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The opinion of the court was delivered by
Price, J.:
This is an action by National Van Lines, Inc., an Illinois corporation (hereafter referred to as plaintiff), to enjoin the collection of taxes for the years 1959 and 1960 which were levied by the Director of Property Valuation of the state of Kansas, and also to enjoin the State Corporation Commission from cancelling the interstate motor carrier license issued to plaintiff because of its failure to pay the taxes so levied. (Hereafter the defendants will be referred to as director and commission, respectively, or as defendants.)
Defendants have appealed from orders overruling their demurrers to the petition.
The petition, which covers almost twenty pages of the abstract and contains four causes of action, attacks the constitutionality of certain provisions of the motor carriers act (G. S. 1957 Supp., 79-6a01 to 6a09, and the 1959 amendments thereto). Highly summarized, facts alleged in the petition are:
The plaintiff is a motor carrier engaged exclusively in the interstate transportation of household goods and furniture, and at all times was the holder of a certificate of convenience and necessity issued by the Interstate Commerce Commission, and by reason thereof also was issued a license by the State Corporation Commission as an interstate carrier. At all relevant times plaintiff was engaged in the interstate transportation of household goods into and out of and through the state of Kansas exclusively as an interstate motor carrier by means of motor vehicles and equipment (a) owned and operated by plaintiff; (b) owned and operated by others than the plaintiff who are domiciled outside of Kansas but who operate under contract with the plaintiff, and (c) owned and operated by others than plaintiff who are domiciled in Kansas but operate under contract with the plaintiff. At all times the motor vehicles and equipment owned and operated by plaintiff, and under contract to it, were duly registered as required by law and the required fees paid thereon. Plaintiff did not directly or indirectly perform any service or transport any goods in intrastate commerce, or make any contracts therefor within the state of Kansas, and it never maintained an office or other place of business within the state, or had any employees or property within the state other than such employees and equipment as have sporadically and at random traversed the highways of Kansas over irregular routes while engaged, directly or indirectly, in the transportation of goods in interstate commerce.
The motor vehicles and equipment owned and operated by plaintiff, and the vehicles and equipment owned and operated by those persons domiciled outside of Kansas, were regularly kept by plaintiff in the state of Illinois, and by the other owners in states other than Kansas, and all of such vehicles and equipment were regularly kept outside the state when not actually engaged in the transportation of goods in interstate commerce, and at no time were physically located within Kansas, except sporadically and at random while traversing over irregular routes the highways of Kansas in the transportation of goods in interstate commerce. Such vehicles and equipment were at all times subject to taxation against the owners thereof in the states, respectively, in which such vehicles and equipment were regularly kept, and at the domicile of the respective owners. The vehicles and equipment registered by plaintiff under its license, but owned and operated by persons commercially domiciled in Kansas, are regularly kept in Kansas when not actually engaged outside of Kansas in the transportation of goods in interstate commerce, and have a situs in Kansas for the purpose of taxation against the respective owners thereof, and are constitutionally subject to taxation in Kansas against the owners thereof upon the full value, and are not constitutionally subject to taxation against the plaintiff in Kansas, or elsewhere, in respect to any portion of the value thereof.
The first cause of action challenges the constitutionality of the motor carriers act (G. S. 1957 Supp., 79-6a01, et seq.), under which plaintiff was taxed for the year 1959, and seeks injunctive relief. The second cause of action challenges the constitutionality of the 1959 amendment (G. S. 1959 Supp., 79-6a01, et seq.), under which plaintiff was taxed for the year 1960, and seeks injunctive relief. The third cause of action alleges that defendant director arbitrarily applied the formula provided by the statute in placing a value on plaintiff’s vehicles and equipment. The fourth cause of action seeks to enjoin defendant commission from cancelling plaintiff’s interstate license for failure to pay the tax for the years 1959 and 1960.
Defendants filed identical separate demurrers to the petition on five grounds. The first is that there is a misjoinder of causes of action in that the first three causes affect only defendant director and cannot be joined with the fourth cause which alone affects both defendants. The remaining four grounds of each demurrer are that each of the four causes fails to state facts sufficient to constitute a cause of action against such demurring defendant.
Each demurrer was overruled in its entirety, and each defendant was granted thirty days in which to file an answer. Defendants have appealed from those orders.
Notwithstanding the fact the petition asserts the unconstitutionality of various sections of the motor carriers act, and notwithstanding the fact the briefs of the parties to this appeal are devoted to questions concerning the constitutionality of the act, we nevertheless are of the opinion that, under the record presented, we should refrain, at this time, from passing on the broad and far-reaching constitutional questions urged. While courts will not refuse to pass on the constitutionality of statutes in any proceeding in which such determination is necessarily involved, unnecessary consideration of attacks on their validity will be avoided, and courts will not assume to pass upon constitutional questions unless they are properly before them. The general rule is that only those questions presented to and decided by a trial court will be considered on appeal, and the rule has particular application to matters pertaining to the constitutionality of a statute. (Missionary Baptist Convention v. Wimberly Chapel Baptist Church, 170 Kan. 684, 228 P. 2d 540; State, ex rel., v. Richardson, 174 Kan. 382, 390, 256 P. 2d 135; State, ex rel., v. Fadely, 180 Kan. 652, syl. 3, 308 P. 2d 537, and Board of County Commissioners v. Brown, 183 Kan. 19, syl. 2, 325 P. 2d 382.)
The status of this case is that of a demurrer to a petition, and, with respect to the principal matter urged, the petition, in order to be demurrable, must show on its face that it does not state facts sufficient to constitute a cause of action. (G. S. 1949, 60-705.) Neither of the orders overruling the demurrers states the basis or reason for the ruling. The assumption to be made, therefore, considering the grounds of the demurrers, is that the trial court was of the opinion there was no misjoinder of causes of action, and that each cause pleaded facts sufficient to state a cause of action. From the record we have no way of knowing whether the trial court even considered the constitutionality of the statutes involved. A statute may be constitutional in all respects and yet a cause of action can be stated on the ground of alleged illegal enforcement thereof, and, for all the record discloses, that may well have been the basis of the trial court’s orders in overruling the demurrers. Among other things, the petition alleges that at no time have the vehicles and equipment owned and operated by plaintiff, and registered by plaintiff, been physically located within Kansas except sporadically and at random while traversing Kansas highways, and that defendant director arbitrarily, unlawfully and without any basis, determined a ratio for plaintiff’s operations, and arbitrarily assessed the value of plaintiff’s property at a certain figure. In their brief defendants assert that the schedule filed by plaintiff was incomplete and did not comply with the statute, and therefore defendant director was justified in rejecting the same.
Certain aspects of questions here urged were before us in Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 327 P. 2d 836. In that case, however, issues were joined and the case was tried — rather than coming to this court on a demurrer to a petition.
The contention that causes of action are improperly joined requires but brief mention. It is clear there is only one remedy sought — injunction—to enjoin defendant director from assessing the tax and to enjoin defendant commission from enforcing collection of the tax. The two enforcement statutes are interrelated and stand side by side as procedures to collect the tax. It cannot be said the causes of action do not “affect” both defendants (G. S. 1949, 60-601). As to that ground, the demurrers were properly overruled.
In view of what has been said, we also conclude that the demurrers, on the grounds that each of the four causes fails to state facts sufficient to constitute a cause of action, were properly overruled, and that issues should be joined and the case should proceed to trial. Our decision in this matter is not to be construed as indicating any view, one way or the other, on the question of the constitutionality of the statutes involved. We hold merely that the petition contains allegations sufficient to withstand the demurrers and therefore they were properly overruled.
The judgment is affirmed.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.;
In this workmen’s compensation case the claimant, Pearl Gillaspie, sought death benefits on account of the death of Clyde J. Gillaspie, Claim was also made by three minor children, Jerry C. Gillaspie, born April 10, 1943, Roger Gillaspie, born May 3, 1944, and Donna L. Gillaspie, born May 31, 1946.
The appellant-respondents do not challenge the right of the three minor children to compensation but contend that Pearl Gillaspie was not the legal widow of the decedent within the meaning of the workmen’s compensation act. (G. S. 1949, 44-508 [/].) At the hearing before the workmen’s compensation examiner, the parties stipulated that the decedent sustained personal injury by accident arising out of and in the couse of his employment with respondents on March 3, 1962, and that death resulted on that day from the accident; that the parties were governed by the workmen’s compensation act and that the average annual wages of the decedent were sufficient for the maximum award; that decedent was divorced from Betty Gillaspie on April 14, 1960, there being the three minor children of that marriage heretofore named; that decedent was under order of the district court of Gove County to pay support for each of the children at the rate of $45 per month; that the accident and death occurred in Coffey County, and that notice and written claim for compensation were timely filed.
Pearl Gillaspie testified that she commenced living with Gillaspie on June 4, 1961, at Hiawatha; that during the period she lived with him she was totally dependent upon him for her livelihood; that although a marriage ceremony was never performed, she regarded herself as Gillaspies wife and that she and Gillaspie held themselves out as husband and wife and lived together as husband and wife from June 4, 1961, until his death; that they had planned to go to Las Vegas in January, 1962, to have a marriage ceremony performed, and continue on to California to visit Gillaspie’s parents but that working conditions required continual postponement; that the decedent always introduced her as his wife to members of his family as well as his friends and acquaintances; that Gillaspie told his parents and the three minor children that they were married; that she used the name of Pearl Gillaspie or Mrs. Clyde J. Gillaspie on their joint checking account and bills to the family were so made out; that the joint checking account was in The Peoples National Rank of Rurlington in the name of Pearl Gillaspie and Clyde Gillaspie or the survivor of them and each of the parties issued checks against the account, which were honored in due course by the bank; that she had been divorced from D. N. Cheek, Jr., on May 28, 1961, in Labette County, and that to her knowledge no one knew prior to the accident and death on March 3, 1962, that she and Gillaspie had not been legally united in a marriage ceremony.
There was evidence by other witnesses who testified for the claimant that they had known Pearl Gillaspie and the decedent for some time; that Gillaspie had introduced Pearl to them as his wife, and they always understood the Gillaspies were husband and wife; that Gillaspie publicly held Pearl out to be his wife, and they appeared to be happily married and were not separated at any time; that Gillaspie claimed Pearl as his wife for income tax purposes on the company records, and they signed the 1961 income tax returns and filed them with the proper authorities, using the names of Clyde Gillaspie and Pearl Gillaspie, and that the state of Kansas issued to Pearl Gillaspie upon her application a Kansas operators license and a fishing license during the year 1961.
Pearl was recalled as a witness for the minor children and testified she knew the decedent was making support payments for the children; that Jerry Gillaspie was married on March 12, 1962; that Roger Gillaspie was married on August 18, 1962, and that Donna L. Gillaspie was living with her mother, Betty Gillaspie. During her testimony she was asked the following questions and she made the following answers:
“Q. Did you and your husband mutually assent that you were husband and wife?
“A. Yes.
“Q. Notwithstanding the fact that you did not have a legal ceremony?
“A. Yes.
“Q. I don’t remember if I ever asked you or not. Did you perform all the functions as required of you as his wife between June 4, 1961, and March 3rd?
“A. Yes.
“Q. Did you ever speak of each other in privacy of each other as husband and wife?
“A. Yes.”
Pertinent findings of the workmen’s compensation examiner are quoted:
“In addition to the stipulations of the parties, it is by the Examiner found that from and after June 4, 1961, until the death of Clyde J. Gillaspie, said Clyde J. Gillaspie and Pearl Gillaspie did mutually assent to be husband and wife together, and that their intention to have a marriage ceremony performed at some time in the future was not a condition in the mind of either party to such assent; that the parties lacked capacity to become husband and wife until six months following May 28, 1961, but that with the ripening of such capacity, the elements of capacity and mutual present assent and intent to be husband and wife were joined and a valid common-law marriage then and there arose and continued to exist until the death of Clyde J. Gillaspie on March 3, 1962. . . .”
Accordingly, an award of workmen’s compensation was made in favor of Pearl Gillaspie and the minor children against the respondents for total death benefits.
On appeal, the district court, after considering the evidence, the argument of counsel and the briefs submitted, found there was sufficient evidence to support the finding of the workmen’s compensation examiner. Judgment was entered in favor of Pearl Gillaspie and the minor children in accordance with those findings and the award of the workmen’s compensation director, and respondents were ordered to pay the costs.
Was Pearl Gillaspie the legal widow of the decedent within the meaning of G. S. 1949, 44-508 (/)? The pertinent portion of that statute reads:
“ “Dependents’ means such members of the workman’s family as were wholly or in part dependent upon the workman at the time of the accident. “Members of a family,’ for the purpose of this act, means only legal widow or husband, as the case may be, and children. . . .”
The question poses another question: Was there a common-law marriage? The respondents argue that at most the claimant’s evidence showed she and Gillaspie lived together as man and wife at a time when she knew they could not be married because of the six months’ disability (G. S. 1949, 60-1512), and that after her disability was removed, they lived together as a matter of convenience to each other until such time as they could be married in the future, and cite and rely upon Pitney v. Pitney, 151 Kan. 848, 101 P. 2d 933. The argument is wide of the mark. Kansas has long recognized the validity of common-law marriage. It is not necessary that we here detail the various elements of proof to establish the existence of the marriage, but it may be said the basic elements essential in creation of such a relationship are a capacity to marry, a present marriage agreement, and a holding out of each other to the public as husband and wife. (State v. Hughes, 35 Kan. 626, 12 Pac. 28, 57 Am. Rep. 195; State v. Walker, 36 Kan. 297, 13 Pac. 279; Shorten v. Judd, 60 Kan. 73, 55 Pac. 286, Tyner v. Schoonover, 79 Kan. 573, 100 Pac. 478; Butler v. Butler, 130 Kan. 186, 285 Pac. 627; Jacoby v. Jacoby, 132 Kan. 77, 294 Pac. 857; Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P. 2d 276; Knollenberg v. Meyer, 151 Kan. 768, 100 P. 2d 746; Cain v. Cain, 160 Kan. 672, 165 P. 2d 221; Smith v. Smith, 161 Kan. 1, 3, 165 P. 2d 593; In re Estate of Freeman, 171 Kan. 211, 231 P. 2d 261; Burnett v. Burnett, 192 Kan. 247, 387 P. 2d 195. The Pitney case, supra, is not helpful to respondents. There it was held that the findings of the trial court and the testimony of the plaintiff established that the parties had lived together in the same house as man and wife but that throughout the relationship the man had promised to have a marriage ceremony performed in the future. There was no present contract. There was also a failure of proof of any holding of each other out to the public as husband and wife. (Cain v. Cain, supra.)
In the instant case the district court found there was a valid common-law marriage, and the evidence abundantly sustains the finding. The claimant was divorced from her former husband on May 28, 1961. Six days later, on June 4, 1961, she and Gillaspie presently agreed to be married despite the fact no marriage ceremony was performed. Pearl’s union with Gillaspie was entered into in good faith and cohabitation was genuinely matrimonial in its inception on the part of both. They publicly acknowledged each other as husband and wife, assumed marriage rights, duties and obligations and were reputed to be husband and wife in the communities in which they lived. While the marriage of Pearl and Gillaspie was of no legal effect in the first instance (G. S. 1949, 60-1512), persistence of the relation after Pearl’s disability was removed on November 28, 1961, made them husband and wife under the common law without further proof of a new express exchange of consent. (Matney v. Linn, 59 Kan. 613, 54 Pac. 668; Renfrow v. Renfrow, 60 Kan. 277, 56 Pac. 534; Schuchart v. Scuchart, 61 Kan. 597, 60 Pac. 311, 50 L. R. A. 180, 78 Am. St. Rep. 342; Freeman v. Fowler Packing Co., supra; Haywood v. Nichols, 99 Kan. 138, 160 Pac. 982; Peters v. Peters, 177 Kan. 100, 276 P. 2d 302.) The fact that the parties may have intended to have a marriage-ceremony performed in the future at Las Vegas becomes immaterial. At Gillaspie’s death Pearl became his widow.
In Scuchart v. Scuchart, supra, it was held:
“A man and woman were formally married when one of them was under disability because of a decree of divorce previously granted had not become effective. Both intended in good faith to assume the marital relation, and after the disability was removed they decided and did continue to live together as husband and wife without the performance of another marriage ceremony. Held, that the facts stated were sufficient to establish a common-law marriage and to make them husband and wife after the disability was removed.”
In Burnett v. Burnett, supra, it was said:
“This court has held in numerous cases that where the parties continue to live together as husband and wife after the marriage restrictions are removed they become husband and wife in fact under the common law.” (l. c. 250.)
We are not without precedent in applying Section 44-508 (/) to the rights of a woman who, on the date of her husband’s death, was married to him by a marital contract recognized as valid under the laws of the state of Kansas. In Freeman v. Fowler Packing Co., supra, Thelma Freeman claimed compensation for death of her husband which occurred on September 13, 1930. She was divorced from a former husband on March 23, 1929. Two weeks later, on April 5, 1929, she married Benson Freeman, the workman, in Kansas, contrary to the statute (G. S. 1949, 60-1512) providing that marriage within six months after divorce is bigamous and void. It was held the claimant-wife was the “legal widow” within the meaning of Section 44-508 (j). In the opinion it was said:
“The result is, the formal marriage of Thelma and Benson Freeman was void. They continued, however, to live together as husband and wife after expiration of the six months’ period, and were so living together at the time of his death, which occurred on September 13, 1930. This being true, after the time elapsed within which Thelma was forbidden to marry, she was Benson’s common-law wife (Renfrow v. Renfrow, 60 Kan. 277, 56 Pac. 534), and at his death she became his widow.”
“In 1927 the statute was amended by inserting the word ‘legal’ before the word ‘widow.’ (R. S. 1931 Supp. 44-508 [j].) Tire word legal’ has a variety of meanings: conforming to law; according to law; required or permitted by law; not forbidden or discountenanced by law. (Black’s Law Dictionary.) The word also means ‘good and effectual in law,’ and in that sense Thelma was Benson’s legal widow.
“In many instances it would be insufferably unjust to deny compensation to the survivor of a common-law marriage. If the legislature intended to do that, it would have been easy to express the intention in unambiguous terms. Under these circumstances, the court conceives the purpose of the amendment to have been to deny compensation to any survivor who cannot show a marriage which the law recognizes, and to deny compensation to the survivor of a marriage contracted according to formal legal requirements, but in fact .of no legal effect. A marriage declared by statute to be incestuous, as between first cousins, is an example. Another example is the marriage of Thelma and Benson during the period within which the law did not recognize it as valid for any purpose. This interpretation gives to the word ‘legal’ a meaning not merely technically correct, but correct according to approved usage in lay speech (R. S. 77-201, Second), allows scope for operation of the statute, and avoids undue severity of result in application.” (l. c. 379, 380.)
In Peters v. Peters, supra, the deceased workman, James Peters, was divorced from a former wife on September 3, 1952. Approximately three months later, on December 4, 1952, he married Venita Fae Peters in Missouri. They returned to Kansas and lived together as husband and wife in Bazine, and- were so living together when he was accidentally electrocuted on January 20, 1953. On the date of his death, Venita was pregnant with his child, conceived during the relationship. It was held that since death occurred within the six-month period barring the workman’s legal marriage to Venita, the formal marriage in Missouri was void and she was not his common-law wife and was not his legal widow at his death. After citing and quoting from Freeman v. Fowler Packing Co., supra, the court, speaking through the present chief justice, said:
“Thus it appears in the Freeman case, that if the workman had died within the six months’ period, this court would have denied recovery to the woman there involved on the basis she was not his legal widow, within the meaning of that term as used in the statute. The fact, as is pointed out, the marriage ceremony was performed in Kansas affords no sound basis for distinguishing the foregoing case from the one at bar. The opinion makes no such distinction. Neither does our statute. As we analyze the case the result reached, insofar as it pertains to the force and effect to be given our Workmen’s Compensation Act, and in particular 44-508 (j), would have been the same if the marriage ceremony had been performed in Missouri.” (l. c. 108.)
Likewise here. The fact Pearl’s marriage to Gillaspie was a common-law marriage places it in no different posture than the marriage ceremony in either the Freeman or Peters case. In State, ex rel., v. Anderson, 114 Kan. 297, 217 Pac. 327, it was said that because marriage is a common right, it is the policy of the state to encourage it and that,
“The matrimonial status of a man and woman living together as husband and wife is not annulled by their failure to comply with the terms of a statute declaring it to be their duty to appear before an officer and formally solemnize their marriage. They may be liable for the penalties for neglect to follow the requirements of the statute, but their relations are not nullified thereby. (Renfrow v. Renfrow, 60 Kan. 227, 56 Pac. 534.)” (l. c. 303.)
Since Pearl and Gillaspie continued to live together as husband and wife after the expiration of the six-month period, we hold that she was his wife under a form of marriage contract which the law recognizes as valid and at his death she was his “legal widow” within the meaning of G. S. 1949, 44-508 (j).
The judgment is affirmed.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
This was an action by Mary A. Jones, on behalf of herself and all other stockholders of The Kansas City Embalming and Casket Company, a corporation doing business as J. W. Jones Funeral Home, against certain defendants, for an accounting of all moneys, funds and resources of the corporation, and for equitable relief.
Following the filing of the action, various parties intervened, claiming ownership of shares of stock and seeking to compel the disclosure of receipts and disbursements of the corporation since its organization, and other equitable relief.
Defendant, Eugene English, filed his answer, alleging that he was president of the corporation and owner of certain stock which had not yet been issued, and requested that plaintiff be required to account for moneys received by her as a corporate official, and for other equitable relief.
The trial court appointed a special master to take the evidence. He did so and subsequently made and filed findings of fact and conclusions of law. After hearing arguments on post-trial motions by certain of the parties to set aside the findings and conclusions of the special master, the trial court, on July 6, 1961, rendered its judgment, which, for all practical purposes, substantially approved and adopted the findings and conclusions made by the special master. Motions for a new trial were filed by defendants and intervenors.
In the meantime defendant English, and all but one of the intervenors, appealed to this court from the judgment, orders and decisions of the trial court. At the hearing of that appeal it developed that the various motions for a new trial were still pending in the trial court and undisposed of. This court, therefore, refused to decide the appeal on its merits and remanded the case to the trial court for further proceedings. Our decision, which was filed on June 9, 1962, and which contains a rather complete statement of the case, is found in Jones v. Kansas City Embalming & Casket Co., 190 Kan. 51, 372 P. 2d 60.
The motions for a new trial were then heard and argued on September 4 and 15, 1962, and on November 28, 1962, and alleged newly discovered evidence in support of the motions was introduced.
All motions for a new trial were overruled and it was ordered that the receiver of the corporation issue stock to the respective shareholders in the amount and name as previously determined by the earlier judgment of July 6, 1961.
The appeal presently before us is by defendant English, and is from the judgment of July 6, 1961, and the order of November 28, 1962, overruling his motion for a new trial.
It is contended the court erred (1) in its judgment of July 6, 1961, with respect to ownership of the stock of the corporation; (2) in refusing to compel Mr. Stevens, an attorney, to testify at the hearing on the motions for new trial, and (3) in overruling the motion of defendant English for a new trial.
The files of this court disclose that on August 1, 1963, while this appeal was pending, the plaintiff-appellee, Mary A. Jones, died, and that the Commercial National Bank of Kansas City was appointed special administrator of her estate. The action was revived in the lower court in the name of the special administrator, and in this court such special administrator was substituted as party plaintiff-appellee.
With respect to the claim the trial court erred in its judgment of July 6, 1961, in which it substantially approved and adopted the findings and conclusions of the special master as to the ownership of stock of the corporation, no useful purpose will be served by setting forth the findings in detail. The evidence was quite conflicting, and at the time of rendering judgment the trial court commented on it at considerable length. Notwithstanding the contention to the contrary, the record contains abundant competent, substantial evidence to support the trial court’s findings, and they in turn support the conclusions and judgment rendered.
It is contended that at the hearing on the motion for a new trial Mr. Stevens, an attorney, should have been compelled to testify. A short answer to this argument is that in open court Mr. Stevens stated that he was “an attorney in this case” and therefore was opposed to testifying. The trial court in upholding his position stated:
“Secondly, Mr. Stevens has been and apparently still is an attorney in this matter as far as I know. There’s to be no withdrawal. The Court will not force him to testify because of the attorney client relationship.”
Under the circumstances, the ruling was proper.
Finally, it is contended the motions for a new trial were erroneously overruled, and our attention also is directed to the specifications of error contained in the abstract in the former appeal. Reference to them, however, shows that essentially the contention simply is that the court was wrong in rendering the judgment that it did. Some point also is made concerning alleged “newly discovered evidence” introduced at the hearing on the motions for a new trial. This was essentially a fact case and the record shows that it was hotly contested from beginning to end, and it contains numerous charges and countercharges regarding the disposition of various sums of money. The fact remains, however, that the trial court, after considering all of the evidence, rendered what it considered to be the only proper judgment. From its comments at the time of overruling the motions for new trial, it is quite apparent the trial court found that defendant-appellant English had not sustained the burden of proof with respect to certain countercharges made by him, and suggested there was a proper time and place to decide those matters — in an action by the corporation against the alleged wrongdoers.
The record presented in this case is in a number of respects quite confusing, but we nevertheless have no difficulty in concluding that the findings are supported by the evidence and that they in turn support the conclusions and judgment rendered. Defendant-appellant English has not made it affirmatively appear the trial court committed prejudicial error in any respect, and, such being the' case — the motions for a new trial were properly overruled and the: judgment is affirmed.
Fatzer, J., dissents. | [
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The opinion of the court was delivered by
Price, J.:
In this original proceeding for a writ of habeas corpus, the petitioner seeks his release from the state penitentiary.
In June 23,1953, in the district court of Russell county, petitioner, being represented by counsel, entered his plea of guilty to one count of grand larceny and to two counts of burglary in the second degree. On the grand larceny charge he was sentenced to confinement for not more than five years (G. S. 1949, 21-534). On each of the burglary charges he was sentenced to confinement for not more than ten years (G. S. 1949, 21-523). It was ordered that the three sentences run concurrently. Pursuant thereto petitioner was confined in the state penitentiary.
In September, 1956, petitioner was released on parole.
While on parole petitioner was charged in the district court of Shawnee county (case No. 20,814) with six counts of burglary in the second degree and larceny in connection therewith. The offenses were alleged to have occurred in December, 1956.
In January, 1957, while in custody in the county jail of Shawnee county pending trial on the burglary and larceny charges, petitioner escaped. He was apprehended.
In the meantime, in January, 1957, petitioner was declared delinquent on his parole from the Russell county sentences.
On February 20, 1957, in the district court of Shawnee county (case No. 20,814), petitioner, being represented by counsel, entered his plea of guilty to one count of burglary in the second degree and larceny in connection therewith, and was sentenced to confinement for not less than five years nor more than ten years (G. S. 1949, 21-523 and 21-524). On motion of the state the remaining five counts were dismissed.
In the meantime an information was filed in the district court of Shawnee county (case No. 20,817) charging petitioner with the offense of escaping custody. On February 20, 1957, petitioner, being represented by counsel, entered a plea of guilty to that charge and was sentenced to confinement “until discharged according to law,” such sentence being “imposed under Sec. 21-735, G. S. of Kansas, 1949.”
Petitioner’s contention appears to be that upon his return to the penitentiary he was improperly “booked” by the prison authorities; that he is entitled to credit on the Shawnee county sentences from the date they were imposed, and that with “good-time credits” he is entitled to his release.
There is no merit to this contention.
The penalty for an offense is that provided by statute at the time the offense was committed. (State v. Woodbury, 132 Kan. 22, syl. 8, 294 Pac. 928; State v. Johnson, 185 Kan. 1, 5, 340 P. 2d 373.) At the time petitioner committed the offenses in Shawnee county he was on parole from the penitentiary, having been confined there pursuant to the Russell county sentences. In force at that time was G. S. 1949, 62-1528, which provides that any prisoner at large upon parole or conditional release who shall commit a fresh crime, and upon conviction thereof shall be sentenced anew to the penitentiary, shall be subject to serve the second sentence after the first sentence is served or annulled, and said second sentence is to commence from the termination of his liability upon the first or former sentence. The Shawnee county sentences, therefore, did not commence to run until the expiration of the prior Russell county sentences. (Pyle v. Edmonson, 178 Kan. 521, 290 P. 2d 100; Blount v. Hand, 187 Kan. 494, 357 P. 2d 859.) This being so, petitioner has not, under any theory or computation of time, served the sentences imposed by the district court of Shawnee county on February 20, 1957, and therefore is not entitled to his release.
Two other points require brief mention.
In sentencing petitioner the district court of Shawnee county did not specify whether the two sentences imposed were to run concurrently or consecutively. The matter, therefore, is governed by G. S. 1949, 62-1512, and what was said and held in Beck v. Fetters, 137 Kan. 750, 22 P. 2d 479; Moore v. Hand, 187 Kan. 260, 356 P. 2d 809, and Moore v. Crouse, 191 Kan. 323, 380 P. 2d 373. The Shawnee county sentences are to run consecutively, and the sentence on the burglary and larceny charge (case No. 20,814), having been imposed first, the sentence on the escaping custody charge (case No. 20.817) does not commence until the expiration of the sentence on the burglary and larceny charge.
The other matter is this:
In the “escaping custody” case in Shawnee county (case No. 20.817) the information charged that petitioner escaped custody “pending trial for burglary and larceny.” Such offense, that is, escaping while awaiting trial and before conviction, is covered by G. S. 1949, 21-736, and the maximum penalty provided is confinement for not to exceed two years. The court, however, imposed the sentence provided by G. S. 1949, 21-735, for escaping following conviction, the maximum penalty for which is confinement for not to exceed three years. It is clear that the information charged, and that defendant pleaded guilty to, an offense under G. S. 1949, 21-736, rather than G. S. 1949, 21-735, and that the proper sentence should have been confinement for not to exceed two years.
Under the authority of Richardson v. Hand, 182 Kan. 326, 320 P. 2d 837; Johnson v. Hand, 189 Kan. 103, syllabi 2 and 3, 367 P. 2d 70, and Wiles v. Board of Probation & Parole, 191 Kan. 705, 708, 383 P. 2d 969, it is ordered and directed that petitioner be taken by the proper authorities before the district court of Shawnee county, and that in case No. 20,817 such court impose a proper sentence in accordance with the provisions of G. S. 1949, 21-736.
The petition for a writ of habeas corpus is denied.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment rendered in a wrongful death action. The issues presented for review require a rather detailed statement of the facts.
The defendant, I. D. Barber, was the owner of certain real property located in the 9400 block on West Central Avenue in the city of Wichita, Kansas. About February 25, 1959, he started building a shopping center at the location. He subcontracted various portions of the work including a contract with the Loper Electric Company, Inc., for all of the electrical wiring and the setting of a service pole to the rear of the building to support the electric power lines from the main line to the shopping center.
On March 17, 1959, Mr. Shumate, a commercial representative of Kansas Gas and Electric Company, visited with Barber at the shopping center location. Thereafter, Shumate prepared preliminary papers on the project in the K. G. & E. oiBces. Shumate contacted the Loper Electric Company on March 25, 1959, and obtained additional information as to the type service which would be required. During this conversation, K. G. & E. was informed by Loper Electric Company that service was required to be in stalled by April 25, 1959. After Shumate had obtained the necessary information from Loper Electric Company that was required, he proceeded to prepare additional documents on K. G. & E. forms preparatory to the installation of service as requested. A work order was prepared, a plot plan was obtained from Loper Electric Company and a notation was put on the work order to “please rush.” The work was scheduled the week of April 9, 1959. After the job was placed on the work schedule, it would take in excess of 3 weeks before the construction crews of K. G. & E. could actually perform the work.
In the last week of April, 1959, Barber notified Loper that he had to have the service pole set in order to start the construction of black top surfacing. Loper stated that he did not have a clamp which was necessary to use in setting the pole and that he would have to set it on a temporary basis. He probably set the pole the same day. The pole was set in the ground approximately 15 inches deep.
The pole was not intended to be self supporting but was to be fastened to the structure for support by the use of 14 inch bolts which had been built into the wall of the building. The clamp which was to go around the pole and fasten to the bolts was not immediately available. The pole was temporarily fastened to the eaves of the building by a plumber’s strap and screws or nails. There was no signal or warning of any kind placed on the service pole.
On the morning of May 1,1959, a construction crew of K. G. & E., including the decedent, James Mathew Graham, went to the premises to perform the services shown by their work order. The work order included materials which were to be used on hooking up the service pole to the main line, hanging a transformer, making the necessary connections, running service lines to the service pole and checking the voltage.
The foreman of the crew looked at the pole and saw nothing wrong with it. It had been set in the ground, tamped, and had a little strap around it at the top of the building. He did not know the purpose of the strap but saw no reason to suspect the pole was not safe. Graham was told to climb the service pole and put the necessary equipment on it. The other crew members who were present at the time testified that they didn’t see anything unusual or wrong or any danger signals about the pole being unsafe to climb. Graham was stretching a wire putting tension on the pole when it suddenly gave way and fell to the ground. The pole fell on Graham, critically injurying him. He died a few minutes after he arrived at the hospital.
The action was brought by the widow of James Mathew Graham for the benefit of herself and their two minor children against the Loper Electric Company, Inc. and I. D. Barber. When the case came on for trial, a demurrer was sustained to the opening statement of plaintiff as to the defendant Barber.
The jury returned a verdict against the Loper Electric Company in the amount of $22,500 which was approved by the court. The Loper Electric Company has appealed.
The appellant presents its case here on the assumption that the deceased was a licensee of the appellant. The appellee tried her case below and defends here on the theory that the deceased was a business invitee of appellant.
The degree of care which an owner or occupant of premises owes to a licensee and that which is owed to an invitee does not appear to be in serious dispute. The general rules will be briefly stated.
Generally a mere licensee has no cause of action because of injury received through the negligence of the owner or occupant of the premises to which the license extends. The owner or occupant of premises owes no duty to the licensee except to refrain from wilfully or wantonly injuring him. (Backman v. Vickers Petroleum Co., 187 Kan. 448, 357 P. 2d 748.)
Negligent injury of a licensee will not create a cause of action unless it is equivalent to wilfullness or wantonness. A mere licensee takes the premises as he finds them and assumes all risks incident to the condition of the premises. The owner or occupant of the premises may make any lawful use or changes in its property creating dangerous conditions without liability to a licensee for injury therefrom. (Hogan v. Hess Construction Co., 187 Kan. 559, 358 P. 2d 755.) The limited liability or immunity from liability for injuries to a licensee applies to one who is lawfully occupying the premises as well as to the owner.
