Riling opinion had not been handed down when the present action was heard and decided, and the trial court did not have the benefit of that precedent.
Mrs. Countryman’s next claim is this: that about July 31, 1948, she and her husband had a verbal agreement that if she would join in a conveyance of the Horn farm to Mr. Countryman’s grandchildren, she could have the Richolson farm (one-half of which she already owned). In the supplemental memorandum opinion of August, 1966, the trial court, in specifying what material facts appeared without substantial controversy, included the following language with respect to the Richolson claim:
“No certain verbal agreement existed whereby claimant is entitled to the Richolson property. If such claim did legally exist, it is barred by the Statute of Limitations.”
This conclusion was based solely on a discovery deposition taken from Mrs. Countryman in May, 1966, and prior to the time a second deposition was taken.
At the trial, held in February, 1967, Mrs. Countryman attempted to testify further concerning the alleged Horn-Richolson agreement. Her testimony in this regard was rejected by the court. The journal entry recites in part:
“The conversation of the claimant with her deceased husband relating to the Richolson property as related by the claimant in her deposition is so indefinite that the facts as set forth do not satisfy the requirements of a contract as to certainty. Even if the facts established a contract and part performance by the claimant removed the bar of the statute of frauds, the claim is barred by the statute of limitations and claimant’s claim for the Richolson property must be denied and judgment rendered in favor of the estate and/or the executors.”
It is now claimed the trial court erred in excluding plaintiff’s proffered testimony and in denying her claim solely on the basis of the May, 1966, discovery deposition. We think there is merit in this contention.
To review for a moment: a pretrial conference was held April 12, 1966, at which the parties agreed to submit certain questions, and during which the defendants filed a motion for summary judgment. On June 6, 1966, the court granted summary judgment denying Marie’s claim for the Richolson place. On August 24, 1966, the court filed a supplemental memorandum opinion setting the summary judgment aside in toto and proceeding to enumerate “what material fa'cts are without material [sic] controversy.” One of the so-called “uncontroverted facts” enumerated was that no verbal agreement existed as to the Richolson property.
Strictly speaking, we believe the court was not enumerating, so far as the Richolson claim was concerned, a fact which was “without substantial controversy.” Mrs. Countryman was actively asserting a contract involving the Richolson place while the defendants were just as vigorously denying it. There was continuing controversy as to the contract.
The actual effect of the court’s supplemental memorandum opinion, as we view it, was to determine an issue of fact, i. e., whether there was a contract, and in coming to its decision on that issue the court relied solely on the discovery deposition, refusing all other evidence.
We think the trial court may have misconceived the purport of K. S. A. 60-256 (d), and assumed that an order made pursuant to that statute was not subject to change or amendment. Subsection (d) is a part of the summary judgment statute, and provides as follows:
“If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain which material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the actions as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.”
A determination made under 60-256 (d) is not a final and appeal-able judgment, although it is frequently called a “partial summary judgment.” (3 Barron & Holtzoff, Federal Practice and Procedure, § 1241, p. 190.) Rather, the determination is a summary interlocutory order as to uncontroverted facts, and is subject to subsequent revision and modification. (E. I. Du Pont De Nemours & Co. v. United States Camo Corp., 19 F. R. D. 495.) Being interlocutory in character, the federal court on page 498 said that the “adjudication is merely a pretrial determination that certain issues are considered established for the trial of the case, and is similar to the preliminary order under Rule 16.” See, also, 3 Barron & Holtzoff, supra, p. 193; 3 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, § 60-256, p. 367. An excellent discussion on partial adjudication is found in 35 B C. J. S., Federal Civil Procedure, § 1214, p. 641.
It seems generally agreed that the purpose of pretrial procedure under Rule 16, and its Kansas equivalent, K. S. A. 60-216, is not to determine controverted issues of fact. (1A Barron & Holtzoff, Federal Practice and Procedure, § 471, p. 834; 2 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, § 60-216, p. 118.) In similar vein we have held that the trial court should not attempt to decide disputed issues of fact at pretrial conference. (Connell v. State Highway Commission, 192 Kan. 371, 388 P. 2d 637; Green v. Kaesler-Allen Lumber Co., 197 Kan. 788, 420 P. 2d 1019.) Moreover, we have said that pretrial proceedings should not be conducted until discovery has been completed. (Connell v. State Highway Commission, supra. ) Similar rules have been laid down in connection with motions for summary judgment. (Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964.)
In the present case discovery proceedings had not been completed when the supplemental memorandum opinion was handed down, for Mrs. Countryman was again deposed the following November. Moreover, it would seem that a determination under K. S. A. 60-256 (d) should not be so rigidly applied as to preclude a deponent, acting in good faith, from correcting mistakes made in his testimony, from explaining inconsistencies and from covering in greater detail matters brought out only generally by the questions propounded.
We have examined the summation of plaintiff’s deposition testimony as to the purported Richolson contract. As set forth in the record, that testimony was exceedingly brief and so lacking in detail as to invite further clarification concerning the specific terms of the alleged agreement. Under this state of facts we view the rejection of plaintiff’s testimony offered at the trial as constituting error.
The court, it is true, ruled that even though a contract were established, plaintiffs claim was barred by the statute of limitations. Whether that might be so would depend, in turn, on what the terms and provisions of the agreement actually were, as disclosed by all the evidence.
A related contention is found in Mrs. Countryman s statement of points, where she asserts that the trial court erred in deciding her claim to personal property, solely upon the discovery deposition. Since this point is not briefed, we can assume it has been abandoned. We may say, however, that the plaintiff offered no testimony at the trial relating to her claim for personal property, and hence the situation differs significantly from that which obtained in the Richolson claim.
Finally, the plaintiff alleges that the trial court erred in denying her claims for (1) the full undivided interest in the Moline property; (2) a three-fourths (I) interest in Trail’s End; and (3) a one-half (%) interest in the Salt Creek farms.
At the time of Mr. Countryman’s demise, his wife, Marie, held title to undivided one-half interests in both the Moline and Trail’s End properties and he, himself, had title to the other half interests therein. He also had full title to the Salt Creek farms.
Mrs. Countryman bases her claim to full title in the Moline place on an alleged verbal agreement. She testified, in substance, that her husband told her she could have the property and her brother could live there if she would keep it up; and that she did some repair work, built some fence and insured the place. It is not clear from the record whether this alleged conversation occurred in 1950 or 1959. Be that as it may, the trial court found that plaintiff had failed to establish the alleged agreement. We are frank to say there is considerable evidence in the record tending to cast doubt upon the verity of the Moline claim, and we are in no position to set the finding aside. The test to be applied in determining whether an oral contract has been established with a person since deceased, is clearly outlined in the case of In re Estate of Shirk, 194 Kan. 424, 399 P. 2d 850, where we held:
“When an oral contract with a person since deceased is made the basis of an action for specific performance, it is not sufficient that the contract be established by a mere preponderance of the evidence but such evidence must be clear, cogent and convincing.” (Syl. f 1.)
In the course of that opinion, we said:
“. . . Courts of equity will subject the evidence submitted as proof of such contracts to close scrutiny and the contract must be established by the clearest and most convincing proof, a mere preponderance of the evidence being insufficient. (In re Estate of Towne, 172 Kan. 245, 239 P. 2d 824.)” (p. 428.)
Cases are numerous from this jurisdiction where this strict standard of proof has been applied. (See, In re Estate of Hargreaves, 201 Kan. 57, 439 P. 2d 378, and authorities therein cited.)
The court’s finding on the Moline claim is, in legal parlance, a negative finding. Normally findings of this nature are not overturned by appellate courts, since their means for weighing evidence and testing credibility are severely limited. In Collins v. Merrick, 202 Kan. 276, 448 P. 2d 1, we had occasion to venture briefly into the field of negative findings and we held:
“Ordinarily, an appellate court will not set aside a negative finding made by a trial court if the evidence is limited in quantity and its weight and credibility may be questionable, or if the evidence may be disregarded for any reason.” (Syl. 1T2.)
“A trial court cannot arbitrarily or capriciously refuse to consider the testimony of any witness, but it is not obliged to accept and give effect to any evidence which, in its honest opinion, is unreliable, even if such evidence be uncontradicted.” (Syl. f 3.)
For similar statements of the rule, see In re Estate of Winters, 192 Kan. 518, 389 P. 2d 818; In re Estate of Curtis, 193 Kan. 431, 394 P. 2d 59.
The Trail’s End and Salt Creek claims rest on a somewhat different basis. Mrs. Countryman contends that the one-half interest owned by her husband in Trail’s End and the full interest owned by him in Salt Creek were purchased from funds jointly accumulated by the two of them after their marirage. Thus, she maintains she is entitled to an additional one-fourth interest in Trail’s End and a one-half interest in Salt Creek, by virtue of the provisions contained in then antenuptial agreement.
It is true that the prenuptial contract provided that as to real estate acquired as a result of the joint efforts of Mr. Countryman and his intended bride, Marie, his future wife should receive a half interest upon her husband’s death. However, the trial court found that plaintiff had failed to establish a claim to either property.
As to Trail’s End, the court pointed out that the evidence clearly established that the Countrymans divided their net earnings equally each year. Mrs. Countryman, herself, testified they never operated under the antenuptial contract during their marirage; that they set the contract aside and never related to it; that under a verbal understanding they divided the property annually, each taking half; and that each had paid one-half the purchase price of Trail’s End from their respective checking accounts. Records disclosed that from 1944 to 1964, Marie received considerably more than half the total income. Trail’s End was acquired in 1948, during which year the amount received by Marie far exceeded half the joint income.
The court found that for the year 1948 there had been a division of funds accumulated through the parties’ joint efforts and that Mr. Countryman’s part of the price paid for Trail’s End came from his share of the division. This finding is suported by substantial evidence. Such being the case, the finding may not be set aside. Neither may the judgment denying Marie’s claim to Trail’s End be overruled.
So far as the Salt Creek farms are concerned, the court found that Mr. Countryman paid the purchase price from income from his own private sources and investments. There is substantial competent evidence to support this finding, also. Accordingly, the findings as to both properties must stand.
No principle in the realm of appellate review is more firmly established than this: that findings made by the trier of facts will not be set aside on review if they are substantially supported by competent evidence. Neither will a judgment be overturned for insufficiency of evidence where there is competent evidence of a substantial nature to sustain it. At this late date, citation of authority on these points is hardly needed, but see cases in 1 Hatcher’s Kansas Digest (Rev. Ed.) Appeal and Error, § 507.
That part of the judgment entered by the court below which denies the claims of the plaintiff, Marie Countryman, as to personal property and as to the Moline, Trail’s End and Salt Creek properties is sustained. Such parts of the judgment as deny Mrs. Countryman’s claim for pasture rent and her claim regarding the Richolson farm are reversed with directions to hear those claims on their merits in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Fontron, J.:
In 1966, Oneal Scoggins, the petitioner and appellant herein, was convicted of first degree robbery and sentenced to a term of twenty to forty-two years as an habitual criminal. He appealed that conviction to this court where the same was upheld in State v. Scoggins, 199 Kan. 108, 427 P. 2d 603.
Subsequently, Mr. Scoggins filed this action under K. S. A. 60-1507, challenging the validity of both the conviction and sentence. Counsel was appointed to represent him in this action and an evidentiary hearing was held at which both Scoggins and his counsel were present and Scoggins testified. Following the trial, the district court entered findings of fact and denied relief. Hence this appeal.
The petitioner first complains that one of the state’s witnesses gave false testimony at his trial. This complaint is utterly without merit. There is no showing whatever of false or perjured testimony. The complaint boils down to this: there was some variance between the statements of two officers as to how much money Scoggins had in his possession when he was arrested. The conflict, which was not of major import, went only to credibility and forms no basis for this attack on the judgment.
Scoggins next accuses his trial counsel of ineffective representation in failing to expose on cross-examination what he denominates as false testimony, but which more accurately may be characterized as a conflict or variance in the evidence. This contention is groundless. This court has but recently said, in effect, no accused can be guaranteed a lawyer who will try a case perfectly, if indeed such a creature exists. (State v. Wright, 203 Kan. 54, 452 P. 2d 1.) Moreover, the record does not disclose the extent of the cross-examination undertaken by defense counsel, and we have no way to gauge its quantity, quality or effectiveness.
Because there was some uncertainty as to the exact sum of money taken from the victim of the robbery, the defendant erroneously concludes, for his third point, that the charge of robbery was not established. The value of the property obtained from one who is robbed is not a material element of first degree robbery as such is defined in K. S. A. 21-527. We have held more than once that value is wholly immaterial so long as the thing taken is property. (State v. Howard, 19 Kan. 507; In re Max Wheatley, Petitioner, 114 Kan. 747, 748, 220 Pac. 213; State v. Tucker, 115 Kan. 203, 204, 222 Pac. 96.)
For his fourth point the petitioner asserts he was denied equal protection of the law by reason of the discriminatory application •of the Habitual Criminal Act, K. S. A. 21-107a, (hereafter called Act). To support this contention the petitioner introduced at his 60-1507 hearing journal entries showing sentences imposed against twelve other felons in the Shawnee County District Court during the general period in which he, himself, was sentenced.
Without going into detail we may say the journal entries reflect that the Act was invoked against two defendants who pleaded guilty as well as against six defendants who stood trial. Also reflected are sentences imposed against four defendants upon their pleas of guilty where the Act was not invoked even though the county attorney, by his own stipulation, possessed knowledge of prior convictions. From this bald evidence we are asked to hold that an invidious pattern of discrimination was established to the substantial prejudice of Mr. Scoggins’ constitutional rights under the fourteenth amendment.
The petitioner’s argument is not new to this court, although we find the present record somewhat better documented than some which have come before us in the past. The rule followed by this court in cases of this character is well expressed in Gladen v. State, 196 Kan. 586, 413 P. 2d 124, where we held:
“The exercise of discretion by a county attorney in seeking to invoke the provisions of the habitual criminal act (K. S.A. 21-107a) without a showing of discrimination by reason of willful, arbitrary, designed, deliberate, intentional or concerted action, does not deprive one of due process or equal protection of the law guaranteed by the fourteenth amendment to the United States Constitution in a case where an enhanced penalty was imposed under the act.” (Syl. f 2.)
In a subsequent case, Addington v. State, 198 Kan. 228, 424 P. 2d 871, we pointed out the responsibility which rests upon a prosecuting attorney to act in good conscience and to observe elementary principles of justice and fair play when invoking the Act and we concluded by saying:
“. . . If the county attorney acts corruptly, willfully and in bad faith in invoking the Act, the sentence imposed thereunder may be vacated pursuant to K. S. A. 60-1507, but the burden of proof rests upon the movant. (Citing cases.)” (p. 235.)
See, also, State v. Coutcher, 198 Kan. 282, 424 P. 2d 865; State v. McCarty, 199 Kan. 116, 427 P. 2d 616; State v. Eaton, 199 Kan. 610, 433 P. 2d 347; State v. Young, 200 Kan. 20, 434 P. 2d 820.
When we apply our established rule to the facts disclosed in this record, we cannot say that an arbitrary and capricious pattern of discrimination has been established to the prejudice of this petitioner. While it is true the journal entries offered by petitioner reflect the imposition of higher penalties under the Act where defendants have pleaded guilty than where they have pleaded otherwise, the cases cited are far too few in number and too sketchy in detail to establish what can be said in law to constitute a deliberate pattern of arbitrary or capricious discrimination.
Among other factors which may be noted in this connection is the entire absence of any showing with respect to the character of the prior convictions relied on in each case, that is, whether or not the former crimes were of an aggravated, violent or vicious nature. Neither does the record reflect what were the ages or' dispositions of the several miscreants, or what misdemeanors and minor crimes they may also have committed, or what their pre-sentence reports may have revealed. These are all factors which well might influence a trial court in pronouncing sentence and might influence a county attorney, as well, in deciding on his course of action.
While the county attorney in some cases saw fit not to invoke the Act against defendants who pleaded guilty, even though aware of prior records, it is clear that the Act was invoked in other cases where guilty pleas were entered. Moreover, the trial court, which found that petitioner had introduced no evidence that the Act was used to discourage defendants from exercising their rights to trial by jury, stated it had personal knowledge that defendants who do plead guilty are sentenced under the Act as well as those who elect to stand trial.
After a thorough review of the record, we agree with the trial court that the petitioner failed to sustain his burden of proving arbitrary and invidious discrimination on the part of either the county attorney or the sentencing judge. The following passage from Oyler v. Boles, 368 U. S. 448, 7 L. Ed. 2d 446, 82 S. Ct. 501, we believe is pertinent to the circumstances of this case:
“Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged. . . .” (p.456.)
We have not overlooked the case of Patton v. State of North Carolina, 256 F. Supp. 225, cited by the petitioner, but found it not factually in point.
Finally, the petitioner avers that he was denied equal protection of the law because the jury which convicted him contained no negroes. This bald assertion is found in petitioner’s brief alone, no evidence to such effect being shown in the record. Being both unsworn and completely uncorroborated, the defendant’s statement is wholly insufficient to establish that none of the jurors before whom he was tried were negroes. (Rules of the Supreme Court, Rule No. 121 (g), 201 Kan. xxxin; Huston v. State, 195 Kan. 140, 403 P. 2d 122; Lieser v. State, 199 Kan. 503, 430 P. 2d 243; Lloyd v. State, 197 Kan. 389, 416 P. 2d 766.)
Furthermore, the defendant does not even suggest, nor did he offer evidence to indicate, that negroes are purposely excluded from grand and petit jury panels drawn in Shawnee County. Thus no such prima facie case of systematic exclusion appears in this record as was made out in Coleman v. Alabama, 389 U. S. 22, 19 L. Ed. 2d 22, 88 S. Ct. 2. The law in this regard is clearly delineated in State v. Clift, 202 Kan. 512, 449 P. 2d 1006, where this court held:
“Although the law requires that a jury panel be truly representative of a cross-section of the community in which a defendant is to be tried, a Negro defendant in a criminal case is not constitutionally entitled to be tried by a jury on which there is a member, or members, of his race, and he is entitled to relief only upon proof presented by him which discloses a purposeful discrimination to exclude members of a class from the jury panel.” (Syl. f 4.)
We find no error committed in this case and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal by the defendant, Olin Miles, from a conviction of negligent homicide.
The case arises out of an accident which occurred southwest of Wichita on state highway K-42, a two-lane paved road running in a southwesterly direction, when Mr. Miles, driving a 1967 Pontiac hardtop, attempted to pass a car ahead of him driven by Mr. Ronald Tharp. As Miles pulled abreast of the Tharp car he concluded he was too close to clear an oncoming automobile and he thereupon attempted to fall back of Tharp and return to his own, or right hand, side of the roadway. In the course of this maneuver the defendant’s car went off the road onto the right-hand shoulder, spun out of control back across the left-hand lane and into the path of a car driven by William R. Berges. As a result of the ensuing collision, Mr. Berges’ wife, Lynd O. Berges, was fatally injured.
A charge of fourth-degree manslaughter was filed against Mr. Miles. The case was tried to a jury which found the defendant guilty of negligent homicide. Following impostion of sentence the present appeal was filed.
For his points of error, the defendant alleges the trial court erred in overruling his motion for discharge made at the conclusion of the state’s evidence and a similar motion after his own evidence was in, and in overruling his motion for new trial. All three points present essentially the same basic issue:. Is the verdict sustained by substantial evidence?
Negligent homicide, a crime which this court has held to be a lesser offense of manslaughter in the fourth degree, (State v. Gloyd, 148 Kan. 706, 84 P. 2d 966; State v. Phelps, 151 Kan. 199, 97 P. 2d 1105; State v. Goetz, 171 Kan. 703, 237 P. 2d 246) is defined in K. S. A. 8-529 (a) in these words:
“When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in negligent disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.”
The essential nature of the offense proscribed by this statute, and the evils sought to be cured by its passage, are pointed out in State v. Ashton, 175 Kan. 164, 262 P. 2d 123, where this court said:
“It prohibits the negligent driving of a vehicle (a) when the negligence is such as to be in disregard of the safety of others and (b) when such conduct is the proximate cause of death which ensues within one year. It is dear the legislature did not attempt to specify in detail the innumerable and variable circumstances, conditions, acts and omissions from which death might result from vehicular traffic. It undertook to enact a statute sufficiently broad to encompass negligent acts and omissions of all kinds and character from which death ensued when committed in disregard of the safety of others. It is a police measure designed to protect the public from the constantly mounting death toll resulting from vehicular traffic. In order to prevent or decrease these direful results the law, of necessity, had to be broad and general in its reach.
“Manifestly, no legislature could accurately anticipate every possible circumstance or contingency which might arise and legislate specfically concerning it. That would be true concerning speed and all other factors which might become involved in highly dissimilar situations. . . .” (pp. 170-172.)
A concise, yet enlightening, discussion of K. S. A. 8-529, and its background, is to be found in 1950 Judicial Council Bulletin 172, in an article entitled “Negligent Homicide” where the author, William B. McElhenny, after calling attention to decisions from other jurisdictions construing similar statutes, concludes that ordinary negligence on the part of a driver in the operation of his vehicle which proximately results in death to another person is comprehended within the terms of the statute. We are inclined to agree that such was the legislative intent when the statute was adopted.
In the instant case the state chose to base its charges of negligence against the defendant on the alleged violation of two statutes: (1) K. S. A. 8-540, which places limitations on the overtaking of vehicles on the left, and (2) K. S. A. 8-532, which imposes restrictions on speed.
As we view these two statutes, both were enacted for the purpose of protecting life, limb and safety. In this respect they stand on the same footing as K. S. A. 8-552 (b) requiring motorists, in designated situations, to yield the right of way to others. The violation of this part of the traffic code was held sufficient, in State v. Scott, 201 Kan. 134, 439 P. 2d 78, to support a conviction for fourth-degree manslaughter where death had resulted therefrom.
It logically follows that the violation of either 8-540 or 8-532, or a combination of both, would be sufficient to constitute the lesser offense of negligent homicide, provided death flows therefrom. In State v. Champ, 172 Kan. 737, 242 P. 2d 1070, we said the violation of 1949 G. S. 8-537 (the progenitor of K. S. A. 8-537) requiring that a vehicle be driven on the right half of the roadway, with certain exceptions, would suffice to support a verdict either of fourth-degree manslaughter or of negligent homicide, depending on the evidence, should death proximately result from the violation. (See, also, State v. Phelps, supra; State v. Yowell, 184 Kan. 352, 336 P. 2d 841.)
But the defendant earnestly contends there was no evidence to establish a violation of either statute; that his speed was shown at all times to be less than the legal limit of 70 miles per hour on that section of K-42 where the collision took place, and that while he had indeed started to pass the Tharp car, the evidence was undisputed that he had terminated the pass prior to the collision. Hence, he argues, since the state’s charges of negligence were based on the violation of either 8-540 or 8-532, and since there was no evidence that he had violated either statute, the conviction against him must fail.
We tend to agree that if the state’s evidence had disclosed Mrs. Berges’ death resulted from an act of negligence on the part of Mr. Miles other than the negligence specified in the information, the conviction could not be sustained. The rule is expressed in 41 Am. Jur. 2d, Indictments and Informations, §261, p. 1039:
“It is the settled rule that the evidence in a criminal case must correspond with the allegations of the indictment which are essential and material to charge the offense. This rule is based upon the requirements that the accused shall be definitely informed as to the charges against him, and that he may be protected against another prosecution for the same oifense. . . .”
See, also, State v. Williams, 196 Kan. 274, 411 P. 2d 591.
In the present case, however, we believe there was evidence from which the jury might reasonably infer that Mr. Miles had violated either one or both of the statutes on which the state relied. K. S. A. 8-532 (a) provides:
“No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.”
This statute relates the speed of vehicles to the attending conditions, with especial emphasis placed on avoiding collisions with persons and vehicles on or entering the highway. The restriction thus placed upon speed is in addition to the general limitation of 70 miles per hour for passenger cars during the daytime.
The other statute embraced in the information, K. S. A. 8-540, places limitations on overtaking and passing vehicles from the rear. Subsection (a) thereof reads:
“No vehicle shall he driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within 100 feet of any vehicle approaching from the opposite direction.”
The central thrust of this statute, also, is the avoidance of injury or damage to other persons and vehicles using the highway with particular respect, so far as 8-540 (a) is concerned, to approaching traffic.
Construed together, these statutory provisions mean that the driver of a vehicle is not to drive on the left side of the road in passing a vehicle ahead of him unless the left side of the road is clear of oncoming traffic, and unless his speed will not endanger the safe operation of approaching vehicles. We believe the facts and circumstances shown by the evidence in this case were such that we cannot say as a matter of law that the defendant, in attempting to pass Tharp, did not negligently disregard the safety of others.
In State v. Ashton, supra, this court, considering the connotation of the term “negligent disregard,” spoke in these words:
“Surely we need not debate whether the term ‘negligent’ has a well defined meaning in legal parlance or in the mind of the average citizen. It is equally true the word ‘disregard’ has no hidden meaning. In Forsyth v. Church, 141 Kan. 687, 42 P. 2d 975, we approved the following definition of the word:
“ ‘In Webster’s New International Dictionary, the word “disregard” is defined as follows: “Not to regard; to pay no heed to; to fail to notice or observe; hence to slight as unworthy of regard or notice, as to disregard the admonition of conscience.”’ (p.689.)
“The same definition was adopted in State v. Harold, 74 Ariz. 210, 219, 246 P. 2d 178, involving a similar highway statute.” (p. 171.)
An extended discussion of the general topic is found in State of Oregon v. Wojahn, 204 Or. 84, 282 P. 2d 675, where the court sets out the statute of that state defining negligence:
“ ‘As used in the statutes relating to crimes and criminal pocedure, unless the context requires otherwise:
“‘(2) “Neglect,” “negligence,” “negligent” and “negligently” import a want of such attention to the nature or probable consequences of the act or omission referred to as a prudent man ordinarily bestows in acting in his own concerns.’ ” (pp. 86, 87.)
As we view the state’s evidence it is reasonably susceptible to the inference that the defendant’s course of action in attempting to pass Tharp was, under the circumstances, in negligent disregard of potential consequences.
The argument is advanced that Miles had terminated his pass and had returned to his own side of the road prior to the accident, and thus was not violating 8-540 (a). We are not impressed with this argument. Although Mr. Miles had steered his Pontiac to the right side of the road, and even upon the right-hand shoulder, he had not safely terminated his pass, for his vehicle spun out of control into the opposite lane of traffic. We think the fair import of that portion of 8-540 (a) which requires the overtaking vehicle to return to the right-hand side of the road before coming within 100 feet of an approaching vehicle is that the return be accomplished with safety, and without hazard to the occupants of oncoming cars.
The defense offered at the trial was built around the theory that the brakes on the Miles car suddenly, and with no prior warning, failed to respond, spinning his car across the road, and into the path of the Berges automobile. We would be less than frank were we not to concede that this defense was supported by a considerable body of evidence from sources which appear credible.
Yet there was evidence which tended to challenge that hypothesis, and the jury obviously refused to accept the defendant’s version. One of the officers called to the scene of the tragedy testified he examined the brakes on the Miles car during his investigation; that he always noted defects in his report where any were found but had noted no brake defects in his report of this case; that he would have noted the brakes had they been a contributing factor or cause of the accident.
Mr. Tharp testified that when Mr. Miles started to pass him, the approaching Berges car was 300 or 400 yards away; that he thought it would be a tight squeeze and took his foot off the accelerator to give the defendant more time to complete the pass; that he accelerated his speed when he saw Miles change his mind and begin to .fall back; and that the Berges car was only 150 to 175 feet distant at the time Miles pulled back of his (Tharp’s) car.
Testimony by Mr. Adams, who was driving behind Miles when the latter pulled out to pass Tharp, was that he thought Miles was crazy — he didn’t think Miles could make it. This view was echoed by Sam Jones, who was driving behind Mr. Berges and had been looking for an opportunity to pass Berges. Mr. Jones testified that he felt, just prior to the accident, that Tharp’s approaching car was too close for him to attempt to pass the Berges vehicle.
Further testimony by Mr. Adams was that the right front wheel on Miles’ car was smoking or locked; that it was locked either because of faulty braking or slamming of the brakes. (The defendant’s expert testimony as to defective brakes centered primarily on the right rear wheel.) When Miles attempted to pull back on the traveled portion of the road, after the right wheels of his car went onto the dirt shoulder, or into the ditch, Mr. Adams testified the right rear tire caught the edge of the pavement again and stopped the wheel from sliding, and the forward motion of the Miles car carried it into the opposite lane.