The owner or occupant of premises owes a much higher degree of care to avoid injury to an invitee than to a mere licensee. The owner or occupant of premises is liable to an invitee for injuries resulting from failure to exercise reasonable or ordinary care for the invitee’s safety. The duty to exercise ordinary care is active and positive, and no element of wilfullness or wantonness need be present. The inviter has the duty to protect an invitee against any danger that may be reasonably anticipated. The owner or occupant of premises is charged with the duty of exercising reasonable care to keep the premises in reasonable safe and suitable condition so as to avoid injury to an invitee or of warning an invitee of concealed perils of which the owner or occupant knows or should know by the exercise of reasonable diligence. (Seymour v. Kelso, 136 Kan. 543, 16 P. 2d 958; Thogmartin v. Koppel, 145 Kan. 347, 65 P. 2d 571; Glenn v. Montgomery Ward & Co., 160 Kan. 488, 163 P. 2d 427; George v. Ayesh, 179 Kan. 324, 295 P. 2d 660; Gardner v. Koenig, 188 Kan. 135, 360 P. 2d 1107.)
The petition contained no allegation of wanton or wilfull negligence which would create a liability on the part of the appellant to a mere licensee. The allegations of negligence read:
“That the direct and proximate joint and concurrent cause of his death was the negligence of the defendants and each of them, their agents, servants and employees, which negligence consisted of the following acts and omissions to-wit:
“(1.) In failing to exercise ordinary and reasonable care in not setting the pole involved at a safe depth in the ground.
“(2.) In failing to adequately secure said pole to the adjacent building.
“(3.) In violating their duty to the employees of Kansas Gas and Electric Company and particularly this decedent to set the pole in a safe and proper manner at a time when they knew that linemen would at their express invitation, be working on said pole and connecting heavy electrical lines thereto.
“(4.) In failing to warn the decedent of the inherent dangers of climbing said pole and attaching heavy wiring thereto.
“(5.) In failing to exercise reasonable and proper care which ordinarily prudent persons would have exercised toward persons being invited on the premises to work on top of said pole.
“(6.) In failing to see the deceased in a position of danger when by the exercise of reasonable care they should have known the decedent or others would be placed in a position of danger by reason of the manner in which the pole was set.”
The liability of the appellant therefore hinges on tíre determination of whether or not Graham, an employee of K. G. & E., was on the premises as a business invitee.
Although there are a few general principles which serve as a guide, to a great extent, whether a person is on property as a licensee or an invitee depends on the facts and circumstances of each particular case.
A licensee is defined in 65 C. J. S. Negligence § 32a, p. 481 as follows:
“The authorities have been said to differ widely as to when a person is to be treated as a licensee, but, as a general rule, a person is a ‘licensee,’ as that term is used in the law of negligence, where his entry or use of the premises is permitted, expressly or impliedly, by the owner or person in control thereof, or by operation of law, so that he is not a trespasser as discussed supra § 23, but is without any express or implied invitation, since a license implies permission or authority and is more than mere sufferance, but generally it does not imply an invitation. A licensee, therefore, occupies a position somewhere between that of a trespasser and that of an invitee.”
An invitee is also defined in 65 C. J. S. Negligence § 43 (1), p. 508 where it is stated:
“Broadly stated, an invitee is a person who enters on the premises of another in answer to an express or implied invitation. The term ‘invitee’ is more fully defined as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage, and the similar term ‘business visitor’ is defined as a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them. Whether a person entering the premises of another is an invitee depends on the purpose or the nature of business which brings him on the premises.”
The definition continues:
“An invitation is implied where the entry on, or use of, the premises is for a purpose which is, or is supposed to be, beneficial to the owner or occupant, or where the entry or use of the premises is in the mutual interest or for the mutual benefit of the owner or occupant and the person who comes thereon, as where it is in the usual course of business or for a purpose connected with the business in which the owner or occupant is engaged or which he permits to be carried on there. As a general rule, this element of interest in, or benefit to, the owner or occupant, or mutual interest or benefit, is necessary to give rise to an implied invitation, and in the absence thereof the person entering does not occupy the status of an invitee, at least where he is not allured by an attraction constituting an invitation.” (§ 43 (3), p. 511.)
It may be generally stated that an invitation may be implied if there is some relationship inuring to the benefit of both the injured party and that of the occupier of the premises. (Bessette v. Ernsting, 155 Kan. 540, 127 P. 2d 438.)
With the general rules before us we should consider the pertinent facts which tend to determine the relationship.
Loper Electric Company was a subcontractor of the owner of the premises who was acting as his own general contractor. There were other subcontractors in connection with the construction project. Loper Electric Company was to install all of the electrical wiring for the building and the service pole at the rear of the building. It knew the service pole was to be installed for the purpose of supporting the lead lines extending from K. G. & E.’s power lines to the building. It knew that K. G. & E. had been requested to install the service by April 25, 1959. It installed the service pole sometime during the last week or ten days in April on the temporary basis. The employees of K. G. & E. started the installation on May 1, 1959. It was to Loper Electric Company’s interest to have K. G. & E. run the lines from their power lines to the service pole as it would not be paid for the pole and equipment until everything was completed and satisfactory to the owner. The installations of neither K. G. & E. nor the Loper Electric Company could be considered complete until they were tied together at the top of the service pole and tested for proper service.
We are forced to conclude that it was to the mutual benefit of the owner, the occupant Loper Electric Company and K. G. & E. that the wires be extended to the service pole, and that there was an implied, if not a direct, invitation to K. G. & E. and its employees to enter the premises for the purpose of making the installation.
The appellant relies chiefly on Toomey v. Wichison Industrial Gas Co., 144 Kan. 534, 61 P. 2d 891 as authority for its contention that the employees of K. G. & E. were mere licensees of the appellant. The facts in the Toomey case are readily distinguishable from the facts in the case now before us. In the Toomey case the employees of two competing gas companies entered the premises. The employees of one company entered for the purpose of disconnecting service. The employees of the other company entered for the purpose of connecting service. The work being done by one company was not for the mutual benefit of the other and there could be no implied invitation. The case of Birt v. Drillers Gas Co., 177 Kan. 299, 279 P. 2d 280 also relied on by appellant can be distinguished for the same reason.
The jury disposed of the question of negligence in answer to a special question as follows:
“If you find for the plaintiff, state the act or acts of negligence you find against the defendant Loper Electric Company.
“Answer: Negligence on the part of Loper Electric Company, Inc., due to the fact that the pole was temporarily set in an unsafe and hazardous manner and not marked to indicate this condition by visual inspection. Furthermore Loper Electric Company did not mark or notify K. G. & E. of the unsafe and hazardous condition of the pole.”
There was ample evidence to support the special finding of the jury.
What has been said disposes of appellant’s contentions that the trial court erred in refusing to sustain appellant’s demurrer to the evidence, motion for judgment and motion for a directed verdict.
The appellant contends that the trial court erred in not giving counsel an opportunity to argue the merits of requested instructions. We find no merit in the contention. The law of the case was argued on numerous occasions. It was argued at the beginning of the trial; on demurrer to appellee’s opening statement; at the end of the first day of the trial; at the end of the second day of the trial. The third day of the trial was adjourned early and the court spent some two hours with counsel discussing instructions. Counsel returned to the court’s chambers early the next morning and the instructions were again discussed. Copies of the instructions were given to counsel for both parties before they were read to the jury.
Appellant contends that the trial court erred in not permitting its counsel to dictate objections to the instructions into the record before the instructions were read to the jury. Before the instructions were given the trial court announced that the record on objection to instructions would be made after the jury retired and would relate back to the point of time at which he was speaking. The appellant’s rights were in no way prejudiced. The instructions which were to be given had been determined. The only purpose of the record was to preserve appellant’s objections for review on appeal. The trial court protected that right.
The appellant makes extensive objections to all of the instructions given by the trial court and its refusal to give the instructions requested. The objections to the instructions are based largely on appellant’s contention that the relationship of K. G. & E. and the Loper Electric Company was that of licensor and licensee. The trial court correctly disagreed with appellant’s contention. The relationship being that of inviter and invitee, the instructions requested by appellant as to the degree of care owed to a mere licensee were not applicable.
Other alleged trial errors have been carefully examined and are found to be without substantial merit. A careful examination of the record discloses no trial errors justifying a reversal of the judgment.
The judgment is affirmed.
approved by the court.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment denying a petition for injunction which sought to enjoin the condemnation of land for the purpose of constructing a grade separation at the intersection of two main highways.
The general facts, which are not in dispute, will first be stated. The defendant, the State Highway Commission, straightened U. S. Highway 50S and relocated the highway intersection of U. S. 50S and U. S. 281 about two miles to the south of St. John, Kansas. The new intersection was opened in October, 1956. Following the relocation of the crossing, the plaintiffs made plans to construct a motel, restaurant, and service station on their land in the southwest quadrant of the relocated intersection at a cost approximating $750,000.
The officials and engineers of the State Highway Commission became alarmed by the accident rate at the newly established intersection. A study was made by the safety engineers on April 17, 1957. The director of safety recommended that a grade separation be considered for the U. S. 50S and U. S. 281 junction and that sufficient right-of-way and access rights be acquired for this purpose as soon as it was practical to do so. On April 29,1957, the assistant state highway engineer directed the engineer of design to prepare a layout for an interchange at the junction so that right-of-way plans could be prepared.
On May 8, 1957, the State Highway Commission adopted a resolution authorizing the right-of-way department to acquire by purchase or condemnation the right-of-way and access rights for a diamond interchange project. Pursuant to this authorization a condemnation petition was filed July 10, 1957, in the district court of Stafford County, Kansas. The district court approved the petition and appointed appraisers who viewed the property and filed their report and award. On August 14, 1957, the State Highway Commission authorized the payment of the amount of the appraisers’ award in the sum of $13,375.10. On August 20, 1957, the State Highway Commission paid the amount of the award into the office of the clerk of the district court. The plaintiffs and the Quality Realty, Inc., another landowner, appealed from the award of the appraisers in the condemnation proceeding. On or about October 8, 1958, a settlement was made of the appeal of Quality Realty, Inc. The condemnation appeal of the plaintiffs is still pending.
On December 5, 1958, some sixteen months after commencement of the condemnation proceeding, the plaintiffs commenced this proceeding in the district court of Stafford County to enjoin the condemnation proceedings. The case was transferred to the district court of Shawnee County for trial.
More detailed facts will be presented as we discuss the contentions of plaintiffs to which they are applicable.
The district court entered judgment denying the injunction and plaintiffs have appealed.
The appellants contend that the appellee is seeking to condemn land which it may not use for many years, and is in effect speculating in land values, all of which it has no authority to do.
The condemnation proceedings were brought under the authority of the provisions of G. S. 1961 Supp., 68-413, which authorizes the acquistion of right-of-way under the procedure provided in G. S. 1949, 26-101 et seq., for the purpose of establishing, laying out, opening, constructing, maintaining, and improving the state highway system, and the provisions of G S. 1961 Supp., 68-1902, which grants the appellee the authority to establish controlled access facilities and to construct and maintain frontage roads and to acquire public and private property, including the right of access for such control access facilities and frontage roads by condemnation proceedings.
The statutes place no restrictions on the appellee as to the acquisition of land for anticipated future use. The matter is therefore left to its sound discretion.
It may be stated as a general proposition of law that the appellee could not speculate in land values by acquiring land through condemnation when there was no reasonable anticipation that the land would ever be used for highway purposes. However, the construction and maintenance of a state highway system requires planning and programming well into the future. The responsibility is placed on the State Highway Commission to determine what land will be necessary for carrying forward the highway program.
The inherent power of the legislature over eminent domain is limited only by constitutional restrictions and inhibitions. (Glover v. State Highway Comm., 147 Kan. 279, 77 P. 2d 189; Weast v. Budd, 186 Kan. 249, 349 P. 2d 912.) It rests with the legislature to determine the power of eminent domain, when the power may be exercised and the character, method and extent of such exercise. (Irrigation Co. v. Klein, 63 Kan. 484, 65 Pac. 684; Wallace v. City of Winfield, 98 Kan. 651, 159 Pac. 11.) The power of eminent domain can only be exercised by virtue of a legislative enactment. (Sutton v. Frazier, 183 Kan. 33, 325 P. 2d 338.) However, once the legislature has delegated to a public authority the power to determine the necessity of exercising the power, the decision of the grantee as to the necessity can only be reviewed by the courts for the purpose of considering public use, fraud, bad faith, or abuse of discretion. (State, ex rel., v. City of Topeka, 176 Kan. 240, 270 P. 2d 270; 29 C. J. S. 882, Eminent Domain, § 89b.) A court cannot sit in judgment on the motives actuating a public authority in pursuing a course authorized by the legislature. (DePriest v. City of Salina, 101 Kan. 810, 168 Pac. 872.)
The facts in this case do not indicate lack of public use, bad faith or abuse of discretion on the part of the appellee in the exercise of its authority.
Refore considering the facts pertaining to this particular issue, we pause to consider the state of the record. The appellee suggests that the abstract of appellants makes no attempt to produce or abstract any substantial part of the evidence or exhibits which were produced in the trial court. It states in its brief:
“The appellants are hardly in a position to ask the Supreme Court to review the evidence when they have not produced the evidence to be considered.
“We call the court’s attention to the recent case of Jocich v. Greyhound Cab Co., 188 Kan. 268, 362 P. 2d 27, where at page 269 the court stated:
“ ‘In view of the contentions of counsel for the parties, and because of the confusing nature of the record presented by the abstract, it has been necessary to resort to the files of the trial court and the transcript of the record. The transcript discloses the omission of the testimony of two witnesses, one being a physician. Therefore, questions relating to the sufficiency of the evidence cannot be reviewed.’
“In view of the failure of the appellants to abstract the evidence, the appellants are bound by the general findings of the trial court in all matters with reference to the weight or sufficiency of the evidence. . . .”
The appellee made no attempt to comply with rule 5 of the Rules of the Supreme Court in which it is stated:
“. . . If the appellee shall claim that such abstract is incomplete for the purpose stated or is inaccurate, he shall furnish a counter-abstract correcting any such omissions or inaccuracies. . .
There is no way that this court can determine whether an abstract contains omissions unless the omissions are abstracted by the appellee, or unless this court resorts to the files of the trial court and its transcript of the record. The burden of establishing the inadequacy of appellants’ abstract should be assumed by the appellee, not this court.
We have, however, called for the files of the trial court and the transcript of the record. The transcript does disclose that there are material omissions in the abstract.
An examination of the transcript covering the testimony of the highway engineer, the assistant highway engineer, and the safety director discloses that at the time of the condemnation proceedings the accident rate at the highway intersection was 60.3 per each ten million vehicles using the crossing. This was about three times the normal number of accidents at such crossings. At the time of the condemnation proceedings it was a recommendation of all three witnesses that the appellee start immediately to construct a grade separation at the crossing. Roth the number of vehicles using the crossing and the number of accidents began to drop off in August, 1957. As a result, the construction at the crossing has not been put on the priority list and may not be for some time.
In testing the validity of the appellee’s action against a charge of arbitrary conduct, bad faith, or abuse of discretion, the conditions existing at the time of the condemnation are to be considered, not the conditions which may exist at a much later date. Once land has been properly condemned because of an apparent necessity, abandonment is not required because conditions have changed which eliminate the necessity for immediate construction. The record does not disclose any facts indicating misconduct on the part of the appellee.
The appellants next contend that the appellee failed to comply with the procedural requirements which are prerequisites to the taking of property and access rights by condemnation proceedings. They specifically call our attention to G. S. 1961 Supp., 68-1902 which authorizes the designation and establishment of controlled access facilities, “. . . wherever such highway authorities determine that traffic conditions, present or future, justify such facilities, . . Appellants further contend that there is no showing or indication that members of the Commission ever considered any information concerning traffic conditions.
The statute provides that the Commission may establish and construct controlled access facilities wherever, not whenever, it determines that traffic conditions, present or future, justify such facilities. Only the determination of where controlled access facilities are necessary is required by the statute.
On May 8, 1957, the State Highway Commission adopted the following resolution:
“On motion of Mr. Rugan, seconded by Mr. Wassberg, the Commission authorized the Right of Way Department to acquire by purchase or condemnation, the right of way and access rights required for Project 281-93-F 035-2 (7), Stafford County. This location is the intersection of US 50 and US 281.”
At the time the appellee passed the resolution, it had before it the reports and recommendations of its engineers and safety director. We cannot say that it did not determine that traffic conditions justified the taking of the property and the acquisition of access rights at the location in controversy. No doubt more definite findings would be of benefit to the condemnee, the public and the records of the Commission, regardless of the requirements of the statute.
The appellants challenge the validity of G. S. 1961 Supp., 68-413, as in violation of article 2, section 16, of the Constitution of the State of Kansas providing that no bill shall contain more than one subject which shall be clearly expressed in its title. The substance of the contention is that the title of the act covers only the acquisition of an interest in real estate for state highway purposes while the amendment contained a paragraph permitting the State Highway Commission to exchange right-of-way, no longer needed, for new or other highway right-of-way. The title of the act, Chapter 381 of the Laws of Kansas, 1951, reads:
“An Act empowering the state highway commission to acquire interests in real estate for state highway purposes, amending section 68-413 of the General Statutes of 1949, and repealing said original section.”
The provision providing for the exchange of right-of-way, to be abandoned, for new or other right-of-way was contained verbatim in G. S. 1949, 68-413, before the section was otherwise amended.
In the case of Water District No. 1 v. Robb, 182 Kan. 2, 318 P. 2d 387, at page 19 of the opinion it is said:
“Where the new matter in an amended act is germane to the subject of the subject of the original act and the title of the original act is sufficiently broad to cover everything embraced in the amended act, the requirements of Article 2, Section 16 of the Kansas Constitution are met. (Brewer v. City of Pittsburg, 91 Kan. 910, 139 Pac. 418.)”
As the matter to which the object is addressed was included in the original act, its inclusion in the amended act was sufficiently covered by the statutory reference to the original act in the title.
The record disclosed no reversible error. The judgment of the trial court is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the wife (defendant-appellant) in a divorce action from an order of the trial court granting the husband (plaintiff-appellee) a divorce, a division of property, and custody of their two minor sons. The wife’s cross petition for a divorce and child custody was denied.
The question presented is whether the trial court’s decision was contrary to the law and the evidence.
The record discloses that during the trial to the court and at the close of the husband’s case, the wife demurred to the husband’s evidence. The demurrer was promptly overruled by the trial court. After the introduction of evidence both parties waived argument and judgment was entered for the husband. The wife’s motion for a new trial was overruled, following which this appeal was duly perfected from the adverse judgment, the overruling of her demurrer, the overruling of her motion for a new trial, and all other adverse rulings.
No useful purpose would be served by reviewing the evidence in detail. It established that the parties were married on September 30, 1950. They enjoyed the normal marriage relationships during the early years of the marriage and two boys, ages two and five at the time of this action, were born to the couple. May 18, 1962, seems to be the date set by the parties as the time when their matrimonial interests in each other terminated. However, the record indicates that difficulty had arisen long before this.
The wife often said that she no longer had any feelings whatsoever for her husband. She stated to several people that she was sorry they had ever had any children. This type of attitude was evident in the home as the wife became very impatient with the children. She stated several times that she would not consider trying to save the marriage just for the sake of the children.
The upkeep of the house was a factor, also, and as the marriage ties grew weaker the wife lost interest in cleaning and taking care of the home and she would let dishes pile up in the sink. There was evidence that she did not feed the family well. No hot meals were prepared unless it was soup and usually a meal consisted of lunchmeat. The wife never seemed to stay at home with the children and they were always with a baby sitter.
There was testimony from several people that the wife and another man were meeting at strange times and in rather strange places. The husband and his parents found the wife and this man parked in a secluded spot out in the country on one occasion. The husband testified to one instance when the wife left home one evening about 10:00 p. m. and she did not return until around 1:30 a. m. He said she was in an awful mess when she returned.
Finally, on May 18, 1962, the day the husband and his parents found the wife and the other man together, the wife left home. She told the husband she did not want any of his money, and she did not want the children. She said they were his and now he could raise them. When she left the oldest boy had the measles and the youngest had been exposed to them, but the wife did not call to see how the boys were getting along and she did not return home for five months. During this time and at the time of the trial the boys lived with their father. They appeared to be healthy and happy at the time of the trial. They had gained weight and seemed to be happy with their father. Witnesses stated the boys were well cared for and that the father was attentive and decent. The record discloses that the boys attended church with their father regularly.
The husband’s petition (in accordance with G. S. 1949, 60-1519) merely alleged, as grounds for the divorce, gross neglect of duty and extreme cruelty in the language of G. S. 1961 Supp., 60-1501, without detail. The wife did not request a bill of particulars.
The appellant contends there was insufficient evidence to sup port the order of the trial court granting the appellee a divorce and custody of the children — that the appellee did not produce sufficient evidence to prove the grounds for divorce as set out in the petition, and that there was little or no corroborating testimony. (Citing G. S. 1949, 60-1509; Kelso v. Kelso, 182 Kan. 665, 324 P. 2d 165; and Walton v. Walton, 166 Kan. 391, 202 P. 2d 197.)
The law applicable to a case of this type has been adequately stated in Kelso v. Kelso, supra, to which reference is made.
In the instant case no specific findings were requested or made. The trial court simply made a general finding in favor of the husband that the wife was guilty of extreme cruelty toward the husband and the husband should be granted a divorce. Such finding carries with it as established all the facts necessary to support the judgment, and this court will not weigh evidence where a general finding is supported by substantial testimony.
In our opinion the evidence justified the granting of a divorce to the husband on the ground of extreme cruelty. (See, Carpenter v. Carpenter, 165 Kan. 42, 46, 193 P. 2d 196.)
The trial court was warranted in finding that the appellant had not acted as a wife should, and the evidence further established that the conduct of the appellant had entirely destroyed the legitimate ends of matrimony.
The appellant’s contention that the trial court’s decision was contrary to the evidence is no more than an assertion that the judgment was contrary to the evidence of the appellant. The trial court resolved the conflict in evidence against the appellant.
The appellant contends there was no corroboration of the appellee’s testimony that she was guilty of extreme cruelty. This is not borne out by the record. It is well settled in this jurisdiction that the testimony given by the complaining spouse as to the delinquencies of the other spouse, alleged as grounds for the divorce, must be corroborated by evidence. The provisions of G. S. 1949, 60-1509, contain no exceptions, and courts are not permitted to nullify its intendment by reading exceptions into it. Mere corroboration of indignities and abuses which do not touch upon statutory grounds for divorce is insufficient. (Kelso v. Kelso, supra; and cases cited therein.)
This court has said that corroboration is not necessary to support every allegation throughout the course of mistreatment or every detail of a plaintiff’s testimony. It is often exceedingly difficult to obtain corroborating testimony concerning conduct between spouses due to the privacy of the relationship. It is not essential that corroborating testimony alone sustain the judgment. The principal purpose of our statute (60-1509, supra) is to prevent collusion between the parties to a divorce action, and there is no such indication in the record before us. (Hoppe v. Hoppe, 181 Kan. 428, 431, 312 P. 2d 215; and Carter v. Carter, 191 Kan. 80, 379 P. 2d 311.)
In the Carter case it was said:
“. . . Furthermore, there was not only direct and corroborative testimony but also circumstantial evidence which the trial court could and did believe that defendant’s actions deeply wounded plaintiff’s feelings and worried her greatly, and that the legitimate ends and objects of matrimony had been utterly destroyed thereby. Corroborative testimony may be circumstantial as well as direct. A decision based on testimony corroborative in character and convincing to the trier of the facts will not be disturbed on appeal. . . .” (p. 82.)
Upon all the facts and circumstances presented by the record in the instant case, we hold there was direct corroborating testimony or evidence of a corroborating character from which inferences of extreme cruelty on the part of the defendant could have been drawn.
The appellant’s last contention concerns the custody of the children. The appellant contends it was an abuse of judicial discretion to refuse custody to the mother.
This argument is founded on the fact that the trial court did not find the mother unfit. In view of the tender years of the children, and the favored position of the mother in the eyes of the law, she argues, the action of the trial court constituted a clear abuse of judicial discretion.
In the situation here presented the paramount consideration of the court is the welfare and best interests of the child. The court has recognized in a long line of cases that the trial court is in the best position to judge whether the best interests of a child are being served, and in the absence of abuse of judicial discretion this court will not disturb a trial court’s judgment. (Kimbell v. Kimbell, 190 Kan. 488, 491, 376 P. 2d 881; Jackson v. Jackson, 181 Kan. 1, 309 P. 2d 705; Goetz v. Goetz, 180 Kan. 569, 306 P. 2d 167.) However, where an abuse is affirmatively shown in the record, this court has not hesitated to reverse, modify or otherwise change the order of a trial court. (Lindbloom v. Lindbloom, 177 Kan. 286, 279 P. 2d 243; Wilkinson v. Wilkinson, 147 Kan. 485, 77 P. 2d 946; Jackson v. Jackson, supra.)
There are two fundamental rules on this subject, and it is apparent the appellant has confused them.
Where the contest for child custody is between a parent and a third party, a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to custody as against the third party or others who have no permanent or legal right to custody. (McGuire v. McGuire, 190 Kan. 524, 376 P. 2d 908; In re Vallimont, 182 Kan. 334, 321 P. 2d 190; Heilman v. Heilman, 181 Kan. 467, 473, 312 P. 2d 622; Christlieb v. Christlieb, 179 Kan. 408, 295 P. 2d 658.) This is true because the welfare and best interests of children are primarily the concern of their parents and not a party who has no permanent or legal right to the custody of the children. Thus, only when the parent or parents are unfit to have the custody, rearing and education of the children will the state step in through its legal process and find fitting custodians.
Where the issue exists only between the parents, as in the instant case, and no third party is involved, then the primary question to be determined by the court is the welfare and best interests of the children. All other questions are subordinate. (Merriweather v. Merriweather, 190 Kan. 598, 599, 376 P. 2d 921; Kimbell v. Kimbell, supra; In re Vallimont, supra; Collins v. Collins, 177 Kan. 50, 276 P. 2d 321.)
Thus, in the situation presented by the instant appeal, it was unnecessary to find one parent unfit before the other parent could be awarded custody. The fact that the trial court gave custody to the father, without finding the mother to be unfit, is not an abuse of judicial discretion so long as such decision is in the furtherance of the best interests of the children.
We cannot find that the trial court abused the exercise of its power of discretion in awarding custody of the children to the appellee, and, therefore, will not disturb the decision on appeal.
The judgment of the lower court is affirmed.
Fontron, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
Emma J. Bames, plaintiff (appellee), brought this action against Mid-Continent Casualty Company, defendant (appellant), to recover on a fire and lightning insurance contract for losses sustained to her premises occasioned by lightning striking the northwest comer of her house.
The damage to the house consisted of the electrical system being short-circuited, the burning out of the heating element on a water tank, damage to screen doors and windows, allowing rain to come into the house, thus damaging the playroom ceiling and floor, and damage to the exterior of the house resulting in the outside brick wall being cracked.
The defendant defended on the ground that there had been an accord and satisfaction of the damage, and denied that the damage to the exterior wall of the house was caused by lightning. The issue of an accord and satisfaction was raised by defendant at all stages of the proceedings.
The case was submitted to a jury on the issues of whether or not plaintiff’s dwelling sustained damages as a result of being struck by lightning, and if so, the amount of the damage sustained, and whether or not there had been an accord and satisfaction of plaintiff’s claim for damages. The jury returned its general verdict in favor of the plaintiff, and in answer to special questions submitted to it found that plaintiff’s house was struck by lightning on the date alleged, that the damage to the house was caused by the lightning, and that the $115 check offered by defendant and cashed by plaintiff was not in full settlement of all losses arising out of the storm.
From an order overruling its post trial motions, defendant appeals and asserts that the principal issue presented was whether or not an accord and satisfaction was effected. If this issue is decided adversely to defendant, then defendant presents the second issue of whether or not attorney fees were properly allowed, and if so, was the allowance of such fees reasonable.
To answer the questions presented it is necessary to review the evidence. The pertinent portion of the evidence discloses that during a severe thunder storm on May 19, I960, lightning struck the northwest corner of the plaintiff’s dwelling, knocking the plaintiff to the floor and rendering her unconscious. When the plaintiff regained consciousness the house was dark and she crawled out of the room, down the hall, outdoors and over to a neighbor’s home. She returned to her home the next day and discovered that lightning had struck the exterior wall of her home causing the wall to crack. When plaintiff entered the house she found the glass broken in the front door, water over the playroom floor, and she was unable to close two of the windows on the north wall. Water was dripping from the ceiling and there were cracks in the west wall. She telephoned the defendant company’s agent, Steve Elliott, to report her loss, and after approximately two weeks an adjuster, Jack Williams, came to her home.
In the meantime plaintiff had had some repair work done in order to avoid any further damage from rain. When the adjuster, Mr. Williams, belatedly arrived he apologized to plaintiff for being late. Mr. Williams advised plaintiff to have the grease taken off the front of the house and to have the living room repaired, to put glass in the storm door and to have the aluminum frame repaired over the picture window. Williams told her to go ahead and have these repairs made and he would give her a check to pay for the repairs. Plaintiff then stated she wanted the brickwork done because water was coming in. Williams told plaintiff he would pay her for the certain itemized work authorized to be done, and that in the meantime she should get some estimates on the brickwork and carpenterwork on the house. Williams advised plaintiff he was in a hurry as he had to go out of town, but while there he had the plaintiff sign two blank proof of loss forms, an original and a copy. The adjuster took the blank proof of loss forms to his office and had his secretary fill in the blanks. As typed, the proof of loss form stated: “Windstorm struck dwelling and damaged door, screen door, plastering and interior.” On the form under “Statement of Actual Cash Value and Loss and Damage” appeared the following:
“1 — 2-8 X 6-8 Storm Door ............................$ 29.95
1 — Door Check .................................... 2.95
1 — 2-8 X 6-8 Front Door............................. 34.50
Varnish .......................................... 3.15
Patching Plaster & Paint.............................. 15.45
Total Labor ..................................... 62.00
148.00
Less Betterment.................................. 33.00
$115.00”
The proof of loss was marked file number 880234.
The defendant issued its check in the sum of $115, dated June 7, 1960, payable to Emma J. Barnes. The check specifically provided that it was in payment of claim number 880234, which was the proof of loss filled in by Adjuster Williams covering only the items hereinbefore specified. The plaintiff cashed this check. The adjuster testified the settlement covered the front door, the roofing and the playroom, which plaintiff had already had repaired, and also included some varnishing of the front door and labor in hanging both doors, and some plastering and painting; but there was no mention made of the lightning damage to the exterior wall on which Adjuster Williams advised plaintiff to obtain estimates.
Subsequent to the cashing of the check plaintiff obtained estimates on the brickwork repair and turned them over to the defendant company. On two different occasions the defendant sent representatives to plaintiff’s home to view the damage to the outside wall, and on one occasion pictures were taken by them of the corner of the house showing the crack in the exterior wall.
It was sometime subsequent to these visits that plaintiff was advised her policy was canceled and defendant denied liability.
Defendant contends plaintiff’s acceptance of defendant’s check in the amount of $115 constitutes an accord and satisfaction of plaintiff’s entire claim. We do not so view it. It is a well-established rule in this state that an accord and satisfaction is the adjustment of a disagreement as to what is due from one party to another and the payment of the agreed amount; and like all other agreements, must be consummated by a meeting of the minds of the parties, accompanied by a sufficient consideration. If a creditor is to be held to abate his claim against the debtor, it must be shown that he understood that he was doing so when he received the claimed consideration therefor. (Manning v. Woods, Inc., 182 Kan. 640, 642, 643, 324 P. 2d 136; Barton v. Welker, 185 Kan. 294, 298, 341 P. 2d 1037; Lighthouse for the Blind v. Miller, 149 Kan. 165, 167, 86 P. 2d 508.)
Where, as in the instant case, it appears an issue of fact exists as to what the payment and the accord and satisfaction actually covered, that question is to be determined by the trier of facts on the basis of whether there has been a meeting of the minds of the parties and the unity of purpose and intention as to the extent of the settlement. (Barton v. Welker, supra, p. 299; Kansas Power & Light Co. v. Hugoton Production Co. [Tenth Circuit], 251 F. 2d 946.)
Applying the rules in the foregoing decisions, we have no hesitancy in concluding there was substantial evidence to support the jury’s finding that the plaintiff’s damage to her home was due to being struck by lightning and to support the finding that neither party understood the acceptance of the check was an accord and satisfaction. The evidence clearly discloses the check was given in payment of the specified items in the proof of loss only, and that the damage to the outside wall was to be left for future negotiations.
As to defendant’s second contention, G. S. 1961 Supp., 40-256, provides that in all actions hereinafter commenced in which judgment is rendered against any insurance company as defined, if it appears from the evidence that such company has refused without just cause or excuse to pay the full amount of the loss, the court in rendering judgment shall allow the plaintiff a reasonable sum as attorney fee to be recovered and collected as a part of the costs.
It is a standing rule of this court that the provisions of the mentioned statute are construed to authorize the allowance of a reasonable attorney fee for the insured in all actions commenced in which judgment is rendered against an insurance company on a policy of insurance if it appears that the insurance company has refused without just cause or excuse to pay in accordance with the terms of the policy. (Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P. 2d 219; Allen v. Hartford Fire Ins. Co., 187 Kan. 728, 359 P. 2d 829; Humfeld v. Pyramid Life Ins. Co., 187 Kan. 231, 356 P. 2d 668.)
Defendant’s contention that its refusal to pay in the instant case was not without just cause or excuse cannot be sustained. The record clearly discloses defendant acknowledged its liability to plaintiff by paying for the damage to the inside of the house and advised plaintiff to secure bids on the damage to the outside brick wall; that it subsequently canceled plaintiff’s policy and denied further liability. In order to secure full compensation for her damages, the plaintiff was compelled to bring this action. Under the record we are of the opinion there was ample evidence to support the trial court’s finding that defendant insurance company refused, without just cause or excuse, to pay the amount of loss suffered by the plaintiff, and that plaintiff was entitled to a reasonable sum as an attorney fee to be assessed as costs.
Defendant further complains the allowance of attorney fees was excessive. The real test in the allowance of attorney fees is the value of the services performed by the attorney on behalf of his client; and the court in determining the amount thereof may consider labor, time and trouble involved, as well as the extent of services rendered and the nature and importance of the litigation; also the responsibility imposed on such counsel; the amount of money involved; the skill and experience called for in the performance of the services; the professional character and standing of the attorney; and the results secured. (Wolf v. Mutual Benefit Health & Accident Association, supra, p. 712; Attebery v. M. F. A. Mutual Ins. Co., 191 Kan. 178, 380 P. 2d 327.) It has also been stated the reasonable value of attorney fees under legislative mandate rests largely in the discretion of the trial court, and such allowance will not be reversed on appellate review when supported by competent testimony. (Wolf v. Mutual Benefit Health & Accident Association, supra, p. 714; Groff v. Automobile Owners Safety Ins. Co., 180 Kan. 518, 523, 306 P. 2d 130.)