After assessing the evidence just related, we are in no position to say that evidence was entirely lacking to support the jury’s finding of guilt. The function of this court on appeal, as we have often said, is simply to determine whether there is substantial competent evidence to support the judgment. State v. Stein, 203 Kan. 638, 456 P. 2d 1.) We do not weigh the evidence nor do we compare its relative worth. The jury is to determine the weight and value of the relevant evidence (State v. Shaw, 195 Kan. 677, 408 P. 2d 650) and this court will not substitute its evaluation of the evidence for that of the jury. (State v. Phillips, 197 Kan. 70, 415 P. 2d 421.)
We perceive no error in the trial court’s action in overruling the defendant’s motions for discharge or his motion for a new trial. Accordingly, the judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was a divorce action commenced by Morene Folk against her husband, Joseph. The husband filed an answer denying generally the allegations of the wife, and a cross petition for divorce. Each party charged the other with gross neglect of duty and extreme cruelty. After a full hearing, the district court made extensive findings of fact, and on December 5, 1967, it found the parties equally at fault and granted a divorce on the grounds of extreme cruelty. The defendant appeals, challenging only the district court’s division of property and award of alimony made pursuant to K. S. A. 60-1610 (b) and (c).
The parties will be referred to as they appeared in the court below.
The parties had been married over twenty years and had two daughters, Linda and Gaila, both of whom resided with the plaintiff at the time of the divorce decree. Both daughters were self-supporting and helped the plaintiff with the home expenses. Gaila was engaged and planned to be married in June, 1968. The plaintiff was 53 years of age and the defendant was 47 years of age. It was the second marriage for the plaintiff and the first for the defendant. Plaintiff’s daughter by her first marriage resided in the home during most of the marriage relationship, and is now married.
The early years of the marriage were spent in Coffeyville where the parties purchased a house in their joint names. The property was worth about $5,000, and was rented for $55 per month.
Since the Cooperative Farm Chemicals Association opened in Lawrence the parties have resided there and more recently in a home they purchased under a mortgage upon which there was a balance due in the sum of approximately $8,000, payable at $93 per month. The home was reasonably worth $15,000, and the title was in the joint names of the parties. Sometime prior to the institution of this action, the defendant put the Coffeyville property in the plaintiff’s name at her insistence. The furniture and appliances accumulated during the marriage were in the home in Lawrence and had an estimated value of more than $500.
The defendant was employed by the Cooperative Farm Chemicals Association plant and his 1966 gross pay was $7,802.48, and after taxes and deductions his take-home pay was $6,159.96. During most of the marriage relationship, the defendant worked part-time at two filling stations in addition to his regular employment. In 1966, his gross pay from his part-time work was $2,168.36 and his take-home pay was $1,828.36. Shortly after this action was filed, the defendant quit the extra filling station jobs.
The plaintiff has worked very little outside the home during the marriage. When she did work, it was because she felt the family needed more income than the defendant was providing. She is a licensed cosmetologist and was employed in that capacity at about $71 per week for a short time pendente lite. She did not continue with that employment because she felt it made her too nervous. She also worked a short time at the Kansas University Book Store, but quit because the job required being on her feet longer than she felt she could stand. She has been diabetic for several years, but there was no medical evidence that condition affected her ability to find and perform employment for which she was qualified.
In connection with his regular employment, the defendant had a $4,000 group life insurance policy, and since the action was filed he named the two daughters as beneficiaries. He also owned a $10,000 National Service Life Insurance policy and at the time of the decree the plaintiff was the named beneficiary. During his reg ular employment, he has contributed about $2,500 into a retirement fund which is not subject to withdrawal but the amount of which at retirement will affect the amount of benefits he will receive.
Prior to the instant action, the parties owned a family automobile —a 1962 Thunderbird — which the plaintiff traded for a 1967 GTO Pontiac and title was taken in her name. The record does not show the value of the GTO, but there was a $2,000 mortgage on it which Linda was paying at $110 per month. Gaila used the automobile to commute to her job in Kansas City and she paid for the gas, oil and other expenses incurred.
The parties owned a 1956 Plymouth automobile which the defendant used to drive to and from his work. He also owned two horses, a saddle, some tools, and personal effects which were in the garage at the Lawrence home.
The divorce decree awarded the plaintiff the home in Lawrence, together with the furniture and fixtures and the GTO, subject to any mortgages or encumbrances against the property. The defendant was awarded the home in Coffeyville subject to a $1,000 lien in favor of the plaintiff, the 1956 Plymouth, his horses, saddle, tools and personal effects. He was required to pay $1,855.04 of the parties’ indebtedness, and the plaintiff was ordered to pay in addition to the mortgages and encumbrances, the sum of approximately $1,006.09 of indebtedness she had incurred. Pendente lite the defendent agreed to pay the plaintiff support money of $125 biweekly and $100 to her attorney. When the decree was entered, the defendant was ordered to pay an additional $100 to apply on the plaintiff’s attorney’s fee, and costs of the action. In addition, he was ordered to pay the plaintiff alimony at the rate of $300 per month beginning January 1, 1967, and until July 1, 1968, at which time alimony payments were reduced to the sum of $200 per month to continue until the death of either party, the remarriage of the plaintiff, or until the further order of the court.
The defendant contends the district court abused its discretion and erred in its division of property accumulated during the marriage and in its award of alimony. In making the contention, the defendant recognizes that this court has stated the rules regarding the division of property and the awarding of alimony to the effect that the district court should consider the age of the parties, the period of the marriage, the present and future earning capacity, the value and nature of the property involved and accumulated, and the indebtedness of the parties. The defendant also recognizes this court’s primary function is to review the record to determine if the district court abused its discretion in making a division of the property and in awarding alimony.
The defendant vigorously asserts the district court erred in its division of property owned by the parties. As indicated, the decree set forth the property the parties had accumulated and owned by them, and the district court’s disposition of it. In actions of this kind, K. S. A. 60-1610 provides that the decree may include orders on the following matters:
“(b) Division of property. The decree shall divide the real and personal property of the parties, whether owned by either spouse prior to marriage, acquired by either spouse in his or her own right after marriage, or acquired by their joint eiforts, in a just and reasonable manner . . .”
Nothing would be gained to record the various arguments of the parties made in respect to this contention. We have carefully studied the record and based upon the facts and circumstances disclosed, we conclude the defendant has failed to make it affirmatively appear the district court’s division of the property between the parties was unjust and unreasonable in any respect which would amount to a clear abuse of judicial discretion, and we approve its judgment relating to the division of the property. (Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478; Saint v. Saint, 196 Kan. 330, 411 P. 2d 683; Clugston v. Clugston, 197 Kan. 180, 415 P. 2d 226.)
It is next contended the district court’s award of alimony to the plaintiff shackles the defendant’s future income to such an extent that the allowance was unreasonable and constitutes a financial burden which prohibits him from ever contracting marriage again. He argues that the plaintiff is a licensed, trained and experienced cosmetologist and is capable of earning $78 per week, and that the award was completely out of fine with the district court’s finding that the cause of the divorce was the “defendant’s inability to cope with the plaintiff’s repeated accusations.”
There is no established rule for deciding what proportion of the husband’s estate should be allowed as alimony. (Clugston v. Clugston, supra.) The requirement of the statute is that the allowance be “fair, just and equitable,” and the amount determined in the light of the circumstances which exist in each individual case. (Preston v. Preston, 193 Kan. 379, 384, 394 P. 2d 43.) The defendant’s argument that the plaintiff was the most at fault in break ing up the marriage and that she is capable of earning a substantial weekly wage were matters to be taken into consideration by the district court. In making its award, the district court no doubt had in mind that the award of alimony was not considered permanent since it is authorized to modify it in the future as the changed circumstances of the parties may require. In Moran v. Moran, 196 Kan. 380, 411 P. 2d 677, it was said:
“. . . A plain reading o£ the statute (K. S. A. 60-1610 [cl) indicates that its terms are to be invoked when one party’s needs and the other party’s ability to pay are such that support should be ordered. The trial court is possessed of considerable judicial discretion in making an award of alimony which is fair, just and equitable under all the circumstances, and absent manifest abuse thereof, its judgment will not be disturbed on appeal. If alimony is awarded at the time of the decree, future changes in the circumstances of the parties may be considered at the appropriate time, for under the statute the court retains jurisdiction to modify the amounts or conditions for payment of that portion which has not become due as long as it ¿loes not have the effect of increasing or accelerating the liability beyond that originally prescribed.” (1. c. 386.) (Emphasis supplied.)
Perhaps this court would not have made the same award of alimony as did the district court, but in making its award, we cannot say the district court abused its discretion to such an extent as to require a reversal of its decree.
Our review of the record requires the conclusion the alimony awarded the plaintiff is not so unreasonably excessive as to affirmatively show abuse of discretion.
The judgment of the district court is affirmed. | [
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Per Curiam:
This is a contested attorney discipline case filed by the office of the Disciplinary Administrator against the respondent, Fred W. Rausch, Jr., an attorney admitted to the practice of law in the State of Kansas. The hearing panel concluded that the respondent violated KRPC 1.15 (2000 Kan. Ct. R. Annot. 360) (procedures and requirements for maintaining an attorney trust account), KRPC 4.1 (2000 Kan. Ct. R. Annot. 398) (truthfulness in statements to others), KRPC 8.4(b) (2000 Kan. Ct. R. Annot. 420) (misconduct, commit a criminal act), KRPC 8.4(c) (conduct involving dishonesty), KRPC 8.4(d) (conduct prejudicial to administration of justice), and KRPC 8.4(g) (other conduct that adversely reflects on the lawyer’s fitness to practice law), and recommended suspension for 2 years.
The respondent asserts that the discipline recommended by the hearing panel is excessive. According to respondent, either published censure or the alternative of 1-year supervised probation under respondent’s proposed plan is the appropriate discipline.
In addressing discipline, we discuss respondent’s claims that the panel erred by: (1) granting the Disciplinary Administrator’s motion in hmine and (2) concluding that a civil judgment against respondent entered by a federal district court in Virginia, affirmed on appeal, was based on clear and convincing evidence.
We agree with the hearing panel’s recommendation and suspend respondent from the practice of law for a period of 2 years from October 19, 2001, the date of our opinion. The respondent has filed exceptions to some of the panel’s findings. We have marked the exceptions with an asterisk:
The Hearing Panel’s Findings
“1. . . . The Respondent was admitted to the practice of law on September 28, 1949.
5“2. In March, 1994, the Respondent established a new trust account with Bank IV (now called Bank of America). The account was titled: The Kansas Bar Foundation, Fred W. Rausch, Jr. IOLTA Account . . . .”
Although the respondent takes exception, arguing that the account was opened in February 1994, he admitted to the March 1994 date in his answer to the Disciplinary Administrator’s complaint. At the disciplinary hearing, the respondent testified that the Interest on Lawyer Trust Account (IOLTA) account was opened before Deerfield Holding Company, Inc., (Deerfield) was actually incorporated, but no date was given.
IOLTA accounts for clients’ funds are established by the Rules of this court. KRPC 1.15(d)(3)(iii). Interest or dividends on the account are remitted by the financial institution to the Kansas Bar Foundation, Inc. KRPC 1.15(d)(3)(iii)(aa). IOLTA trust accounts are designed for funds of clients or third persons (1) that are nominal in amount, (2) that are expected to be held for a short period of time, and (3) on which interest is not paid to the client or third persons. KRPC 1.15(d)(3).
The record reflects that the IOLTA account contained the respondent’s initial $500 deposit, investment funds from the Methodist Church in South Africa, and funds from Deerfield investors. Sometimes money was transferred to the Deerfield accounts or to Cecil P. Jones. Sometimes the respondent wrote checks to himself as payee out of the IOLTA account.
“3. On March 8, 1994, the Respondent filed the necessary papers with die Kansas Secretary of State’s office, and incorporated Deerfield Holding Company, Inc. (hereinafter ‘Deerfield’). Deerfield’s office address was die same [as] the Respondent’s law office address .... Additionally, die Respondent was listed as the Registered Agent of Deerfield.
“4. Thereafter, on March 9,1994, the Respondent, Cecil P. Jones, and Deborah L. [Gardner-Jones] held die organizational meeting for Deerfield. At that time, 100 shares of stock were issued to die Respondent, and 100 shares of stock were issued to Mr. Jones. The three individuals present voted that they should each be elected to serve as the Board of Directors of Deerfield. Thereafter, Mr. Jones was elected Chairman of the Board of Directors and President of Deerfield; Ms. Gardner-Jones was elected Vice Chairman of die Board of Directors and Vice President of Deerfield, and finally, the Respondent was elected as Secretary of die Board of Directors and Secretary/Treasurer of Deerfield.
“5. At a subsequent meeting of the Board of Directors, held on July 1, 1995, the members of die Board of Directors agreed to redesignate the shares of the corporation. At that time, Mr. Jones became owner of 150 shares of stock. The Respondent’s ownership in the corporation was reduced to 50 shares of stock.
*“6. Complaint of Pieter M. Van der Spuy”
We note that Van der Spuy filed a civil complaint grounded in fraud in the United States District Court for the Eastern District of Virginia, not a Kansas disciplinary complaint.
“a. During October, 1995, Pieter M. Van der Spuy, a citizen of Soudi Africa who now resides in Virginia Beach, Virginia, from Erich Otto, also a citizen of South Africa, learned of ‘high-yield foreign investment’ programs operated by Deerfield. Mr. Otto indicated that he was scheduled to meet with Andiony H. Adams about investing in Deerfield. Mr. Otto told Mr. Van der Spuy that, if he was also interested, then he would ask Mr. Adams to forward information concerning die program to Mr. Van der Spuy’s attention.
“b. Mr. Van der Spuy contacted Mr. Otto indicating that he would like to have additional information regarding the investment programs. Mr. Otto provided Mr. Van der Spuy with Mr. Adams’ address and telephone number. Thereafter, Mr. Van der Spuy contacted Mr. Adams by telephone. Mr. Adams provided information regarding the investment program available through Deerfield. In part, Mr. Adams assured Mr. Van der Spuy that die investment principal was fully secured against loss widi letters of guarantee and that the program required the letters of guarantee to be in die possession of the trust before any monies could be released by the trustee.
“c. Later, Mr. Otto informed Mr. Van der Spuy diat the Mediodist Church of Soudi Africa had invested hundreds of millions of dollars with Mr. Jones and die Respondent through Deerfield. In order to ensure die accuracy of die information that he was receiving, Mr. Van der Spuy contacted Colin Woolacott. Mr. Woolacott, die Chief Executive Officer for the Mediodist Church of South Africa, assured Mr. Van der Spuy that Mr. Jones had been appointed the church’s chief investment officer and that Mr. Jones was handling all of the church’s investments.
“d. In deciding whedier to invest widi Deerfield, Mr. Van der Spuy ‘investigated’ the Respondent. Mr. Van der Spuy contacted bar officials in die state of Kansas. Mr. Van der Spuy was informed diat the Respondent had been practicing law for approximately 40 years and had a ‘clean record.’
*“e. On October 27,1995, Mr. Van der Spuy-telephoned die Respondent. The Respondent informed Mr. Van der Spuy diat die funds would be secured by a pledge of securities before die funds were transferred from die trust to Deerfield.”
The record conflicts here. Apparently Van der Spuy told Steve Hulsopple, of the Kansas Securities Commission, that he spoke to the respondent in October. However, at trial, Van der Spuy testified that the first time he spoke to the respondent was November 13 or 14, when he was preparing to wire the $100,000. The respondent assured him that he had known Jones for some time and that Jones was experienced in “this type of thing.” Van der Spuy signed the documents received from Deerfield on November 13. At the disciplinary hearing, Van der Spuy agreed that the respondent did not personally make representations to him about a trading program.
*“£ As a result of the various conversations, Mr. Van der Spuy decided to invest $100,000 in Deerfield’s investment program. Subsequently, Mr. Jones and the Respondent forwarded documents to Mr. Van der Spuy’s attention. The documents included a Tower of Attorney,’ a ‘Trust Agreement,’ and an ‘Authorization to Transfer Funds.’ After a careful review of the documents, Mr. Van der Spuy executed die documents and returned the same to Deerfield.”
The bulk of the documents were originally sent to Van der Spuy from Jones. After signing the documents, Van der Spuy sent them to Deerfield. First, Van der Spuy testified that he sent the documents to the Deerfield address at the respondent’s law office, but then he testified that he thought he sent the documents to the Deerfield address in Georgia. He also faxed them to the Deerfield office in Georgia. Copies of the signed agreements were then sent back to Van der Spuy by Jones or the Respondent.
*“g. Thereafter, on November 14,1995, Mr. Van der Spuy caused $100,000 to be wire transferred to the Respondent’s trust account. Pursuant to instructions from Mr. Jones, on November 17,1995, the Respondent transferred Mr. Van der Spuy’s $100,000 to Deerfield .... Then, again, pursuant to instructions from Mr. Jones, on November 22, 1995, the Respondent wire transferred Mr. Van der Spuy’s $100,000 from the Deerfield account to the personal account of Linda Flores at the National Westminister Bank in England.”
The transfer was to “E.F.S., Inc. Linda Flores.” The findings in paragraph g as modified are supported in the record.
*“h. At no time did the Respondent or Mr. Jones receive a letter of guarantee or a pledge of securities to protect Mr. Van der Spuy’s $100,000 investment as required by the documents. Additionally, Mr. Van der Spuy’s $100,000 was never placed in a ‘trading program’ as die documents required.”
The record shows no evidence of a letter of guarantee or pledge of securities, nor is there evidence that Van der Spuy’s money was placed in a trading program. Van der Spuy’s money was transferred from the IOLTA account to a Deerfield account and then to an account in England (Linda Flores). The money was lost. At trial, the respondent acknowledged that he received no documentation in return for the funds he sent out in November 1995. In addition, the record shows that there apparently had been an agreement between Jones and Adams involving the transfer of Van der Spuy’s money to the bank account of Linda Flores, the president of EFS, Inc.
“i. On February, 12,1996, Mr. Van der Spuy received a return of $2,000 of his investment funds.
4“j. In March, 1996, Mr. Van der Spuy wrote three letters to Mr. Jones and the Respondent requesting information regarding his investment. In response to Mr. Van der Spuy’s letters, the Respondent telephoned Mr. Van der Spuy and indicated that he would contact Mr. Jones. Mr. Jones failed to respond to the requests for information.”
These facts are supported in the record.
*“k. On July 2, 1996, counsel for Mr. Van der Spuy contacted the Respondent requesting information regarding Mr. Van der Spuy’s investment. The Respondent replied, disclaiming knowledge of Mr. Jones’ activities and stating that all investors’ monies were in the process of being returned.”
Van der Spuy told this to Steve Hulsopple of the Kansas Securities Commission. The respondent acknowledged that he received inquiries from investors wanting to know where their money was.
“1. On December 26, 1996, Mr. Van der Spuy filed a complaint in the United States District Court for the Eastern District of Virginia, alleging that the Respondent, Deerfield, Mr. Jones, and Ms. Gardner-Jones engaged in fraud, breach of contract, and breach of fiduciary duty.
“m. On July 10,1997, judgment was entered against Deerfield, Mr. Jones, and Ms. Gardner-Jones.
°“n. On Januaiy 6, 1998, after a trial to the court, the Respondent was found civilly liable for committing federal common law fraud, Virginia common law fraud, federal mail fraud, and breach of contact. Additionally, the Respondent was ordered to pay $98,000.00, plus interest to Mr. Van der Spuy. Mr. Van der Spuy requested that die court order the Respondent to pay attorney fees incurred in die action. The following are exceipts from die findings of die United States District Court for the Eastern District of Virginia:
“. . . So we have a scheme to defraud. The scheme is to get people to believe that the Kansas Bar Association, through diis wonderful trust agreement widi Fred W. Rausch, Jr. — and it doesn’t say trust with Mr. Rausch. It keeps constantly referring to die Kansas Bar Association, as if it were overseeing diis diing.
“[The wording in Deerfield’s documents was c]learly designed to place trust in Mr. Rausch and cloak him widi die authority of die Kansas Bar Association, clearly designed, and the instruments refer to that. And so I find that that was part of a scheme to defraud participants into believing that this particular money was going to be in trust under specific purposes widi an overseer of die Kansas Bar Association.
“This agreement was drawn by Mr. Rausch, who is an attorney. It was designed to defraud people into believing that the Kansas Bar Association was a participant. And I’m looking at the trust agreement diat has Mr. Rausch’s initials below it and his signature on it. He knew exactly what he was doing.
". . . The trust agreement should have been between you as trustee and the individual for whom you were acting. The Kansas Bar Association was no part of any trust agreement. The account may have listed Kansas Bar Association, but this was specifically designed, and I find it was designed by you, to defraud, mislead, and deceive anybody who saw this agreement. . . .
"... Clearly under Virginia law it is common-law fraud. Punitive damages won’t serve to do much, although I think that you have some connection with this money somewhere and that you probably could put your hands on a portion of it, Mr. Rausch, because you are the only person that transferred it. I don’t know where it is. It may be all gone.
“I find that you are the person who probably designed all these documents, but have no direct evidence that you designed all the instruments. I have no doubts, and no other conclusion could rationally be drawn in this case other than that these documents represent a gigantic scheme to defraud as they were carried out. They were intended to mislead a person into believing that he was making an ironclad investment overseen by the Kansas Bar Association and that the money would only be transferred under a custodial arrangement whereby it would be for his benefit, when instead, it was anything but.
"... I think it was willful and wanton fraud.”
The Virginia trial transcript was included in the record. The transcript did not explain why respondent defended at a bench trial, as opposed to a jury trial. At the disciplinary hearing, the respondent denied preparing the trust agreement and other documents. Also, at the disciplinary hearing, James Litfin, retired vice-president of Bank IV, testified that to the best of his knowledge, the bank captioned all of the attorney accounts as “Kansas Bar Foundation” accounts. The respondent acknowledged that in some of his business literature, the word “Foundation” was incorrectly interchanged with the word “Association.”
“o. Before the court ruled on the request for attorney fees, on February 3, 1998, the Respondent filed a notice of appeal. Subsequently, on August 22,1998, the United States Court of Appeals for the Fourth Circuit affirmed the District Court’s judgment in an unpublished decision. The Respondent filed a petition for rehearing and suggestion for rehearing en banc. The Respondent’s petition was denied.
“p. Later, Mr. Van der Spuy renewed his request for attorney fees. On December 4, 1998, the District Court for the Eastern District of Virginia ordered that the Respondent pay Mr. Van der Spuy’s reasonable attorney fees. Thereafter, January 15, 1999, the Respondent filed a second notice of appeal to the United States Court of Appeals for the F ourth Circuit. However, the Respondent’s second appeal was dismissed on the Respondent’s own motion on May 25, 1999.
“q. At some point, the Respondent and counsel for Mr. Van der Spuy agreed to reduce the judgment owed by the Respondent. As a result, the Respondent paid a total of $65,000 to Mr. Van der Spuy and his attorneys.
“7. Complaint of Clive U. Fisher
4“a. Clive U. Fisher also became acquainted with the Respondent, Mr. Jones, and Deerfield through Mr. Adams. Mr. Fisher agreed to invest $100,000 through Deerfield. Thereafter, on October 3,1995, in order to effectuate the investment, Mr. Fisher provided a power of attorney to Mr. Adams. After obtaining the power of attorney, Mr. Adams signed certain documents, in [sic] behalf of Mr. Fisher, regarding Mr. Fisher’s investment with Deerfield. The documents included a ‘Letter of Intent,’ ‘Authorization to Transfer Funds,’ ‘and ‘Agreement.’ ”
These facts are verified in the record.
*“b. The ‘Letter of Intent’ included the following:
‘During the Program period (one (1) year and one (1) day), the funds cannot and will not be hypothecated or invaded or put at risk in any manner whatsoever without an approved principal guarantee being substituted for the funds in accordance with approved procedures, and in the approved format(s) to be defined in the Proposed Agreement, in which case the funds can be released upon [Deerfieldfs instructions.’ ”
The language is supported in the record.
*“c. In four wire transfers, Mr. Fisher transferred approximately $105,000 to the Respondent’s trust account for investment in Deerfield’s investment program. The wire transfers occurred on October 11,1995, October 13,1995, October 17, 1995, and October 20, 1995. Thereafter, on October 25, 1995, the Respondent, pursuant to directions by Mr. Jones, transferred $100,050 of Mr. Fisher’s investment funds to Deerfield. Then, on November 13, 1995, again, pursuant to Mr. Jones’ directions, the Respondent transferred Mr. Fisher’s investment monies to the personal account of M.P.H. Williams at the Midland Rank PLC in England. [The record reflects the account was ‘M.P.H. Williams, trustee, West Pacific Holdings, Ltd.’]”
At the disciplinary hearing, the respondent testified that Adams collected a total of $300,000 from several investors, one of whom was Fisher. $35,609.10 was transferred from Barclays Bank by order of John Fitzpatrick; separate transfers of $30,000, $17,000, and $23,000 were transferred from the Standard Bank of South Africa by Casey Trading PVT Ltd. The connection between Fisher, Fitzgerald, and Casey Trading is unclear, but Fisher claimed that these monies were his personal funds.
At the disciplinary hearing, the respondent acknowledged that the $300,000 included Fisher s $100,000. $5609 was for expenses, and $100,000 was for investment. In the Authorization to Transfer Funds, which was signed by Adams, $100,000 was designated for investment. The funds were transferred from the respondent’s IOLTA account to a Deerfield account and then to the Midland Bank account of M.P.H. Williams (in England), as trustee of West Pacific Holdings, Ltd. The President of West Pacific, William Frattalone, wrote Jones a letter in which he said they were delayed in placing the investments into a trading program. Apparently Jones later asked for a return of the total $300,000 investment, and Frattalone assured him that the funds would be returned. However, according to letters written by Deborah Gardner-Jones, Frattalone moved the funds to an alternate bank undisclosed to Deerfield. The respondent acknowledges that the money has never been returned.
e“d. At no time did die Respondent or Mr. Jones receive a letter of guarantee or a pledge of securities to protect Mr. Fisher’s investment as required by die documents. Additionally, Mr. Fisher’s investment was never placed in a ‘trading program’ as the documents required.”
The money was transferred to the IOLTA account, to a Deer-field account, and then to an account in England. No guarantees were received by the respondent.
“e. After the contractual period of one year and one day ended, Mr. Fisher sought the return of his initial investment and the profits made during the year. Deerfield, die Respondent, and Mr. Jones failed to return Mr. Fisher’s investment and profits. Thereafter, Mr. Fisher complained to die Office of die Disciplinary Administrator, the Office of the Securities Commissioner, and die Client Protection Fund.
*“8. From on or about October, 1995, through on or about January 24, 1996, approximately $721,435.23 was received by die Respondent and deposited in the ‘Kansas Bar Foundation, Fred W. Rausch, Jr., IOLTA Trust Account . . .’ as investment for Deerfield which was intended for investment in ‘high-yield foreign investment’ programs. At the hearing on this matter, die Respondent agreed that he had a fiduciary duty to protect and preserve die investment monies contained in his trust account and the Deerfield accounts.”
These facts are supported in the record.
*“9. During that period of time, the Respondent wired the monies to various personal accounts as instructed by Mr. Jones. Having failed to receive a letter of guarantee or pledge of securities following the first and second wire transfers, the Respondent continued to wire transfer investor monies to personal accounts, as instructed by Mr. Jones. Due to several nefarious individuals involved, all of the investor monies were lost in various fraudulent schemes.”
Van der Spuy’s money was wired to the account of E.F.S., Inc.Linda Flores, a supposed trader with Westminster Bank in London. Flores’ corporation, a California corporation, was dissolved during the period that Flores was involved in an unrelated case involving fraudulent investments in 1996. It is unclear whether Flores’ corporation was defunct during her dealings with Deer-field. In the pretrial order in the Virginia federal district court case, the parties stipulated that the respondent transferred the $100,000 to the Westminster Bank account for the benefit of Flores.
Fisher’s money was wired to the account of M.P.H. Williams, trustee for West Pacific Holdings, Inc.