A review of the testimony of competent, experienced attorneys relative to the value of the services rendered by counsel for the plaintiff sustains the amount allowed by the trial court, and the record before us compels the conclusion the trial court did not err in allowing the attorney fees to the plaintiff’s attorney or in holding the sum allowed was not unreasonable.
Other questions raised by the defendant have been considered and found to be without sufficient merit to justify reversal. The judgment of the trial court is affirmed.
Jacicson, J., not participating. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to rescind a subscription for stock in a common law trust and to recover the amount paid therefor. Plaintiff appeals from an order sustaining a demurrer by the defendant Madden to plaintiff’s evidence, and Madden appeals from a judgment against him as trustee.
Briefly the facts are in substance as follows:
About June 7,. 1919, defendants, Thompson, Brooks, Eunk, Williamson and Madden, Jr., entered into an agreement and declaration of trust for the purpose of establishing a mill and elevator and carrying on a general milling business at Wichita under the name of the Victory Flour Mills Company. Williamson was president, arid Madden, secretary-treasurer. Shortly after its organization, an extensive campaign for promotion was begun. The trustees entered into a contract with Funk as fiscal agent for the placing of the stock. Funk hired his agents, sold stock and returned the proceeds to the trust, less his commission. The trust purchased a six-acre tract as a site for a mill and elevator. The purpose was to erect a flour mill with a capacity of 1,250 barrels of flour per day and an elevator with a storage capacity of 350,000 barrels. In August or September, 1919, it began operation of a grain department, setting aside $5,000 for that purpose. About December 1,1919, the plaintiff was visited by M. L. Howe, a stock salesman, through whose solicitation plaintiff subscribed for ten shares of stock in the trust of the par value of $100 each, executing his note for $500. In 1920, it was decided to incorporate the business, and on July 2 a charter was secured under the name of “The Victory Mill and Elevator Company.” On July 30 following, the business of the trust, comprising all of its assets and liabilities, was transferred to the corporation. This action appears to have been acquiesced in by all of the stockholders including the plaintiff (although he alleges otherwise), who took his trust stock to the company offices and exchanged it for stock in the corporation. The corporation having taken over the building site and other assets of the trust and assumed its obligations, continued the business it had established of buying and selling grain, but did not erect the mill and elevator on account of the high price of building materials. Plaintiff, having grown dissatisfied with the manner in which the corporation was proceeding with its business, on July 19, 1922, filed his petition alleging that the defendants, acting through Howe, had procured his subscription through false and fraudulent representations.- He alleged that by reason of the premises he had been damaged in the sum of $500, for which amount he prayed judgment with interest, for cancellation of his note and such other and further relief as might be deemed just and equitable. Thereafter, he asked and was granted leave to file two amended petitions. The second is not set out, but in the third, filed March 8,1924, he prayed for rescission of his contract of subscription, for cancellation of his stock and to recover $500 and interest.
On October 8,1923, in another proceeding then pending against it, R. S. Meeker was appointed receiver for the corporation, and on March 8,1924, plaintiff asked leave to make the receiver a defendant. In his last amended petition, filed in March, 1924, he alleged that he had not been aware of the fraud practiced upon him by ,the defendants until the month of July, 1922. While judgment was for Madden personally, on his demurrer to the evidence the court rendered judgment against Meeker as receiver and all the other defendants as trustees.
The plaintiff maintains that the court erred in its application of the law to the facts so far as they related to the defendant Madden; in holding that the evidence warranted a finding that Madden received no benefits from the transaction in question; in holding that it was necessary for Madden under the allegations of plaintiff’s petition to have received financial or direct benefit from the transaction in question in order to be liable for the alleged fraud practiced upon the plaintiff.
The defendant Madden contends that the plaintiff is not entitled to the remedy of rescission; that the representations made in the sale of the stock were true; also that they were matters of opinion and therefore nonactionable; that there was no evidence of agency as against him; that plaintiff had no right to recover because the corporation was not made a party defendant and because plaintiff’s cause of action was barred by the statute of limitations.
There are several reasons in our opinion why the plaintiff must fail. Discussion of all of them is, however, not necessary. In his first petition, he alleged and sought to recover damages. In his last amended petition, he tendered back his stock and sought to rescind ' his contract of subscription. Having elected to sue for damages, he was not in position to later demand rescission. In Beneke v. Bankers Mortgage Co., 119 Kan. 105, 107, 237 Pac. 932, it was said in the opinion:
“A person fraudulently induced to buy and pay for property delivered to him has two remedies, one legal and one equitable. He may affirm the contract and sue for damages, or he may disaffirm and sue for rescission. If he affirm, he keeps the property, the seller keeps the consideration paid, and the buyer recovers damages for the difference in value between what he received and what he should have received. If he disaffirms, he seeks restoration of the status existing when the sale was made. Affirmance and disaffirmance are contradictory of each other. The sale cannot stand and at the same time be set aside. Because the remedy by way of damages rests on affirmance, and the remedy by way of rescission rests on disaffirmance, the two are inconsistent and incompatible. Resort to one excludes resort to the other, and in choosing a remedy it is the first decisive step which counts.” (p. 107.)
Rescission is an equitable remedy designed to afford relief from contracts entered into through mistake, fraud or duress. Ordinarily, the nature of relief asked in such cases must be such as to place the parties in their original situation. Where one with knowledge of facts entitling him to a rescission of the contract, afterwards without duress ratifies it, he is not entitled to have it canceled. Ordinarily an express ratification is not necessary in order to defeat the remedy of rescission. Acts or conduct, inconsistent with an intention to avoid it, or in recognition of the contract, have the effect of an election to affirm it. In the instant case the evidence shows that the plaintiff on numerous occasions during 1920 visited and looked over the site of the proposed mill and elevator and could see that nothing was being done toward its construction except the work of excavation. For a period of six months he visited the site approximately every thirty days. Upon numerous occasions he visited the office of the company and talked with the defendants and was told that no building was in progress. Having all this information, he took his certificate of stock in the trust to the offices of the corporation and secured in exchange therefor stock in the new company. Nearly two years thereafter, having continued in the meantime to visit the company’s office at intervals, he filed his action for damages. From all this, it must appear that if any fraud was practiced on the plaintiff in the sale to him of the stock in question, he voluntarily and by his own conduct waived the fraud and ratified the contract. In 9 C. J. 1198, the rule is thus stated:
“Where a party, with knowledge of the facts entitling him to rescission of a contract or conveyance, afterward, without fraud or duress, ratifies the same, he has no claim to the relief of cancellation. An express ratification is not required in order thus to defeat his remedy; any acts of recognition of the contract as subsisting or any conduct inconsistent with an intention of avoiding it, have the effect of an election to affirm. This doctrine seems to rest not upon the principle of a new contract between the parties, nor yet upon the ordinary principle of estoppel in pais, but rather upon a distinct principle of public policy, that all justice or equity requires for the relief of a party having such cause to impeach a contract, is that he should have but one fair opportunity, after full knowledge of his rights, to decide whether he will affirm and take the benefits of the contract, or disaffirm it and demand the consequent redress. Any other rule would be regarded as’unjust, even toward the party guilty of the wrong out of which grows the right to rescind.”
In Bell v. Keepers, 39 Kan. 105, 17 Pac. 785, it was held that if after discovery of the fraud in a contract the party imposed upon, without objection, pays several installments upon it, he waives the fraud and affirms the contract.
In McLean v. Clapp, 141 U. S. 429, 35 L. Ed. 804, it was held that — -
“Where a party desires to rescind a contract upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred.”
In Scott v. Empire Land Co., 5 F. (2d) 873, it was held that—
“A party who desires to rescind a contract for fraud, must, at once on discovery of the fraud, announce his purpose to rescind.” (See, also, Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785; State, ex rel., v. Dennis, 39 Kan. 509, 18 Pac. 723; State, ex rel., v. Williams, 39 Kan. 517, 18 Pac. 727; Mills v. City of Osawatomie, 59 Kan. 463, 53 Pac. 470; Trust Co. v. McIntosh, 68 Kan. 452, 75 Pac. 498; Elwood v. Tiemair, 91 Kan. 842, 139 Pac. 362; Thompson v. Millikin, 93 Kan. 72, 143 Pac. 430; Sell v. Compton, 91 Kan. 151, 136 Pac. 927; Sylvester v. Lynde, 113 Kan. 450, 215 Pac. 305; Morton v. Brinks, 114 Kan. 319, 219 Pac. 527; 13 C. J. 616; 14 A. & E. Encyc. of L. 159, 161; Schafroth v. Ross, 289 Fed. 703.)
Other questions raised in the briefs need not be discussed. The judgment in favor of John Madden, Jr., personally is affirmed. The judgment against him as trustee is reversed and the cause remanded with instructions to enter judgment for him as trustee. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action against the defendant city for damages sustained by plaintiff through the action of a mob.
Plaintiff, an admitted simpleton, resides in Arkansas City. For some time prior to the doings involved herein he indulged the fancy that he had histrionic attainments of such high order that some imaginary motion-picture companies were competing for his services, and that one of these planned to wjaylay and kidnap him. This delusion quite naturally attracted the attention of several young men and boys of the town, and on the evening of May 8, 1925, some thirty or thirty-five of them escorted him to one of the city parks on the pretense of hunting these imaginary kidnappers. Then followed some running and playing and beating of shrubbery in the park, but eventually the play became too rough and plaintiff was knocked down and severely and variously injured. There was considerable testimony which tended to show that the plaintiff’s injuries were not the result of a mere accident growing out of innocent and thoughtless playing on the part of the young men and boys, but that some sort of concerted plan existed on their part to get plaintiff down, to the park and take unjustifiable liberties with him. Plaintiff testified that he was surrounded by “the gang” who crowded him, and “headed him off” from the direction he wanted to go, which was towards the main part of the city, and eventually they “wound up at Paris Park.”
Plaintiff’s testimony, abstracted, in part, reads:
“The mob was composed of more than twenty-five or thirty in a gang at this time and there were probably three or four boys, but most of them were men — grown men. They threw him down and tried to hold him and gagged him when down. . . .
“Q. During this affair or assault had one of them hit you? A. Not then.
“Q. Did you know what the mob was trying to do at all? A. Still trying to get hold of me; then finally one of them hit me on the mouth with a hard instrument, cannot say what it was, but it was hard, and I fell down, and when I fell I hit this way (indicating). I fell on my arm and pulled it out of place.
“When witness fell he was knocked down. One man was hold of his legs, holding them tight together. Witness unable to run. Two or three teeth were knocked loose. Mouth was cut and he was spitting blood; left arm was injured by being thrown out of place at the elbow. About twenty-five men were present. After he was knocked down there was a man drove up in his ear and asked them what they were doing, and the mob left. Witness was taken uptown, a physician was called and Doctor Day set his arm. ... It was discolored, black and blue. It was swollen about twice its normal size. His clothing was badly tom up, trousers and shirt nearly torn off, hat ruined. His arm was fixed in a sling.”
One witness, a boy who joined the crowd about plaintiff, testified:
“I first saw Sam [plaintiff] south of the high school on Washington avenue. ... I should judge there was around thirty in the crowd. . . . Sam was the center of attraction. I thought something would happen. I didn’t know what they were going to do. I went down to find out what they were going to do to Sam. ... I saw him climb in the car after he got hurt. . . .
“By the Court: . . .
“Q. How did you get it into your head that they were going to have some fun — play a joke on this man? A. I don’t know how I got it into my head.”
Another witness called by defendant testified:
“A. Well, Sam was all fixed up: I didn’t know it was him. He was all fixed up with a mustache and everything else. . . . Had an old hat and a big pair of glasses. ... I found out it was Sam in about ten seconds after I had been with them. At the park he wasn’t running as if he was running away from anybody, he was running as if trying to catch somebody. He thought another moving-picture company was trying to catch him and run off with him because they didn’t want to pay him so much money as another company did. He didn’t want to be kidnapped. I saw him at the time he was injured. I was within ten feet of him. He fell. I did not see any one push him or hit him or assault him in any way. I wouldn’t say they didn’t, but I didn’t see them. The only thing he complained of was that his arm was hurt.
. . . I joined the crowd to see what it was. I wondered what was going to happen. I thought probably there would be a joke. I didn’t do anything to protect Sam.”
Another of defendant’s witnesses testified:
“I remember the evening Sam Hendren was injured. . . . There were some young men with him, eight or ten ... I went along, expecting we were going to have some fun with him . . . There was something like twenty-five or thirty in the crowd. I can’t say where the rest came from— must .have come out of some of the school buildings. ... I didn’t know what they were going to do. I saw them kinda playing with him.- He was running and I left. I left because it was time for me to go home.”
The chief of police testified in behalf of the defendant city, but on cross-examination admitted that the rough usage which plaintiff suffered on this particular night, May 8, 1925, was not the first incident of its kind. On a former occasion “a lot of boys got a rope and made believe that they were going to hang him.” Yet another witness testified that a year previous to the incident involved in this action, she had talked to the mayor and city officials protesting against the way this plaintiff was being treated, in Arkansas City.
Jury trial; verdict for $1,000 in favor of plaintiff, and judgment accordingly; appeal.
Under the errors assigned, it is first urged that the demurrer to plaintiff’s evidence should have been sustained. Counsel for the city concede that there was a large crowd of men and boys near the plaintiff when he was injured, but insist no evidence tending to show that the statutory minimum of five people (R. S. 12-201) were concerned in any injury plaintiff sustained. The court holds that the excerpts from the record which we have quoted above are sufficient to show that it was a fair jury question whether as many as five of the crowd of thirty-five men and boys participated in any manner or in any degree in the acts which culminated in the assault upon and injury of the plaintiff.
Defendant assigns error on the instruction of the trial court which declared that although the men and boys started out good-humoredly, and with perfect good nature, and without intending any harm to the plaintiff, yet after they assembled if five or more of their number then determined to harass, annoy and humiliate him, and, in doing so, in a violent and turbulent manner, did injure the plaintiff, the city would be liable. Such an instruction was a very favorable statement of the pertinent law so far as concerned the defendant, and well fortified by the rule announced in Cherryvale v. Hawman, 80 Kan. 170, 173, 101 Pac. 994, where a crowd of roisterers undertook to have some fun at the expense of a bride and groom, and in the course of which a small boy had his leg broken. Under the mob statute the city was subjected to damages in behalf of the boy and his mother. In affirming the judgment this court held:
“Where the members of a charivari party forcibly place a bride and groom in a wagon against their will, and draw them up and down the streets, they are engaged in an act of unlawful violence within the meaning of such definition. The fact that they are good-natured and intend no serious harm to any one does not absolve the corporation from liability.” (Syl. ft 2.)
Defendant also assigns error in an instruction which told the jury that they might take into consideration the plaintiff’s mental pain and suffering and the extent of his injuries, if any, whether permanent or temporary, in determining the amount of their verdict. It is argued that the statute does not include such elements of damage, but is limited to damage to property or injury to life or limb. Mental pain and suffering is, or at least may be, an injury to life, and while a simulated but groundless claim of mental pain and suffering is so easy to make and hard to disprove, or to measure in damages if genuine, that the law will seldom permit an award therefor apart from a related physical injury (Ramey v. Telegraph Co., 94 Kan. 196, and citations, 146 Pac. 421), yet where, as here, there was ample proof of objective physical injuries to plaintiff, there was no error of law in the criticized instruction. (Scott v. Cowen, 114 Kan. 32, and citations, 217 Pac. 698.) Furthermore, it is rather clear that the jury made no allowance to plaintiff for mental pain and suffering.
It is finally urged that the verdict and judgment for $1,000 is no“t supported by the evidence. But according to some of the evidence, plaintiff came out of the tumult with two or three teeth knocked out, lips bruised, bloody, and filled with sand and dirt, his left arm out of joint and a piece of bone broken off the side of the radius bone of his left arm; and he suffered severe pain for about two weeks, and had to carry his injured arm in a sling for a month. Later it was only with pain and inconvenience that he was able to use his arm, and even then he could not use it for rough outdoor labor such as he was able to do before his injury. This court perceives no shortage of evidence to justify the verdict and judgment; nor doés the record disclose anything approaching reversible error or miscarriage of justice in this case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Greene, J.:
It is not denied that when George W. Knox died an undivided one-half of this land immediately descended to his children and the other undivided one-half to his widow. These heirs then became tenants in common of the land. At the death of the widow her undivided one-half descended to her heirs, who were Roderick (the plaintiff), Louis C. and Frances Schoonover, and Joanna Knox, each succeeding to an undivided one-fourth of the widow’s portion and becoming tenants in common with the heirs of George W. Knox of the entire estate.
It is elementary that the possession of one of several tenants in common is the possession of all, and where a tenant in common, either in or out of possession, transfers his interest in the estate to a stranger the grantee becomes a tenant in common with all the others. (17 A. & E. Encycl. of L. 662, 668; Gibbs, Administrator, v. Smith, Executor, 66 Mass. 393; Battel v. Smith, 80 Mass. 497; Gratz v. Land & River Imp. Co., 82 Fed. 381, 27 C. C. A. 305, 40 L. R. A. 393; Wallace v. Miller, 52 Cal. 655.) Joseph Martin, by his purchases of the interests of some of the heirs, became a tenant in common with them; and his entry into the possession of the land thereunder was that of a tenant in common, and his possession as such continued until some act was done which the law would recognize as an ouster or dispossession of his cotenants.
There is a great distinction between the rule applicable to the starting of the statute of limitations in an action of ejectment where the defendant went into wrongful possession and where the possession was rightful, such as the possession of a tenant in common for himself and his cotenants. (Sparks v. Bodensick, ante, p. 5.) This distinction áppears not to have been very clearly observed in the trial of this cause. As to the former the statute.begins to run in favor of the occupant immediately upon his taking the open, notorious and exclusive possession. Such possession is of itself adverse, and, being open and notorious, is notice to every person. Therefore a right of action in favor of the owner of the title accrues at once, and this starts the statute of limitations.
The claim of title of a tenant in common in possession which is necessary to put in operation the statute of limitations against cotenants out of possession must be actual, exclusive, and wholly within the claimant’s own right. The possession must also be exclusive and adverse to all tenants in common, and in this state this condition must continue for a period of fifteen years before the statute of limitations becomes a bar to an action of ejectment by a cotenant out of possession.
In Warfield et al. v. Lindell et al., 38 Mo. 561, 581, 90 Am. Dec. 443, the court, in speaking of the acts necessary to constitute an ouster by a tenant in common in possession, said:
“For this purpose there must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the cotenants that an adverse possession and an actual disseizin are intended to be asserted against them.”
This rule was adopted in Squires v. Clark, 17 Kan. 84, where this court quoted approvingly the following from Warfield v. Lindell, 30 Mo. 272:
“A possession of land by a tenant in common for twenty-six years, and an exclusive receipt by him of the rents and profits, without any account rendered, or any demand made, would not of themselves raise a legal presumption of ouster by such tenant in common of his cotenants.” (Page 87.)
In Ingalls v. Newhall, 139 Mass. 268, 272, 30 N. E. 96, we find the rule stated thus:
“ ‘It is the general rule of law,’ says Mr. Justice Morton, ‘that the possession of one tenant in common, though exclusive, being consistent with the right of his cotenant, does not amount to a disseizin of the co-tenant, and that an ouster, or some act which the law deems equivalent to an ouster, is necessary to constitute a disseizin of his cotenant by a tenant in common.’ ”
The evidence necessary to establish an ouster by a tenant in common must be positive, clear, and unequivocal. Having gone into possession of the land as a tenant in common, the law presumes that the character of his possession does not change and has reference to the title under which he entered. Therefore, before it can be held that a tenant in common in possession has committed the wrong of ousting his co-tenant, the acts which constitute the ouster, and the intent on the part of the tenant in common in possession to oust his cotenant, must be clearly and satisfactorily shown. The acts of Joseph Martin with reference to his possession and ownership of the land in question, as shown-by the record and enumerated in the statement of facts, conclusively show that he never claimed the entire estate, and that he never was in adverse possession of the entire tract. After he went into possession as a tenant in common he purchased from time to time, until December, 1888, the interests of others of his cotenants; and in 1894, still recognizing the interests of his cotenants — the Spurgeon heirs —he divided the land with them. These acts alone are a complete refutation of the claim now made that Martin was holding adversely and claiming to own the entire title to this property. Such acts are a continual recognition of the outstanding interests of his cotenants, and cannot be reconciled with a claim of exclusive ownership and adverse possession.
If the continued possession by Martin of the portion of land set apart to him under the division in 1894 can be said to have been exclusive and adverse, it is the first time in the history of this case that he was holding any part of the land exclusively for himself and under a claim of adverse possession. It is not, however, necessary to decide this question. Conceding that the • possession by Martin of the west 118 acres, after the division, was exclusive and adverse, and amounted to an ouster of the other cotenants, it only dated from 1894, and therefore was not of sufficient duration to bar the present action. It follows, therefore, that the statute of limitations had not barred the plaintiff’s right of recovery.
The judgment is reversed and the cause remanded.
All the Justices concurring: | [
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The opinion of the court was delivered by
Johnston, C. J.:
The legal sufficiency of a petition filed by Cleo D. Burnette, alleging wrongful conduct on the part of Charles E. Elliott as against Burnette, was the question determined against the plaintiff by the district court, and which is now submitted to this court on review. Instead of raising the question upon a demurrer to the pleading, it was done by an objection to the introduction of evidence, after the opening statement had been made by counsel for the plaintiff. The objection was sustained, the jury discharged, and a judgment of dismissal rendered.
The petition, after alleging that the plaintiff and defendant were partners in the practice of the law, among other things stated in substance that during the partnership the plaintiff became physically and mentally incapacitated;-that defendant, knowing plaintiff’s condition, for the purpose of getting rid of him and defrauding him of his share of the earnings of the firm conspired with others to accomplish this purpose, and to that end induced plaintiff to refuse to give testimony in a certain case then pending in the district court, and also instigated a disbarment proceeding against the plaintiff, upon the ground that a certain letter written by him in the course of his practice was false and fraudulent, when the defendant and his confederates knew that the letter was genuine. It was further alleged that upon the commencement of the disbarment proceeding the defendant was employed to defend the plaintiff, but that he failed to file an answer of any kind, ignored the proceeding, and purposely neglected his duty as attorney for the plaintiff, by means whereof a judgment was taken by default disbarring the plaintiff.
In this connection it was averred that the defendant induced and assisted the plaintiff to prepare and sign a false statement that the letter which he had written, and which was involved in the disbarment proceeding, was false and fraudulent, when in fact it was not; that the defendant then procured a notary public to certify that plaintiff had sworn to the statement, when in truth and in fact he had not; and that if plaintiff had sworn to the same he would have been guilty of per-j ury. Aside from the wrongs mentioned it was alleged that the defendant violated his duty as attorney for plaintiff in other respects, and, further, that he had induced plaintiff to leave the state for his own protection. It was also alleged that during all these occurences plaintiff was mentally irresponsible, that the defendant knew and took advantage of his incapacity, and purposely and maliciously omitted to make any defense for plaintiff or do anything to protect him in the disbarment proceeding, in order that he might destroy plaintiff’s reputation and character, and get rid of and cheat him out of the business and fees of the partnership. The petition concluded with a statement that the plaintiff had been thereby damaged in the sum of $50,000, for which he asked judgment.
Many other averments were included in the petition which have not been mentioned; some may have been alleged as matter of aggravation, and others appear to have no bearing upon the cause of action pleaded.
Although the averments of the petition take a wide range and bring in collateral facts, we think that, considered together, they constitute an actionable wrong. The defendant treats the different parts of the petition as separate counts and attacks the sufficiency of each of them. The pleader, however, evidently proceeded on the theory that the facts constituted a single cause of action, and included things connected with each other which showed the motive and purpose of the defendant in committing the wrong. If more than a single wrong or cause of action was included in the petition it will not avail the defendant under the objection as made. No motion was made separately to state and number the causes of action, nor was the objection raised in any appropriate manner.
The complaint that the petition offends the rule regarding clearness and conciseness of statement will not avail, as indefiniteness and informality cannot be reached by a demurrer, much less by an objection to evidence. In examining the allegations of the petition it must be remembered that, while an oral demurrer or objection to evidence is countenanced as a method of challenging the sufficiency of a petition, it is not regarded with favor by the courts. Considerable latitude of presumption is allowed in sustaining a petition where issue is joined upon it and it is only attacked at the commencement of the trial by an objection to the admission of any testimony. Upon such an objection the pleading is to be very liberally interpreted, and, although it may be indefinite or informal in averment, if upon any fair construction it can be held to state a cause of action the objection should be overruled. (Robbins v. Barton Bros., 50 Kan. 120, 31 Pac. 686; The State v. School District, 34 Kan. 237, 241, 8 Pac. 208; Sash Co. v. Heiman, 65 Kan. 5, 7, 68 Pac. 1080; Howard v. Carter, 71 Kan. 85, 80 Pac. 61; Brashear v. Rabenstein, 71 Kan. 455, 80 Pac. 950.) A liberal interpretation of the petition in hand leaves no doubt that a cause of action is stated. Laying aside the general charges of conspiracy, and looking at the individual things alleged to have been done by defendant toward destroying the reputation and standing of the plaintiff, it must be held that they were unlawful and hurtful. Plaintiff did not ask a recovery for the unexecuted plans of the conspirators, but based his claim on the commission of wrongful acts of the defendant which resulted in actual damage to plaintiff.
It is argued that the plaintiff participated in most of the acts complained of and should not be permitted to recover damages for injuries which he would not have sustained but for his consent. As to some of the wrongful acts charged there was cooperation by the plaintiff, but this is met by averments that the plaintiff was mentally irresponsible, and that defendant, knowing plaintiff’s condition, took advantage of his weakness. The single charge that the defendant intentionally omitted to make a defense in behalf of the plaintiff in the disbarment proceeding is sufficient to repel the objection that was made. The omission and neglect were charged to have been malicious and' for the purpose of injuring the plaintiff. It was alleged that, knowing plaintiff’s incapacity and that he was innocent of the charges made against him in the disbarment proceeding, defendant neglected to make a defense, or even to file an answer in plaintiff’s behalf.
The defendant contends that the failure to file an answer was not misconduct, upon the theory that this court has held in a disbarment proceeding that an answer was not necessary to a defense. (In re Burnette, 70 Kan. 229, 78 Pac. 440.) It will be observed that the majority of the court which united in the reversal of the judgment in the case cited did so for different reasons, and did not concur in the view that a judgment by default could not be taken in such cases. Here, however, more is alleged than a failure to file an answer. The averments, although somewhat general, are to the effect that defendant instigated the disbarment proceeding knowing the plaintiff to be innocent; that when engaged to defend the plaintiff he maliciously ignored the proceeding and made no defense, and that the neglect was intentional, in order to accomplish a selfish and unlawful purpose of the defendant and to injure the plaintiff.
Whatever the proof may be when it shall be produced in the case, the averments of the petition, if accepted as facts and liberally construed, must be held to state a cause of action, and hence the judgment of the trial court is reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
That the instrument is a subject of forgery and that the information states sufficient facts are questions hardly open for discussion; The State v. Foster, 30 Kan. 365, 2 Pac. 628, and The State v. Lee, 32 Kan. 360, 4 Pac. 653, are decisive and seem to be in point.
The warrant upon which the defendant was arrested and upon which he was tendered a preliminary examination charged him with two crimes — the forging of the check, and the transfer of the same for a valuable consideration to Ben A. Blackwell, with intent to defraud.
Whatever may be the rule in regard to trials, it must be conceded that any number of felonies may be inquired into at one preliminary examination. The defendant may even be held to answer for an offense not charged in the warrant. (Gen. Stat. 1901, § 5495.)
While the facts are not so fully set forth in the war rant as they are in the information, it is not requisite. Enough, however, appears in the warrant to apprise the defendant that he was charged with feloniously transferring the check, and, defendant having waived a preliminary examination thereon, the county attorney was thereby authorized more fully to charge this crime in the information. The plea in abatement thereto is not good.
We have examined the alleged errors occurring on the trial, and do not find any by which the defendant could be prejudiced. The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
This was an action by assignees of a bond given by a judgment debtor to secure a stay of execution on the judgment. The stay was granted by the court to a certain day, at which time it expired. At the expiration of the stay the bond had served its purpose, the judgment creditor was at liberty to proceed with the collection of his judgment, and no cause of action could thereafter accrue on such bond. Over five years after such stay of execution had expired this action was commenced. These facts appeared on the face of the petition. A demurrer to the petition was sustained. Held, not error.
Mason, J., not sitting.
(82 Pac. 1134.) | [
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The opinion of the court was delivered by
Burch, J.:
This controversy arose over a bank-check. The instrument was an order upon a banking-house for the unconditional payment, instantly upon demand, of a specified sum of money to the order of a person named, and purported to be drawn upon a deposit of funds. (The State v. Warner, 60 Kan. 94, 96, 55 Pac. 342; 7 Cyc. 529.)
The check was sent to the payee for the purpose of satisfying an obligation due him from the drawers. The delivery of the check did not pay the debt, and its acceptance did not constitute even prima facie evidence of payment. (Kermeyer v. Newby, 14 Kan. 164; Mullins v. Brown, 32 Kan. 312, 4 Pac. 305.) But the acceptance of the check imposed upon the payee the necessity of using due diligence to realize upon it in order to escape responsibilty for loss, if in the mean time the drawee should become insolvent. (Anderson v. Rodgers, 53 Kan. 542, 36 Pac. 1067, 27 L. R. A. 248; Kilpatrick v. B. & L. Association, 119 Pa. St. 30, 12 Atl. 754; Freeholders of Middlesex v. Thomas & Martin, 20 N. J. Eq. 39.) And, if he should be guilty of laches in this respect resulting in loss or damage to the drawer, satisfaction of the original debt, to the extent of the injury, would follow. (22 A. & E. Encycl. of L. 572.)
The payee indorsed the check, and deposited it in the Philadelphia bank with which he was in the habit of dealing, according to the business forms under which transactions of that character are usually conducted. The legal effect of such conduct, where no reservations are made or limitations are imposed by either party, and no agreement or understanding appears other than that which the law implies, is well settled by the best-considered cases. When the payee of the check received credit for it the bank became indebted to him in a sum equal to the amount of the credit, his funds in the bank subject to immediate withdrawal upon his check were augmented to the same extent, the check itself became the property of the indorsee, and the payee’s relation to it became that of one who had transferred title to it by indorsement.
If the depositor had desired to establish the relation of principal and agent between himself and the depositary he should have indorsed the paper for collection merely, or otherwise should have indicated his purpose; and if the bank did not intend to accept the check as money it should have entered it as paper and not as cash, or otherwise should have made manifest its intention to collect merely. (2 Morse, Banks & Bank., 4th ed., § 583.) The law upon this subject is quite fully considered in the recent case of Burton v. United States, 196 U. S. 283, 25 Sup. Ct. 243, 246, 49 L. Ed. 482, in which Mr. Justice Peckham said:
“There was no oral or special agreement made be tween the defendant and the bank at the time when any one of the checks was deposited and credit given for the amount thereof. The defendant had an account with the bank, took each check when it arrived, went to the bank, indorsed the check, which was payable to his order, and the bank took the check, placed the amount thereof to the credit of the defendant’s account, and nothing further was said in regard to the matter. In other words, it was the ordinary case of the transfer or sale of the check by the defendant and the purchase of it by the bank, and upon its delivery to the bank, under the circumstances stated, the title to the check passed to the bank and it became the owner thereof. It was in no sense the agent of the defendant for the purpose of collecting the amount of the check from the trust company upon which it was drawn. From the time of the delivery of the check by the defendant to the bank it became the owner of the check; it could have torn it up or thrown it in the fire or made any other use or disposition of it which it chose, and no right of defendant would have been infringed.” (Page 297.)
It may be conceded that if, after due and legal effort to collect the check, it should be dishonored, the bank would have the right to charge the amount of it to the depositor’s account. Whether this right may be said to rest merely on the custom of banks, or whether the custom has been crystallized into a rule and the right now may be said to be an implied condition attaching to the transfer of the paper, makes no difference. It is, nevertheless, in strictness, the right of an indorsee against an indorser, and hence is not in any sense inconsistent with ownership.
“The testimony of Mr. Brice, the cashier of the Riggs National Bank, as to the custom of the bank when a check was not paid of charging it up against the depositor’s account, did not in the least vary the legal effect of the transaction; it was simply a method pursued by the bank of exacting payment from the indorser of the check, and nothing more.” (Burton v. United States, 196 U. S. 283, 297, 25 Sup. Ct. 243, 246, 49 L. Ed. 482.)
“If paper be deposited in or forwarded to a bank for collection, and in pursuance of a prearranged mode of dealing the bank immediately places the amount to the credit of the depositor, and the depositor thereupon draws or is entitled to draw against the same as cash, this works a transfer of title, so that the depositor cannot afterward claim the paper; and it is immaterial that if the paper is not paid the bank has the right to charge it back.” (Ayres v. The Farmers’ & Merchants’ Bank, 79 Mo. 421, 49 Am. Rep. 235.)
“The agreement to charge back if any draft was not paid did not affect the character of the transaction. That was nothing more than would have resulted without any such agreement, unless the indorsements to the Fidelity were expressly without recourse. If the drafts were purchased by the Fidelity out and out with a general indorsement, the case would differ from the case presented to the court only in the respect that, upon the failure of the drawee to meet the draft, protest would have been necessary, whereas it may be that, by virtue of the agreement, protest was not necessary.” (First Nat. Bank v. Armstrong, 39 Fed. [C. C.] 231, 233.)
The payee having received the equivalent of cash for the check, and having parted with title to it, the indebtedness of the drawer to him was satisfied, subject only to the contingency that he should be held liable as an indorser of the paper in the event of its dishonor, due diligence having been exercised to protect the drawer and to charge him.
“It is true no express agreement was made transferring the check for so much money, but it was delivered to the bank and accepted by it, and the bank gave Murray credit for the amount, and he accepted it. That was .enough. The property in the check passed from Murray and vested in the bank. He was entitled to draw the money so credited to him, for as to it the relation of debtor and creditor was formed, and the right of Murray to command payment at once was of the very nature and essence of the transaction. On the other hand, the bank, as owner of the check, could confer a perfect title upon its transferee, and, therefore, when by its directions the plaintiff received and gave credit for it upon account, it became its owner and entitled to the money which it rep resented. The check, therefore, for every purpose material upon this inquiry, as between these parties was money.” (Metropolitan National Bank v. Loyd, 90 N. Y. 530, 535.)