*“10. For at least two years before the Respondent had taken any investment monies into his possession, he knew that Mr. Jones and Ms. Gardner-Jones were persons of questionable financial means. In fact, at points in time, the couple had been evicted from their apartment and did not have sufficient credit to purchase or lease an automobile. On multiple occasions, the Respondent made loans to the couple to keep them financially afloat. Despite those warning signs, the Respondent continued to act upon the mere assurances of Mr. Jones and completely failed in his duty to protect the investors’ monies.”
The respondent loaned money to Jones for several years. It appears that he began loaning money to Jones in 1993.
*“11. On August 7, 2000, in the District Court of Shawnee County, Kansas, die Respondent was charged with having committed deceptive commercial practices, a class B misdemeanor, in violation of K.S.A. 21-4403. Thereafter, on September 28, 2000, die Respondent entered a nolo contendere plea to diat charge. On November 28, 2000, the District Court sentenced the Respondent to serve six mondis in die county jail. The District Court did not remand die Respondent to jail. Radier, the District Court placed die Respondent on supervised probation for 24 months. The District Court also ordered diat die Respondent pay court costs in die amount of $103.50, a fine of $1,000, and restitution of $65,000 (to Mr. Fisher). Finally, the District Court ordered diat the Respondent perform 200 hours of community service work.”
In his exceptions, the respondent noted that he pled nolo contendere to one count of committing deceptive commercial practices.
The Hearing Panel’s Conclusions of Law
Based on these findings, the panel came to the following conclusions as to violations (those to which the respondent has filed exceptions are marked with an asterisk):
*“1. KRPC 1.15 establishes the procedures and requirements of maintaining an attorney trust account. Specifically, diat rule provides:
‘(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from die lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas . . . .’
As emphasized above, attorneys are limited in using their trust accounts for monies received in connection with ‘a representation.’ By using his attorney trust account as a ‘mere conduit’ to filter the investment money through to Deerfield, die Respondent violated KRPC 1.15(a).
"“2. The Hearing Panel also concludes that the Respondent violated KRPC 4.1(b). That rule provides that:
‘In die course of representing a client a lawyer shall not knowingly:
‘(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by or made discretionary under Rule 1.6.’
In diis case, die Respondent played many roles in die investment program. The Respondent served (1) as attorney for Deerfield, (2) as incorporator of Deerfield, (3) as registered agent for Deerfield, (4) as Secretary for the Board of Directors of Deerfield, (5) as Secretary/Treasurer of Deerfield, (6) as a shareholder of Deer-field, and (7) as trustee of the trust which initially held the monies to be invested by Deerfield in [sic] behalf of the investors. The Respondent was die sole signatory on die trust account. Additionally, the Respondent was the sole signatory of one of the Deerfield accounts. Finally, the Respondent was the only person who transferred die investors’ money from die trust account to die Deerfield accounts, and from the Deerfield accounts to odier accounts. Because the Respondent failed to disclose to Mr. Van der Spuy and Mr. Fisher that he played various, and at times, conflicting roles in die investment program, and because the investment program was a sham, die Respondent ‘fail[ed] to disclose a material fact to [die investors] when disclosure [was] necessary to avoid assisting . . . criminal or fraudulent act[s] by [Deerfield],’ in violation of KRPC 4.1(b).
*“3. Kan. Sup. Ct. R. 202 details the ‘grounds for discipline,’ in pertinent part, as follows:
‘A certificate of a conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evidence of the commission of that crime or civil wrong in any disciplinaiy proceeding instituted against said attorney based upon the conviction or judgment. A diversion agreement, for die purposes of any disciplinaiy proceeding, shall be deemed a conviction of the crimes originally charged. All odier civil judgments shall be prima facie evidence of die findings made dierein and shall raise a presumption as to dieir validity. The burden shall be on die respondent to disprove die findings made in die civil judgment.’
In order to determine whether a civil judgment is deemed ‘conclusive’ or ‘prime facie evidence,’ die standard of proof applied in die underlying judgment must be determined.
*“4. The United State District Court for die Eastern District of Virginia, found die Respondent civilly liable for committing common law fraud, as defined by the state of Virginia. In Evaluation Research Corp. v. Alequin, 247 Va. 143, 439 S.E. 2d 387 (1994), the Virginia Supreme Court stated:
‘One who advances a cause of action for actual fraud bears die burden of proving by clear and convincing evidence: (1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to the party misled.’
Id. at 148. Thus, the standard of proof required in cases involving common law fraud, as defined by the state of Virginia is clear and convincing evidence. Because the civil judgment entered by the United States District Court for the Eastern District of Virginia and affirmed by the United States Court of Appeals for die Fourth Circuit was based upon clear and convincing evidence, the civil judgment is ‘conclusive evidence of die commission of that . . . civil wrong in any disciplinary proceeding instituted against said attorney based upon die . . . [civil] judgment.’
*“5. The criminal conviction in die Shawnee County District Court is ‘conclusive evidence of the commission of diat crime . . . in any disciplinary proceeding instituted against said attorney based upon the conviction. . . .’ Kan. Sup. Ct. R. 202.
"“6. KRPC 8.4 provides definitions of professional misconduct. In pertinent part, that rule states that it is professional misconduct to:
‘(b) commit a criminal act diat reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
‘(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
‘(d) engage in conduct that is prejudicial to the administration of justice;
‘(g) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’
Based upon the civil judgment of die United States District Court for the Eastern District of Virginia, and based upon the criminal conviction from the District Court of Shawnee County, Kansas, the Hearing Panel concludes diat the Respondent violated KRPC 8.4(b), KRPC 8.4(c), KRPC 8.4(d), and KRPC 8.4(g).
“7. The Deputy Disciplinary Administrator alleged in the Formal Complaint diat die Respondent also violated KRPC 1.8, KRPC 3.3, and KRPC 7.5(a). The Hearing Panel concludes diat the evidence does not support a finding diat die Respondent violated KRPC 1.8, KRPC 3.3, or KRPC 7.5(a). Therefore, the allegations in the Formal Complaint that the Respondent violated KRPC 1.8, KRPC 3.3, and KRPC 7.5(a) are dismissed.”
DISCUSSION
The respondent takes exception to various evidentiary rulings of the hearing panel, all of the panel’s substantive conclusions, and some of the panel’s findings. The exceptions taken by respondent present three issues for review: (1) Did the panel err by granting the disciplinary administrator’s motion in limine? (2) Should we go behind a federal district court civil judgment against respondent grounded in fraud to examine whether the judgment was based on clear and convincing evidence? and (3) Was the panel’s recommended discipline excessive?
The applicable standards of review are as follows:
“ ‘In disciplinary matters, we have a duty to examine die evidence and determine for ourselves die judgment to be entered. Although die report of the disciplinary panel is advisory only, it will be given die same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of die evidence, or where the evidence consisted of sharply conflicting testimony. [Citation omitted.] We apply these rules in considering die evidence, the findings of the panel, and die arguments of die parties in making our determination of whedier violations of KRPC exist, and if they do, deciding upon die appropriate discipline to be imposed.
“ ‘Supreme Court Rule 211(f) (1997 Kan. Ct. R. Annot. 224) provides in applicable part: “To warrant a finding of misconduct the charges must be established by clear and convincing evidence.” Clear and convincing evidence is defined in Modern Air Conditioning, Inc. v. Cinderella Homes, Inc., 226 Kan. 70, 78, 596 P.2d 816 (1979), to mean “the witnesses to a fact must be found to be credible; die facts to which the witness testifies must be distinctly remembered; the details in connection widi the transaction must be narrated exactly and in order; the testimony must be clear, direct and weighty; and die witnesses must be lacking in confusion as to die facts in issue.” ’ ” In re Zimmerman, 270 Kan. 855, 858, 19 P.3d 160 (2001) (quoting In re Berg, 264 Kan. 254, 269, 955 P.2d 1240 [1998]).
The Motion in Limine
The respondent contends that he was denied a “full and fair due process hearing” when the panel issued an order in limine preventing him from presenting evidence in “mitigation, extenuation, and explanation” of his conduct. This contention lacks merit.
Rule 202 (2000 Kan. Ct. R. Annot. 221) says, in part:
“A certificate of a conviction of an attorney for any crime or of a civil judgment based on clear and convincing evidence shall be conclusive evidence of the commission of that crime or civil wrong in any disciplinary proceeding instituted against said attorney based upon die conviction or judgment. A diversion agreement, for the purposes of any disciplinary proceeding, shall be deemed a conviction of die crimes originally charged. All other civil judgments shall be prima facie evidence of the findings made therein and shall raise a presumption as to dieir validity. The burden shall be on the respondent to disprove the findings made in die civil judgment.”
The Disciplinary Administrator aptly notes that the respondent was not prevented from offering mitigating evidence. Rather, the panel’s ruling attempted to prevent the respondent from mounting a collateral attack on his previous civil judgment and criminal conviction.
The respondent notes that in the formal complaint, the Disciplinary Administrator referenced the judgment entered in the United States District Court for the Eastern District of Virginia and quoted excerpts from the trial transcript. The respondent’s answer to the formal complaint alleged that tire Virginia judgment was erroneous for failure to comply with Fed. R. Civ. Proc. 52(a), which requires that the court make specific findings of fact and conclusions of law. He argued that the “Court’s rhetoric and hyperbole do not constitute ‘findings of fact’ nor are they based on ‘clear and convincing evidence.’ ”
The Disciplinary Administrator filed a motion in limine, in which he requested that the hearing panel prohibit the respondent “from testifying or eliciting testimony, or making argument, in an effort to impeach the civil judgments and decisions by the United States District Court for the Eastern District of Virginia and the United States Court of Appeals for the Fourth Circuit.”
In State v. Russo, 230 Kan. 5, 8, 630 P.2d 711 (1981), Russo contended that he was innocent of the charges against him. We said: “[0]nce that conviction became final, it is conclusive upon this court and this court will not look behind the conviction or attempt to weigh the evidence leading to that conviction.” 230 Kan. at 8.
The record shows that in the Virginia civil case, Pieter M. Van der Spuy v. Deerfield Holding Co., Inc.; Cecil P. Jones; Deborah L. Gardner and Fred W. Rausch, Jr., (Case No. 2:96cv1233), the federal district court for the Eastern District of Virginia used the evidentiary standard of clear and convincing evidence in finding the respondent liable for common-law fraud. The judgment was affirmed by the Fourth Circuit Court of Appeals. (Case Nos. 98-1027 and 98-1182, filed August 12, 1998.)
In its order granting the motion in limine, the panel examined whether a collateral attack of the civil judgment and criminal conviction were admissible. Although the respondent did not specifically challenge the criminal conviction in his answer, the hearing panel addressed that conviction in its order granting the motion in limine. Citing Evaluation Research Corp. v. Alequin, 247 Va. 143, 148, 439 S.E.2d 387 (1994), the panel noted that in Virginia, the standard of proof required in cases involving common-law fraud is clear and convincing evidence. It found that because the civil judgment entered by the United States District Court was based upon clear and convincing evidence, the judgment was conclusive evidence of the commission in the disciplinary proceeding against the respondent under Rule 202. It also found that the criminal conviction in Shawnee County District Court was conclusive evidence of the commission of the criminal wrong in the disciplinary proceeding. Thus, the panel concluded that collateral evidence attacking the conviction and judgment were irrelevant and inadmissible. We agree.
The respondent cites State v. Phelps, 226 Kan. 371, 380, 598 P.2d 180 (1979), cert. denied 444 U.S. 1045 (1980), where we said: “The panel hearing is a type of discovery, with lenient rules to permit respondent to present any defense he might have to the complaint.” However, we rejected Phelps’ claim that the panel denied him due process by denying his motion for discovery. We noted with approval Matter of Murray, 266 Ind. 221, 362 N.E.2d 128 (1977), an Indiana case holding denial of discovery in a disciplinary proceeding is not an unconstitutional denial of due process. 226 Kan. at 380.
The respondent also observes that in Russo, we cited In the Matter of Hiss, 368 Mass. 447, 333 N.E.2d 429 (1975), disavowed by Aetna Casualty & Surety Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356 (1985). Alger Hiss petitioned the Massachusetts Supreme Court for reinstatement to the bar. The Hiss court observed that Hiss’ conviction and subsequent disbarment were “ ‘conclusive evidence of his lack of moral character at the time of his removal from office.’ ” 368 Mass. at 451. However, the Hiss court noted that “in some civil proceedings, we permit retrial of factual issues adjudicated previously in criminal cases,” but it found that the situation was different in Hiss’ case. 368 Mass. at 450 (citing Silva v. Silva, 297 Mass. 217, 218, 7 N.E.2d 601 (1937), disavowed by Aetna Casualty & Surety Co. v. Niziolek, 395 Mass. 737, 481 N.E.2d 1356 (1985).) The respondent fails to recognize that Silva and Hiss were reversed by Aetna Casualty & Surety Co. v. Niziolek, 395 Mass. 737, 742, N.E.2d 1356 (1985). Aetna Casualty held that “a party to a civil action against a former criminal defendant may invoke the doctrine of collateral estoppel to preclude the criminal defendant from relitigating an issue decided in the criminal prosecution.” 395 Mass. at 742.
The respondent asks this court to make an exception where an attorney’s license to practice law is at stake. He contends that he wanted to provide “evidence byway of mitigation, extenuation, and explanation as to his conduct,” but it appears that he merely attempted to attack the federal civil judgment. Rule 202 and Kansas precedent do not permit us to look behind respondent’s criminal conviction and civil judgment. The panel did not err in granting the motion in limine.
The Hearing Panel’s Recommendation of a 2-year Suspension
The respondent contends that the hearing panel failed to apply the proper standard for imposing lawyer sanctions in recommending a 2-year suspension. In other words, the respondent argues that the panel’s recommended disciplinary action was excessive. We disagree.
The hearing panel made the following recommendation for discipline:
“In making tills recommendation for discipline, the Hearing Panel considered die factors outlined by die American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, die factors to be considered are die duty violated, the lawyer’s mental state, die potential or actual injury caused by die lawyer’s misconduct, and die existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated his duties to die public, to the legal system, and to the legal profession.
“Mental State. The Respondent knowingly violated his duties to the public, to die legal system, and to the legal profession.