Under the same rules the indorsement of the check to the order of the transferee’s New York correspondent, its delivery with a deposit slip attached for credit as a cash deposit, and its acceptance upon the terms proposed by the indorsement and the deposit slip, without more appearing, doubtless operated to transfer title, and the Produce Exchange Bank became the owner of the check.
The check was received at Philadelphia on October 14, and on that day forwarded to New York, where it was received on the morning of October 15. As the holder of the check the Produce Exchange Bank might have delayed making demand for payment until just before three o’clock P. M. (the hour for closing business) on October 16, and, had it done so, any loss occasioned by the drawee’s insolvency (which occurred at 2:45 o’clock P. M. of that day) would have fallen upon the drawer. (Anderson v. Rodgers, 53 Kan. 542, 36 Pac. 1067, 27 L. R. A. 248.) But it did not exercise its privilege and remain quiescent. It chose to act, and before noon of October 15 it presented the check for payment. When the check was presented the drawee might have assumed an attitude which for some purposes would not have amounted to either a compliance with or a refusal of the demand for payment, but it did not do so. It undertook by positive and affirmative conduct to meet the obligation which the check imposed. The situation then required further action on the part of the holder, and it responded in a definite and unequivocal way. Although the drawee had funds of the drawer on deposit at the time to meet the check, the holder surrendered it to the drawee, who stamped it “paid,” and accepted the drawee’s own check on the Western National Bank, of New York, in place of the cash, to which it was en titled and which it might have had for the mere taking.
It is true that the law is not so rigid in respect to the conduct necessary to preserve the liability of the drawer of a check as it is in the case of a draft. Failure to make demand within a reasonable time and to give notice of non-payment do not peremptorily discharge the drawer of a check. Unless he suffer some loss on account of the lack of diligence displayed he is not ordinatily released from liability.
“In order to charge the drawer of a check, the same strict rule of diligence in making demand and giving notice of non-payment does not obtain as in cases of ordinary bills of exchange. As a géneral rule, he is not discharged unless he suffers some loss in consequence of the delay of the holder.” (Gregg v. George, 16 Kan. 546, syllabus.)
A failure to demand payment of a check from a suspended bank could scarcely result in damage to the drawer, and hence laches of the holder in this respect would not release him.
“I think that the plaintiff was not guilty of laches in not presenting the check of the defendant to the bank before it was closed, on the morning of the day following its delivery. The authorities are abundant that the holder of a check has the day after it is delivered in which to make a presentment for payment. . . . The rule is settled that, in case of a check, the drawer is to be treated the same as a principal debtor, and he is not discharged by any laches of the holder in not making due presentment thereof, or in not giving him notice of dishonor, unless he has suffered some loss or injury thereby, and then only pro tanto. ... As the defendant was not discharged by the failure to present the check to the bank before it stopped payment, it is difficult to see how a neglect afterward to make a presentment to and demand of a confessedly insolvent party could occasion any loss or injury to the drawer. It would not prevent a recovery of the bank by the defendants of the amount in their possession, which they had neglected to pay, and for which no demand had been made, and hence how could the defendant be damnified?” (The Syracuse, Bing hamton and New York Railroad Co. v. Collins, 3 N. Y. Supr. Ct. 29, 31.)
(See, also, Cawein v. Browinski, 69 Ky. 457, 99 Am. Dec. 684.)
But, because the drawer of the check in controversy may not have been discharged by the mere fact that the holder upon presenting it did not require payment in money, it does not follow that the same time remained to the holder after the drawee’s failure in which to make presentment as would have remained to him if he had chosen to remain passive in the first instance. Before the suspension of the drawee, not only had a formal presentment for payment been made, but the holder and the drawee had substituted and put into operation in place of payment a scheme of their own which was not expressed in, and could not be implied from, the terms of the check when it left the drawer’s hands. This factor in the relations of the parties cannot be overlooked. The drawer’s guaranty is that the drawee shall remain solvent until the check with due diligence can be presented, but he grants no authority to the payee to extend that obligation. The holder is allowed the day after the receipt of the check in which to make presentation, in order to meet contingencies and the reasonable requirements of his business needs. But this time is not allowed to him for purposes of experiment, and when demand once has been made upon the drawee, who is in funds and ready to pay, and money is not taken, a point of departure in the rights of the parties has been established that cannot be ignored or repudiated at the will of the holder, to the detriment of the drawer. risk.” (2 Dan. Neg. Inst. § 1593. To the same effect is 2 Morse, Banks & Bank., § 426.)
“If presentment for payment be actually made on the very day the check is drawn, and payment tendered, the holder cannot then change his mind and leave the funds at the drawer’s risk until the next day. He is allowed until the next day as matter of convenience and accommodation to him; and while he need not hurry to make presentment the same day, having once done so, he has fixed the money at his own
These texts are based upon the case of Simpson v. Pacific M. L. Ins. Co., 44 Cal. 139, in which the conduct of the holder in presenting a check to the drawee is analyzed and its legal effect stated as follows:
“The presenting of a check for payment implies that the holder of it desires and is ready and willing to accept payment. It would be a contradiction in terms to say that the holder of a check presented it for payment intending and averring at the time that he would not accept payment. If he should present it for the sole purpose of ascertaining whether the signature was genuine, or whether the drawer had funds to his credit, or merely for the purpose of being identified as the person entitled to payment, not intending then to present it for payment, it is clear that this would not constitute a demand of payment, which, in its very nature, imports a willingness on the part of the holder to accept the money at that time. But if the check is presented for payment, with the present intention in the mind of the holder to accept the money if tendered, this must be deemed to be a demand of payment for all purposes affecting the rights of the drawer, even though the holder should afterward change his purpose and decline to accept the money when tendered by the bank. Having once demanded payment in due form and within the proper time, and the bank being then and there ready and willing and offering to pay the check, the holder is not at liberty after this to retract or waive his demand and decline to accept payment without thereby releasing the drawer from further liability on the check. If the holder declines to accept payment when it is tendered on a proper demand, the liability of the drawer ceases, for the reason that his undertaking was that the check would be paid when payment should be first demanded in due form and within the proper time; but he does not undertake that it will be paid on a second demand, when payment has been tendered and refused on a prior demand made in due form and within the proper time.” (Page 143.)
It is true that in Simpson v. Pacific M. L. Ins. Co. cash was tendered and declined, but the principle in- yoked applies equally to a holder who might have had cash but who, for purposes of his own, surrendered his paper for the drawee’s check. Such is the view of the editors of the two leading series of reports of selected cases.
“A check on a banker calls for money, and if money is not taken when it is presented to the drawee it must be either because some other mode of payment or course of dealing is more convenient to the payee or because it is more advantageous to the bank that money should not be paid. In the former case, i. e., where the payee for his own convenience accepts something besides money for the check, he surely should, not be allowed to charge the drawer with loss resulting from such election, and if it is for the convenience of the bank, the very fact that the bank makes the request is so suspicious that it ought to put the payee upon inquiry and incite him to diligence to secure the money, which unless satisfied of the safety of some other means of payment would require him to demand the money at once.” (25 L. R. A. 201, note.)
“The holder of a check need not hurry to make presentment for payment on the same day it is received, but, if he does so, it fixes the rights of the parties. He cannot then change his mind and leave the funds at the drawee’s risk until the next day. If he, on the first presentment, takes a substituted check on another bank in lieu of cash, it amounts to payment, and if the drawee fails on that day the payee cannot, after neglect to use the utmost diligence in presenting the substituted check for payment, put himself, by a subsequent demand upon the original drawee, in the same position he would have occupied had he not made the first demand.” (51 Am. St. Rep. 94, note.)
Such was the specific holding in the case of Anderson v. Gill, 79 Md. 312, 29 Atl. 527, 25 L. R. A. 200, 47 Am. St. Rep. 402, in which Simpson v. Pacific M. L. Ins. Co., 44 Cal. 139, was cited as an authority, and in which it was said:
“Whilst the Old Town Bank was not bound to have made demand upon Nicholson & Sons when it was made, still, having made it, and, by its own choice, not having received the cash, it cannot, if it has not used due diligence, claim the right to undo what it had done, and by a subsequent demand put itself in the position it would have occupied had it not made the first demand at the time it did make it, or done the act it then did.” (Page 321.)
And such is the doctrine upon which the decision in the case of Comer v. Dufour, 95 Ga. 376, 22 S. E. 543, 30 L. R. A. 300, 51 Am. St. Rep. 89, was rested:
“If the check is received at a place distant from the place where the bank upon which it is drawn is situated, and is forwarded by due course of mail to a person in the latter place for presentment, the person to whom it is thus forwarded has until the close of banking hours on the next secular day after he has received it to present it for payment, unless there are special circumstances which require him to act more promptly. (2 Morse, Banks, 3d ed., § 421; Dan. Neg. Inst., 4th ed., § 1591.) The holder cannot, however, after having once presented the check, derive any advantage from the fact that he could, without being chargeable with únreasonable delay, have held it longer before making presentment. The first presentment fixes the rights of the parties. If the drawee is then ready and willing to pay, and the holder allows the fund to remain longer in the hands of the drawee, or if he accepts in lieu of money a check of the drawee, he does so at his peril.”' (Page 379.)
In the case of Burkhalter v. The Second Nat. Bank, 42 N. Y. 538 (which professes to rely upon the case of Turner v. The Bank of Fox Lake, 3 Keyes [N. Y.] 425), and the case of Kelty v. Second National Bank of Erie, 52 Barb. (N. Y. Supr. Ct.) 328, checks were taken in lieu of cash on the presentation of bills of exchange proper. The checks were dishonored, and the bills were then recovered, presented a second time, and protested, all within the time allowed in the first instance for presentment and protest. In each of these cases the decision was made to depend upon the question of whether or not acceptance of the check amounted to payment of the draft, and considerable effort was expended to show that such was not the result — a proposition concerning which there is no longer any dispute. It was virtually assumed in each case that if the draft were not paid by the taking of the check its vitality was not suspended; that it continued to be a valid obligation; and that protest within the time allowed by the rules of commercial law fixed the status of all parties. The subject now under consideration was neither pressed upon the attention of the court by counsel nor discussed by the justices delivering the opinions.
In the case of First Nat. Bank v. Fourth Nat. Bank, 77 N. Y. 320, 33 Am. Rep. 618, all that is said upon the question of the liability of the drawer is dictum; and, if it were necessary to distinguish the earlier New York cases, a principle of discrimination might be found in the difference of purpose between checks and drafts and the difference in treatment usually accorded them. But so far as the briefs of counsel disclose, and the court is aware, no satisfying reason has yet been given for allowing the holder of a check, which calls for cash, voluntarily to disregard its legal intent, attempt to settle the drawee’s liability upon other terms than those proposed by the drawer, and then, after disaster has occurred, to rescind in toto and escape responsibility, even though he has had abundant opportunity to protect the drawer while following the course he first elected to pursue.
It is the sole function of a check to effect the transfer of money. It is of the essence of its definition that it is payable in money.
“Where a check is drawn for a given number of dollars, without in any other manner designating in what kind of money it is to be paid, it is payable in coin, if demanded, or current money. Nor can such a check be explained, either by verbal agreement or by custom, or any mercantile or other usage, to have any other or different meaning than that.” (Howes v. Austin, 35 Ill. 396.)
None of the parties to the instrument contemplates payment in anything else than money, and whenever a check is presented against funds on deposit to meet it, which the drawee is then ready and willing to deliver, the contract of the drawer has been fulfiled. To extend the drawer’s liability further without . his knowledge or consent would seem to be unjust. The acceptance by the holder of any other medium of payment than that expressed in the contract apparently ought to be at his own risk, and the doctrine that the acceptance of a substituted check is not payment unless it be paid seemingly should be limited in its application to the arrangement between the holder and drawee, and should be of no force to extend the liability of the drawer and indorsers.
This is the effect of the decision in Simpson v. Pacific M. L. Ins. Co., 44 Cal. 139, as to an accommodation indorser. The point is clearly made by Mr. Farnham in his note to the case of Anderson v. Gill, in 25 L. R. A. 201, already quoted, and it was suggested in the case of Comer v. Dufour, 95 Ga. 376. Such undoubtedly is the law where the new arrangement takes the form of a certification of the check. (Met. Nat. Bank of Chicago v. Jones et at, 137 Ill. 634, 27 N. E. 533, 12 L. R. A. 492, 31 Am. St. Rep. 403, and authorities there cited; Girard Bank v. Bank of Penn. Township, 39 Pa. St. 92, 80 Am. Dec. 507; First Nat. Bank, etc., v. Whitman, 94 U. S. 343, 24 L. Ed. 229; 22 A. & E. Encycl. of L. 572.) Upon principle it would seem that the holder of a check, which speaks of nothing but money on deposit, payable on demand, ought to have no greater license to jeopardize the drawer by receiving a mere obligation to pay in place of money than an agent for collection would have as against his principal. (See 5 Cyc. 505.) The language of Justice Treat in Merchants’ Nat’l Bank v. Samuel, 20 Fed. (C. C.) 664, appears to be quite pertinent:
“The payment of the draft was to be in cash; and if anything except cash was received, and in consequence thereof the drawer of the draft was damnified, then the damages sustained he has a right to be indemnified for by the negligent party. In this case, the plaintiff bank having received the draft, and presented the same, and received a check for the amount thereof instead of cash, the drawee having had funds to meet his check, which would have been paid if presented that day, and before the said check passed through the clearing-house on the next day the drawers, Parks & Co., whose check had been received, had failed, whereby the check was dishonored, the loss so caused must fall on the plaintiff, and not on the defendant. The draft should have been paid in cash; and if the plaintiff chose to receive, instead of cash, the drawee’s check, it did so at its own risk, and, if any loss followed, the plaintiff must bear the same.”
However, in deference to the reluctance of the commercial world and of the courts to relieve the drawers of checks from liability without actual payment’s having been received, this matter, although directly involved and proper to discuss, may be passed without decision, and attention be directed to the fair question lying beyond it of what the holder ought to do to protect the drawer and indorsers from loss in case he should accept a second check. Upon this proposition the law is clear. Nothing but the utmost diligence will suffice. The case of Anderson v. Gill, 79 Md. 312, already referred to, is the leading authority upon the subject. The facts were so similar to those under review that no distinction can be made in the application of the. controlling principle. In the course of the opinion,, which collates and discusses the authorities, it was; said:
“The rule fixing the close of business hours of the next secular day as a reasonable time within which a check may be presented, so as to hold the drawer when drawn on a bank in the same place where it is delivered, has relation only to the contract and liability of the parties to the instrument, and does not apply to a check given by the drawee to the payee, or to the agent of the payee, of the original check, upon its surrender. . . . The holder of a substituted check taken upon the surrender of the original check to the drawee thereof must use such diligence in presenting it for payment as a prudent man would under like conditions use. This imposes no hardship upon the person who voluntarily accepts the drawee’s check instead of cash. If he has had ample and abundant time to convert the drawee’s check into money, and still omits to do so, he obviously has not used due diligence, and the results of such negligence should not be visited upon the original drawer, who was in no way responsible therefor. Whether a delay to present the drawee’s check till the close of business hours is due diligence cannot be asserted as an invariable rule. In some instances it might be, whilst in others it would manifestly not be. . . . That a higher degree of diligence is demanded under facts like those before us than that which obtains between the parties to the instrument is obvious, because, as we have said, the drawer of the original check must be held to have contemplated that when presented it would be paid in money only, and the payee and drawee have no right, except at their own peril, to substitute some other mode of settlement which results in injury to the drawer. . . . We hold, then, that when the payee of a check, or his agent, takes from the drawee, who has ample funds of the drawer, a check of the drawee on some other bank or banker, instead of money, he, the payee, or his agent, must use the utmost diligence to present the substituted check for payment. . . . That Anderson was in fact injured by what was done is manifest, and it is no answer to say he might or would have been equally injured had the holder of the check remained passive until after the failure of Nicholson & Sons. In the one case the injury was the direct result of the payee’s negligence after the presentation of Anderson’s check to the drawees; in the other, had it occurred, it would have been only incident to a mere permissive or lawful inaction or passivity.” (Pages 319-322.)
The case of Comer v. Dufour, 95 Ga. 376, expressly approves the doctrine of Anderson v. Gill, and in the same connection states:
“If his [the holder’s] acceptance of the drawee’s check does not of itself discharge an indorser of the original check, the indorser should certainly be held discharged if the substituted check is not presented promptly and the collection is thereby defeated. Such presentment cannot be delayed at the risk of the indorser for any time beyond that within which, with reasonable diligence, the presentment can be made. In this case it appears that presentment of the substituted check could have been made in about five minutes from the time it was received, the bank upon which it was drawn being only three squares distant from the bank of J. J. Nicholson & Sons, the drawees of the original check; but it was not presented for two hours and a half or more after it was received by the collecting bank, and by reason of this delay the collection was defeated. Under these circumstances, we think the collecting bank failed to exercise due diligence, and its principal, the plaintiff in this case, was not entitled to recover against the defendant, the indorser of the original check.” (Page 379.)
In this case the Gilman & Company check upon the Western National Bank was received by the Produce Exchange Bank before noon of October 15. It was not thrown out at the clearing-house until after the Gilman & Company failure had occurred — at fifteen minutes before the close of business on October 16. It could have been cashed within twenty minutes from the time it was issued, or more than twenty-four hours before the drawers suspended. Under these circumstances it must be held that the holder and owner of the Noble & Co. check was- negligent in not taking the necessary steps to collect the second one, and that as a result of such negligence the deposit of Noble & Co. in the Gilman bank was lost.
Some attempt is made to justify the conduct of the holder under- the custom of the banks of New York disclosed by the findings of fact. It is not entirely clear that reasonableness should be conceded to a local custom that would subvert the character of a bank-check to the extent claimed for the custom disclosed (Bank v. Bank, 151 Mo. 320, 52. S. W. 265, 74 Am. St. Rep. 527), although the volume of business to be transacted daily in New York and the dangers incident to filling the streets with messengers carrying cash argue strongly in its' favor. The danger incident to cash collections, however, could be avoided by obtaining a certification of substituted checks, and in no event can a custom contravene an established rule of law, such as that requiring the utmost diligence to collect substituted checks (29 A. & E. Encycl. of L. 383), or justify negligence in the collection of such checks.
“The conclusion to be drawn from these cases and the text-books cited by counsel is, that a draft may be surrendered and a check taken therefor, but all reasonable diligence must be used in presenting such check for collection, and if such diligence be used and the check is not promptly paid or certified, then that the draft may be at once reclaimed. No general custom, if such custom existed, would excuse the collecting bank from exercising all reasonable diligence in collecting such check, and certainly a special usage would have no greater effect in excusing the bank than would a general custom. National Bank of Commerce v. The Am. Ex. Bank, 151 Mo. 320, 52 S. W. 265, 74 Am. St. Rep. 527; Minneapolis v. Metropolitan Bank, 76 Minn. 136, 78 N. W. 980, 44 L. R. A. 504, 77 Am. St. Rep. 609; Marine Bank v. Chandler, 27 Ill. 525, 81 Am. Dec. 249; Webster v. Granger, 78 Ill. 230.” (Bank of Commerce v. Miller, 105 Ill. App. 224, 233.)
The holder of the check having fixed the funds at its own risk by failure to take possession of them, subsequent efforts to bind the previous parties by protest and notice were nugatory; and the only remaining question is, Will equity permit the plaintiffs to recover, their action being founded upon mistake? The plaintiffs did nothing to influence the conduct of any of the parties who dealt with their check. The Produce Exchange Bank could not charge its negligent conduct upon the Philadelphia bank, nor that bank aid the Produce Exchange Bank to avoid the consequences of its carelessness by charging the check to Doughten. So far as the Produce Exchange Bank is concerned the check was paid, and because of that fact the original debt for which the check was issued was paid. Doughten could not by a voluntary payment to his bank carry the holder’s fault back to Noble & Co. and impose its consequences upon them. Noble & Co. acted alone upon the information Doughten gave them, and this information did not disclose the true state of affairs. Therefore, to deny relief against Doughten would be to permit him to profit by his own conduct, the effect of which was to mislead, and to compel Noble & Co. to pay their debt twice.
The judgment of the district court is reversed, with direction to enter judgment for the plaintiffs upon the findings of fact.
All the Justices concurrring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The controlling question in the case is, Can the beneficiary, Lizzie Elison, who joined in the contract by which the insurance on her husband’s life was assigned to Casper Elison, recover on the policy? In her petition, and in part as a basis of recovery, she set. up the contract, which appears to have been entered into with Casper Elison twelve days after the policy was issued. The demurrer to the petition raised the question whether, under the facts stated, as well as those admitted by the recitals of the contract, she had stated a cause of action. The contract is plain in its provisions and leaves no doubt about the purposes of the parties. Casper Elison agreed to pay the premiums on the policy for twenty years, or until the death of Adolph Elison, and in consideration therefor was to receive $1000 of the insurance money to be paid by the company. There was some claim that he was only to be reimbursed to the extent of the payments made, but it is expressly stated, and again repeated, that he was to receive $1000 at the death of the insured, or at the maturity of the policy. He was to have the possession of the policy, and the precaution was taken to provide that the draft drawn by the insurance company in favor of Lizzie Elison should be indorsed and turned over to the assignee.
Casper Elison was an uncle of the insured, and therefore had no insurable interest in his life by reason of kinship. (Singleton v. St. Louis Mutual Insurance Company, 66 Mo. 63, 27 Am. Rep. 321; Prudential Insurance Company of America v. Jenkins, 15 Ind. App. 297, 43 N. E. 1056, 57 Am. St. Rep. 228; Appeal of Corson, Ex’r, 113 Pa. St. 438, 6 Atl. 213, 57 Am. Rep. 417; 2 Joyce, Ins. § 1069.) The consideration of the transfer was not advances made by the uncle, nor was the transfer made as security for any subsisting indebtedness. It therefore appears that Lizzie Elison, the beneficiary of the policy, undertook to assign and transfer an interest in the policy to one who had no interest in the life of the insured.
The theory of life-insurance is that one who is interested in the preservation of the life of the insured may safely take and hold insurance, but that insurance in favor of one who has no interest in the life of the insured — who would be interested in his early death — is contrary to good morals and a sound public policy. In the early case of Life Ins. Co. v. Sturges, 18 Kan. 93, 26 Am. Rep. 761, it was held that such insurance, if sustained, would open the door to speculation and traffic in human life and invite to enter the most shocking of all crimes, and that “of all wagering contracts, those concerning the lives of human beings should receive the strongest, the most emphatic, and the most persistent condemnation.” The authorities generally unite in holding that one who has no insurable interest can no more take an interest in a policy, valid in its inception, by purchase and assignment than he could by direct issue from the insurer. In Warnock v. Davis, 104 U. S. 775, 26 L. Ed. 924, it was said:
“The assignment of a policy to a party not having an insurable interest is as objectionable as the taking out of a policy in his name. ... If there be any sound reason for holding a policy invalid when taken out by a party who has no interest in the life of the assured, it is difficult to see why that reason is not as cogent and operative against a party taking an assignment of a policy upon the life of a person in which he has no interest.”
It has been said:
“The evil of wager policies would rather be aggravated than otherwise by such a rule, because speculators, desiring to indulge in this species of gambling in human life, could more easily purchase from embarrassed policy-holders than procure the issue of such policies directly to themselves upon the lives of strangers. ‘In either case,’ as observed by a recent author in treating of this subject, ‘the holder, of such policy is interested in the death, rather than the life, of the insured.’” (Helmetag’s Adm’r v. Miller, 76 Ala. 183, 188, 52 Am. Rep. 316.)
As tending to sustain the view that a person cannot take directly, or by assignment, a policy of insurance on the life of one in whose life he has no insurable interest, see Cammack v. Lewis, 82 U. S. 643, 21 L. Ed. 244; Gilbert v. Moose, 104 Pa. St. 74, 49 Am. Rep. 570; Carpenter, Appellant, v. U. S. Life Ins. Co., 161 Pa. St. 9, 28 Atl. 943, 23 L. R. A. 571, 41 Am. St. Rep. 880; Ala. Gold Life Ins. Co. v. Mobile Mutual Ins. Co., 81 Ala. 329, 1 South. 561; Whitmore v. Sup. Lodge Knights & Ladies of Honor, 100 Mo. 36, 13 S. W. 495; Heusner v. The Mut. Life Ins. Co., 47 Mo. App. 336; Thornberg v. Ætna Life Ins. Co., 30 Ind. App. 682, 66 N. E. 922; Bayse v. Adams, &c., 81 Ky. 368; Roller v. Moore’s Adm’r, 86 Va. 512, 10 S. E. 241, 6 L. R. A. 136; Wilton v. New York Life Insurance Co., 78 S. W. (Tex. Civ. App.) 403.
In this case the interest of Casper Elison, who contracted with the beneficiary to pay all the premiums, would have been best subserved by the early death of Adolph Elison; and, in fact, death did occur in less than five months. It was a matter of much concern to him whether he should get the contingent amount of $1000 for a few premiums, or whether he should be required to pay them during the period of twenty years. In this respect it was more mischievous and vicious in its tendencies than many of such arrangements, because, if the insured had lived until the maturity of the policy, the assignee would have been required to pay even more than he was to receive. In that event he would have paid $1116.80, saying nothing of interest, for the $1000 of insurance money which he would receive; and, while there would have been a profit in the early death of the insured, his living until the end of the twenty-year period would have occasioned the assignee a substantial loss. Contracts of this character have been frequently denounced and held bad because they were regarded as wagers, but this court has declared them to be void on the broader ground that they are contrary to public policy.
If the transaction is tainted as to the assignee, who has no insurable interest, how does it stand as to the beneficiary in the contract of insurance, who participated in the wrong? If the agreement which furnished an inducement to take human life and a temptation to commit the most atrocious of crimes was participated in by the beneficiary voluntarily, how can she escape the condemnation of the law? She not only signed the agreement, but it appears that she was to take an active part in carrying it out, and was to re ceive. a share of the insurance to be secured through the payment of premiums by Casper Elison.
We have given much attention to the relation which Lizzie Elison bore to the transaction, and if we follow the rule of Life Ins. Co. v. McCrum, 36 Kan. 146, 12 Pac. 517, 59 Am. Rep. 537, it must be held that the whole transaction was so tainted with illegality as to bar a recovery by her. There appears to be no substantial distinction between this case and the one cited. There the insurance company issued a paid-up policy to Snyder, payable to his two daughters. He and the beneficiaries, for a valuable’ consideration, joined in an assignment of the policy to Mrs. Parker, who had no insurable interest in Snyder’s life. After the death of Snyder, Mrs. Parker, on learning that she could not collect the insurance, transferred the policy back to the beneficiaries, who in turn transferred it to McCrum, and he brought an action to recover upon the policy. It was held that McCrum stood in the shoes of the beneficiaries; that the transaction between the beneficiaries and the assignee was contrary to public policy, not to be tolerated by law; and that the policy was worthless and void, not only as to the assignee but also in the hands of the beneficiaries. In speaking of the participation of the beneficiaries in the tainted transaction it was remarked:
“This policy was placed in her [Mrs. Parker’s] possession, not only with the written consent of the beneficiaries, but upon a valuable consideration paid to them for the same; they therefore aided in creating, in the mind of Mrs. Parker, a desire for the early death of the insured; they held out to her the temptation to bring about the event insured against. . . . In making the transfer and assignment, and in receiving the money therefor, the beneficiaries, Elizabeth and Desylvia Snyder, were participants with Mrs. Parker in the attempted fraud upon the insurance company; the whole transaction between the beneficiaries and Mrs. Parker contravenes public policy, and the law leaves the parties as it found them.” (Page 149.)
Attention is called to the fact that in the McCrum case the beneficiaries received a consideration, while nothing was paid by the assignee to the beneficiary in the present case. Here Lizzie Elison procured Casper Elison to pay the premiums upon the policy in order to keep it alive, that she might receive a share of the insurance money. The fact that the assignee did not pay her money directly for the transfer did not take the vice out of the transaction nor make it less hurtful in its tendencies. It none the less, as was said in the McCrum case, aided in creating in the mind of the assignee a desire for the early death of the insured, and held out to him the temptation to bring about the event against which the insurance was issued. In the McCrum case the court further remarked:
“If the party who attempts to speculate in human life cannot enforce the policy which he has purchased on the life of another, in whose life he has no insurable interest, the beneficiaries who knowingly and purposely sell and assign to such a person the policy on the life of another for a valuable consideration ought not thereafter to be permitted to enforce the same for their own benefit. . . . It is not for the sake of the insurance company that the transactions between the beneficiaries and Mrs. Parker are held wrongful, but such rule is founded on general principles of public policy forbidding speculative contracts upon human life. In all such cases the courts ought not to lend their aid to assist parties engaged in the perpetration or attempted perpetration of such wrongful speculations.” (Pages 150, 151.)
The case of Powell v. Dewey, 123 N. C. 103, 31 S. E. 381, 68 Am. St. Rep. 818, sustains the view taken in the McCrum case. There Powell took out a policy of insurance on his own life and assigned the same to the beneficiary named in the policy, who had no insurable interest. The assignee paid the premiums which accrued up to the death of the insured. Upon proof of death the insurance company paid the amount of the policy to the assignee, and the executor of Powell’s estate then brought an action on behalf of the estate against the assignee and the insurance’ company to recover the insurance money. The court held that the policy was void because of the transfer to one having no insurable interest; that no action could be maintained upon it by the beneficiary against the insurance company, nor could the plaintiff, who was the representative of the insured, maintain an action, because, “looking at it in any view, it has its foundation on the policy, which is void.” (See, also, Hinton v. Insurance Co., 135 N. C. 314, 47 S. E. 474, 65 L. R. A. 161, 102 Am. St. Rep. 545.)
The McCrum case is deemed to be a controlling authority in the present one, and the court is not inclined to overrule or modify that decision. It follows that the judgment must be reversed and the cause remanded, with directions to sustain the demurrer of the insurance company to the petition of Lizzie Elison.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
This controversy arose over the interpretation and construction of a certain writing or writings. The plaintiff claimed that a certain instrument, which was an encumbrance upon lands then owned by him, was an oil-and-gas lease, and that it was void, first, for want of consideration; second, for lack of mutuality; and, third, that it had been abandoned by the lessee. He brought this suit to have the instrument set aside and canceled. Judgment was for defendant.
It appears that prior to the execution of this instrument the title to the land conveyed was in the defendant, Lanyon, and that on the 1st day of June, 1897, Lanyon and his wife entered into a written agreement with one E. K. Taylor, in which they agreed that if Taylor would pay to them within ninety days $14,000, with interest at eight per cent, per annum, they would sell and convey to him the land in question, except the oil and gas in the land. This agreement, duly acknowledged, reads as follows:
“Know all Men by these Presents, That we, Robert Lanyon and Mary Lanyon, his wife, of Crawford county, Kansas, by their attorney in fact, Robert H. Lanyon, are held and firmly bound unto E. K. Taylor in the penal sum of twenty-eight thousand dollars ($28,000), for the payment of which we do bind ourselves, our heirs, executors, and assigns, and administrators.
“Witness our hands and seals, this 1st day of June, 1897.
“The condition of the above obligation is such, that if the said E. K. Taylor shall pay or cause to be paid unto the said Robert Lanyon the following sum of mopey, to wit, fourteen thousand dollars ($14,000), ninety days from the date hereof, for which the said E. K. Taylor has given his promissory note payable to Robert Lanyon or order, and to bear interest at eight per cent, per annum from this date, upon the payment of the said sum of money, to wit, fourteen thousand dollars ($14,000), with interest at eight per cent, per annum from this date, to the said Robert Lanyon, when due as aforesaid (it being expressly understood and agreed that time is of essence in this contract), then the said Robert Lanyon and Mary Lanyon, his wife, shall make or cause to be made unto the said E. K. Taylor, his heirs and assigns, a special warranty deed to the following-described real estate to wit: All of section twenty (20), and the south one-half (]/%) and the northwest quarter (14) of section twenty-eight (28), all in township twenty-four (24), range twenty (20), containing eleven hundred and twenty acres (1120), lying and being situate in Allen county and state of Kansas.
“The said Robert Lanyon and Mary Lanyon, his wife, expressly reserve the right that in any conveyance they make that they reserve unto themselves the use of all oil or gas privileges on said land or any part thereof; and the purchaser or purchasers of said land or any part thereof to execute to the said Lanyons a free gas-and-oil lease on the land so purchased, the same in form as is now used by the Palmer Oil Company.
“And it is further expressly stipulated and agreed that upon the request of said E. K. Taylor they, the undersigned, will execute a special warranty deed to him or his assigns, with the reservations aforesaid, for any quantity of said land, not less than one quarter (14) section or in quarter- (*4) section tracts, if desired, at a price of not less than fifteen dollars ($15) per-acre.
“It is further understood and agreed that there now exist certain leases upon said lands, which leases are this day transferred to said Robert Lanyon, and it is understood that any rents collected upon said leases from this date by said Lanyons shall apply as a credit on the purchase-money note as aforesaid, and this obligation to be null and void; otherwise, in full force and effect.
“In Testimony Whereof, We have hereunto set our hands and affixed our seals, on- the day and year first above written. Robert Lanyon. (seal.)
Mary Lanyon. (seal.)
“By Robert Henry Lanyon, attorney in fact for Robert Lanyon and Mary Lanyon.”
On the 12th day of October, 1897, Taylor having complied with this agreement on his part, Lanyon and wife executed to him a warranty deed to the land; and at the same time, and as a part of the same transaction, and, as expressed therein, in consideration of the deed, Taylor executed the following writing, duly acknowledged, which plaintiff calls a lease and which he now seeks to have canceled:
“In Consideration of the sum of one dollar, and of a deed of the within-described land to the grantor herein, of same date, and of the covenants and agreements hereinafter contained, E. K. Taylor, a single man, first party, hereby grants unto Robert Lanyon, second party, his heirs and assigns, all the oil and gas in and under the following-described premises, together with the right to enter thereon at all times for the purpose of drilling and operating for oil and gas or water, to erect, maintain and remove all buildings, structures, pipes, pipe-lines and machinery necessary for the production and transportation of oil, gas, or water.
“Provided, that the first party shall have the right to use said premises for farming purposes, except such part as is actually occupied by second party, namely: A lot of land situated in the township of Elm, county of Allen, in the state of Kansas, and described as'follows, to wit: All of section twenty (20), township twenty-four (24) south, of range twenty (20), containing -acres, more or less.
“The above grant was made on the following terms:
“(1) Second party agrees to drill a well upon said premises within - months from this date, or thereafter pay to first party--dollars annually until said well is drilled, or the property hereby granted is conveyed to the first party.
“(2) Should oil be found in paying quantities upon the premises, second party agrees to deliver to first party, in the pipe-line with which it may connect the well, or wells, the tenth part of all the oil produced and saved from said premises.
“(3) Should gas be found, second party agrees to pay to first party no dollars annually for every well from which gas is used off the premises.