“Injury. The Respondent’s misconduct caused actual injury to diird persons.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors diat may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, die Hearing Panel, in diis case, found die following aggravating factors present:
“Selfish Motive. The Respondent plainly testified that he remained in the Deer-field ‘scheme’ because he thought that this was a way for him to make a large sum of money while putting forth very little effort.
“Pattern of Misconduct. In this case, diere were several separate investors. With regard to each of die investors, die Respondent committed similar misconduct. Accordingly, die Hearing Panel concludes that die Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.15, KRPC 4.1, KRPC 8.4(b), KRPC 8.4(c), KRPC 8.4(d), KRPC 8.4(g). As such, the Hearing Panel concludes that the Respondent engaged in multiple offenses.
“Vulnerability of Victim. The victims in this case included elderly investors who were citizens of South Africa.
“Substantial Experience in the Practice of Law. The Respondent was licensed to practice law in 1949. At die time he committed the misconduct, die Respondent had been practicing law for 46 years.
“Illegal Conduct. The Respondent engaged in illegal conduct, and, as a result, was convicted of deceptive commercial practices, a class B misdemeanor.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found die following mitigating circumstances present:
“Absence of Prior Disciplinary Record. During the Respondent’s legal career, which spans 51 years, die Respondent was never previously disciplined.
“Previous Good Character and Reputation in the Community Including Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of die bar in Topeka, Kansas. He enjoys die respect of his peers, clients, and friends, and generally possesses a good character and reputation as evidenced by die testimony presented and by the many letters received by die Hearing Panel regarding die factors in mitigation.
“Remorse. The Respondent expressed remorse diat die investors lost dieir money. The Respondent testified diat he has continued to pursue litigation in an attempt to recover the investors’ monies.”
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered Standard 5.12. That standard provides, in pertinent part:
‘Suspension is generally appropriate when a lawyer knowingly engages in criminal conduct which does not contain die elements in Standard 5.11 and diat seriously adversely reflects on die lawyer’s fitness to practice.’
“The Hearing Panel unanimously recommends diat Respondent be suspended for a period of two years.
“Costs are assessed against die Respondent in an amount to be certified by die Office of the Disciplinary Administrator.”
The dominant question here is whether the recommendation of a 2-year suspension is excessive. The respondent acknowledges that his conduct “appears to be negligent and careless.” However, he contends that the facts show that he was “duped, and did not knowingly or intentionally defraud or deceive anyone.” He argues that the recommendation of a 2-year suspension in inappropriate, even assuming that he committed the violations as found by the panel.
The respondent points out that Van der Spuy did not file a disciplinary claim against him. However, as noted by the hearing panel, Van der Spuy did file a civil complaint against the respondent in the United States District Court for the Eastern District of Virginia. The record shows that judgment, affirmed on appeal, was rendered against respondent in favor of Van der Spuy for federal common law fraud, Virginia common law fraud, federal mail fraud, and breach of contract.
The respondent also recognizes that under KRPC Rule 202 (2000 Kan. Ct. R. Annot. 221), the Virginia civil judgment and his misdemeanor conviction in Shawnee County, Kansas, were to be considered by the hearing panel. However, he questions the appropriateness of the discipline of a 2-year suspension.
Disputing that he acted “knowingly” or that his conduct “seriously adversely” reflects on his fitness to practice law, the respondent argues that ABA Standard 5.13 provides a more appropriate form of discipline. Standard 5.13 says:
“Reprimand is generally appropriate when a lawyer knowingly engages in any other conduct that involves dishonesty, fraud, deceit, or misrepresentation and that adversely reflects on the lawyer s fitness to practice law.”
The respondent asserts that his situation is comparable to the one in In re Kershner, 250 Kan. 383, 827 P.2d 1189 (1992). Kershner was convicted of 4 felony violations of the Kansas Securities Act. (2 counts of violating K.S.A. 17-1254 by offering for sale shares of stock of a corporation when he was not registered as a broker-dealer or agent and 2 counts of violating K.S.A. 17-1255 by offering for sale or selling shares of stock in a corporation when such security was not registered). 250 Kan. at 383-84. Kershner also failed to file his attorney registration fees for the years 1985-90; however, the Disciplinary Administrator said that he did not perceive this failure to be a significant issue because Kershner was not practicing law during those years. In addition, Kershner failed to appear before the hearing panel. (He said he never received notice of the hearing.) 250 Kan. at 386.
The Kershner hearing panel recommended disbarment finding that he violated the Model Rules of Professional Conduct (MRPC) 8.4(b), (c), and (g). 250 Kan. at 387. We found that the fact that Kershner was convicted of 4 felony violations of the Kansas Securities Act was sufficient to show a violation of MRPC 8.4(b). Under those facts, we concluded that since there was a violation of 8.4(b), his felony convictions could not also be “other conduct that adversely reflects on his fitness to practice law” and a violation of 8.4(g). We found no violation of 8.4(c). 250 Kan. at 388.
We acknowledged that under the facts, Kershner’s convictions were not acts of violence, dishonesty, or a breach of trust or a serious interference with the administration of justice. In addition, the district court found that there were no victims to compensate. Thus, a majority found that disbarment was excessive and, instead, imposed public censure. 250 Kan. at 392.
The Disciplinary Administrator points out that we have said that comparison of past sanctions imposed in disciplinary cases gives little guidance. See In re Bailey, 268 Kan. 63, 64-65, 986 P.2d 1077 (1999). We evaluate each case based on its specific facts and circumstances. 268 Kan. at 65.
Here, the panel found that the respondent violated KRPC 8.4(b), (c), (d), and (g), “[b]ased upon die civil judgment of the United States District Court for the Eastern District of Virginia, and based upon the criminal conviction from the District Court of Shawnee County, Kansas.” The respondent asserts that under Kershner, if his convictions are sufficient to show a violation of KRPC 8.4(b), the convictions cannot also be “other conduct” and a violation of KRPC 8.4(g). See 250 Kan. at 388. We agree. The Disciplinary Administrator correctly observes that Kershner does not hold that an attorney can never be found in violation of both 8.4(b) and 8.4(g). However, under the facts here, where the respondent’s convictions form the basis for the alleged violations of 8.4(b) and 8.4(g), the respondent cannot be found in violation of both subsections.
KRPC 8.4(b)
Clear and convincing evidence supports the finding that the respondent violated KRPC 8.4(b) (2000 Kan. Ct. R. Annot. 420) (committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer). With respect to KRPC 8.4(b), the respondent does not argue that there is no violation. He merely points out that in pleading nolo contendere, he side-stepped the threat of prosecution for three felony violations of the Kansas Securities Law, K.S.A. 2000 Supp. 17-1253. He notes that he entered a plea to deceptive commercial practice, under K.S.A. 21-4403, a class B misdemeanor in order to avoid trial. The conviction stands. It is well established that “once [a] conviction [becomes] final, it is conclusive upon this court and this court will not look behind the conviction or attempt to weigh the evidence leading to that conviction.” Russo, 230 Kan. at 8. See Kershner, 250 Kan. at 390. There is no question that the civil judgment for fraud against respondent and his criminal conviction for deceptive commercial practice are sufficient to show a violation of KRPC 8.4(b).
KRPC 8.4(d)
With respect to KRPC 8.4(d) (2000 Kan. Ct. R. Annot. 420) (engaging in conduct that is prejudicial to the administration of justice), the respondent argues that there is no violation because his conduct did not involve an attorney-client relationship. He provides no authority for this assertion. When a point is incidentally raised but not argued, it is deemed abandoned. McKissick v. Frye, 255 Kan. 566, 578, 876 P.2d 1371 (1994).
KRPC 1.15
The respondent contends that he did not violate KRPC 1.15 (2000 Kan. Ct. R. Annot. 360) (safekeeping property). The panel found that the respondent violated 1.15(a), which says:
“A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained in the state of Kansas.” (Emphasis added.)
The panel noted that in subsection (a), attorneys are limited to using their trust accounts for funds received in connection with “ ‘a representation.’ ” It concluded that the respondent violated the subsection because he used his attorney trust account as a “ ‘mere conduit’ to filter the investment money through to Deerfield.”
In his brief, the respondent does not deny that he used his attorney account as such a conduit. Rather, he argues that the investors gave Jones, president of Deerfield, “irrevocable, carte blanche” power of attorney to “direct the disposition of their funds.” The respondent argues that he merely acted under the authority and direction of Jones.
The record shows that the respondent did not have an attorney-client relationship with the investors. Rather, he acted at times as the attorney for Deerfield. In addition, he was aware of Jones’ personal financial struggles and had loaned him around $31,000 over a period of at least 2 years. He knew that Woolacott also loaned money to Jones. After not having received guarantees upon transfer of funds, the respondent continued to wire transfer investors’ money at the request of Jones. Clear and convincing evidence supports the finding that the respondent violated KRPC 1.15(a).
KRPC 4.1
The respondent also contends that he did not violate KRPC 4.1 (2000 Kan. Ct. R. Annot. 398). The panel found that he violated KRPC 4.1(b), which says:
“In the course of representing a client a lawyer shall not knowingly:
“(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by or made discretionary under Rule 1.6.”
The respondent argues that his actions did not involve client representation and, thus, did not constitute a violation of KRPC 4.1(b). What he fails to note is that he did act as an attorney for Deerfield.
As the panel pointed out, the respondent played many roles in the investment program:
“(1) as attorney for Deerfield, (2) as incorporator of Deerfield, (3) as registered agent for Deerfield, (4) as Secretary of the Board of Directors of Deerfield, (5) as Secretary/Treasurer of Deerfield, (6) as a shareholder of Deerfield, and (7) as trustee of the trust which initially held the monies to be invested by Deerfield in [sic] behalf of the investors.”
The respondent was the sole signatory on the trust account. He was also the sole signatory on one of the Deerfield accounts. The respondent was the only person to transfer the investors’ funds from the IOLTA account to Deerfield and then transfer them from Deerfield to other accounts. The panel observed that the respondent failed to disclose his various roles to Van der Spuy and Fisher. Clear and convincing evidence supports a finding that the respondent violated KRPC 4.1(b).
Under the facts, unlike the situation in Kershner, the respondent’s convictions for fraud and deceptive commercial practice were acts of dishonesty, fraud, or deceit. The convictions also reflected adversely on his honesty and trustworthiness. The record shows that there were victims to compensate because of the illegal acts. See also In re Lucas, 269 Kan. 785, 786-87, 795, 7 P.3d 1186 (2000) (finding 2-year suspension was an appropriate sanction for an attorney who misrepresented to other lawyers in his putative law firm that he had closed a client trust account and then used the account to deposit attorney fees that he had agreed to share with other lawyers in the firm).
We have said: “Misappropriating client funds is one of the gravest offenses against the public trust a lawyer can commit. Suspension is an appropriate discipline.” In re Shumway, 269 Kan. 796, 808, 8 P.3d 735 (2000) (suspending the respondent’s law license for 1 year). Here, the victims were not clients. However, the respondent was a trustee for the victims and placed their funds into his IOLTA account. He then transferred the funds to Deerfield, a corporation in which he was an officer and shareholder, and to accounts in England, after which the money was lost. Given the facts of this case, a 2-year suspension is not excessive.
The panel’s report is thorough and well reasoned. We find that the panel’s findings and conclusions as modified herein are supported by clear and convincing evidence.
It Is Therefore Ordered that Fred W. Rausch, Jr., is hereby suspended from the practice of law in the State of Kansas for a period of 2 years from the date of this opinion.
It Is Further Ordered that respondent shall comply with Supreme Court Rule 218(a) (2000 Kan. Ct. R. Annot. 266), and, at the end of the 2-year suspension, respondent will be reinstated upon furnishing proof of compliance thereof to the Clerk of the Appellate Courts.
It Is Further Ordered that the costs of this proceeding be assessed to the respondent, and that this opinion be published in the official Kansas Reports.
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The opinion of the court was delivered by
Allegrucci, J.:
Ralph Kelly Whisler was convicted of rape at the conclusion of a jury trial in 1995. Whisler s conviction and sentence were affirmed by the Court of Appeals in an unpublished opinion filed March 7, 1997. In October 2000, Whisler filed a K.S.A. 60-1507 motion in the district court where he was sentenced seeking relief based on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). He appeals the district court’s denial of his request for relief. The case was transferred from the Court of Appeals on Whisler’s motion.
The sole issue raised by this appeal is whether Apprendi is to be applied retroactively to Whisler’s sentence.
Whisler was convicted of raping D.T., a 43-year-old mentally retarded woman. At sentencing, the trial court stated that Whisler had been employed by Southwest Development Services Incorporated “with the job of helping to care for and supervise mentally disabled adults who . . . are not capable of living and working on their own.” D.T. was an adult with a mental capacity of a 5-year-old child. The trial court viewed Whisler’s relationship with D.T. as a fiduciary relationship in that he was charged with her care and supervision.
The presumptive guidelines sentence for Whisler’s conviction of rape was a prison term of 86 to 77 months and a post-release supervision duration of 24 months. Upon the State’s motion for imposition of a departure sentence, the trial court sentenced Whisler to a prison term of 120 months and a post-release supervision term of 60 months. The upward departure was based on the trial court’s findings that there was a fiduciary relationship between Whisler and D.T. and that D.T. was particularly vulnerable due to mental retardation, which was well known to Whisler. The reasons for departure were listed as aggravating factors in K.S.A. 1994 Supp. 21-47l6(b)(2)(A) and (D).
In October 2000, Whisler filed a K.S.A. 60-1507 motion in the district court where he was sentenced seeking relief based on Apprendi. He asked that his sentence be vacated and that he be re-sentenced in accord with Apprendi. Whisler contended that his sentence is illegal under Apprendi because the factors on which the trial court based its departure upward from the presumptive guidelines sentence were not found by a jury beyond a reasonable doubt. In Apprendi, the Supreme Court stated: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The district court’s findings relative to Whisler’s request for 60-1507 relief are stated as follows in the Memorandum Decision & Order Denying Request of Defendant:
“1. The plaintiff contends that the factors relied upon by the court to justify an upward departure were not presented to a jury or finder of fact and thus deter mined to be present beyond a reasonable doubt. The plaintiff cites Apprendi v. New Jersey, 530 U. S. 466 (2000).
“2. In the criminal case involving the plaintiff, Finney County Case No. 94 CR 590, [t]he factors used by the court, the vulnerability of the victim and a fiduciary relationship, were presented to the jury and so found by the jury to be present. See die decision of the Court of [A]ppeals filed March 7, 1997, Case No. 74,336.
“3. Even if Apprendi, supra, is to be given retroactive application it does not apply in this particular case.
“4. On the face of the plaintiff s petition and the files and records of the court, the plaintiff is not entitled to relief.
“5. The plaintiff s request for relief pursuant to K.S.A. 60-1507 is denied.”
The briefs of the parties to this appeal assume that the issue is whether Apprendi is to be applied retroactively to K.S.A. 60-1507 petitions for collateral review. The district court concluded that the sentencing rule announced in Apprendi was not violated in this case because the factors on which the departure sentence were based were found by the jury beyond a reasonable doubt. Examination of the record shows that the jury did not find that the State proved beyond a reasonable doubt that the victim was particularly vulnerable due to mental retardation, nor does the record show that the jury made any finding of a fiduciary relationship between defendant and victim.
The jury was instructed that the State could prove rape by proving beyond a reasonable doubt either that D.T. was incapable of giving consent due to her mental deficiency or that defendant raped D.T. without her consent when she was overcome by force or fear. The verdict form shows that the jury found the defendant “guilty of rape on both theories.” Thus, there is no doubt that the jury found that D.T. was unable to consent, but that does not equate to the jury finding she was vulnerable for the purpose of upward departure. Although “unable to consent” and “vulnerability” are somewhat alike, they are not the same. The jury did not find the victim to be vulnerable. On direct appeal, the Court of Appeals rejected Whisler s complaints about the same factors supporting the conviction and the upward sentencing departure. The Court of Appeals agreed with Whisler that the reduced mental capacity factor was inherent in the offense, but concluded that Whisler’s argument did not affect the sentence: “The jury con victed Whisler under both theories. D.T.’s mental deficiency was not an element of rape under the alternative theory that she was overcome by force or fear. Therefore, the trial court was justified in using that factor as a reason for departure.” This court denied review of the decision of the Court of Appeals. 262 Kan. 968.
We conclude that if Apprendi is retroactively applied, Whisler would be entitled to relief as to his sentence. We will turn first to State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). In Gould, the court considered whether Apprendi affected K.S.A. 2000 Supp. 21-4716, which requires the sentencing judge to impose the presumptive guidelines sentence unless the judge finds substantial and compelling reasons to impose a departure. The court stated that Apprendi dictated the conclusion that the Kansas statutory scheme for imposing upward departure sentences “violates the due process and jury trial rights contained in the Sixth and Fourteenth Amendments to the United States Constitution.” 271 Kan. at 414.
The court expressly addressed the question of retroactivity that inevitably would be raised by its invalidating the upward departure provisions of K.S.A. 2000 Supp. 21-4716:
“Our holding on the constitutionality of upward departures under the KSGA has no retroactive application to cases final as of June 26,2000, the date Apprendi was decided. However, the new constitutional sentencing rule established by Apprendi must be applied here and in all cases pending on direct appeal or which are not yet final or which arose after June 26, 2000. See State v. Hood, 242 Kan. 115, 117, 744 P.2d 816 (1987).” 271 Kan. at 414.
The Court of Appeals’ opinion in this case was filed on March 7, 1997. Review was denied and the mandate was issued on April 30, 1997. 262 Kan. 968.
According to the court’s pronouncement in Gould, the new constitutional sentencing rule established by Apprendi has no application in this case. Despite the clear statement in Gould, Whisler contends that Apprendi applies to his sentence because he raised the issue in his direct appeal and because federal case law requires the new sentencing rule to be applied retroactively.
Whisler states that in his direct appeal he raised the issue of whether the departure factors identified by the sentencing judge were an improper basis for departure because they were elements of the crime. He contends that the issue on direct appeal is sufficiently related to the Apprendi rule so that he preserved the issue for further review. There is no merit to his contention. On direct appeal, he argued that the departure factors already had been considered by the jury in reaching a verdict of guilty and therefore should not be reconsidered by the trial court in determining sentence. As the Court of Appeals stated, there were “elements of double jeopardy flowing through” Whisler s argument. His argument was that the factors could not be considered for both conviction and sentence. His argument was not that the jury had to find that the factors had been proved beyond reasonable doubt in order for them to be considered for sentencing.
Whisler spurns the efficacy of the court’s statement regarding retroactivity in Gould on the ground that the pronouncement is dicta. He views Kansas case law as irrelevant in that it centers on the prohibition of ex post facto laws. To illustrate his point he cites State v. Billington, 24 Kan. App. 2d 759, 761, 953 P.2d 1059 (1998), which involved the question of whether an amended statute operated retrospectively or prospectively. Whisler ignored Kansas cases involving overruling decisions rather than new legislation. The court’s general rule with regard to application of an overruling decision has been stated as applying the decision “retroactively to all similar cases pending as of the date of the overruling decision, regardless of when the cause of action accrued.” State v. Waterberry, 248 Kan. 169, 172, 804 P. 2d 1000 (1991) (expanding its own restriction of the rule of State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), to include cases pending in Kansas courts as of May 31, 1990, the date of the Hall opinion). Whisler relies on Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989).
The State also relies on Teague. The State cites State v. Neer, 247 Kan. 137, 795 P.2d 362 (1990), a case of evolving case law rather than new legislation, for the proposition that this court will analyze such a retroactivity question according to Teague.
Neer involved an appeal from the trial court’s refusal to modify the defendant’s sentence. Neer argued that there was insufficient evidence to sustain his conviction for aggravated criminal sodomy based on the court’s holding in State v. Moppin, 245 Kan. 639, Syl. ¶ 1, 783 P.2d 878 (1989), that cunnilingus is not ‘sodomy’ under K.S.A. 21-3501(2). Neer had not raised the issue at trial or on direct appeal, but he argued that as a matter of fundamental fairness the decision in Moppin should be applied retroactively to set aside his conviction of aggravated criminal sodomy. He relied on Teague. This court also relied on Teague.
Teague, a black man, was convicted of serious crimes by an all-white Illinois jury. The prosecuting attorney had used all his peremptory challenges to exclude blacks. Several years after his conviction, Teague filed a petition for a writ of habeas corpus. While the appeal from denial of his petition was pending in the Court of Appeals, the United States Supreme Court decided Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986). The Court of Appeals held that Teague could not benefit from the rule of Batson because in Allen v. Hardy, 478 U.S. 255, 92 L. Ed. 2d 199, 106 S. Ct. 2878 (1986), the Supreme Court had held that Batson would not be applied retroactively to cases on collateral review.
On certiorari, the Supreme Court relied on Allen in rejecting Teague’s contention that he should receive the benefit of the decision in Batson even though his conviction became final before Batson was decided. 489 U.S. at 296. Batson overruled a portion of Swain v. Alabama, 380 U.S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824 (1965). Swain held that it was a violation of equal protection for a State to purposefully deny to blacks, solely on account of race, an opportunity to serve as jurors. 380 U.S. at 203-04. “In order to establish a prima facie case of discrimination under Swain, a defendant had to demonstrate that the peremptory challenge system had been ‘perverted.’ ” 489 U.S. at 294. In Batson, the Supreme Court “overruled that portion of Swain setting forth the evidentiary showing necessary to make out a prima facie case of racial discrimination under the Equal Protection Clause.” 489 U.S. at 295. In Allen, the Supreme Court held that Batson constituted “an ‘explicit and substantial break with prior precedent’ because it overruled a portion of Swain.” 489 U.S. at 295. “Employing the retroactivity standard of Linkletter v. Walker, 381 U.S. 618, 636 [, 14 L. Ed. 2d 601, 85 S. Ct. 1731] (1965), the Court concluded that the rule announced in Batson should not be applied retroactively on collateral review of convictions that became final before Batson was announced.” 489 U.S. at 295.
Teague’s other contentions also were turned down by the Supreme Court. His second argument was that he had established an equal protection violation under Swain. The Supreme Court examined Illinois state court decisions to conclude that Teague’s failing to raise Swain at trial or on direct appeal forfeited review of the claim in the Illinois courts, that collateral review likewise was unavailable in the state courts under Illinois decisions, and that federal habeas corpus relief was unavailable under federal decisions. 489 U.S. at 297-99.
Teague’s third contention, “that the Sixth Amendment’s fair cross section requirement applies to the petit jury,” 489 U.S. at 299, would have necessitated reversing the express statement in Taylor v. Louisiana, 419 U.S. 522, 42 L. Ed. 2d 690, 95 S. Ct. 692 (1975), that the Sixth Amendment requirement applied only to the jury venire, not to the petit jury. In discussing Teague’s Sixth Amendment claim, the Supreme Court adopted an approach to retroactivity for cases on collateral review that had been advocated by Justice Harlan in Mackey v. United States, 401 U.S. 667, 675, 28 L. Ed. 2d 404, 91 S. Ct. 1160 (1971). 489 U.S. at 310.
“Justice Harlan believed that new rules generally should not be applied retroactively to cases on collateral review.” 489 U.S. at 305. He “identified only two exceptions to his general rule of nonretroactivity for cases on collateral review.” 489 U.S. at 307. The exceptions formulated by Justice Harlan were described in Teague-. “First, a new rule should be applied retroactively if it places ‘certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.’ (Citation omitted.) Second, a new rule should be applied retroactively if it requires the observance of ‘those procedures that . . . are “implicit in the concept of ordered liberty.” ’ (Citations omitted.)” 489 U.S. at 307.
In suggesting this analysis, Justice Harlan drew a strong distinction between direct review and collateral review. In explaining its reasoning in belatedly adopting Justice Harlan’s suggested analysis, the Supreme Court seconded the importance of that difference for the purpose of giving retroactive effect. The Supreme Court stated generally: “Application of constitutional rules not in existence at Üie time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system. Without finality, the criminal law is deprived of much of its deterrent effect.” 489 U.S. at 309. Speaking specifically of the need for finality in state court convictions, the Supreme Court quoted Justice Powell’s concurring opinion in Solem v. Stumes, 465 U.S. 638, 654, 79 L. Ed. 2d 579, 104 S. Ct. 1338 (1984), to the effect that the “ ‘costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus . . . generally far outweigh the benefits of this application.’ ” 489 U.S. at 310. The Court continued:
“In many ways the application of new rules to cases on collateral review may be more intrusive than the enjoining of criminal prosecutions, cf. Younger v. Harris, 401 U.S. 37, 43-54 [, 27 L. Ed. 2d 669, 91 S. Ct. 746] (1971), for it continually forces the States to marshal resources in order to keep in prison defendants whose trials and appeals conformed to then-existing constitutional standards. Furthermore, as we recognized in Engle v. Isaac, ‘[sjtate courts are understandably frustrated when they faithfully apply existing constitutional law only to have a federal court discover, during a [habeas] proceeding, new constitutional commands,’ 456 U.S. [107], at 128 n 33, 71 L. Ed. 2d 783, 102 S. Ct. 1558 [(1982)]. See also Brown v. Allen, 344 U.S. [443], at 534 [, 97 L. Ed. 469, 73 S. Ct. 397 (1953)] (Jackson, J., concurring in result) (state courts cannot ‘anticipate, and so comply with, this Court’s due process requirements or ascertain any standards to which this Court will adhere in prescribing them’).
“We find these criticisms to be persuasive, and we now adopt Justice Harlan’s view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.” 489 U.S. at 310.
The Supreme Court concluded that the first exception suggested by Justice Harlan was not relevant in Teague’s case because “[application of the fair cross section requirement to the petit jury would not accord constitutional protection to any primary activity whatsoever.” 489 U.S. at 311. The Court combined Justice Harlan’s second suggested exception with an “accuracy element” that would serve “one of the two principal functions of habeas corpus,” which was to safeguard against a constitutional violation resulting in con viction of an innocent person. 489 U.S. at 312. The second exception, as stated and applied in Teague, requires an inquiry whether the absence of the new rule would “undermine the fundamental fairness that must underlie a conviction or seriously diminish the likelihood of obtaining an accurate conviction.” 489 U.S. at 315. In Teague’s case, the Supreme Court “conclude[d] that a rule requiring that petit juries be composed of a fair cross section of the community would not be a ‘bedrock procedural element’ that would be retroactively applied under the second exception.” 489 U.S. at 315.
Whisler cites United States v. Hernandez, 137 F. Supp. 2d 919 (N. D. Ohio 2001), for its retroactive application of Apprendi on collateral review. Examination of recent case law reveals that there is a split among courts that have addressed the issue and that the reasoning and result of Hernandez are not in the majority. The court in Hernandez reasoned that the Apprendi rule was substantive rather than procedural and thus applied retroactively to Hernandez’ sentence.
The questionable idea is that court’s regarding “substantive” to mean important rather than regarding it as the counterpart of procedural. In criminal matters, the concepts of law and procedure generally are accepted as including what constitutes offenses on fhe one hand and the process by which offenders are brought to justice on the other. Thus, a most profound criminal matter may well be categorized as procedural rather than substantive. An example known to all is Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), which conditioned the admissibility of a statement given during custodial interrogation of a suspect on specific warnings and has been called “the centerpiece of the Warren Court’s ‘revolution in American criminal procedure.’ ” Israel, Kamisar, and LaFave, Criminal Procedure and the Constitution, p. 310 (1992).
A counter argument to the Hernandez view can be found in the Apprendi decision itself. In the majority opinion, the court stated:
“[AJlthough the constitutionality of basing an enhanced sentence on racial bias was argued in the New Jersey courts, that issue was not raised here. (Footnote omitted.) The substantive basis for New Jersey’s enhancement is thus not at issue; the adequacy of New Jersey’s procedure is. The strength of the state interests that are served by the hate crime legislation has no more bearing on this procedural question than the strength of the interests served by other provisions of the criminal code.” 530 U.S. at 475.
The question presented in Apprendi was “whether the Due Process Clause of the Fourteenth Amendment requires that a factual determination authorizing an increase in the maximum prison sentence for an offense from 10 to 20 years be made by a jury on the basis of proof beyond a reasonable doubt.” 530 U.S. at 469.