“(4) First party shall be entitled to enough gas free of cost to heat his stoves in the residence on said premises as long as second party shall use gas off said premises under this contract, but shall lay and maintain the service pipes at his own expense, and use said gas at his own risk. The said party of the second part further to have the privilege of excavating for water and of using sufficient water, gas and oil from the premises herein leased to run the necessary engines for.the prosecution of said business.
“(5) Second party shall bury, when requested to do so by the first party, all gas lines used to conduct gas off said premises, and pay all damages to timber and crops by reason of the burying, repairing or removal of lines of pipe over the said premises.
“(6) No well shall be drilled nearer than - feet to any building on said premises.
“ (7) Second party may at any time remove all of his property and reconvey the premises hereby granted, and thereupon this instrument shall be null and void.
“ (8) A deposit to the credit of the lessor in-bank, to the amount of any of the money payments herein provided for, shall be a payment under the terms of this lease.
“(9) If no well be drilled upon said premises within - years from this date, second party agrees to reconvey, and thereupon this instrument shall be null and void.
“In Witness Whereof, The parties have hereunto set their hands and seals, this 12th day. of October, a. d. 1897. E. K. Taylor, (seal.)”
The writing expressly says that it is given “in consideration of the sum of one dollar, and of a deed of the within-described land to the grantor herein, of same date, and of the covenants and agreements hereinafter contained,” and that thereby E. K. Taylor grants unto Robert Lanyon, “his heirs and assigns, all the oil and gas in and under the following-described premises, together with the right,” etc., describing the same lands which Lanyon and wife had that day conveyed to Taylor. The instrument recites a sufficient consideration, and the evidence introduced clearly and conclusively sustains the correctness of the recitals. After this instrument had been recorded Taylor deeded the land to one Doty, excepting therein all rights of the grantees under this writing. Doty in turn conveyed to the plaintiff, making the same exception.
The deed of Lanyon and wife and the so-called lease were executed at the same time and relate to the same subject-matter. A part of the consideration for the so-called lease, as expressed therein, was the deed of the same date to the lessor of the lands described therein. Together they constitute but one transaction, and were executed pursuant to the previous agreement between Taylor and Lanyon, by the terms of which Lanyon and wife agreed to deed to Taylor the land, except the oil and gas therein. When two or more written instruments are thus executed, courts in construing either should read them all together, the same as if all the parts were contained in one instrument. (Ritchie v. K. N. & D. Rly. Co., 55 Kan. 36, 39 Pac. 718; Jack v. Hooker, 71 Kan. 652, 81 Pac. 203.) Thus read and construed, these instruments amount to a deed, with an exception to the grantor excepting from the conveyance all the oil and gas in the land conveyed, and reserving to him, his heirs and assigns the right to enter the premises to lay pipes and erect and operate such machinery as might be necessary to reduce the oil and gas to possession.
It appears that the form used by the parties in making the exception was one prepared for oil-and-gas leases, and it is Significant, as tending to show that the parties were not making a lease, that a pen was drawn through each blank in that part of the lease which would, if properly filled out, impose special conditions on the lessee. The blank in clause number 1, which is ordinarily filled in with a definite date within which a well shall be put down, was erased by having a pen drawn through it, indicating an intention that there was no time limit. So with the blank in the same clause where usually is inserted the amount of money which the grantee shall pay to the grantor in case the lease is to continue and wells are not put down within the time stipulated. Also in clause 9, which is a provision requiring the grantee to reconvey in-case no well be drilled within a specified time, the blank is not only not filled, but a pen was drawn through it.
There are two provisions in the instrument indicating that Taylor should receive benefits from the production of gas or oil on the premises. The first is found in clause 2, which provides: “Should oil be found in paying quantities upon the premises, second party agrees to deliver to first party . . . the tenth part of all the oil produced and saved from said premises.” The second is in clause 4, as follows: “First party shall be entitled to enough gas free of cost to heat his stoves in the residence on said premises.”
Whether these provisions are only personal, or run with the land, we are not called upon to decide; in any event, they are not sufficient to turn the exception in the deed into a lease.
Construing the two instruments as one, the title to the oil and gas in the lands conveyed by Lanyon and wife to E. K. Taylor did not pass to Taylor, but was expressly excepted to the grantors. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
The whole question in the case was whether the damage was caused by the action of fire. The answer specially denied that the damage was caused by fire, and averred that it was caused 'by water. The issue was raised squarely. The jury found for the plaintiff, and found the amount of plaintiff’s damage to be $1030. In answer to the only special question submitted, which was by the insurance company, they found that the fire originated by spontaneous combustion. A motion to set aside this finding as not supported by the evidence was denied, as was the motion for a new trial, and the case is here for review. There are twenty-nine assignments of error, but only the ones that seem to require special attention will be noticed, and these in their order. The first twenty-one assignments relate to errors in the introduction of testimony.
The first error complained of is in permitting a witness for plaintiff to testify that there was a fire. J. F. McAfee, the principal witness for plaintiff, and manager of the woolen-mill company, was asked the following question:
"Ques. Now, state whether or not you had a fire in that wool in 1903, and when. [Objected to as calling for incompetent, irrelevant and immaterial testimony, and calling for the conclusion of the witness.] Ans. Why, there was; and it was between the 29th day of May and the 15th of June. [Defendant moved to strike out the answer for the same reasons stated in the objection. The motion was denied, and defendant excepted.] ”
To permit a witness to testify to the ultimate fact to be determined by the jury is error. (Solomon Rld. Co. v. Jones, 34 Kan. 443, 8 Pac. 730; Simpson v. Smith & Barnes, 27 Kan. 565.) It appears, however, that the witness McAfee, upon further examination, testified in detail to what he saw and all the facts and circumstances connected with the wool, and we are inclined to think that in this case the error was not prejudicial. (Solomon Rld. Co. v. Jones, 34 Kan. 443. See, also, Sparks v. Bank, 68 Kan. 148, 74 Pac. 619.)
The next error assigned is that the court permitted the same witness to testify that when the door of the warehouse was opened smoke came out. The objection was that this was incompetent, irrelevant, and immaterial, and called for the conclusion of the witness. There is no error here. Smoke is generally associated with fire, and is one of the most common evidences of fire. The question was whether there was fire in the wool; and while it was incompetent for the witness to testify to the conclusion that there was fire, as in the previous question, it certainly was competent for him to tell what things he saw that were evidences of fire.
The third error complained of is that the same witness was permitted to testify that he had known of wool in a similar condition setting floors on fire. It is claimed by defendant that spontaneous combustion never occurs in wool; that wool is an animal substance, and that only vegetable substances are capable of spontaneous combustion. The witness had testified previously that he had been in the wool business for forty-four years. This made him competent to testify as an expert. (Laws. Ex. & Opin. Ev., 2d ed., 193.) In Whitney and others v. The Chicago and Northwestern Railway Company, 27 Wis. 327, the court held that wool merchants and manufacturers of many years’ experience were properly allowed to testify as to “wool waste” and its liability to spontaneous combustion, and that in a certain sense men with such experience are experts. The subject-matter of inquiry here was not one lying within the common experience of all men, so as to make it objectionable as a subject for expert testimony.
“The opinions of experts are limited to matters of science, art or skill, yet this limitation is not applied in any rigid or narrow sense. And every business or employment which has a particular class devoted to its pursuit is said to be an art or trade, within the meaning of the rule.” (Rog. Exp. Test., 2d ed., 25.)
The next error assigned is in overruling the defendant’s demurrer to plaintiff’s evidence. It is sufficient to refer here to some of the numerous rulings of this court to the effect that where, as in this case, there is some evidence to warrant the submission of the case to the jury the demurrer should be overruled. (Merket v. Smith, 33 Kan. 66, 5 Pac. 394; K. C. Ft. S. & G. Rld. Co. v. Cravens, 43 Kan. 650, 23 Pac. 1044; Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732.)
The next five errors complained of, including the ninth, can be disposed of together, Defendant offered to prove by the deposition of an expert witness, W. T. McClement, who qualified as an expert chemist, what is “fire,” “ignition,” and its physical characteristics; what is meant by the “ignition point”; that in his testimony he used the word “burn” in its ordinary significance; the meaning in chemistry of the term “slow combustion”; the relation between “fire” and “flame”; and some other scientific terms in explanation of the above. While much of this evidence might have been interesting, it would throw little, if any, light upon the one question at issue — whether in fact there was a fire in the wool as claimed, and there was no error in refusing to admit the testimony. Most of it related to the characteristics of fire, a subject within the common knowledge and experience of the jury, and for that reason it did not come within the rule as to expert testimony. (See authorities cited supra.)
The tenth error assigned has more merit. The same witness was not permitted to testify that the natural grease in wool is not identical with the fat of the animal, and that it is an exudation from the skin analogous to the oil in the human scalp. Defendant was endeavoring to prove that wool will not support spontaneous combustion; and, unless it is clear that the nature of grease in wool is a subject of which the jury might be said to know from common knowledge and. experience, and of which courts take judicial notice, it would have been proper for defendant to prove it by expert testimony for the purpose of showing that “wool in the grease” is different from greasy wool, and that the natural grease in wool is not a thing which might add to or increase the combustibility of the wool in question. But, generally speaking, the nature of wool is well and commonly known, and for that reason it was not prejudicial error at least to exclude the scientific description of its characteristics.
The next error we shall notice is set out as follows:
“The court erred in refusing, upon its own motion, and without objection from the plaintiff, to permit the defendant to read to the jury, as original evidence, certain portions of the cross-examination and recross-examination of the witness W. T. McClement, the reading of which was waived as cross-examination by the plaintiff, which said recross-examination embodies the testimony of the witness that the results of spontaneous combustion and decomposition are similar; that fire involves the production of light or flame or luminosity; that wool does not give off a gas which can burn invisibly; and that a sufficient amount of heat could be produced without fire to destroy wool fiber.”
Without deciding whether the action of the court was error, it is sufficient to say that defendant was not prejudiced by the exclusion of this testimony. The court will take judicial notice of all things sought to be proved here. “Judicial notice takes the place of proof, and is of equal force.” (State v. Main, 69 Conn. 123, 136, 37 Atl. 80, 36 L. R. A. 623, 61 Am. St. Rep. 30.) In Poor v. Watson, 92 Mo. App. 89, it was said:
“Judicial notice should be taken of things which are of general knowledge among people of ordinary information. They will take judicial notice of recognized scientific facts and principles without the necessity of evidence and may do so of their own motion.”
(See, also, LaRue v. Insurance Co., 68 Kan. 539, 75 Pac. 494.)
What has been said in reference to the testimony offered in the deposition of the witness MeClement applies also to the errors complained of as to the exclusion of parts of the deposition of the expert chemist, Edward Gudeman.. And there was no error in permitting Professor Bailey and Professor Dains, in rebuttal, to testify that in their opinions spontaneous combustion can occur in a mass of wool by the application of water. Defendant offered expert opinions to show that spontaneous combustion cannot occur in wool, and this clearly was rebuttal.
An examination of the numerous other errors complained of in reference to testimony discloses nothing else worthy of special mention.
The next error relied upon is the refusal of the court to instruct the jury to return a verdict for the defendant. As was said in reference to the overruling of the demurrer to the evidence, there was some testimony to go to the jury, and if there was any, of course, under the oft-repeated rule, this court cannot reverse the judgment of the lower court, nor will it weigh the testimony of the parties to determine the preponderance. (Cornell University v. Parkinson, 59 Kan. 365, 379, 53 Pac. 138; K. P. Rly. Co. v. Kunkel, 17 Kan. 145; Cheney v. Hovey, 56 Kan. 637, 44 Pac. 605; Ketner v. Rizer, 34 Kan. 603, 9 Pac. 208; Railroad Co. v. Matthews, 58 Kan. 447, 49 Pac. 602.)
That there was some evidence to support the verdict we cite the following facts disclosed by the record: The witness McAfee testified that the heat was so great when the doors were burst open that no one could go inside for several hours; that he saw smoke, come out of the door when it was opened; that the wool was “charred,” and showed a charcoal on part of the wool, which was decomposed. He testified that the fiber of the wool was damaged; that the wool itself was so hot it could not be handled by hand; that he was obliged to send for pitchforks, so that the men could turn the wool and scatter it about; that he put his hand in the mass of wool and the heat was so great he could not leave it there; that the woolen twine with which the fleeces were tied was “burned,” and broke when the men handled the bundles; that he smelled the odor of burnt wool. He testified that the wool remaining was so damaged by the heat that iv'. .was practically of little value; that wool will not burn with a flame except when a flame is held against it; and that the instant the flame is removed it will go out. E. H. S. Bailey, professor of chemistry at the state university, testified that in his opinion spontaneous combustion can occur in unwashed wool by the application of water. After an examination of a sample of wool taken from that in controversy, he testified that in his opinion its condition could have been caused by fire. F. B. Dains, professor of chemistry in Washburn College, testified substantially the same.
Error is alleged also because the court refused the following instruction: “You are instructed that wool cannot set fire to itself.” The court has been favored in the briefs with the results of much scientific and literary research by counsel on both sides in support of their respective theories as to the possibility of spontaneous combustion of “wool in the grease” when subjected to water, and history, ancient and modern, on the subject and nature of fire, supplemented by text-books on organic chemistry and references to all standar-d authorities upon definitions. To quote from one brief:
“Fire and human culture date together. It was a factor in the religious observances of the ancient Egyptians, Greeks, Latins, and Persians, and on the American continent among the Natchez, Mexicans, and Peruvians. All of this evidences man’s familiarity with fire, and the fact that its phenomena are nothing new to the human race.”
Like many other questions of this character, there appears to be great diversity of scientific opinion as to whether spontaneous combustion can occur in wool, or in “wool in the grease.” From all the authorities we have examined it can be said, at least, that the probability of spontaneous combustion in wool is very slight. The books of scientific character being so much at variance, it cannot be said that the one view or the other must be taken by the courts; and, as the instruction asked went to the whole merits of the controversy, it was not error to refuse it. Defendant offered the following instruction:
“The policy in suit is a contract of indemnity against loss or damage directly caused by fire. The word ‘fire’ is used in the policy in its ordinary and usual meaning, and means visible heat or light. No degree of heat short of ignition producing an actual burning is cov ered by the policy, and damage to the wool caused by heat that did not reach an actual burning is not covered by the policy.”
This was refused, and the court of its own motion gave the following:
“The word ‘fire’ is so common and so well understood that I deem it unnecessary to give you any definition of what constitutes fire. It would make no difference, if there was fire, whether it was in the form of flame or merely smoldering; but there must be in fact the presence of fire.”
Error is alleged in refusing the first and in giving the second, and we shall consider the instructions together. The objection to the first is that it attempts to define “fire,” which, as the court below said in the instruction given, is “so common and so well understood” as to require no definition. Besides, the giving of the other instruction, in which the jury were expressly told that “there must be in fact the presence of fire,” was sufficient.
The other errors alleged, such as denying the motion for a new trial, etc., are disposed of in what has been said.
Plaintiff in error argues that as a matter of law no degree of heat short of ignition or actual fire will permit a recovery in this case, and insists that as a matter of fact, disclosed by all the evidence, there was no fire in plaintiff’s wool to cause the damage it sustained, but that the damage was caused by the process of decomposition, decay, or rotting, and that the judgment upon the verdict is unjust and should be reversed. It is true there must be fire causing the damage to plaintiff’s wool before plaintiff would be entitled to recover, but in our view there was some evidence to warrant the finding of the jury; and the court, while refusing to instruct that no degree of heat short of ignition would permit of a recovery under the policy, did instruct that if the damage to the wool was occasioned by its being heated without fire plaintiff could not re cover, and that if, on the other hand, spontaneous combustion took place, producing or resulting in fire, and the damage to the wool was caused in that manner, then plaintiff would be entitled to recover. The trial court took the view that fire is such a common thing as to require no definition, and in this we think he was right. The instructions presented the one issue fairly,- and, there being some evidence to support the contention of plaintiff, it follows that, while the verdict might not be ours if we were trying the issue of fact upon the same evidence, we cannot, upon consideration of the weight and preponderance of the testimony, disturb the verdict and judgment.
The judgment is affirmed.
Johnston, C. J., Greene, Burch, Mason, Graves, JJ., concurring. | [
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The opinion of the court was delivered by
Graves, J.:
The defendant in error sued the plaintiff in error to recover money retained by him in violation of his duty as the agent of the insurance company. At the trial a demurrer to the evidence of the plaintiff was overruled, and the defendant assigns this ruling as error.
P. H. Albright, of Winfield, Kan., and G. W. Moore, of Hartford, Conn., with officers at each place, constitute the firms of P. H. Albright & Co., at Winfield, and G. W. Moore & Co., at Hartford. They do a general real-estate and loan business. These firms were the agents of the insurance company, and transacted its business in Cowley county for many years. The insurance company has its home office in Hartford, Conn., and loans its money on real estate. When borrowers failed to pay it was the practice of the company to foreclose its mortgages, and, if necessary, bid in the land and hold it until the debt could be realized therefrom. P. H. Albright & Co. managed this business for the insurance company, and for that purpose had Grant Stafford, an attorney at Winfield, to do their legal business. They also had a clerk employed in the office by the name of W. E. Brewster.
The loan out of which the present controversy arose was long past due, and a foreclosure had been taken, but execution was held back upon a partial payment of the judgment. Some years thereafter, in 1899, P. H. Albright & Co., in response to an inquiry by the insurance company about the loan, wrote a letter in which the history of their efforts to collect was given, closing with the following:
“Our judgment is that probably we would better close him out by selling the land, and upon taking title to the land hold it for disposition in the usual way. If you are of the opinion that further delay is not in line with the best interests of the company, advise this office and we will have order of sale issued.”
The company then wrote a letter which contained the following:
“We, therefore, desire you to close the matter up as soon as possible, securing title, sending us the deed with other papers, together with the amount of expense incurred, and we will remit for same.”
An order of sale was then issued, and the sale advertised to take place June 26, 1899. The insurance company was advised of this action by a letter in which was the following:
“Sheriff’s sale coming off the 26th instant. The case of Julia I. Fay will be looked after in the usual way and bought in for the company, unless directed otherwise.”
On June 21, five days before the sale, Albright & Co., through G. W. Moore & Co., made inquiry of the insurance company if it would take $2250 “in full settlement” of the case. The company, supposing that a settlement was being negotiated with the owner of the land, answered that it would accept $2350. On July 10, fourteen days after the sale, the company received a remittance of $2350, accompanied by the statement that it was “in settlement” of the case.
The owner of the land, being unable to save it by payment, tried to find a buyer who would pay more therefor than the debt against it. He had been informed by Albright’s attorney, who had the matter in charge, that the amount of the lien was $3300. On June 1, before the sale, the owner found a buyer who would pay off the lien and waive the rent for that year. Up to this time the owner expected to pay one-third of his crop as rent, having been informed that the company would expect it by Grant Stafford, Albright’s attorney, who had been informed by the owner that a buyer had been found who was able and willing to buy the land.
On the day of the sale the owner was present with his buyer, who was there intending to buy the land for $3300, if it did not sell for more. The contemplated purchaser, Mr. Fry, however, met Grant Stafford and had two or more interviews with him before the sale, and did not bid at all. Grant Stafford bid the land off in the name of Albright’s clerk, W. E. Brewster, for the sum of $2000. Soon afterward Fry bought the land of Brewster for $3200, $100 less than he expected to pay for it at the sale. In this manner Albright made the difference between $3200 and the $2350 sent to the company, less the costs. Albright claims that the $2350 was practically the balance due the insurance company, and that, having lost nothing, it should not complain because he, by a little adroit manipulation of the landowner, was able to make some money out of the transaction.
The landowner is the real sufferer in this deal, but he is not before this court and his rights cannot be protected here. If Albright had followed the instructions of his principal the landowner would have been benefited to the amount of the difference between $2350 and $3300. The proceeding at the sale, on its face, unexplained, is not commendable to the plaintiff in error. No reason appears for not holding him to a strict and rigorous accountability to his principal. No rule of law, equity or ordinary honesty offers a shield or protection to him. He deliberately deceived his principal in order to get the opportunity to make this profit. He was able to carry out his purpose only by reason of his confidential relation with the insurance company.
When the land was bid in at the sale and paid for by a credit on the insurance company’s judgment it became the property of the company, and ought to have been accounted for as such. The pretense that at the time of the sale the judgment was the property of Albright by reason of the $2350 sent to the company two weeks afterward is a mere subterfuge. In that transaction there was no suggestion of a sale of the debt or judgment. It was a “full settlement” of the case.
By that transaction the insurance company intended to have the judgment satisfied, released, canceled; not sold to any one. The business transactions of the world are largely accomplished through the instrumentality of agents, and the law requiring the utmost frankness and fidelity between agent and principal cannot be too vigorously sustained and enforced. Some of the language used in this opinion may be stronger than the evidence fully sustains, but the question discussed arises upon a demurrer to the evidence, where it is claimed that, conceding every fact proved and every inference which can be reasonably drawn therefrom to be true, still no cause of action is shown against Albright. Under this view, which we are bound to take, the evidence justifies all that has been stated. We think the trial court did right in overruling the demurrer. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Plaintiff in error fails to specify in his brief any errors complained of, as required by rule 10 of this court, and the judgment might be affirmed for this reason. It is a case, however, in which particular specifications are not so material. The main contention is that the judgment is not sustained by sufficient evidence and is contrary to law.
Most of the testimony was in reference to the actual knowledge plaintiff had of the lease and exception referred to in the first deed. The court very properly ruled all of it out of the case. Whether he had actual notice was immaterial. He was bound by the recitals in the former deed. (Knowles v. Williams, 58 Kan. 221, 228, 48 Pac. 856.)
The case turns upon the force and effect of the provision in the deed. Plaintiff argues that it is a reservation instead of an exception. Considerable learning has been expended in refining the distinctions between an exception in a deed and a reservation. Strictly speaking, a reservation is something created or reserved out of the thing granted that was not in existence before, while an exception must be a part of the thing granted. (Winston v. Johnson, 42 Minn. 398, 45 N. W. 958.) A similar provision in a deed was held to be an exception and not a reservation in Barrett v. Coal Co., 70 Kan. 649, 79 Pac. 150. There the provision was as follows:
“This deed is made subject to the following exceptions, reservations, and conditions, to wit: The said party of the first part hereby reserves the coal and all other mineral underlying said land.”
The deed in that case contained both words, “exceptions” and “reservations,” but otherwise the provision is similar to the one here. The modern tendency of the courts has been to brush aside these fine distinctions and look to the character and effect of the provision itself. (Gould v. Howe, 131 Ill. 490, 23 N. E. 602.) While the distinction between an exception and a res ervation in a deed is well established, the words are frequently used interchangeably and synonymously. (11 A. & E. Encycl. of L. 555.) In Bainbridge on Mines and Minerals it is said:
“The severance of mines is usually effected by exceptions in deeds of assurance, which transfer the freehold in the surface and reserve the mines. An exception is distinguished from a reservation by its being part of the thing granted and in existence at the time of the grant, while the latter is a right of new creation arising out of the subject of the grant. They are different in legal effect, but in their creation There is no magic in words,’ and if the meaning is clear, either of the above expressions will operate for the purpose designated. They are also construed exactly in the same way as actual grants. In either case the law favors their construction by giving them all proper and necessary incidents.” (Page 34.)
“The owner of land may convey a surface estate in fee in it, and reserve to himself an estate in fee in the minerals or any particular species of them, in which case the vendor holds a distinct and separate estate in the minerals. By this severance each estate is subject to the law of descent, devise and conveyance.” (Kincaid, &c., v. McGowan, &c., 88 Ky. 91, 4 S. W. 802, 13 L. R. A. 289.)
Another case very much in point is Murray v. Allred, 100 Tenn. 100, 43 S. W. 355, 39 L. R. A. 249, 66 Am. St. Rep. 740. There the owner of land made a conveyance reserving “all mines, minerals and metals in and under” the same. His grantee conveyed by general warranty, without any reservation. Allred, who took by regular chain of conveyances, brought an action to determine the ownership of the petroleum oil beneath the lands, claiming that oil is not a mineral, but that, if it should be held to be a mineral, his possession of the surface was adverse to the claim of defendant to the oil. The court in an exhaustive opinion held that oil is a mineral, and recognized the doctrine that the exception in the deed separated the estate in the minerals from the estate in the lands, and that the possession of the surface of the land, without any denial of the mineral rights, was not adverse to the claim of the owner of the minerals.
Different estates may be created in the surface and soil'of lands and the underlying strata in which minerals, oils and gas may be found; and this separation of estates may be accomplished by an exception in the deed conveying the lands by which the grantor carves out and retains the right to the minerals in the land. The right retained by the exception is the ownership of the minerals. (Chartiers Block Coal Co., Appellant, v. Mellon, 152 Pa. St. 286, 25 Atl. 597, 18 L. R. A. 702, 34 Am. St. Rep. 645; Koen v. Bartlett, 41 W. Va. 559, 23 S. E. 664, 31 L. R. A. 128, 56 Am. St. Rep. 884.)
Plaintiff contends, however, that the cancelation of the Guffey & Galey lease, mentioned in the exception, operated to extinguish the rights of defendants therein and to vest in the owner of the lands all the rights in the oil and gas. The case of Joseph Farnum v. Abiel Platt, 25 Mass. 338, 19 Am. Dec. 330, is in point. The owner of real estate, having leased a stone-quarry thereon for a term of years, conveyed the land, reserving the use of the quarry until the expiration of the lease. During the continuance of the term the lease was canceled by consent. It was held that this did not extinguish the reservation, but that it would continue until the end of the term. Besides, the rights of defendants in the oil and gas do not depend upon the existence of the lease. The deed excepted and saved to them not only their rights under the lease but “all oil-and-gas privileges in and to said premises.”
The provision in the deed to Mrs. Gore is an exception, as distinguished from a reservation. Its force and effect was to carve out a separate estate in the oil and gas from the estate in the surface and soil. The title to the surface and soil of the lands passed to the grantee; the title to, and ownership of, the oil and gas. in the lands remained with the grantors.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Among numerous errors complained of in this record we shall refer to but one, as that requires a reversal. The trial court, of its own motion and over the objection and exception of plaintiff in error, gave the following instruction:
“The court instructs the jury that a railway company at its stations has the right to construct necessary side-tracks and station-houses and other necessary buildings upon its right of way for the purpose of the transaction of its business as a railway company, and the fact that the same may obstruct the view of the railway-track at public highway and street-crossings would not of itself constitute negligence on the part of the railway company; but you are further instructed that it is the duty of a railway company, in the transaction of its business and management of its side-tracks at such stations, and the placing of cars thereon, to use ordinary care and prudence in the placing of cars upon such side-track, so that travelers approaching such streets or highways for the purpose of crossing the same may have as extended view of the railway-track as may be possible, in order that they may see an approaching train in attempting to cross a street or highway; and if you find and believe from the evidence that the defendant railway company was negligent, as this term is defined in these instructions, in failing to give proper signals or alarms, and in placing box cars upon its side-track, and that such negligence was the proximate cause of the injury of the plaintiff, and if you further believe from the evidence that the plaintiff in no wise by fault upon his part contributed to such injury, then in such case your verdict should be for the plaintiff.”
It .is claimed that the petition makes no averment of negligence in the placing of cars upon the side-track or the maintaining of obstructions upon the right of way. The petition charges the railway company with negligence in running its train over the crossing at a high rate of speed, and in failing to sound the whistle, to ring the bell, or to give any signals, and in failing to stop the train after seeing defendant in error. It then describes the various obstructions upon the right of way, as follow:
“That said right of way as herein described was obstructed by buildings, being the depot buildings of said defendant company, and other outbuildings of said defendant company; and a side-track, which was at the time complained of full of cars then standing upon said side-track, which side-track was north of the traveled line of said defendant; also the stockyards of said company, located at or near said buildings, with large doors set high upon a foundation; a section-house, with its various outhouses and buildings and trees in front of said house and around it; placed there by the said defendant in such a manner that said buildings, cars, stock-yards, trees and other obstacles placed there by said defendant company did obscure all view of said defendant’s track west of said crossing from view of one passing from the west to the east along said track parallel with said road on approaching said crossing on said section-line from the north.”
The petition also contains the following averment:
“Plaintiff alleges that by reason of said defendant company, its agents and employees, so negligently, carelessly, wantonly and unlawfully omitting and neglecting to ring the bell upon said engine or locomotive, or cause the whistle of the same to be blown, or to sound any other alarm, or to stop said train after seeing plaintiff, and without fault on his part, the plaintiff was unable to hear the approach of said train: and that by reason of the said defendant’s completely obstructing the view, by causing to be placed all the objects heretofore set forth upon its right of way along its track, the said plaintiff was unable to see or know of the approach of defendant’s said train.”
There is no charge that the obstructions mentioned were negligently or carelessly placed upon the right of way, and the only apparent purpose of their mention in the petition was to furnish a basis for avoiding the imputation of contributory negligence of defendant in error in not discovering the approach of the train. If the pleader had intended otherwise, it would have been an easy matter to have specifically charged negligence in this respect by the use of the words “carelessly” or “negligently,” or some other synonymous words. The exact question was before the court in Railway Co. v. Griffith, 69 Kan. 130, 76 Pac. 436, and no attempt will be made here to add to or improve upon the reasoning of Chief Justice Johnston in that case. The facts, the petition and the instruction complained of were the same, and the opinion in that case controls this.
Although several special questions were submitted to the jury, they were not asked to make any finding that the railway company was guilty of any specific act of negligence, and they found generally for plaintiff. The prejudice in this instruction is more manifest because it cannot be said that the jury did not base their verdict upon the very negligence which was not charged in the petition, and to which this instruction challenged their attention.
We have carefully examined the record and cannot agree with counsel for defendant in error that this question is raised for the first time in this court, or that, by failing to object to testimony showing the presence of the obstructions upon the right of way, plaintiff in error thereby admitted that the petition charged negligence in this respect. The instruction complained of was objected to, and the objection raised the question whether the instruction was proper under the issues. It is seldom that instructions are argued except upon a motion for a new trial, and the record does not disclose what was specifically urged upon the motion in this case.
The petition, as we have seen, failed to charge negligence in maintaining these obstructions. The averment that the obstructions existed, however, being a material one for the purposes we have mentioned, it was proper for plaintiff to offer testimony to prove that there were cars upon the side-track upon the night in question, and defendant had no reason for any objection to such testimony. But, by offering witnesses to prove the contrary and to show that in fact there were no cars upon the side-track at that time, or to prove that this or that alleged obstruction would not prevent a person from seeing an approaching train, defendant did not thereby either enlarge the issues or admit that something was charged as negligence in the petition which was not.
The judgment is reversed and the cause remanded.
All the Justices concurring. | [
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Per Curiam:
In driving along a street of Argentine John Dulin’s horse was frightened and ran away, throwing him out of his cart, injuring him, and damaging his property. He sued the Metropolitan Street-railway Company, claiming that the injury and loss were caused by the negligent operation of a street-car. There was testimony that the street-car approached Dulin running more rapidly than he was driving; that the motor-man sounded the gong very loudly, and the horse became frightened at the car, and pranced and jumped about; that, although the danger to Dulin was apparent, the motor-man continued to run his car toward the frightened horse, and to ring the gong loudly; and that the horse then became unmanageable and ran away, throwing Dulin out, and causing the injury and loss for which recovery is sought. The trial court sustained a demurrer to the plaintiff’s evidence.
If the danger to Dulin was apparent, and was, or should have been, known to the motor-man, and he persisted in running the car toward the frightened horse, and in unnecessarily and loudly sounding the gong, it cannot be said that he was free from culpable negligence. Under such circumstances he should have done what he reasonably could do to avert the threatened danger to Dulin. There is testimony fairly tending to show that this was not done, and whether he was guilty of such negligence as would make the company liable for the loss was a question for the jury. The taking of the case from the jury was therefore an error, for which the judgment is reversed, and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Greene, J.:
W. B. Ham obtained a perpetual injunction against W. L. Davenport,- treasurer of Rooks county, restraining him, as treasurer, from selling certain lands in Wood’s addition to the city of Stockton for the unpaid city taxes for 1902.
The only question that we are called upon to determine is the constitutionality of section 636 of the General Statutes of 1901 (Laws 1893, ch. 66, §2)-, which reads:
“If any town site, or portion of a town site contain ing more than five acres, shall hereafter be vacated by the board of county commissioners or by act of the legislature, and such town site, or portion of a town site, is at the time a part of a city of the first, second or third class, the act of vacation thereof shall of itself detach the same from such municipal corporation, and it shall no longer be a part of such city, nor included within the corporate limits thereof.”
The lots, blocks, streets and alleys in Wood’s addition to the city of Stockton, containing more than five acres, were vacated by chapter 326 of the Laws of 1895. It is contended by the defendant in error that by the provisions of section 636, supra, the land in which the streets and alleys were vacated by chapter 326, supra, was thereby detached from the city, and thereafter was not subject to the payment of city taxes.
Section 1 of article 12 of our constitution reads: “The legislature shall pass no special act conferring corporate powers.” It has been determined in this state that this provision includes municipal corporations. (City of Wyandotte v. Wood, 5 Kan. 603; Atchison v. Bartholow, 4 Kan. 124; Gray v. Crockett, 30 Kan. 138, 1 Pac. 50.) It has also been held that an act changing the boundaries of a city is an act conferring corporate powers. (Gray v. Crockett, supra; Comm’rs of Shawnee Co. v. The State, ex rel., 49 Kan. 486, 31 Pac. 149.)
Chapter 326 of the Laws of 1895 is a special act, and could not change the limits of the city of Stockton. It could only have such effect in conjunction with section 636 of the General Statutes of 1901. There can be no doubt that it was the intention of the legislature that section 636 should operate to detach from the corporate limits of any city in Kansas all territory in which the lots, blocks, streets and alleys should thereafter be vacated.
It is a rule of. construction that where several statutes have been enacted relating to the same subject they should be construed together and harmonized, and each given the meaning intended by the legislature. The two statutes under consideration should be so construed. If section 636 should be given the force intended, the legislature could change the boundaries of a city by special act. It would thus accomplish by indirection that which the constitution has imperatively forbidden. The legislature cannot enact a law that will give to it the power subsequently to violate the constitution. It cannot without violating this provision of the constitution enact a law the purpose and effect of which is to give to special acts subsequently passed the force and effect of changing the corporate limits of cities. Chapter 326, being special, cannot be broadened nor converted into a general law conferring corporate powers by the provisions of any previously existing law. It has just been held in Levitt v. Wilson, ante, p. 160, that section 109 of chapter 529 of the Laws of 1903, which undertook to withdraw certain lands from the corporate limits of the city of Wilson, violated sections 1 and 5 of article 12 of the constitution, because it was a special act and contemplated the change of the corporate limits of a city. Section 636 of the General Statutes of 1901 is a plain attempt to evade this constitutional provision by providing that its provisions shall be read into all special acts subsequently passed vacating streets and alleys. It is therefore unconstitutional so far as it attempts to confer upon special acts of the legislature subsequently passed the effect of a general law granting corporate powers.
We might rest this case here, but it is urged that section 636 was held to be constitutional in Town Company v. City of Smith Center, 6 Kan. App. 252, 51 Pac. 801, which was affirmed by this court, and also in Town Company v. McLean, 7 Kan. App. 101, 53 Pac. 76. An examination of those cases will disclose that section 636 was not involved in either. The streets and alleys in the lands involved in those controversies had been vacated prior to the passage of the act of 1893. The question presented in those cases was the constitutionality of section 635 of the General Statutes of 1901. Whatever might be the judgment of the court upon the constitutionality of that section, it is not involved in this case, and we have no occasion to pass upon it.
The judgment is reversed and the cause remanded, with instructions to set aside the permanent injunction.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
George L. Levitt contended in this action that the city of Wilson was exercising municipal control over real property of his that was not within the corporate limits of the city. In 1883 the judge of the district court, upon a petition, undertook to organize the city of Wilson by making an order of incorporation which fixed the boundaries, prescribed the time for the first election, and made provision for conducting the same. The land in question was unplatted, and has remained so ever since; and, although it was within the exterior limits, the city did not levy or collect any taxes upon it until 1902. Streets were extended through a portion of the land in 1891, when it was owned by the Union Pacific Railroad Company, and the damages then awarded for the land appropriated were accepted by the company.
The plaintiff contended that the proceedings to incorporate were not regular and valid; that, even if the incorporation was valid, the lands in question were not legally included; and, if the lands were ever legally brought within the corporate limits, they were taken out by virtue of a provision of chapter 529 of the Laws of 1903. None of these contentions was sustained by the trial court.
The validity of the incorporation is assailed because of the supposed insufficiency of the petition upon which the district judge acted, and of irregularities in the making of the order. The order of incorporation purports to have been made by the district judge, and it was entered upon the journal of the district court as the statute required. The name of the judge is not signed at the end of the order, but the statute does not in terms require it to be so signed. It is said that the petition did not contain the requisite number of signers. But, such as it was, the judge acted upon it and made an order of incorporation in the usual form. Proceeding upon the theory that the organization was legal and effective, the defendant has exercised the functions of a city and maintained a corporate existence for about twenty years. There was statutory authority for the incorporation of such a city, and, if it be assumed that it was informally and irregularly organized, it became at least a de facto municipality. The regularity of the organization and its right of existence might be challenged by the state at the instance of the county attorney or the attorney-general, but it is not open to attack by a private individual in a collateral proceeding. (Mendenhall v. Burton, 42 Kan. 570, 22 Pac. 558; In re Short, Petitioner, 47 Kan. 250, 27 Pac. 1005; Town Co. v. City of Smith Center, 6 Kan. App. 252, 51 Pac. 804.)
The fact that the land was unplatted did not prevent its inclusion as a part of the city; and it has been held that land within the limits of a city, although used for agricultural purposes, may be subjected to the payment of city taxes. (Mendenhall v. Burton, 42 Kan. 570.)
The remaining contention is that the land was excluded from the corporate limits of the city by force of chapter 529 of the Laws of 1903. That is a special act applying to a great many municipalities, and section 109 provides that “so much of the city of Wilson, Ells-worth county, Kansas, described as follows [giving description] , an area of 11.20 acres, more or less, be and the same is hereby vacated as the city of Wilson, in said county, and that the same be restored to its original condition.” It will be observed that the act does not purport to vacate any lots or blocks, and in fact there were none to vacate, as it was an unplatted tract. It does assume, however, to vacate a part of the city itself, thus taking the land of plaintiff out of the corporate limits and restoring it to its original condition. Under our constitution special legislation with respect to municipal corporations, or affecting corporate powers, is not permissible. (Const., art. 12, §§ 1, 5.) It is well settled that special legislation purporting to enlarge or diminish the corporate limits of a city is invalid. (Gray v. Crockett, 30 Kan. 138, 1 Pac. 50; Comm’rs of Shawnee Co. v. The State, ex rel., 49 Kan. 486, 31 Pac. 149; Conklin v. Hutchinson, 65 Kan. 582, 70 Pac. 587.)
It is argued that vacation may be accomplished by a special act, and that under the general law (Laws 1893, ch. 66) such vacation, ipso facto, excludes such part from the corporate limits. In this case the general law can have no application, as the special act itself purports to withdraw the territory in question from the city. The only kind of vacation intended was the taking of the tract from the city limits and the restoring of it to the status it had before incorporation. Even if no more than the vacation of a platted portion of the city had been intended, the corporate limits could not have been changed by the passing of a special and invalid act operating in connection with a general law. It has just been held that it must have been wholly accomplished by a general law. (Davenport v. Ham, post, p. 179.)
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
The court is of the opinion that, under all the circumstances of this case, the plaintiff was not obliged to inspect the goods when they arrived; that his paying for them did not amount to an acceptance; and that his delay in returning them was not unreasonable.
The instructions asked, based as they were upon practically uncontradicted testimony, amounted to a virtual direction to the jury to find for the defendant, and were, therefore, properly refused. The instructions given stated the law and were applicable to the facts.
The attempt on the part of the plaintiff to sell some of the shoes which were salable while waiting for the defendant’s agent to appear and adjust the matter did not constitute an acceptance of the entire lot. There was no evidence, as stated in the brief of the defendant, that the agent, Hobson, warranted the shoes. There was evidence admitted without objection that the shoes were not equal to the sample, and in that connection there was no error in permitting the plain tiff to point out the defects of the goods by producing one of the shoes. The testimony of the witness Dobyns was given in rebuttal, and merely for the purpose of meeting assertions made in evidence of the defendant.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered oy
JOHNSTON, C. J.:
This was an action by A. Smith Devenney and H. L. Burgess to recover $750 from Jennie C. Moreland for legal services rendered in an action by her against the St. Louis & San Francisco Railroad Company. In their petition they set forth the following contract:
“Whereas, on the 21st day of December, 1903, near Godfrey, Kan., my husband, Asa Moreland, was killed by the St. Louis & San Francisco Railroad Company; and whereas, I, his widow and next of kin of the deceased, for my benefit and the benefit of my children, desire compensation for his death from said railroad company:
“Now, in order to obtain such compensation, I hereby employ A. Smith Devenney and H. L. Burgess, attorneys at law, of Olathe, Kan., to obtain, by suit or compromise, all compensation as damages for the value of the life of my said husband to me from said railroad company. In consideration of their services in the premises they shall have one-fourth of all moneys recovered by suit or otherwise, when same is collected. And it is expressly understood and agreed that I am not required to advance or pay any moneys for costs or for any other purpose whatsoever. The said A. Smith Devenney and H. L. Burgess, attorneys at law, hereby agree to and accept said employment on the terms and for the consideration above stated. And it is expressly agreed that my said attorneys shall not compromise said case without my consent first having been obtained thereto in writing. Signed in duplicate, this December 29, 1903, at Olathe, Kan.
(Signed) Jennie Moreland.
(Signed) A. Smith Devenney.
(Signed) H. L. Burgess.”
On a demurrer to the petition the trial court held the contract to be champertous and void. In an amended petition the plaintiffs set forth the oral negotiations which led up to the written contract, but did not mention or rely upon it. They asked a recovery for the value of the services rendered in her behalf, and by the verdict they were awarded $600.
There is no doubt as to the character of the transaction between the contending parties, and the case may be disposed of on the testimony of the plaintiffs. While there was an attempt to ignore the written contract, its existence and the negotiations preliminary to it were conceded. For a share of the moneys which might be recovered the attorneys agreed to conduct the litigation at their own expense. The express provision in the contract relieving Mrs. Moreland from paying costs or other expenses is open to no other interpretation. Such an agreement under our law is champertous, contrary to public policy, and void. At common law champerty was an offense, and from the beginning champertous agreements were deemed to be contrary to public policy and unenforceable. The common-law doctrine has been recognized and applied in this state. In A. T. & S. F. Rld. Co. v. Johnson, 29 Kan. 218, attorneys orally agreed with their client to prosecute an action for damages in her name against a railroad company for a portion of the amount recovered, and to pay the expense of the prosecution; and later she made a writing assigning to them the portion of the judgment they were to receive. It was said of that contract:
“It has every element of champerty in it. It was prosecuted for a portion of the expected judgment and for no other consideration, and Smith and Daniels agreed to pay all the costs and expenses necessary to be paid in such prosecution. This makes the contract unquestionably champertous.” (Page 227.)
The case of Aultman v. Waddle, 40 Kan. 195, 19 Pac. 730, recognizes the legality of contingent fees and sanctions the right of an attorney to carry on a litigation for a percentage of the thing to be recovered, where he does not relieve the client from the costs and expenses of the suit; but it approves the rule of A. T. & S. F. Rld. Co. v. Johnson, 29 Kan. 218, that an agreement by an attorney to carry on the litigation for a share of the amount to be recovered, at his own cost and expense, is against public policy and void.
The district court, therefore, rightly held the contract to be champertous, and we think it should have gone further, and held that no recovery was permissible for the value of the services performed.
Counsel contend that they are entitled to recover on the oral negotiations, and for the value of the services rendered. It is impossible, however, to separate the oral negotiations from the contract in which they culminated. The terms of the contract were discussed between the parties with a view of entering into a contract, and all the preliminary negotiations merged into the written contract as made. The testimony shows clearly enough that there were not two contracts between the parties, and the attempt to treat some of the preliminary talk as an oral contract apart from the written one is not tenable. There was but one transaction — one. contract; and as tH'at was tainted with the vice of champerty the negotiations leading up to the contract are likewise affected. It is made clear that Mrs. Moreland insisted that she should be relieved of all costs and expenses, and it may be safely said that, but for this provision, there would have been no employment. The services were rendered under an agreement which was void, not because of a mere want of power to make it, but because it was against public policy; and in such a case it is held that no recovery can be had upon the contract or for the value of the services rendered under it. (Bowman v. Phillips, 41 Kan. 364, 21 Pac. 230, 3 L. R. A. 631, 13 Am. St. Rep. 292.)
In Minnesota an action was brought by an attorney in which he set up a contract which was barratrous and against public policy, but the petition was drawn so as to admit of a recovery either under the written contract or upon a quantum meruit for the services rendered in the litigation. In declaring the law governing the case the supreme court said:
“Where the illegality of the conduct of a party enters into the very inception of a scheme by which the litigation itself is illegally instigated, even if the illegal express contract is set aside or ignored, this original vice in the scheme still exists; and a party to it cannot purge his conduct, and obtain the benefit of the litigation which he has thus unlawfully instigated, by ignoring the original special contract, and suing on a quantum meruit. Neither could he accomplish that result by attempting to abandon the original contract, and make a new one in furtherance of the unlawful scheme.” (Gammons v. Gulbranson, 78 Minn. 21, 23, 80 N. W. 779.)
A contract of a somewhat similar character was before the supreme court of Michigan in the case of Willemin v. Bateson, 63 Mich, 309, 29 N. W. 734, and the contention was made that if the contract was void and should be disregarded a recovery might be had for the value of the services given. The court remarked :
“We entirely agree with the claim that such a con tract is in direct violation of public policy. It was an agreement which made plaintiff’s right to fees depend on whether or not he gave judgment for the party suing before him. It would be difficult to conceive any more palpable violation of judicial duty.
“But it is a remarkable claim that, where work is done under such a contract, the contract may be treated as null, and the services regarded as rendered properly. No one can use a void contract as a means of getting better terms than he could have claimed under it. The whole transaction is covered by the same taint, and must be treated as beyond the protection of courts of justice.”
Under their own testimony the plaintiffs were not entitled to recover, and therefore the judgment must be reversed and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J.:
The defendant in error had judgment in the court below, and the railroad company prosecutes this proceeding to reverse it. The facts, briefly stated, are as follows :■ Sledge had been in the employ of the railroad company about a year before the injury complained of. Most of the time die was a brakeman, but at the time of his injury, and for a month prior thereto, he was a switchman in the yards at Pittsburg. Together with a switch-engine crew, he went out to do some switching on the morning of December 23, 1901. The engine was properly equipped with a foot-board in front and a hand-rail by which switchmen were enabled to steady themselves while riding upon the foot-board.
Through the fault of Sledge the post which held the left end of this hand-rail in place was bent and finally broken off, and the hand-rail left in such condition thereby that its continued use was dangerous. Soon thereafter the attention of the master mechanic was called to the condition of the hand-rail by the engineer and.its danger pointed out. The master mechanic, who represented the company for that purpose, directed the engineer, in the presence of Sledge, to go ahead and use the engine in its defective condition and he would have it repaired. This the crew did, the engineer at different times cautioning Sledge to be careful, and the use was continued through the bal- anee of that day without accident. A short time after the same crew commenced work with the defective engine the next morning, Sledge, after having thrown a switch, walked around from the left-hand (or fireman’s) side of the engine, got upon the foot-board and passed across to the right-hand side. As they were nearing a switch upon which they were to run the engine, Sledge, having hold of the hand-rail with his-left-hand near the post which held the right-hand end of the rail, raised his right hand to signal the engineer to slow down. This was done easily and quickly and it gave Sledge a pitch forward ; the hand-rail turned because of its defective condition, Sledge was thrown off, and the engine cut off his left arm. He had judgment for $7000 for the injury sustained.
That the injury occurred and that it was in consequence of the defective condition of the hand-rail are undisputed. That it was agreed that this defective condition should be remedied must be considered to have been settled by the verdict of the jury, although there was conflicting evidence.
It would seem that the case would fall under, and?, be resolved by, the general rule that where an employee is induced to continue the use of defective appliances under a promise from the master that it. should be repaired he would not be deemed to be guilty of contributory negligence because of its use during a reasonable time after the making of such promise. (Rush v. Mo. Pac. Rly. Co., 36 Kan. 129, 12 Pac. 582; A. T. & S. F. Rld. Co. v. Schroeder, 47 id. 315, 27 Pac. 965; Morbach v. Mining Co., 53 id. 731, 37 Pac. 122; Railway Co. v. Puckett, 62 id. 770, 64 Pac. 631; A. T. & S. F. Rld. Co. v. Sadler, 38 id. 128, 16 Pac. 46, 5 Am. St. Rep. 729.) It is claimed, however, that this case, because of its facts, is- taken out of, and becomes an exception to, this rule, the position of plaintiff in error being stated as follows :
“We do not dispute the legal proposition that where a defective appliance is furnished an employee and that by coming in contact therewith knowledge on his part is obtained of its condition, and complaint is made by him to the master and a promise is made to repair it, he might continue to use it by the exercise of care until such repairs are made, if made within a reasonable time, and not assume the risks of injury occasioned thereby, but it seems to us that the facts, as disclosed by the record in this case, did not bring it within the purview of those authorities and decisions.”
In a more or less general way the reasons assigned for this exception are two : (1) The defect was occasioned by the plaintiff’s own carelessness and negligence ; (2) the defect was so obvious, and the danger so imminent, that plaintiff was not warranted in relying upon the promise of the railroad company to repair, but was guilty of contributory negligence in continuing in the service, notwithstanding the promise to repair. We are unable to see in the present case how the first reason can make an exception to the rule. It is the fact of the defect and knowledge of it by the employer which count, and' not the cause of it. So if the defect was caused by the servant’s own wrong but he brings the knowledge of its existence to the master and the master promises to repair, the servant assumes no other or greater risk by continuing its use than he would if the appliance had worn out in the service or had otherwise become defective. Of course, had the defective condition not been communicated to, or known by, the company, or had no promise to repair been made which induced the plaintiff to continue its use, there would have been no opportunity for the application of the rule. But perhaps the suggestion that the defect was caused by the plaintiff’s own carelessness is thrown in more to give weight to the second reason above stated, than to have moment of itself.
The general rule is that an employee who remains in the service after notice of a defect which augments the danger of such service assumes the risk of the service as increased by the defect, but this general rule finds an exception where the master, knowing of the defect, promises to repair it. In such case the servant may, relying upon such promise, continue in the service for a reasonable time without the assumption of the additional risk. The reason for this exception probably rests in the fact that the master, in order that the servant may continue the service and thereby promote the master’s business, by this promise to repair himself assumes the added risk, or at least it relieves the servant from its assumption.
Of course, if the danger from the defect be so open and obvious that no one of ordinary care and prudence would proceed, the promise of the master will not avail to relieve the servant, the rule being that the servant is not relieved from the assumption of the risk where the defect is so glaring that, with the utmost care and skill, the danger is still imminent— so much so that none but a reckless man would incur it. (2 Bail. Pers. Inj. Rel. to Mast. & Serv. § 8117.)' So the defect must be something more than apparently dangerous in order to charge the servant, for it is because it is apparently dangerous that the master assumes risk. Whether the defect is of so glaring a character, and the danger in its use so imminent, that the servant is chargeable with negligence by its use,1 notwithstanding the assumption by the master, is however, like most other questions of negligence, for the jury and not for the court.
. Quotations might be made from many cases sustaining this rational rule, but we content ourselves with the use of two from recognized authorities. In Hough v. Railway Co., 100 U. S. 213, 225, 25 L. Ed. 612, it was said:
“We may add, that it was for the jury to say whether the defect in the cowcatcher. or pilot was such that none but a reckless engineer, utterly careless of his safety, would have used the engine without it being removed. If, under all the circumstances, and in view of the promises to remedy the defect, the engineer was not wanting in due care in continuing to use the engine, then the company will not be excused for the omission to supply proper machinery, upon the ground of contributory negligence.”
The supreme court of Illinois, in Drop Forge and Foundry Co. v. Van Dam, 149 Ill. 337, 36 N. E. 1025, said:
“Where a master, on being notified by the servant of defects that render the service dangerous, expressly promises to repair the defect, or to do whát is equivalent thereto, the servant may continue in the employment for such a period of time as it would be reasonable to allow for the performance of the promise. In such cáse, if injury results, the servant may recover, unless the danger is such that no prudent person would continue to perform the service. The servant’s knowledge of the defect is not, under such circumstances, conclusive of want of due care on his part, because the promise of the master to remove the danger justifies him in continuing in the service, and relieves him of the charge of negligence. If the master fails to make his assurance good, he is chargeable with a failure to exercise ordinary care.
“It is, however, a question of fact for the jury to determine whether the defect is so serious that a pru dent person would not continue in the performance of the required work.”
See, also, Missouri Furnace Co. v. Abend, 107 Ill. 44, 47 Am. Rep. 430; Taylor v. N. C. O. Ry., 26 Nev. 415, 69 Pac. 858; Hawley v. Northern Central Railway Co., 82 N. Y. 370; Greenleaf v. The Dubuque & Sioux City R. R. Co., 33 Iowa, 52; Jensen v. The Hudson Sawmill Co., 98 Wis. 73, 73 N. W. 434; Leonard v. Minneapolis, St. P. & S. S. M. Ry. Co., 63 Minn. 489, 65 N. W. 1085. Many text-writers hold to the same view. In the case at bar, in an unexceptionable instruction, the court submitted this question to the jury, which by their general verdict found that the defect which caused the injury to the plaintiff was not in fact what plaintiff in error contends it to have been as a matter of law — so open and obvious that a man of ordinary care and prudence would not have used it. The jury’s answer concludes the controversy.
There is a distinction found in some authorities in the application of the foregoing discussed principles where the appliances are simple ones, such as ordinary ladders or skids for the moving of heavy objects. (2 Bail. Pers. Inj. Rel. to Mast. & Serv. §3102 et seq.) How far this distinction ought to be carried is not necessary for us here to discuss. It would seem, though, from S. K. Rly. Co. v. Crocker, 41 Kan. 747, 21 Pac. 785, 13 Am. St. Rep. 320, where so simple an instrument as a hammer was under consideration, that this court has not been disposed to push the distinction far.
Complaint is made that the verdict ought not to be sustained because it is excessive. The left arm was severed above the elbow. The sum of $7000 was allowed. The plaintiff was twenty-three years old, earning at his business seventy-five dollars to eighty dollars per month. We cannot say, as a matter of law, that, the verdict is so excessive as to require us to interfere. Many verdicts, perhaps, all things considered, larger in amount, have been sustained by this court. (A. T. & S. F. Rld. Co. v. Moore, 31 Kan. 197, 1 Pac. 644; Mo. Pac. Rly. Co. v. Mackey, 33 id. 298, 6 Pac. 291; K. C. Ft. S. & G. Rld. Co. v. Kier, 41 id. 661, 21 Pac. 770, 13 Am. St. Rep. 311; U. P. Rly. Co. v. Mitchell, 56 id. 324, 43 Pac. 244; U. P. Rly. Co. v. Young, 19 id. 488.)
We find no error, and hence affirm the judgment of the court below.
• All the Justices concurring. | [
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Per Curiam:
Jerome E. Sage recovered judgment in the district court upon a note and mortgage executed by Helmuth Weber and wife. Weber had died before the action was brought, and his heirs, some of whom were minors, were made defendants. The guardian of the minors was also made a defendant in that capacity. No guardian ad litem was appointed.
The only argument presented for reversing the judgment is based upon' the claim that, under such circumstances, it was necessary for the plaintiff to prove the execution of the note and mortgage, although their execution was not denied under oath. In support of this contention, plaintiff in error cites Neil, Adm'x, v. Case & Co., 25 Kan. 510, 37 Am. Rep. 259, and Bryant v. Stainbrook, 40 id. 356, 19 Pac. 917. These cases have no bearing on the matter. They merely hold that, in actions brought to the district court on appeal from the probate court, no new pleadings being filed, the code provision that allegations of the execution of written instruments are taken as true unless denied under oath, does not apply, because the practice followed is that of the probate court. It is true that an answer of a guardian defending for a minor is not required to be verified (Code, §109 ; Gen. Stat. 1901, §4543), but this point is not raised by plaintiff in error, and neither the minors nor their guardian (in that capacity) are made parties in this court. Moreover, the answer filed by the defendants did not deny the execution of the note and mortgage under oath, or otherwise, but rather admitted it. The statute requires a guardian ad litem to file a general denial (Code, §101; Gen. Stat. 1901, §4535), and it is error to try a case against a minor without such a pleading. (Brenner v. Bigelow, 8 Kan. 496.) But, as already stated, no such question is here presented, and the omission is not a jurisdictional defect. ( Walkenhorst v. Lewis, 24 Kan. 420.)
The judgment is affirmed. | [
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Per Curiam:
This action was brought by H. E. Bur-tiss to cancel a certain oil and gas lease on her lands,- to which her name was signed by her husband without her consent or authority. The lease was given to George A. Bowlus & Co., and assigned to the Lanyon Zinc Company. Judgment was for defendant company. Plaintiff prosecutes error.
Plaintiff stated in her petition that she was the owner of the land in question; that her husband signed her name to the lease without her knowledge or consent; that she had no information that such lease had been given until within a short time before the commencement of this action, and she asked that it.be canceled.
At the request of the defendant, the court ordered that H. M. Burtiss, plaintiff’s husband, be made a party defendant. H. M. Burtiss alleged in his answer that he signed the lease at the request of one D. B. D. Smeltzer, as the agent of George A. Bowlus & Co. .; that he informed Smeltzer that the land belonged to his wife, who was absent from the state and would not return for several weeks, and that he had no authority to sign the lease; that Smeltzer insisted that he should sign the lease for himself and wife ; that it would be used only to induce others to execute leases by showing the lease for the Burtiss tract, and that he would hold the lease until Mrs. Burtiss returned, and if she would not then consent to the leas.e it would be returned.
The Lanyon Zinc Company, answering both the plead- . ings of the plaintiff and her husband, alleged that the property actually belonged to H. M. Burtiss; that the title was conveyed to his wife for the purpose and with the intent to hinder, delay and defraud the creditors of “H. M. Burtiss; that the lease was made by the authority of H. E. Bujtiss, and that the lessee agreed to deposit in the bank for the benefit of H. M. Burtiss and wife the sum of fifty dollars per annum, as annual rentals for such land for a period not to exceed ten years, unless in the meantime they prospected this land for oil and gas; that it had made such deposit each year, and that the money had been drawn out and used by H. M. Burtiss and wife, with full knowledge of the transaction.
The first error of which complaint is made is the order of the court making H. M. Burtiss a party defendant. It does not appear from the record that any objection was made by plaintiff to this order, or that objection was made to the order requiring him to answer as a defendant.
The second alleged error is in the admission of testimony offered by defendant company. A considerable portion of the evidence to which the plaintiff now objects was not objected to when given. Objections were, however, made to the introduction of certain receipts to which the name of H. E. Burtiss was signed by H. M. Burtiss, to a lease signed by both of them and by Maggie A. Pish, their daughter, of land, the title to which was in their daughter, and also to certain judgments against H. M. Burtiss, all tending to show the insolvency of Burtiss, and that prior to the rendition of such judgments these parties had shifted the title to these lands, including the land in question. This evidence, though, weak, was admissible for that purpose, and should be given such weight as the court might think proper.
These are the only errors of law of which complaint is made. There was considerable contradictory evidence on the questions as to who was the actual owner of the land at the time the lease was made, and whether H. M. Burtiss had authority from his wife to sign her name to this lease, and also whether the plaintiff did not know all about this lease immediately after it was made, and received the annual rentals deposited by the lessee in the bank.
The cause was tried without a jury, and this evidence was all considered by the court in its final determination of these questions, upon which the court found generally that the allegations of the answer of the defendant company were true, and rendered judgment thereon for it.
No error of law appearing, and the court having found the facts for the defendant, the judgment must be affirmed. | [
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The opinion of the court was delivered by
Burch, J. :
This action was one of replevin. The gist of it was wrongful detention. The return of specific property was demanded. Damages were asked . for wrongful detention, and the value of the property was prayed for only in the event a return of it could not be had.
The l’emedy of replevin is specific in purpose and limited in scope. It can only be invoked against a wrongful detention, which must exist at the time the suit is commenced. One who does not have the possession of coveted things does not detain them wrongfully and cannot be compelled to deliver them. He is absolutely invulnerable to a suit in replevin, and the fact that the value of the thing detained may be recovered in the event it cannot be produced to satisfy the judgment does not enlarge the power of that remedy.
•In the case of Ladd v. Brewer, 17 Kan. 204, it was said :
“A judgment for the return of certain personal property,. and damages for its detention, cannot be sustained against one who is shown by the testimony neither to have possession nor to claim any right to the possession.’5
In the case of Moses v. Morris, 20 Kan. 208, a demand was made upon the sheriff for the return of property which he held under legal process. Afterward he sold the property under an order of court made in the course of the proceeding in which the process had issued, and delivered it to the purchaser. The demanding party then brought replevin against him. In determining the rights of the parties, this court said:
“On the 10th of February, 1875, when the action of replevin was commenced by the defendant in error, the plaintiff in error was not wrongfully detaining the possession of the property sued for, as he then had neither the actual nor constructive possession of the same; neither did he have such possession conj ointly with his codefendant Diffenbacker ; nor was there any joint detention by him with Diffenbacker. After the sale of January 25th, Moses had nothing whatever to do with the property, and was indifferent to it.
“Without either actual or constructive possession, there is no power to deliver the property; and in the absence of such possession, it cannot be said that a defendant wrongfully detains the property. He may have committed acts which make him liable in damages ; and he may be liable for the value or use of the property in an action of another form ; but the action ■of replevin is not the proper remedy in such instances.”
In the case of Davis v. Van De Mark, 45 Kan. 130, 25 Pac. 589, the syllabus reads :
“Replevin will not lie against a person who is neither in the actual nor constructive possession of the property sought to be recovered, at the commencement of the action.”
This being the law, the judgment in favor of Sheriff Jones was undoubtedly correct. His conduct was solely that of an officer under an obligatory writ. When he sold the corn his possession of it ended and his interest in it ceased entirely. There was no mere ■shifting of possession for the purpose of defeating recovery, as in the case of Schmidt v. Bender, 39 Kan. 437, 18 Pac. 491. The principles there announced have no application, and no legal justification appears for joining the sheriff in this suit.
When the corn had been seized the plaintiff made a ■demand upon the sheriff for its release, and, in order that his position might not be mistaken or misconstrued, he committed it to writing. The sole basis for the demand was that the corn was exempt. When the sale took place the original attitude was maintained. The writing was again produced and read and the plaintiff’s right to the corn was reasserted because it was exempt. When suit was brought, the petition itself contained some allegations upon which the claim of exemption might have been predicated. With it'was filed an affidavit admitting the corn had been seized upon execution, but claiming that it was ■exempt. In reply to the answer of Jones, it was conceded that judgment had been rendered, execution issued and levied, and the corn sold, but it was said ■that the corn was exempt. True, it is claimed in plaintiff’s brief that such a concession was not made, but this court will not now permit him to higgle oyer equivocal phrases for the purpose of escaping the disadvantages of a situation which he thought to be advantageous when he established himself in it. The theory of the plaintiff’s action, therefore, was that he had a right to the possession of. the corn because it was ■exempt. This theory is further exemplified in the reply to Houlette’s answer. There the judgment, execution, levy and sale were expressly admitted, but it was said that the corn was exempt. True, this reply was withdrawn, and thereafter could only be used as any other written admission ; but, as the record fairly shows, it was withdrawn for the purpose of permitting an attack by demurrer to the set-off defense of the answer, to which the reply was not properly pertinent, -and not for the purpose of shifting or abandoning the original theory of. the case. With the reply to Hou-lette’s answer withdrawn, the reply to the answer of the sheriff committed the plaintiff to the exemption theory of recovery as against that defendant, and it is impossible that there should be one theory of a case íor a defendant officer for selling corn under execution, and another for a defendant purchaser at such sale. Therefore, the finding of the jury to the effect that the corn in controversy was not exempt precluded a judgment against the defendant Houlette.
The plaintiff, however, claims that the judgment upon w'hich the execution issued was void. Since the action was one of replevin for exempt property seized under execution, the validity of the judgment upon which the execution issued was distinctly admitted by the very form of the action.
"The requirement of the code (fourth clause of § 177), that the affidavit in replevin to recover the immediate possession of personal property shall state that the property sought to be replevied ‘ was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued in an action of replevin, or any other mesne or final process issued against said plaintiff/ is imperative. All these facts must be sworn to exist before the order of delivery can be made ; and. unless they do exist as facts the action of replevin cannot be maintained (except in case of exempt property) .
“The object of the statute (fourth clause, §177, Code) is not solely to protect process in the hands of the officer to whom it is directed, and who in virtue of such process detains the property sought to be re-plevied. One object is, by prohibiting all such in-inquiry in the action of replevin, to compel the party who desires to contest the ’validity of any judgment or order of a court, or of any tax, fine, or amercement, to do so in some proper and direct proceeding for such purpose. The law affords a proper remedy in each case — one well adapted to try the question ; but the action of replevin is not such remedy.
“An exception to the rule that property in the custody of the law cannot be replevied by the execution or attachment debtor, is made in the case of property which by statute is exempt from seizure and sale on execution or attachment; and this exception is pro-yided for by the fifth clause of said § 177 of the code. But in every such case the validity of the judgment and execution, or order of attachment, is not questioned,.but is distinctly admitted." (Westenberger v. Wheaton, 8 Kan. 169.)
Seemingly, out of an abundance of caution, the defendants introduced portions of the record in the original suit between Houlette and Redinger, and probably enough to show a valid judgment. But whether sufficient for that purpose or not, so far as it went the evidence was consistent with the plaintiff’s admission of the validity of the judgment which the •bringing of the suit necessarily compelled, and could not, therefore, be prejudicial to him.
The plaintiff also claims that the sale of the corn was void because conducted at an improper place. Plaintiff’s attorney attended this sale in his behalf. He there made but one objection to the sale about to take place. He warned the sheriff and prospective purchasers that the corn was exempt, and nothing more. He sued the sheriff and the purchaser upon the ground that the corn was exempt. Upon his own estimation of his rights, it was immaterial to him where the sale was held. Having declared his position in the beginning, and having held it until after the issues were made up and a trial was in progress, he could not then ambush his adversary by an objection to the place of sale.
“Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation' has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold. He is estopped from doing it by a settled principle of law. Gold v. Banks, 8 Wend. (N. Y.) 562, 24 Am. Dec. 90; Holbrook v. White, 24 id. 169, 35 Am. Dec. 607 ; Everett v. Saltus, 15 id. 474 ; Wright v. Reed, 3 Durnf. & E. 554; Duffy v. O’Donovan, 46 N. Y. 223 ; Winter v. Coit, 7 id. 288, 57 Am. Dec. 522." (Railway Co. v. McCarthy, 96 U. S. 258, 267.)
This authority, among other pertinent cases, has been quoted with approval in the following decisions : Davis v. Wakelee, 156 U. S. 680, 690, 15 Sup. Ct. 555, 39 L. Ed. 578 ; Davis & Rankin Bldg. & Manuf’g Co. v. Dix, 64 Fed. (C. C.) 406, 411; Tabler, Crudup & Co. v. Sheffield Land, Iron and Coal Co., 87 Ala. 305, 310, 6 South. 196 ; Harriman v. Meyer, 45 Ark. 37, 40 ; McDonald v. Hooker, 57 id. 632, 638, 22 S. W. 655, 23 S. W. 678 ; Wallace v. Minneapolis & Northern Elevator Co., 37 Minn. 464, 35 N. W. 268; Wyatt v. Henderson, 31 Ore. 48, 55, 48 Pac. 790 ; Harris v. Chipman, 9 Utah, 101, 105, 33 Pac. 242 ; City of St. Louis v. Gas-light Co., 5 Mo. App. 484, 524 ; Ballou v. Sherwood, 32 Neb. 666, 689, 49 N. W. 790, 50 N. W. 1131; Frenzer v. Dufrene, 58 id. 432, 436, 78 N. W. 7J9. (See 9 Rose’s-Notes, 424.)
The evidence with reference to the existence of a-mortgage lien upon the corn in suit was admitted, apparently upon the theory that if-such a lien existed in good faith the plaintiff was entitled to sufficient corn to satisfy it. But the jury found the pretended lien fraudulently to have been contrived by the plaintiff for the purpose of defeating the execution creditor in the enforcement of his rights. This being true, the plaintiff could not ask for its enforcement. He cannot be permitted to build up rights upon the basis of his own fraud. The assignee of the original holder-was not a party to the suit and can complain of no error committed at the trial. Therefore, it is entirely immaterial whether or not the jury were properly instructed with reference to the transfer of the note and mortgage, whether or not findings upon that subject are consistent with each other, and whether or not any such findings are unsupported by the evidence. Only those errors which affect the substantial rights • of parties in a position to complain of them can work a reversal of a judgment of the district court.