The small number of Apprendi-applying cases that delve into the seemingly intractable business of separating procedural from substantive might be taken as an indication a sound analysis need not begin with that question. As noted above, there is language in Teague that would support the view that it applies only to procedural matters. In fact, the court’s holding was worded in terms of “new constitutional rules of criminal procedure.” 489 U.S. at 310. The significance of Teague at the time it was decided — 1989—was in deciding what was to be done about law-changing decisions on habeas review. In Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965), the Supreme Court declined to retroactively apply Mapp v. Ohio, 367 U.S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961), which imposed the exclusionary rule on the states as a matter of due process. The Supreme Court acknowledged that it had given full retroactive effect to recent law-changing decisions, including Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963), but in Linkletter the Court limited the retroactive effect of new rulings. The next major step in this line of decisions was taken in United States v. Johnson, 457 U.S. 537, 73 L. Ed. 2d 202, 102 S. Ct. 2579 (1982), where the Court broadened Linkletter by distinguishing between final convictions and those still pending on direct review. Johnson applied Payton v. New York, 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371 (1980), to cases pending on direct appeal at the time Payton was decided. Teague was the next step. It determined the retroactive effect of new rules on collateral review. See Kamisar, LaFave, and Israel, Modem Criminal Procedure, pp. 46-51, 1670 (8th ed. 1994). Thus, Teague is the case that governs retroactivity of new rules on collateral review. Teague involved a procedural matter. There is no Supreme Court case plotting a different path for substantive criminal matters.
Since the Apprendi decision, the Supreme Court decided Tyler v. Cain, 533 U.S. 970, 150 L. Ed. 2d 632, 121 S. Ct. 2478, reh. denied 533 U.S. 970 (2001), in which the question was whether a constitutional rule regarding jury instructions that was announced in Cage v. Louisiana, 498 U.S. 39, 112 L. Ed. 2d 339, 111 S. Ct. 328 (1990), was “ ‘made retroactive to cases on collateral review by the Supreme Court.’ ” 150 L. Ed. 2d at 640. The Court held that it was not and declined to do so. In discussing Tyler’s contention that Cage warranted retroactive application under Teague, the majority stated in a footnote:
“As explained above, the second Teague exception is available only if the new rule ‘ “ ‘alter[s] our understanding of the bedrock procedural elements’ ” essential to die fairness of a proceeding.’ Sawyer v. Smith, 497 U.S. 227, 242, 111 L. Ed. 2d 193, 110 S. Ct. 2822 (1990) (quoting Teague v. Lane, 489 U.S. 288, 311, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989) (plurality opinion), in turn quoting Mackey v. United States, 401 U.S. 667, 693, 28 L. Ed. 2d 404, 91 S. Ct. 1160 (1971) (Harlan, J., concurring in judgments in part and dissenting in part) (emphasis added)). Classifying an error as structural does not necessarily alter our understanding of these bedrock procedural elements. Nor can it be said that all new rules relating to due process (or even the ‘fundamental requirements of due process,’ see post, at 2489 (dissenting opinion)) alter such understanding. See, e.g., Sawyer, supra, at 244, 110 S. Ct. 2822 (holding that the rule in Caldwell v. Mississippi, 472 U.S. 320, 86 L. Ed. 2d 231, 105 S. Ct. 2633 (1985), did not fit within the second Teague exception even though it ‘added to an existing guarantee of due process protection against fundamental unfairness’); O’Dell v. Netherland, 521 U.S. 151, 167, 138 L. Ed. 2d 351, 117 S. Ct. 1969 (1997) (holding that the rule in Simmons v. South Carolina, 512 U.S. 154, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (1994), which has been described as serving ‘one of the hallmarks of due process,’ id., at 175, 129 L. Ed. 2d 133, 114 S. Ct. 2187 (O’Connor, J, concurring in judgment), did not fit within die second Teague exception). On the contrary, die second Teague exception is reserved only for truly ‘watershed’ rules. See O’Dell, supra, at 167, 138 L. Ed. 2d 351, 117 S. Ct. 1969; see also Caspari v. Bohlen, 510 U.S. 383, 396, 127 L. Ed. 2d 236, 114 S. Ct. 948 (1994) (describing such rules as ‘groundbreaking’); Graham v. Collins, 506 U.S. 461, 478, 122 L. Ed. 2d 260, 113 S. Ct. 892 (1993) (explaining that the exception is limited to ‘a small core of rules,’ which not only seriously enhance accuracy but also ‘requir[e] “observance of those procedures that ... are implicit in the concept of ordered liberty” ’) (quoting Teague, supra, at 311, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (internal quotation marks omitted)); Saffle v. Parks, 494 U.S. 484, 495, 108 L. Ed. 2d 415, 110 S. Ct. 1257 (1990) (focusing on ‘primacy and centrality’ of the rule). As we have recognized, it is unlikely that any of diese watershed rules ‘ha[s] yet to emerge.’ Sawyer, supra, at 243, 111 L. Ed. 2d 193, 110 S. Ct. 2822 (quoting Teague, supra, at 313, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (plurality opinion)); see also Graham, supra, at 478, 122 L. Ed. 2d 260, 113 S. Ct. 892.” 150 L. Ed. 2d at 645 n.7.
Justice O’Connor wrote a separate concurring opinion in Tyler for the purpose of “explaining] more fully the circumstances in which a new rule is ‘made retroactive to cases on collateral review by the Supreme Court.’ ” 150 L. Ed. 2d at 646. Scrutiny of her concurring opinion does not yield any particular insight into her use of the term “watershed” in her Apprendi dissenting opinion.
As a final observation on the substantive/procedural discussion and the applicability of Teague, it should be noted that this court unhesitatingly analyzed Neer’s request according to the precepts of Teague. The issue in Neer, as discussed elsewhere, involved the elements of his offense. This court gave two reasons why Neer’s conviction was not affected by Moppin, and neither implicates the substantive nature of his claim. The court stated:
“First, in his original appeal, Neer failed to raise the question of sufficiency of the evidence .... Second, neither Moppin, which determined that cunnilingus is not included in the definition of‘sodomy,’ nor Neer’s claim that there was insufficient evidence for his conviction for aggravated criminal sodomy reaches the magnitude that permits collateral attack under the new constitutional rule of criminal procedure doctrine of [Teague].” 247 Kan. at 143-44.
The federal district court in the district of Kansas sides with the majority of federal courts in concluding that Apprendi should not be applied retroactively. United States v. Moss, 137 F. Supp. 2d 1249 (D. Kan. 2001). In November 2000, 10 years after being sentenced, Moss filed a motion for post-conviction relief in light of Apprendi. 137 F. Supp. 2d at 1251-52. Unlike Hernandez, where the threshold question was whether Apprendi announced a procedural or substantive rule, the district court’s analysis in Moss began from the premise, which was stated in United States v. Heckard, 238 F.3d 1222, 1234 (10th Cir. 2001), that “Apprendi clearly presents a ‘new’ rule of constitutional criminal procedure.” 137 F. Supp. 2d at 1252. With no question about the procedural nature of the Apprendi rule, the district court considered whether it fit within either of the Teague exceptions. With regard to the exceptions, the district court sketched this diagram for inquiry:
“Under Teague . . . only two types of new rules may be applied retroactively to cases on collateral review: (1) a rule which places ‘certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe,’ and (2) a watershed constitutional rule of criminal procedure which requires the observance of ‘those procedures that . . . are implicit in the concept of ordered liberty.’ (Citations omitted.) A rule that qualifies under the ‘watershed’ exception ‘must not only improve accuracy, but also “alter our understanding of the bedrock procedural elements” essential to the fairness of a proceeding.’ (Citations omitted.) The scope of the Teague exceptions must be consistent with the recognition that “[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.” ’ (Citations omitted.)” 137 F. Supp. 2d at 1252.
The district court promptly concluded that the first exception did not apply because Apprendi did not place conduct beyond the power of law-making authority to proscribe. 137 F. Supp. 2d at 1252.
With regard to the second exception, the district court observed that numerous federal courts have held that Apprendi does not satisfy it, but only two federal district courts and one state appellate court had concluded otherwise. 137 F. Supp. 2d at 1252-53. The district court agreed with the reasoning of the courts that had found that Apprendi does not qualify as a watershed rule of criminal procedure:
“Apprendi announced two new rules of criminal procedure: (1) other than the fact of a prior conviction, the juiy, not the judge, must determine any facts that increase the penalty for a crime beyond the statutory maximum and (2) the jury must find such facts beyond a reasonable doubt. See Apprendi, 120 S. Ct. at 2362-63, 120 S. Ct. 2348. These rules do not alter our basic understanding of the bedrock procedural requirements essential to a fair proceeding (such as the right to counsel). See Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 108 L. Ed.2d 415 (1990) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed.2d 799 (1963), to illustrate type of rule within watershed exception); Levan, at 278 (‘Shifting an element of the offense from jury to judge and utilizing a preponderance rather than a beyond a reasonable doubt standard does not implicate fundamental fairness or relate to the accuracy of the conviction or sentence.’); see also O’Dell v. Netherlands 521 U.S. 151, 167, 117 S. Ct. 1969, 138 L. Ed.2d 351 (1997) (defendant’s right to advise capital sentencing jury about parole eligibility not watershed rule); Lambrix v. Singletary, 520 U.S. 518, 539-40, 117 S. Ct. 1517, 137 L. Ed.2d 771 (1997) (defendant’s right not to have jury consider certain aggravating circumstances not watershed rule); Sawyer, 497 U.S. at 244, 110 S. Ct. 2822 (procedural enhancement to accuracy of capital sentencing announced in Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed.2d 231 (1985) not watershed rule); Andrews v. Deland, 943 F.2d 1162, 1187 (10th Cir.1991) (constitutional right to lesser included offense instruction in capital cases not watershed rule).
“In Teague, Justice O’Connor explained the extremely limited nature of the exception for watershed rules of criminal procedure:
‘Finally, we believe that Justice Harlan’s concerns about the difficulty in identifying both the existence and the value of accuracy-enhancing procedural rules can be addressed by limiting the scope of the second exception to those new procedures without which the likelihood of an accurate conviction is seriously diminished.
‘Because we operate from the premise that such procedures would be so central to an accurate determination of innocence or guilt, we believe it unlikely that many such components of basic due process have yet to emerge. We are also of the view that such rules are “best illustrated by recalling the classic grounds for the issuance of a writ of habeas corpus — that the proceeding was dominated by mob violence; that the prosecutor knowingly made use of perjured testimony; or that the conviction was based on a confession extorted from the defendant by brutal methods.” Rose v. Lundy, 455 U.S. 509, 544, 102 S. Ct. 1198, 1216-1217, 71 L. Ed.2d 379 (1982) (STEVENS, J., dissenting) (footnotes omitted).’ ’’Teague, 489 U.S. at 313-14, 109 S. Ct. 1060.” 137 F. Supp. 2d at 1253.
The district court added that there was indirect additional support for its conclusion that Apprendi is not a watershed rule in the Tenth Circuit’s reviewing Apprendi claims on direct appeal only for plain error citing United States v. Keeling, 235 F.3d 533, 538 (10th Cir. 2000), and in the “very few cases” that have been reversed on direct appeal. 137 F. Supp. 2d at 1253-54.
In a footnote to the Moss opinion, the district court discounts the apparent association of terms in Teague and in Justice O’Connor’s dissenting opinion in Apprendi:
“The Court recognizes that in her dissent in Apprendi, Justice O’Connor stated that the ruling ‘will surely be remembered as a watershed change in constitutional law.’ Apprendi, 120 S. Ct. at 2380. The Court does not read this statement as a finding that Apprendi should be applied retroactively to cases on collateral review, particularly in light of Justice O’Connor’s explanation in Teague of the limited scope of cases which fall within the 'watershed’ exception. See Teague, 489 U.S. at 313-14, 109 S. Ct. 1060.” 137 F. Supp. 2d at 1254 n.4.
In her dissent in Apprendi, Justice O’Connor expressed the view that the majority, in a move unsupported by precedent, created the rule “that a defendant is entitled to have a jury decide, by proof beyond a reasonable doubt, every fact relevant to the determination of sentence under a determinate-sentencing scheme.” 530 U.S. at 549. She predicted that perhaps the most significant impact of the Court’s decision would be “its unsettling effect on sentencing conducted under current federal and state determinate-sentencing schemes.” 530 U.S. at 550. She continued:
“[T]he Court does not say whether these schemes are constitutional, but its reasoning strongly suggests that they are not. Thus, with respect to past sentences handed down by judges under determinate-sentencing schemes, the Court’s decision threatens to unleash a flood of petitions by convicted defendants seeking to invalidate their sentences in whole or in part on the authority of the Court’s decision today.” 530 U.S. at 550-51.
There are many recent cases from lower courts on or touching on the question of Apprendi retroactive application to cases on collateral review. There would seem to be little purpose, however, in prolonging this discussion with more case citations and synopses. The rationale, for and against, are apparent from the cases already discussed, and we are not aware of any other rationale among the unexamined opinions.
In our line of cases involving law-changing decisions is State v. Neer, 247 Kan. 137, already discussed in this opinion. In Neer, the court adopted the Teague formulation for determining retroactive application of new constitutional rules announced in law-changing decisions. 247 Kan. at 141-44. With no discussion whether the new decision was procedural or substantive, the court applied Teague.
Although a few courts have steered away from Teague on the ground that the Apprendi rule is substantive rather than procedural, see Hernandez, 137 F. Supp. 2d 919, the greater weight of opinion is that the Apprendi rule (along with nearly all groundbreaking constitutional rules from the last 50 years) are matters of criminal procedure. Hence, Teague provides the analysis for retroactive application.
Teague states a general rule of nonretroactivity. Under Teague, new rules are not retroactive unless they meet one of two exceptions. Of the two exceptions to the general rule, only the second need be considered here. As we have seen, courts that have considered the second Teague exception applicable to give Apprendi retroactive effect are in the minority. As of the date of this writing, no federal circuits have applied Apprendi retroactively, but one panel of the Eighth Circuit Court of Appeals expressed reluctance at applying the nonretroactive rule already decided by another panel of its court. Jarrett v. United States, 266 F.3d 789 (8th Cir. 2001), citing United States v. Moss, 252 F. 3d 993 (8th Cir. 2001).
We agree with the rationale of the majority of courts which have concluded that the new rule announced in Apprendi is not a watershed rule of criminal procedure that implicates the fundamental fairness of trial. Thus, neither Teague exception applies and based on our holding in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), the Apprendi rule does not retroactively apply to Whisler’s sentence, and he is not entitled to relief.
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