The pleadings in the action, were short and simple and easy to comprehend. The brief indication of the issues by the court tended to prevent any obfuscation the unexplained pleadings might cause. The special findings show that the jury was clear regarding the material facts, and these findings were in harmony with the general verdict. It is, therefore, impossible-to conclude, from an inspection of the record, that the jury was confused or misled by the pleadings-which the court permitted them to take in connection with the instructions, and. the judgment entered will not be overturned on account of the conduct of the court in that respect.
On the face of the record the money judgment-against the plaintiff, entered by the clerk in opposition to the verdict of the jury and without warrant in ' the pleadings, was invalid. The defendant in whose favor the unauthorized judgment apparently ran has-relinquished every right which it wrongfully seemed to afford him.
“An error in a judgment, in that it exceeds the-amount of the verdict on which it is entered, may be cured by a remittitur of the excess.” (18 Encyc. PL & Pr. 142.)
The mistake was not called to the attention of the district court. It could have been corrected there by motion, practically without expense. Its commission is only one of many errors- complained of here, and was not the inducement to this proceeding in error. Therefore, the judgment will not now be reversed on account of it, and no costs will'be allowed in this court because of it.
The plaintiff failed to provea cause of action against either of the defendants Graham or Pettyjohn, even though it be conceded that they were in possession of some of the corn. Therefore, their demurrers to the evidence were rightfully sustained, the jury was properly instructed to, make no finding respecting their rights, and judgment was properly entered in their favor.
The record is free from any material error, and the judgment of the district court is affirmed.
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Per Ouriam:
The appellant appeals from a conviction for selling intoxicating liquors and maintaining a nuisance. Errors are predicated on the giving of certain instructions, refusing to give others requested by appellant, and in overruling appellant’s application for a continuance of the trial.
The instructions given are not subject to the criticism made, and fairly state the law; those refused which contain a correct statement of the law were substantially embodied in the instructions given by the court. There was no prejudice resulting to the appellant by reason of the court’s refusal to grant a continuance, even if the application be considered sufficient. An examination of the record discloses no prejudicial error, in the proceedings as against the appellant.
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The opinion of the court was delivered by
Johnston, C. J. :
James Buoy, an employee of the Clyde Milling and Elevator Co'mpany, who was assisting in the construction of a warehouse, was injured by the fall of a negligently constructed scaffold. Engaged in the work at the same time were Richa, a carpenter receiving $2.50 per day, and Buoy, a man of all work who received only $1.15 per day. Miller, the general manager of the company, employed Richa to complete the building, and told him that he would send Buoy around to help him. According to plaintiff’s testimony, Richa. had worked some time and had practically completed the scaffold when Buoy arrived at the building. Buoy inquired if the scaffold was safe, and the reply of Richa was that it could not be pulled down with a team. Plaintiff went upon the scaffold with Richa and within a few minutes it fell to the ground and the plaintiff was seriously injured.
In this action for damages the plaintiff alleged that the injury was caused by the negligence óf the defendant and its. employees in the unsafe and defective way in which the scaffold was built; that plaintiff had nothing to do with the construction of the scaffold and had no knowledge of its defective and insecure condition. The defendant pleaded that the injury was the result of plaintiff’s negligence and not that of the defendant, and farther, that his injury had been greatly increased by the failure to take proper care in the treatment of his injury. There was conflicting testimony as to the experience of plaintiff, his knowledge of existing conditions, and whether he was subordinate to Richa, the carpenter.’- There was conflict, too, as to whether plaintiff assisted in the erection of the scaffold and should have known of its defective condition. When plaintiff had introduced his testimony, a demurrer thereto was interposed by the defendant which the court, after consideration, ■overruled. The defendant’s testimony was then introduced, and also some by the plaintiff in rebuttal, when the court submitted the case on instructions, with special questions which the jury were required to answer. The jury found in favor of the plaintiff, awarding him $1069 as damages, and returned answers to the special questions as follows :
“1. Were not the brackets, the braces, the pickets and the plank or planks used as flooring on the scaffold in question all of good, safe, sound material and fit for the purpose for which they were used ? A. Yes.”
“3. Was not the plaintiff present and assisting in completing and erection of the scaffold in question ? A. No.
”4. Did not the plaintiff have ample opportunity to examine and inspect the scaffold as erected, and every part thereof, to ascertain as to its condition and the manner in which it was erected and was standing, before going to work thereon ? A. Yes.
“5. Was any officer or agent of the defendant corporation present at the time the scaffold was erected and before the accident? A. Yes.
”6. If you answer the preceding question in the affirmative, state what officer of the corporation. A. Richa, vice-principal.
“7. Was not the witness Richa an experienced, competent and skilful mechanic or carpenter? A. Yes.'”
“9. Did the witness Richa have any supervision or control over the plaintiff in the work that they were doing on the day of the accident. A. Yes.
“10. If you answer the last question in the affirmative, state what supervision or control said Richa had of the plaintiff, and from what source or authority he procured the right to such supervision or control. A. Vice-principalship, from Miller.
“11. Did not the plaintiff receive his orders as to the work done or to be done on the day of the accident from Miller, the manager of the defendant, and from no other person ? A. Yes.
“12. Did either the plaintiff or the witness Richa have any authority or control over the other? A. Yes.
“13. If you answer the last question in the affirmative, then state what such authority or control was and from what source it originated. A. As vice-principal, from Miller.
“14. Did the defendant or any of its officers or agents in any way direct, superintend or have charge of the erection of the scaffold in question? A. Yes.
“15. If you answer the previous question in the affirmative, then state which officer of the defendant, and what such officer did' towards directing, controlling or superintending the erection of the scaffold in question. A. Vice-principal Richa erected the scaffold.
“16. Was not such scaffold, erected in the manner in which this scaffold was erected, an ordinarily safe place upon which to perform the work necessary to be done at that time? A. No.
“17. If you answer the preceding question in the negative, in what respect was such scaffold unsafe ? A. Defective in bracing.
“18. Did not the defendant and its officers and agents use all proper and reasonable care in providing for the safety of the plaintiff in doing the work that he was to do on the day of the accident? A. No.
“19. If you answer the preceding question in the negative, then state fully in what respect you find the defendant or its officers guilty of negligence. A. In defective bracing of scaffold.
“20. Under the instructions under which the plaintiff and the witness Richa were, working on the day of the accident, was it any more the duty of one than the other to erect any scaffold that might be needed for use in the work which they were to do ? A. Yes.
“21. If you answer the preceding question in the affirmative, then state which one, and why. A. Richa, vice-principal.
“22. Was it not necessary, in order to do the work which plaintiff and the witness Richa had been ordered to do on .the day of the accident, that a scaffold-be erected? A. Yes.
“23. If you-find for the plaintiff, state how much, if any, you allow for medical attendance and treatment ; how much, if any, you allow for physical suffering ; how much, if any, you allow for mental suffering how much, if any, you allow for loss of time, and how much, if any, for permanent injuries. A. 1st, $5.90; 2d, $100;' 3d, ,$50; 4th, $69; 5th, $844.10. Total amount allowed, $1069.
“24. Was not the plaintiff just prior to the accident standing on the plank beyond and outside of the west bracket ? A. No.”'.
The defendant objected to the answers made to- . several questions which were all overruled except as to No. 10, which, under the direction of the court, was reconsidered and a modified answer returned, striking out “Yice-principalship, from Miller,” and inserting “By being a superior workman.” The defendant asked that certain of the findings be set aside because they were not sustained by the evidence, not responsive to the questions, and were contrary to the law and the instructions of the court. This motion was overruled ; whereupon they asked for judgment in favor of the defendant on the findings, but this motion was likewise overruled. A motion- for a new trial was then made on six different grounds, one of which was that the verdict and special findings were not sustained by sufficient evidence and were contrary to law; also, errors of law occurring at the trial. The motion for a new trial was allowed, as is recited in the entry,
“on the ground following and for no other ground: That the court committed error in refusing to sustain the demurrer filed and presented by the defendant to the evidence introduced by plaintiff, the court holding that under the evidence presented the plaintiff was not entitled to recover and that the case should not have been submitted to the jury.”
The order granting a new trial is assigned for error. Ordinarily, courts hesitate to disturb an order granting a new trial, where both parties are afforded another opportunity to have a fair and impartial trial of the case on its merits. So it has been said that a much stronger case for reversal must be made where a new trial, is allowed than where it is refused. A trial court has quite an extended discretion in the granting of new trials, and such an order will not be set aside unless it can be said that the court committed error with reference to some pure, simple, unmixed question of law. Where several grounds are alleged and the trial court does not state upon what particular ground the motion is allowed, the supreme court will sustain the order if it can be done upon any of the grounds assigned.
Most of the statutory grounds were alleged in the motion, but the court stated the particular ground upon which the motion was allowed, namely, that error was committed in the refusal to sustain the defendant’s demurrer to plaintiff’s evidence. To remove any possible question, a recital was added that it was sustained for no other ground. The court having re fused to set aside the findings because they were not sufficiently-supported by the testimony, and also refused to enter a judgment thereon in favor of the defendant, and having overruled all other grounds of the motion for a new trial except the single one which has been mentioned, its order rests on a question of law alone. The court in effect held that the findings of the jury were sustained by sufficient evidence ; that these findings did not warrant a judgment in favor of the defendant; that they did not conflict with each other nor with the verdict; that there was no irregularity in the proceedings; no misconduct of the jury or the plaintiff; that the damages were not excessive or given under the influence of passion or prejudice ; that the verdict and findings were not without support in the testimony, and that no errors of law occurred at the trial except the refusal to'sustain a demurrer to plaintiff’s evidence. Manifestly, the court held that the whole testimony, including that of plaintiff and defendant, made a case against the defendant and supported the findings and verdict, but that when the plaintiff rested, and when the demurrer to the evidence was introduced, there was not sufficient testimony to warrant a submission of the case to the jury.
The ruling on the demurrer to the evidence is a decision of law occurring at the trial, and is not available as error unless raised by a motion for a new trial. It was so raised in this case, and when presented in that way the case was in the same situation, and the trial court was governed by the same rules, in measuring the evidence, as it was when the demurrer was originally considered and decided. If the demurrer should not have been sustained a new trial should not have been granted because of the decision overruling the demurrer. Was there substantial testimony tending to sustain the cause of action stated in plaintiff’s petition? In determining the question the court could not weigh evidence nor settle conflicts in it. 'The demurrer admitted the facts which the evidence most favorable to plaintiff tended to prove and all that might be fairly inferred from those facts.
A very different question would be presented if the .ground for a new trial was that the verdict was not sustained by sufficient evidence. There the court might weigh the conflicting evidence, and, if the verdict did not meet with its approval, its duty would be to set it aside and grant a new trial. But before the court can take a case from the jury on a demurrer to evidence it must be able to say that, admitting every fact proved which is favorable to plaintiff, and admitting everything which is fairly inferable from the evidence most favorable to plaintiff, he has utterly failed to make out some one or more of the material facts of his case. (Brown, Adm’r, v. A. T. & S. F. Rld. Co., 31 Kan 1, 1 Pac. 605; Christie v. Barnes, 33 id. 317, 6 Pac. 599.) Measured by these rules, the case should have been submitted to the jury, and, therefore, the ruling submitting it to the jury afforded no ground for a new trial. There was testimony tending to sustain the averments of the petition; testimony from which the jury might have inferred that the scaffold was carelessly built, and that Richa, who built it and was in charge of the work when plaintiff went to his assistance, was culpably negligent.
The furnishing of a safe place to work and safe appliances with which to do the work are among the absolute duties of the master. From the testimony a fair inference may be drawn that these duties were not performed. It is said, however, that plaintiff had an opportunity to examine, and must have examined the scaffold before using it. According to the testimony he was told to go to the assistance of the carpenter, and when he went he found a scaffold erected upon which he was expected to work, and, unless there was a very obvious defect, he had a right to assume that it was properly built. (Kelley v. Railway Co., 58 Kan. 161, 48 Pac. 843.) He took the precaution, it seems, to ask Eicha if it was safe, and was told that a team could not pull it down.
We cannot say that he should have known of the insecurity of the scaffold. Unless his attention was drawn to defects or to the dangerous condition, he was not required to institute an investigation, but might rest on the assumption that the company had performed its duty. The posts and braces which supported the brackets of the scaffold rested on the track of a railroad recently built. The ground upon which the braces stood was somewhat loóse, and the braces reached the ground over and across a rail of the track which acted as a fulcrum when there was a weight on the platform of- the scaffold.. • When the men and material rested on the scaffold the effect was to spring the braces over the' rail, tipping up their ends and thus rendering the structure insecure. It does not appear that his attention was drawn to this feature of construction nor to the danger to which he was exposed.
As we have seen, the scaffold was not built by him, and the accident occurred within a few minutes after he began work on it. It cannot be arbitrarily said that he knew, or should have known, of the danger to which he was exposed. Under the law, it is not only necessary that the employee shall know of the facts constituting the negligence of the master, or Rave opportunity to know them, but, in addition to these facts, he must have known, or by the use of •ordinary observation ought to have known or understood, the danger to which he was exposing himself by reason of those conditions.
It follows that the court erred in granting a new trial on the ground stated, and, therefore, its judgment must be reversed, with directions to enter judgment upon the findings and verdict.
All the Justices concurring.' | [
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The opinion of the court was delivered by
Mason, J. :
Richard A. Park (who is succeeded by Anna O. Park) held a debenture bond issued by a corporation in which George Manley owned stock. The corporation having suspended business for more than a year, and Manley having died, Park sued the executor, Reuben M. Manley, as a stockholder, on the bond and recovered judgment, to review which this proceeding is brought.
All the questions just decided in the preceding case of Manley v. Mayer, 75 Pac. 550, arise in this case. As to them nothing further need be said ; but two additional questions are now presented, the first of which relates to the matter of parties. There was evidence that while the bond referred to had been assigned to Park he had no beneficial interest therein, the assignment having been made to enable him to realize on the claim in the interest of the original payee. "We are asked to hold, upon the authority of Stewart v. Price, 64 Kan. 191, 67 Pac. 553, that under these circumstances he was not the real party in interest and could not maintain the action. That case was decided by a divided court, three justices dissenting. The two conflicting views involved were there fully discussed, the authorities in support of each being reviewed. There was no difference of opinion on the proposition that the conclusion reached was at variance with the weight of authority and in conflict with earlier Kansas decisions. For reasons therein stated we now believe that the law should then have been declared in accordance with the minority opinion, and that it is better to make such declaration at this time than to confirm that case as an authoritative precedent.
When the owner of a note, for reasons satisfactory to himself, assigns it to another, thereby vesting in him the full legal title, the assignee becomes, so far as the debtor is concerned, the real party in interest. The original owner is still the person to be finally benefited by the litigation, but his legal demand is no longer against the maker of the note, but against the person to whom he has assigned it. When the obligor is sued by such assignee (no claim as innocent purchaser being involved), he can make any defense he could have made against the assignor ; he is fully pro tected against another action; and in no way is it a matter of the slightest concern to him what arrangement between the plaintiff and the original creditor occasioned the assignment. This being true, it would be a sacrifice of substance to form to permit the defendant to defeat the action by showing a failure of consideration for the transfer, or that the plaintiff was bound to account to his assignor for a part or all of the proceeds. We hold that the objection to the judgment urged on the ground that plaintiff was not the real party in interest is. untenable.
The second question turns upon the fact that the plaintiff had formerly sued defendant and obtained a judgment against him on a similar cause of action. It is argued that the creditor of a corporation has but one demand against a stockholder for the payment of all his claims against the corporation; that he may not split this demand and harass the stockholder with several suits; and that when he has once obtained a judgment for any amount, based on the stockholder’s individual liability, he has exhausted his remedy against him. The principle is well settled that a single demand, entire in its nature, may not be made the basis of different suits, and if judgment be obtained on one part of it that is a final adjudication of the whole matter. But this principle cannot apply to the facts of the present case. It is true that there is a sense in which the action is brought not on the note, but on the statutory liability. This is illustrate^ by the application of the three-year statute of limitations. On the other hand, it is recognized that the stockholder’s obligation is contractual. In view of the statute, whenever one subscribes to stock in a corporation he thereby assumes a liability as to each and every obligation of that body. The corporation might be sued in a separate action upon each of the bonds issued by it. Different issues might arise in each suit. Upon several judgments being obtained by one person upon different bonds, he might, upon failure to collect by the ordinary means, charge a stockholder by separate motion in each case with the payment of each and all of the judgments. Each bond of the corporation forms a good cause of action against it. Each bond, with the fact of the stockholder’s ownership of stock, forms a good cause of ■ action against him whenever the business of the corporation has been suspended for more than a year. The liability of the stockholder in this regard is as broad as that of the corporation. The judgment complained of will be held good against this objection.
For the reasons stated in Manley v. Mayer, supra, the judgment, in this case is excessive, and will be reduced to $1033.97.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
On the night of July 5, 1902, while Maud Holmes was in her chamber preparing to retire, a gun was fired near the house, a charge of shot from which passed through a screen window near which she was standing, striking her head, neck, and breast, and inflicting serious wounds. She was a young unmarried woman who lived on a farm with the other members of the Holmes family, consisting of her father, mother, and sister, all of whom were in the house when the shooting occurred. No one was seen to fire the gun and who did it was, for some time at .least, a puzzling problem. Attention was finally directed toward A. B. Ryno, who resided in another neighborhood about three miles distant from the Holmes place. He was about fifty years of age, married and having a family of five children, the youngest of whom was sixteen years of age.
It appears that in January, 1901, some, one representing himself to be George R. Clark wrote to Maud Holmes, proposing a correspondence with her. He claimed to be from Ohio and was in Kansas looking for investments, and dated his letter at Canton, Kan., a point in the county in which Maud Holmes lived. She consented to, and did, correspond with him for a time, keeping copies of the letters which she sent to him. Although his letters were posted from neighboring places and on railway-trains near Maud Holmes’s home, he did not call on her until October 8, 1901, when he introduced himself as the George.R. Clark who had been carrying on the correspondence. At the same time he also met Maud’s father and mother, and as the visit lasted about three hours all had an opportunity to observe his appearance, manners, and peculiarities. He talked about the correspondence and the subjects about which they had been writing, and undertook to explain the reasons why his letters had been so strangely posted at different places. At that time Maud indicated that she did not desire'to carry on the correspondence further, but he continued to write to her and to other members of the Holmes family until shortly before the shooting. The letters first suggested love, a desire for matrimony, an effort to have Maud meet him at different places, and to take a trip to Ohio. There were some sensual allusions, which suggested resentment because she did not conform to his wishes; jealousy of a young man with whom she was keeping company; a possible or impending tragedy in the family, and references to the poisoning of the Holmes dog; an attack on, and fright of, Maud a short time before she was shot; and other occurrences about the Holmes home about which only a participant could well have knowledge. Ryno was recognized by Maud, and the other members of her family as the George R. Clark who had called at the Holmes place and then acknowledged the writing of the letters sent prior to the visit. These, with other circumstances, pointed to him as the guilty one and a prosecution was instituted against him. He was charged with an assault upon Maud Holmes with an intent to kill her, under section 38 of the crimes act (Gen. Stat. 1901, § 2023), and upon the trial the jury found him guilty, under section 42 of the same act (Gen. Stat. 1901, §2027), of wounding Maud Holmes under circumstances which would have constituted manslaughter in the fourth degree if death had ensued.
On appeal he complains, first, that the court sub-’ mitted the case on the theory that the offense defined in section 42 of the crimes act was in-in the offense charged under section 38, and he contends that the offense of which he was fpund guilty is not included in the one charged in the information, and that the verdict rendered was equivalent to an acquittal of the charge. In effect, the' same question» was raised in The State v. Burwell, 34 Kan. 312, 8 Pac. 470, and decided contrary to the contention of the appellant. In that case the charge was under the same section, of shooting with intent to kill with a deadly weapon, and the verdict was the same as the one returned in the present case, of wounding under circumstances that would have constituted manslaughter in the fourth degree if death had ensued. We see no reason to change the rule which has been so long followed and which no doubt guided the court in the submission of the case. See, also, The State v. Fisher, 8 Kan. 208; The State v. Terreso, 56 id. 126, 42 Pac. 354; The State v. Smith, 57 id. 673, 47 Pac. 541; The State v. Countryman, 57 id. 815, 48 Pac. 137.
Error is assigned on the admission of the testimony of J. F. Shearman, or rather on the manner in which he gave his testimony. It is said that he is a member of the bar and a clerk in the federal court, with a state reputation as an official and citizen of exceptional natural ability and unusual accomplishments ; that he is of fine personal appearance and has had an experience of fifteen years in studying and testifying as an expert in handwriting, and that he gave his testimony with illustrations on a blackboard in an argumentative and very impressive way. The testimony does show that he had given the subject of handwriting much study and that his qualifications as an expert had been recognized in many of the state and federal courts where he had been called to give testimony. His apparent intelligence, study and experience leave no doubt of his qualifications, and in fact the.appellant does not much question his competency, but does complain of the use of the blackboard with which he illustrated his testimony.
For the purpose of illustrating and explaining his testimony, an expert as to handwriting may make use of a blackboard. In this way he can convey to the jury the reasons for his opinion and make the points of similarity or difference upon which his opinion rests more intelligible to the jury. (McKay et al. v. Lasher et al., 121 N. Y. 477, 24 N. E. 711; Dryer v. Brown, 52 Hun, 321, 5 N. Y. Supp. 486; 15 A. & E. Encycl. of L., 2d ed., 281.)
There were submitted to this witness a large number of letters and other writings, and he made a comparison between them and other writings admitted or proved to be genuine. His testimony was therefore necessarily quite extended. It was competent to in quire of him on the direct examination the reasons for his opinion, and the blackboard illustrations served this purpose efficiently. His opinion, unexplained, might have had little value, but when the reasons upon which it was based were given, the jury could then determine the soundness of his reasons and the correctness of his conclusions. In Steam Mill Co. v. Water Power Co., 78 Me. 274, 4 Atl. 555, it was expressly decided that the expert may give not only his opinion but the reasons for his opinion in his examination in chief, and of course the defendant is always at liberty to make a more detailed examination as to the basis of the expert’s opinion upon cross-examination. The objection that the testimony was not drawn out in the usual manner by question and answer is not sustained. We see nothing unusual in the method of the interrogation, and while some of his answers were lengthy, they were responsive to the questions asked, and the subject-matter necessarily required extended answers. We find nothing in the conduct of this inquiry that trenches’ upon the rights of the defendant or furnishes ground for serious complaint.
Complaint is also made pf the use of certain writings not acknowledged to be in the handwriting of defendant, as standards of comparison. Some of these were admitted to be genuine, but a larger number were only shown by the testimony of the state to be the handwriting of the defendant. Among the papers so used were the recognizances in the case, as well as school orders, agreements and leases which witnesses saw the defendant sign. There were other writings upon which defendant had acted, or which he acknowledged to witnesses to be his own, or which were shown by testimony to be his. There was practically no dispute in the testimony as to the genuineness of these writings, although as to most of them there was no acknowledgment at the trial that they were genuine. Most of the witnesses who identified the papers and j>roved them to be the defendant’s writing were not cross-examined, and no testimony contradicting the proof so made was offered by defendant. Under the rule which has been applied in this state, an acknowledgment is not essential to establish the genuineness and warrant the use of a standard of comparison. The courts of the country are not in accord on this question, but, “It is the established law of this state, and of many other states of this country, to permit proof of the genuineness of a disputed signature by comparison with other signatures, on other instruments in writing, admitted or proved to be genuine.” (Holmberg v. Johnson, 45 Kan. 199, 25 Pac. 576.)
The recent case of The State v. Stegman, 62 Kan. 476, 63 Pac. 746, was a prosecution for the forgery of a bond purporting to be the act of another, and involved the point whether the standards of comparison used by experts called as witnesses must be admitted to be genuine, or can be proven to have been written by the party. It was there held, that “a writing clearly proved to be genuine, and- about which there is no dispute in the evidence, may be used as a basis for comparison of handwritings and to show that a certain other writing with which it is compared is not genuine.” (See, also, Macomber v. Scott, 10 Kan. 335; Joseph v. National Bank, 17 id. 256; The State v. Zimmerman, 47 id. 242, 27 Pac. 999; Gaunt v. Harkness, 53 id. 405, 36 Pac. 739, 42 Am. St. Rep. 297.)
There is some complaint that the court did not submit to the jury, as a question of fact, whether these standards of comparison were written by the defendant. Whether the writings offered as standards have been sufficiently proved to be genuine to be used as standards must be determined by the court in the first place ; but the weight and effect of the evidence bY comparison, including the genuineness 0f the standards, is ultimately a question for the determination of the jury. Here no special instructions with respect to the standards were asked, and none was given, but the court submitted this, with all other testimony, to the jury, with the admonition that they were the sole and exclusive judges of all the facts in the case, and should give the weight to the testimony and opinions as to handwriting to which they should deem them entitled. There was no intimation in the rulings or instructions of the court that the genuineness of the standards of comparison used by the experts was not submitted as a question of fact for the jury with the other testimony offered in proof of handwriting.
Error is assigned on the refusal of the court to instruct the jury that defendant was not on trial for the writing of letters to Maud Holmes, and that the letters could not be considered for any purpose except as they might throw light on the motive of the defendant. This instruction was properly refused. In the first place, it was unnecessary for the court to name any offenses or charges for which the defendant was not on trial. The court did clearly define the offense with which the defendant was charged and for which he was on trial, and did direct the application of the testimony to that charge. In the second place, the letters were receivable for other purposes than the mere motive of the defendant. They tended to establish the identity of the author of . the letters, as well as the connection of the defendant with the offense’ charged, and, hence, to limit that proof to mere motive would have been error.
Exception was taken to the refusal of the court to give the following instruction :
‘•'If the jury, or any one of the jury, after having considered all the evidence in this case, and after having consulted with his fellow jurymen, should entertain a reasonable doubt of defendant’s guilt, or after such consideration and consultation should entertain a reasonable doubt as to whether or not the defendant was present at the time and place of the commission of the alleged shooting, then the jury cannot find the defendant guilty.”
While this request was not allowed, the court did not overlook the individual'duties and responsibilities' of the jurors. In one of the instructions given they were told that “the burden is upon the state to prove by competent evidence every essential element of the crime charged, to the satisfaction of each and every juror, beyond a reasonable doubt.” This was a sufficient admonition that each juror might act upon his own judgment, and each'should be satisfied beyond a reasonable doubt that every element of the offense had been proved, and unless it was so proved there could be no conviction.
If is argued that this rule of individual responsibility should have been applied to the matter of alibi. It is- not necessary, nor wodld it be proper, for the court to make special application of the rule of individual right and duty of each juror to every branch and feature of the case. When the rule 'has been stated’ to the jury, and applied generally’ to every phase of the cáse and every ifigredient of the offense, the purpose of the law has been subserved. There was no request for a special -and distinct declaration on the law; of alibi, nor any allusion to the subject, except the incidental reference to it in the requested instruction as to the individual duties and responsibilities of jurors. If the defendant desired a .distinct instruction as to that defense, it should have been requested, and the failure, therefore, to give a special declaration is not a ground for reversal.
Complaint is alstí made of a portion of the charge given, which stated that “while the statute of this state provides that a person charged with crime rpay testify in his own behalf, he is under no obligation to do so, and the statute expressly declares that his neglect to testify shall not ci’eate any;presumption against him. JLhis was sr o , . evidently given for the benefit of the defendant, who failed to testify in his own behalf. The complaint is that the court did not call attention to the further provision of the statute, that the prosecuting attorney cannot refer to the circumstancb that defendant did not testify, and that it should not be considered by the court or jury before whom the trial takes place. We think the instruction as given was beneficial to the defendant, and we cannot conceive that the omission of the pther provision of the statute could have prejudiced the defendant.
There is criticism of the instruction as to circumstantial evidence, but we think it a fair statement of law as applied to the facts in this case, and that noth-, ing in it could have misled the jury.
No error was committed by the court in declining, to give an instruction on assault. , The act ° wag committed with a deadly weapon, and, under the testimony, if the defendant was guilty of any offense, it was one of a higher grade than mere assault.
In connection with defendant’s letters to Maud Holmes, her letters to him were read to the jury. Objections were made to the admission of these, and, although the ruling was not duly assigned as error, we are now asked to consider it. Her letters were made in duplicate, one of which she sent to him and the other she retained. His letters were responsive to those written by her, and hers explained those written by him. Her letters were in a sense adopted by him and made a part of his own, and together they constituted a single and continuous correspondence. If error had been regularly assigned on the reception of these letters, we would not regard it as ground for reversal.
The sufficiency of the testimony is challenged, and although it is largely circumstantial, we think it strongly tends to prove the guilt of the defendant. The letters, against which so many objections are made, constitute a great part of the incriminating evidence. That the defendant was the author of the letters was quite satisfactorily shown, and, although he assumed several characters, and wrote under several names, all the letters fit together and disclose a base purpose to gain the confidence of the young woman and procure her to meet him in a remote place, go through the form of a marriage, and thus establish a relation necessarily illicit. The improbability of a man so advanced in years and having a large family engaging in such a scheme and carrying it out at such risk and with so'much trouble is urged against the verdict; but, however strange and unnatural such conduct is, the proof is so convincing that we have no inclination to disturb a finding based thereon. The letters show remarkable cunning in playing the different parts which he assumed, and also great persistency in the efforts to accomplish his purpose : but there are so many of them — thirty-nine in number — and they are so extended, that it is impracticable to set them out or even to summarize them here.
In connection with the letters themselves are the admissions made by him at the time of his visit, that he was the George R. Clark who had written the preceding letters, and he was fully identified as the defendant ; the vindictive feeling exhibited toward a young man who was paying special attention to Maud, including an attempt to blacken his reputation and discredit him with the Holmes family ; his ill will toward Maud herself, and intimations of a coming tragedy when his plans were thwarted; his prowling about the house where Maud lived, in the night-time, and his attempted assault upon her which was interrupted; the poisoning of the dog, so that he might go to the Holmes place without interference ; the tracks such as his shoes would make, which were traced from the Holmes place to his farm ; the wadding of the gun found after the shooting which corresponded with some used by the defendant ; and the indications, too, that the shot was fired from such a gun as he-had. These facts and circumstances, together with matters not enumerated, furnish sufficient support for the verdict.
All the objections made have not been mentioned, but all have been examined, and we find nothing in them disclosing prejudicial error.
The judgment will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J.:
In October, 1895, Mark Madden, a resident citizen of this state, undertook-to convey, by warranty deed certain land in Marshall county to James O’Toole, then a non-resident alien. Within a few weeks from that time Mark Madden died, leaving neither wife nor child. His parents, both non-resident aliens, were’ already deceased: His nearest relatives were several non-resident alien brothers and sisters and the resident citizen heirs of his deceased brother, William’ P. Madden, who at the time of' his death was a resi dent citizen of this state. One of these heirs is Terrence J. Madden. In December, 1895, James O’Toole-, was adjudged to be insane and. a guardian was appointed for him, who immediately commenced, an action to set aside a will and a deed of the- land purporting to be made to Terrence J. Madden, and to-, quiet, title against those instruments. Madden defended on the ground of title under the deed and will,,, and also as an héir through his father, .William P. Madden, and prayed that his title be quieted. Upon . a trial, the deed and will were found to- be fraudulent. The court held that O’Toole was incapable of acquiiv-, ing title to the land on account of alienage. No, spe-.-cific finding of fact or conclusion of law. was made-respecting Terrence J. Madden’s claim of title through,, heirship, but the court denied any relief to either,, party. ■ The county attorney of Marshall county then, brought an action against O’Toole and his guardian, to-, escheat the land. Terrence J. Madden .intervened,, having purchased since the last litigation the ..supposed interests of other heirs of William R. Madden, . and denied the right of the state to escheat the .land... The coui’t adjudged otherwise, and ordered, the proceeds of the sale to be paid io the-guardian of. O’Toole. . Terrence J. Madden asks that this; judgment be.re-t-. versed. . . , . - .,
On behalf of the intervenor it is isaid.thaj .section, 1-'.;. of the -alien land law, chapter 3, Laws of 18.91,.r.en-, dered James O’To'ole incapable of taking. .title to the land, and, hence, .that title did-not pass. from - ;Mg,r,k)., Madden by-virtue-of his .deed. . The material, portion -r of the section referred to is as follows : 1|f
, “That a non-resident alien, firm .of,.aliens,;.o^ :eor-poration incorporated .under the, laws-¡of any. foreign.,. country, shall not be capable of acquiring, .title 4o,.>qr.i, taking or holding any lands or realestate in this state.”
This language is broad enough to sustain th'e propositions advanced; but it must be construed with other provisions of the same statute. By section 8 it is clearly contemplated that non-resident aliens may acquire title to land in this state by purchase. It is there said that a non-resident alien, owning land at the time the law took effect, might have the right and power to dispose of it during his lifetime, and to take securities for the purchase-money, “except that if he or his non-resident heirs again obtain title to the said lands or any sale thereof made by virtue of any judgment or decree of any court of law or equity, rendered in order to enforce the payment of any part of such purchase-money, he or his non-resident heirs shall only hold the title to said lands for three years after obtaining the same.” It will be noted that the word “except” refers merely to the time for which the title may be held. The character-of the alien who' may take is not made exceptional, the circumstances under which the taking may occur are not made exceptional, and the taking of a title by a non-resident alien by purchase is treated as a matter of course. From this and other provisions of the statute, it appears that the primary distinction it makes regarding the lands of aliens is between those the titles to which are subject to immediate forfeiture and those which may be enjoyed for a time under certain conditions. This interpretation of the law is in harmony with its history.
The common law with reference to the rights of aliens to take and hold the title to real estate was abrogated by the original section 17 of the bill of rights, providing as follows :
' “No distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment or descent of property.”
By the constitutional amendment of 1888, this section was made to read as follows :
“No distinction shall ever be made between citizens of the state of Kansas and the citizens of other states and territories of the United States in reference to the purchase, enjoyment or descent of property. The rights of aliens im reference to.the purchase, enjoyment or descent of property may be regulated by law.”
At that time the' word “regulate” had been given a definite legal meaning in this state.
‘"This court has held, in City of Emporia v. Volmer, 12 Kan. 630, that the words restrain and regulate are not synonymous with prohibit.” (Stebbins v. Mayer, 38 Kan. 573, 577, 16 Pac. 745.)
So, in the case of Wuester v. Folin, 60 Kan. 334, 339, 56 Pac. 490, 491, it was said : ‘
“It will be observed that section 17 of the bill of rights, as amended in 1888, does not prohibit the taking or holding of lands by aliens, but only provides that their rights in that respect be regulated by law. The act of 1891 undertakes to, regulate the rights of aliens in reference to the purchase, enjoyment or descent of real property in Kansas.”
And in harmony with this theory of the constitutional amendment, the case of Investment Co. v. Trust Co., 65 Kan. 50, 53, 68 Pac. 1089, 1090, was decided, in which it was said :
“The entire act must be read together, and from it we deduce the conclusion that the title which was or should become vested in the alien was liable to be defeated at the instance of the state by an action in its name only ; that if the state elected to waive a forfeiture by neglecting to bring an action therefor, the alien would continue to hold and enjoy the real estate; that the question of the power of such alien to take and hold such title could not be raised by a private individual. This indeed was the rule at common law.”
The controlling considerations mentioned above were not available to the supreme court of Illinois in the case of Wunderle et al. v. Wunderle, 144 Ill. 40, 33 N. E. 195, 19 L. R. A. 84, relied upon by the intervenor. Hence, that decision is not an authority, and the rule announced in the case of Investment Co. v. Trust Co., supra, will be adhered to. This being the law, James ■O’Toole took a title under the deed from Mark Madden, forfeitable only at the instance of the state, ■and upon forfeiture the heirs of Mark Madden were ■estopped by the covenants of his warranty deed from ■claiming any title to the land.
In the suit between the gardian of O’Toole and Terrence J. Madden the latter was necessarily adjudged to take nothing as an heir, since all his claims were denied. Title of that origin and quality was decided to be as valueless as O’Toole’s deed. The purchase of other fractions of title affected with the same taint could not improve his right; but O’Toole was likewise denied relief. Therefore, neither one can contest with ■ the other ov.er the proceeds of the sale of this land. The state, however, was not a party to that suit. It would not have been concluded by the judgment rendered in that action if it had been decided that one of the parties had an incontestable right to the land, and it is elementary law that the estoppel of a judgment must be mutual. When, therefore, the state took possession of the land to sell it and to hold the proceeds for the true owner, who, under the statute, must be ascertained by the court, the parties had the right to present their claims against the state, even though they could not recover from each other.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
The petitioner was convicted in the district court of Mitchell county of assault and battery. He was sentenced to imprisonment in the county jail for a term of three months and to pay a fine of one dollar, and to stand committed until the fine and costs were paid. The penalty for the offense of assault and battery is found in section 2028, General Statutes'of 1901. That section reads :
“Any person who shall assault, or beat, or wound another under such circumstances as not to constitute any other offense herein defined, shall upon conviction thereof be fined in a sum not exceeding five hundred dollars, or by imprisonment not exceeding one year.”
The prisoner paid the fine assessed against him and has sued out this writ of habeas corpus, seeking his discharge on the ground that the court was without power to assess a punishment of fine and imprisonment upon him, when the statute authorizes either one or the other, and not both. We think the court was without power to inflict the punishment imposed.
In Ex parte Lange, 18 Wall. 168, 21 L. Ed. 872, the prisoner was convicted of appropriating to his own use mail-bags of a value of less than twenty dollars. The punishment for the offense under the statutes of the United States was imprisonment for not more than one year or a fine of not less than $10 nor more than $200. The petitioner was sentenced to one year’s imprisonment and to pay $200 fine. In an exhaustive opinion delivered by Mr. Justice Miller, the prisoner was discharged.
Touching the question of the power of this court to consider the illegality of the sentence raised by counsel for the respondent, we quote from the case cited, at page 176 :
“It is no answer to this to say that the court had jurisdiction of the person of the prisoner, and of the offense under the statute. It by no means follows that these two facts make valid, however erroneous it may be, any judgment the court may render in such case. If a justice of the peace, having jurisdiction to fine for a misdemeanor, and with the party charged properly before him, should render a judgment that he be hung, it would simply be void. Why void ? Because he had no power to render such a judgment. So, if a court of general jurisdiction should, on an indictment for libel, render a judgment of death, or confiscation of property, it would, for the same reason, be void. Or if on an indictment for treason the court should render.a judgment of attaint whereby the heirs of the criminal could not inherit his property, which should by the judgment of the court be confiscated to the state, it would be void as to the attaihder, because in excess of the authority of the court, and forbidden by the constitution.” '
In People, ex rel. Tweed, v. Liscomb, 60 N. Y. 559, 19 Am. Rep. 211, the prisoner was amenable after his conviction to one year’s imprisonment and a fine of $250, Having been found guilty on twelve counts, the court sentenced him to twelve successive terms of imprisonment of one year each, and two fines of $250 each ; on other counts to additional fines, amounting in all to $12,500. After an imprisonment of one year, and having paid one fine of $250, he made application for a writ of habeas corpus to inquire into the legality of the continued imprisonment. It was held that the court was without legal power to impose the sentence, and the- prisoner was discharged. It was also held that jurisdiction of the person of the pris oner and the sub]ect-matter are not- alone conclusive, but the power of the court to render the particular judgment is a proper subject of inquiry on habeas corpus. This court, in the case of In re Dill, Petitioner, 32 Kan. 668, 5 Pac. 39, 49 Am. Rep. 505, held to the same doctrine. (See, also, Ex parte Wilson, 114 U. S. 417, 5 Sup. Ct. 935, 29 L. Ed. 89; Ex parte Cox, 3 Idaho, 530, 32 Pac. 197.)
The petitioner will be discharged.
All the Justices concurring. . ' | [
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The opinion of the court was delivered by
Cunningham, J. :
The defendant in error recovered judgment for his damages occasioned from the burning of his orchard, the fire having been sét out by one of the railroad company's engines.
The question of greatest moment here raised, is whether it is a question of law for the court, or one of fact for the jury, to determine when the prima facie case of negligence made by showing that the fire was caused by the operation of the railroad is overcome by a showing on the part of the railroad that its engine was equipped with the latest and best appliances and managed in the most careful manner by competent employees. The railroad company puts its claim into the following assertion :
“The statutory presumption of negligence on the part of the railway company, raised by the evidence for the plaintiff, having been rebutted by positive evidence on behalf of the defendant, the plaintiff was not entitled to recover.“
At the trial it claimed that this view should have been given to the jury by an instruction to return a verdict for the defendant.
The question presented is one of first instance in this court.' Our statute (Gen. , Stat. 1901, § 5923 ; Laws 1885, ch. 155, § 1) provides :
“That in all actions against any railway company organized or doing business in this state, for damages by fire caused by the operating of said railroad, it shall be only necessary for the plaintiff in said action to establish the fact that said fire complained of was caused by the operating of said railroad, and the amount of his damages, (which proof shall b e prima facie evidence of negligence on the part of the railroad). . . .”
In the case at bar sufficient evidence was offered by the plaintiff to make out a prima facie case. The railway company then offered proof tending to establish the fact that the engine which set out the fire was equipped with the latest and best appliances to prevent the escape of fire therefrom, was in good repair, and was being skilfully handled by competent em ployees. Here was a case of evidence against evidence. It is hardly fair to say that it was presumption against evidence, or evidence against presumption. The statute makes the setting out of the fire -prima facie evidence of negligence. We think it is competent for the legislature to give this much of evidentiary weight to the fact of the causing of the fire. Ordinarily fires do not occur in the skilful management of well-constructed engines. If it is a question of evidence against evidence, or of a conflict of evidence, upon what theory would the court be authorized to take the decision out of the hands of a jury and pronounce, as a matter of law, that the railway company’s witnesses were in all respects to be believed, and that their conclusions as to the condition of the engine and the skill of the employees were beyond the pale of contradiction?
We are not unaware of the fact that several courts have announced the rule that where the evidence of the defendant is clear and convincing the presumption of negligence arising because of the occurrence of the fire has been overcome, and the courtshould, as a matter of law, so declare. Among these cases are the following : Spaulding v. The Chicago & Northwestern Railway Company, 33 Wis. 582 ; Menominee River Sash and Door Co. v. Milwaukee & Northern R. Co., 91 id. 447, 65 N. W. 171; Kentucky Central R. R. Co. v. Talbot, &c., 78 Ky. 621; Southern Railway Co. v. Pace, 114 Ga. 712, 40 S. E. 723. The same principle is held in Dakota under a similar statute relating to the killing of stock. (Huber v. Chicago, M. & St. P. Ry. Co., 6 Dak. 392, 43 N. W. 819; Hodgins v. Railroad Company, 3 N. Dak. 382, 56 A. & E. Rld. Cas. 137.) But few, if any, of the cases adopting this view have been decided under statutes like our own.
Realizing the severity of a rule which would cast upon a plaintiff the burden of showing actual negligence in the construction or management of an engine, many courts, eyen before the passage of any statutes relative to the matter, have declared a rule growing out of convenience, that the occurrence of the fire raised the presumption of negligence. We greatly question whether this court-made rule has the gravity or authority of the statute ; at least, the courts, having gone thus far, hesitated in going further, but paused and said that this presumption (and they called it but a presumption) would be overcome by clear and convincing evidence oh the part of the railroad company that it had been guilty of no negligence, and added that whether it had been so overcome was a question of law for the court. Other courts, apprehending the anomalous position in which this places them, have labored hard to place the decision of this question of fact with the jury, by seizing upon the slightest and most intangible facts to relieve'them of the duty of determining when such proof is clear and conclusive. (Hoffman v. Chicago, Milwaukee & St. Paul Ry. Co., 43 Minn. 334, 45 N. W. 608; Burud v. Great Northern Ry. Co., 62 id. 243, 64 N. W. 562 ; Solum v. Great Northern Ry. Co., 63 id. 233, 65 N. W. 443.)
After a very careful examination of the entire question, we are fully persuaded that there is no adequate legal reason why these questions of fact should receive treatment different from others — why the weight of the evidence and the credibility of the witnesses should not be left to the determination of the jury in these matters as well as in ordinary cases. The theory of our practice is that questions of fact growing out of conflicting evidence shall be left to the determination of the jury. Here it is a question of fact, not one of law, whether the evidence of the negligence of the company, which legally follows a showing of the setting out of the fire, is overcome by the evidence of proper construction and competent management. The weight of authority and the present tendency of the courts sustain this view.
In the case of Great Northern Ry. Co. v. Coats, 115 Fed. 452, 53 C. C. A. 382, the exact question here presented is found — namely, that as the railroad company had offered proof in substance that the engine was properly managed and that the company was guilty of no negligence in that respect, the court should have eliminated the question and withdrawn it from the jury, the presumption of negligence having thereby been overthrown. The court said :
“This presumption could only be overcome by testimony, and unless we apply to this class of cases a rule different from that which is applied to other cases, it was the province of the jury to determine the weight that should be accorded to the testimony which was introduced for that purpose, and also to determine the credibility of the witnesses who testified on that subject. It was well said by the supreme court of Minnesota in Karsen v. Railroad Company, 29 Minn. 12, 15, 11 N. W. 122, when construing a statute of that state which makes the scattering of fire by a locomotive engine prima facie evidence of negligence :
“‘Neither is a jury necessarily bound to accept as conclusive the statement of a witness that an engine was'in good order or carefully and skilfully operated, although there is no direct evidence contradicting the statement. They have a right to consider all the facts and circumstances in evidence bearing upon the condition or mode of operating the engine, and upon the accuracy of witnesses.’ . . . We cannot well understand upon what theory the statement of persons, who were in charge of a locomotive when it occasioned a disastrous fire, that it was properly and prudently managed, etc., must be accepted by a court as con- elusive and as overturning, as a matter of law, the presumption- of negligence raised by other testimony. It would seem, rather, that the triers of the fact ought, in such a case, to consider how far the interest of such witnesses — their natural desire to absolve themselves from all blame — may have colored their evidence, and how far their statements are consistent with other facts and circumstances which have been proven. If a court undertakes to weigh such evidence, and say that the witnesses are credible, and also to decide as to the effect of the proof, it plainly assumes the functions of the jury, or at least a function which is discharged by the jury in other cases.”
In Hemmi v. C. G. W. Ry. Co., 102 Iowa, 25, 28, 70 N. W. 746, this language was used :
“If it be conceded there was no fault in the engine or its management it cannot be said, as a matter of-law, that the fire was not the result of negligence. But, if this were not the rule, -the point relied upon by appellant is of no avail, for the reason that we have expressly held that in such cases there is a conflict in the evidence — the prima facie case of negligence made-by the plaintiff standing on one side of the issue, and the direct evidence of the defendant as to its care and diligence upon the other — and that it is the duty of the court to submit such conflict to the jury.”
To the same effect are the following cases’: M’Cullen v. Chicago & N. W. Ry. Co., 101 Fed. 66, 41 C. C. A. 365, 49 L. R. A. 642; Karsen v. Milwaukee & St. Paul Ry. Co., 29 Minn. 12, 11 N. W. 122; Greenfield v. C. & N. W. Ry. Co., 83 Iowa, 270, 49 N. W. 95; Norris v. Baltimore & O. S. W. R. Co., 109 Fed. 591, 48 C. C. A. 561; Alabama Great Southern Railroad Co. v. Taylor, 129 Ala. 238, 29 So. 673; Farrington v. Rutland Railroad Co. 72 Vt. 24, 47 Atl. 171; First National Bank v. L. E. & W. R. R. Co., 174 Ill. 36, 50 N. E. 1023; C. & A. R. R. Co. v. Esten, 178 id. 192, 52 N. E. 954.
Upon reason and authority, we hold that the entire question is one of fact to be submitted to the jury Avith proper instructions.
The plaintiff further insists that the case should be reversed because some of the special findings were against the uncontradicted evidence, notably the following :
“5. Was engine No. 123 run and operated in a proper manner past the plaintiff’s premises on the day of the fire ? Ans. No.
“6. If you answer question No. 5 ‘No,’ then please state how and in what manner the engine was not properly operated. A. By firing engine too heavy.
“7. Was John M. Allen, the fireman on said engine on the day of the fire, a competent and skilful fireman? A. No.
“8. If you answer question No. 7 ‘No,’ please state how and in what manner he was incompetent. A. By firing too heavily on a light grade with a small train of cars.”
“10. Were the appliances used on said engine for the prevention of the escape of fire therefrom in good condition on the night of June 27, 1901, and on the following morning when said engine left the shops to be used on the day of said June 28, 1901 ? A. No.
“11. If you answer question No. 10 ‘No,’ then please state what defects existed in said appliances and in what manner they were defective. A. Defective screens.
“12. Were the appliances used for the purpose of preventing the escape of fire from said engine No. 123 found to be in good condition when it was examined in the shops at Argentine on the night of June 28, 1901? A. No.
“13. If you answer question No. 12 ‘No,’ then • please state where and in what manner they were defective. A. Screens defective in smoke-stack.”
The evidence of the Avitnesses for the company, if. believed, required the answers to all of these questions to be different; so perhaps the question here presented is but the one already passed upon. However, we may go further and call attention to some of the evidence of the plaintiff below tending to contradict in terms the testimony of the witnesses for the company.
Engine No. 123 was an old one and had long been in the service of the company. The day it set the fire in question was the first time it had ever been on this run, which it made but once thereafter, to wit, on the day following. One witness who was close to the point where the engine set the fire as it passed testified that it was blowing out cinders from its smoke-stack as it went. There was a slight up grade at this point; the train, however, was very light — two freight-cars and a passenger-car. The fireman testified that he was firing heavily. The fire caught at a distance something near 200 feet from the track, and the cinders that caused it were carried to this distance across a road and over a hedge fence. Might not the jury from this evidence reasonably conclude that the screens were not in perfect condition, as testified to by the company’s witness? Might they not also reasonably conclude that the fireman was not a competent and skilful man, inasmuch as no excuse was given for heavy firing with a light train on a slight grade? Add to this the further facts, requiring a greater degree of care and skill, that the day was very hot, the wind very high, and the vegetation very dry. We cannot say in view of all of these things that these findings were wholly unsupported by the evidence.
A further claim is made that, at most, only nominal damages could be awarded under the evidence. The plaintiff showed that some 150 apple trees had been destroyed; that they were of the value of five dol lars to ten dollars each. The defendant’s witnesses testified that the farm on which the orchard was growing was as valuable after the fire as it was before. It is competent to prove damages such as were here claimed by showing the value of the trees destroyed (Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526; Railroad Co. v. Perry, 65 id. 792, 70 Pac. 876), or by showing the depreciation of the value of the real estate ; so that the effect of the contradictory evidence was simply to refer the matter, as a question of fact, to the jury.
Upon the whole case we find no error and affirm the judgment of the court below.
All the Justices concurring. | [
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The opinion of the court was delivered by
MasoN, J. :
Prior to 1889 C. C. Stouffer was the owner of a tract of land in Lyon county, subject to a mortgage to the Emporia Investment Company. It was arranged that a new mortgage maturing January .1, 1894, should be given in satisfaction or extension of the old one. For some'reason it was agreed that, instead of Stouffer’s executing the new mortgage himself, the property should be conveyed to one P. R. Stevenson, who should make the mortgage and then recohvey to Stouffer. This plan was carried out, although the formal reconveyance was not made until some time later. Stevenson’s part in the transaction is of no moment, as he was merely acting for Stouffer. In April, 1889, this mortgage was bought by, and assigned to, Phineas Prouty. In 1891 Prouty died, and executors were appointed and qualified. • In October, 1894, suit to foreclose the mortgage was brought by the Emporia Investment Company in the name of the executors, service being made upon Stouffer, a nonresident, by publication. ■ The executors afterward ratified and adopted the act of the investment company in bringing the suit. A judgment of foreclosure was rendered and an order of sale was issued, from which the seal of the court was omitted. Under color of this process the property was sold by the sheriff and bid in by Richard D. Harlan, one of the plaintiffs. In October, 1895, at the request of the executors, a sheriff’s deed was made to James S. Harlan, who held it for the estate, acting for and under the direction of the executors.
W. L. Loomis, as the tenant of Stouffer, occupied the property in 1895 and until about March 1, 1896, when Edwin Hawkins, to whom Harlan proposed to lease it for the ensuing season, at Harlan’s suggestion requested him to vacate as soon as his time as tenant expired, which he understood to be on Marqh 1. Loomis did vacate the property accordingly prior to March 1, and after that date Hawkins entered upon it as the tenant of the executors, who thereby acquired its quiet, peaceable and exclusive possession and control. Stouffer had no knowledge of the foreclosure proceedings until the summer of 1896. In September, 1898, he began an action against Harlan and the executors for the recovery of the possession of the property and was defeated. He brings this proceeding to reverse the judgment.
The omission of the seal rendered the order of sale and all proceedings under it null and void. (Gordon v. Bodwell, 59 Kan. 51, 51 Pac. 906, 68 Am. St. Rep. 341.) Irrespective, therefore, of any question growing out of its being made to an apparent stranger to the proceedings upon which it was based, the sheriff’s deed passed no title. The trial court held that the circumstances stated made the defendants “mortgagees in possession,” and precluded the plaintiff from recovering the property without paying the mortgage debt. The question here presented is whether this ruling was correct.
The expression “mortgagee in possession” has been adopted by the courts and law-writers as a convenient phrase to describe the condition of a mortgagee who is in possession of mortgaged premises under such circumstances as to make the satisfaction of his lien a prerequisite to his being dispossessed, even in jurisdictions where the mortgage itself can confer no pos-sessory right either" before or after default; but the authorities are in some confusion as to what these circumstances are. It has been said that the possession must be “lawfully” acquired (Gillett v. Eaton, 6 Wis. 30; Tallman v. Ely, 6 id. 244) ; that it is sufficient that it is acquired “peaceably” '(Hennessy v. Farrell, 20 Wis. 46 ; Brinkman v. Jones, 44 id. 498) ; or “without force” (Pell v. Ulmar, 18 N. Y. 139, 142) ; that it must be taken under the mortgage and because of it' (Rogers v. Benton, 39 Minn. 39, 38 N. W. 765, 12 Am. St. Rep. 613) ; that it need not have been given under the mortgage, or with a view thereto (Madison Av. Bap. Ch. v. Oliver St. Bap. Ch., 73 N. Y. 82) ; that it. must be by consent of the mortgagor, express or implied (Rogers v. Benton, 39 Minn. 39, 38 N. W. 765, 12 Am. St. Rep. 613) ; that it is not sufficient if obtained by an arrangement with the tenant of the mortgagor after his lease had expired (Russell v. Ely et al., 2 Black, [U.S.] 575, 17 L. Ed. 258).
Many cases are reported in which possession was obtained under color of irregular or void foreclosure proceedings. In some of these, such as Kelso v. Norton, 65 Kan. 778, 70 Pac. 896, and Cross v. Knox, 32 id. 725, 5 Pac. 32, the possession was held sufficient upon the ground that it was taken with the express or implied consent or acquiescence of the mortgagor, or that the mortgagor had waived the right to object. But in others the fact that the mortgagee took posséssion in reliance upon foreclosure proceedings which he in good faith believed to be valid is made a distinct 'ground for according him the rights of a “mortgagee in possession,” apart from any question of the consent or acquiescence-of the mortgagor.
In Van Duyne v. Thayre, 14 Wend. 233, 235, it was said: “If the mortgagee after forfeiture entered into possession, either by the consent of the mortgagor or by means of legal proceedings, he may defend himself there, at least till his debt is paid.” However, as possession in that case was not taken in virtue of any proceedings in court, it would seem that the words “or by means of legal proceedings” are obiter, or else “ legal ” is used merely in the sense of “lawful.”
In Cooke v. Cooper et al., 18 Ore. 142, 22 Pac. 945, 7 L. R. A. 273, 17 Am. St. Rep. 709, the second paragraph of the syllabus, which was quoted with approval in ICelso v. Norton, supra, reads as follows :
“If, for any cause in the foreclosure suit, the proceeding is ineffectual to foreclose the mortgage, and the mortgagee purchases at a sale under such void proceedings, and enters into the possession under such sale, his relation to the mortgaged premises is that of a mortgagee in possession.”
This accurately indicates the scope of the opinion, but the argument in support of the conclusion is based almost entirely upon the authority of various New York cases in which the language used is broader than the facts under consideration required.
In Bryan v. Brasius, 3 Ariz. 433, 438, 31 Pac. 519, in a case where possession was taken under invalid foreclosure proceedings, without fraud, there being however no suggestion of consent of the mortgagor, it was said :
“But the facts in the case disclose an indebtedness of two thorfsand five hundred dollars to Kales from T. J. Bryan, and a mortgage to secure the same on the property in dispute, a proceeding in court, in .good faith and without fraud on the part of Kales or any one, to foreclose the mortgage, (the proceeding thought to be valid and regular on its face,) a sale under the decree of the court, and possession taken in pursuance thereof, and taxes paid and valuable and lasting improvements made by the purchaser and his grantees. The plaintiff brings suit by action of ejectment. He does not pay or offer to pay the mortgage debt. In this territory the action of ejectment is based upon the right of possession. I think, on the, very best of authority and the highest equity, the defendant must be held to be the mortgagee in possession, and subro-gated to the rights of Kales under his mortgage, and entitled to remain in possession till the requirements of equity are fully met.”
This ease was taken to the United States supreme court, where it was affirmed (Bryan v. Brasius, 162 U. S. 415, 16 Sup. Ct. 803, 40 L. Ed. 1022, following Bryan v. Kales, 162 id. 411, 16 Sup. Ct. 802, 40 L. Ed. 1020), but upon the authority of cases arising in jurisdictions where the. mortgagee, after condition broken, has the legal estate in the mortgaged property, without any discussion as to whether the rule should be the same where the mortgage merely gives a lien.
In Romig v. Gillett, 187 U. S. 111, 23 Sup. Ct. 40, 47 L. Ed. 97, it was said:
“A mortgagee who enters into possession, not forcibly but peacefully and under the authority of a foreclosure proceeding, cannot be dispossessed by the mortgagor, or one claiming under Mm, so long as the mortgage remains unpaid.”
But this was stated not as a determination then reached by the court upon consideration of the matter before it, but as the effect of the opinion in Bryan v. Brasius, supra, and cases there cited.
In Barson v. Mulligan, 66 Hun, App. Div. 486, 489, 491, 73 N. Y. Supp. 262, it was said :
“The only question, therefore, that can arise as to the right of mortgagee in possession to hold the premises until the mortgage debt is paid, depends upon the method by which he obtained possession, and it is claimed that that possession must be with the assent of the mortgagor, but I can find no authority limiting the right of a mortgagee to hold' property, of which he is in lawful possession, to a case where such possession was with the consent of the mortgagor. . . What is essential to entitle a mortgagee to hold possession of the premises' until his mortgage debt is paid is that his possession should have been lawfully acquired. If, under a deed which purports to convey title, a mortgagee enters into possession, although that deed is void, he is entitled to maintain possession until his mortgage debt is paid. This follows from the decisions in fhe cases in which a mortgagee has entered under a deed in a foreclosure proceeding, either statutory or by action of foreclosure.”
But it is at least doubtful whether this language was’warranted by the authorities to which it referred.
In Backus v. Burke, 63 Minn. 272, 277, 65 N. W. 459, the court gave full consideration to the very question under discussion and reached a conclusion indicated by the following extracts from the opinion :
“We are of the opinion that when there is a default in the mortgage, and the mortgagee in apparent good ^ faith makes a void foreclosure, and, after the end of ” the year to redeem, the purchaser at the foreclosure sale takes possession under color of the foreclosure proceedings, he should be treated as a mortgagee in possession, whether he takes possession with or without the consent, either express or implied, of the mortgagor. It is true that, unlike a mortgage at common law, a mortgage under our statute gives the mortgagee neither the title nor right of possession. But the courts were long ago compelled to recognize a marked difference between the character of our statutory mortgage after default but before foreclosure, and the character of the same mortgage after an abortive' foreclosure and the year to redeem has expired. . . . Every mortgagor understands, when he executes a mortgage, that if he defaults in the conditions to be by him performed an attempt will be made to foreclose the mortgage. If he makes no effort to take advantage of the irregularities in an abortive foreclosure until after the year to redeem has expired, and the purchaser at the foreclosure sale has in good faith taken possession, what court will then oust such purchaser without payment of the mortgage indebtedness, even though there was no express consent of the mortgagor to such possession, and the circumstances raise no presumption of an implied consent ? Surely, the mortgagor cannot, in such a case, obtain possession except through an action to redeem,, whether the purchaser has been in possession one day or nine years. But if the purchaser has-been in possession only one day, it cannot be held that so short a period of possession is of itself sufficient evidence of the consent of the mortgagor to that possession. Then it cannot be held that the purchaser’s right to continue in such possession, taken peaceably and in good faith, after the year has expired, is based on the mortgagor’s consent, express or implied, but, on the contrary, it is based on that rule of law which denies to the mortgagor in such a case any remedy but one in equity, which will compel him to do equity.”
This we regard as the' most full and satisfactory discussion of the question upon its merits to be found in any adjudicated case. - .
On the other hand, in Howell et al. v. Leavitt et al., 95 N. Y. 617, the owners of the mortgaged property were permitted to maintain ejectment against a mortgagee who had acquired possession by a writ of assistance under a void, judgment. The land was owned by minors and occupied by their tenant, who was dispossessed under the writ without their knowledge. The decision was based upon the ground that such possession was obtained by force and was unlawful-In Bowen v. Brogan, 119 Mich. 218, 75 Am. St. Rep. 387, 77 N. W. 942, and in McClory v. Ricks, 11 N. Dak. 38, 88 N. W. 1042, it was held that ejectment may be-maintained against a mortgagee who is in possession under a void or irregular foreclosure, but the argu ment presented in support of these decisions and of others which they follow was largely directed against the right of the mortgagee who is out of possession to bring action to be let into possession, the courts refusing to recognize any distinction between the right to demand possession and the right to hold it when it is once obtained.. The same conclusion was announced in Lewis v. Hamilton, 26 Colo. 263, 58 Pac. 196, but without extended discussion and upon the authority of a Michigan case.
To determine the true extent of the doctrine under consideration, in the face'of these conflicting decisions, it is well to consider its origin and reason. In an article entitled “How mortgagee as such can get possession,” published in the Albany Law Journal (vol. 26, p. 526, and vol. 27, p. 6), an ingenious review of the New York cases was presented in support of the contention that the right of the mortgagee to retain possession is founded upon contract, and therefore exists only when the mortgagor agrees that the mortgagee may take possession of the mortgaged property for his better security. This view would practically do away with the doctrine altogether, since it is not necessary to invoke any peculiar rule of equity to provide for the enforcement of such an agreement. Tn Howell et al. v. Leavitt et al., supra, it was suggested that the old rule existing when a mortgage actually passed the title to the property kept its hold upon the later opinions when the reason which led to it was gone. Mr. Pomeroy, in his work on Equity Jurisprudence, adopts this view of the origin of the doctrine, but adds:
“The,courts, while retaining the doctrine as settled, have guarded against any inference from it that the mortgagee has acquired a legal estate by his possession ; his right to retain possession does not depend upon an estate held by him ; his possession is protected by his lien. It is certainly more simple and just that the mortgagee should be left in possession and the mortgagor forced to redeem, than that the mortgagor should be permitted to recover the possession by an action at law, and be immediately liable to the consequences of a foreclosure suit in equity brought by the mortgagee.” (Yol. 3, §1189.)
And in Gillett v. Eaton, 6 Wis. 30, 40, it was said :
“ If the defendant is turned out of possession because he is in as a mere mortgagee, he will be put to the trouble and expense of foreclosing his mortgage, and perhaps put to the necessity of taking legal steps to regain possession. It is not the policy of the law to encourage such litigation. And substantial justice will be better subserved by permitting the mortgagee to retain the possession which he has lawfully acquired, until the mortgagor, or those claiming under him, shall institute proceedings for the purpose of redemption.”
And in Tallman v. Ely, 6 Wis. 244, 256, the court said: '
“It would be unwise and inequitable to permit the grantee of the mortgagor to obtain the possession as against the mortgagee or his assigns while the mortgage debt remained-unpaid. Under the circumstances; if the grantee desired to obtain possession of the premises, he could file his bill to redeem, and the court could properly aid him in obtaining possession after the encumbrance was discharged. In this way equity could be fully done between all parties. Again, if the court should put the morgagor or his grantee in possession of the premises without requiring him first to pay off the mortgage, it might be called upon at the next moment in a proceeding to foreclose and sell.the mortgaged premises to turn him out and reinstate the mortgagee or his assignee. But all this unnecessary expense and fruitless litigation can be avoided, and the rights and interests of the parties most completely subserved and protected by adhering strictly to,, the doctrine, that it' the mortgagee or his assigns, after forfeiture, obtains possession lawfully, the mortgagor, or those claiming under him should not recover the possession without paying the money secured by the mortgage.”
Substantially the same reasoning has been employed in other cases, as shown by several of the quotations already made. Whatever may be the source of the rule historically we think it is justified upon equitable principles by the considerations just stated, and that it should be followed because of that fact and be administered with reference to it; that it should be acted upon when the circumstances are such that these reasons are applicable, and only then. It is obvious that such reasons apply to all cases in which the mortgagee has actual possession of the mortgaged property, except where he has acquired it under such circumstances that it would be inequitable to permit him to assert a right under it. The expression frequently used, that the entry must be lawful, we interpret to mean not that it must have been effected' under a formal right capable of enforcement by legal proceedings, but that it must not be through any unlawful or wrongful act, upon which the mortgagee would be estopped to found a right. The importance given to the matter of the consent or acquiescence of the mortgagor we conceive to be derived not from the idea of its establishing'a contract (since, as already suggested, if a contract for possession exists there is-no occasion to invoke the rule) but from the fact that it frees the mortgagee from any suspicion of having obtained possession by fraud or force.
■ We conclude that the true rule is that when the mortgagee is in possession of the mortgaged premises after condition broken he may not be dispossessed without a payment of the mortgage debt, unless his possession was acquired under such circumstances that he ought not in equity to be permitted to retain it. This conclusion may not go far toward the practical solution of questions involving the application of the doctrine, but it is sufficient for the purposes of the present case, since it is clear that one who assumes possession of the mortgaged property under color of foreclosure proceedings believed by him to be valid, however defective they may be in fact, cannot be thought to have thereby estopped himself to assert the right otherwise given him to retain possession until his debt is paid. There is nothing in- the facts of this case to impeach the good faith of defendants in error or to charge them with the use of force or fraud in gaining possession, and they are within the protection of the rule as stated.-
Two minor questions are also presented. The plaintiff below, in his reply, pleaded that the mortgage debt had been paid. He offered no proof under this •allegation until the cause had been submitted to the court and the decision announced. Then he asked leave to introduce evidence in support of it, but the request was denied. It is not necessary to decide whether the evidence would have been admissible if presented earlier in the proceedings, because, even if so, it cannot be said that it was an abuse of discretion for the court to reject it at the time it was offered. It is now urged that there was a presumption that the debt was paid, arising from the fact that the judgment had become dormant. The judgment was not dormant on any theory when this action was begun, or when the pleadings were settled-, so the principle invoked has no application. If the judgment is in fact dormant now the situation furnishes a good illustration of- a-class of cases, readily to be imagined, in which the-doctrine just discussed serves to prevent gross injustice.
The plaintiff, upon other considerations, did recover a part of the real property sued for, upon which defendants held a tax deed, the recovery being subject-to the adjustment of the taxes and rents and profits.The trial court divided the costs, permitting the plaintiff to recover the same proportion of the whole costs-that the tract recovered bore to the whole land sued for,, being one-eleventh. This apportionment we think erroneous. It was proper to divide the costs not, however, because the plaintiff recovered only a part of the-property claimed, since ordinarily this would entitle him to all his costs (Meskimen v. Day, 35 Kan. 46, 10 Pac. 14), but because the recovery was conditioned on* the settlement of the lien for taxes., In such cases am even division of the costs has been ordered. (Longworth v. Johnnon, 66 Kan. 193, 71 Pac. 259.) It does-not follow that a trial ■ court under similar circumstances may never adopt any other basis of division than the arbitrary one of equality. But as the division-in this case was made upon a theory which is held to-be erroneous, it is ordered that the costs be divided equally between plaintiff and defendants. Otherwise-the judgment is affirmed.
The costs in this court are'divided equally.
All the Justices concurring. | [
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Per Curiam:
Susan Chinn (plaintiff-appellant) brought this action for damages sustained as a result of personal injuries received while riding as a passenger in an automobile driven by Jana Lindsay (defendant-appellee). The trial court sustained appellee’s motion for summary judgment on the ground that the plaintiff was a guest and therefore barred from recovery under K. S. A. 8-122b. On October 22, 1969, the appellee requested the appellant to go with her to the Memorial Building in Kansas City, Kansas, from their home in Johnson County, Kansas, so that appellee might purchase tickets to an entertainment, one ticket being for herself, the other being for her boyfriend. She asked the plaintiff-appellant to accompany her so as to give her some guidance as to the directions to take to reach the Memorial Building. On the way to the Memorial Building, the parties discussed certain streets and certain signs indicating the proper route to follow. The two parties were acquainted with each other, and Susan had ridden on one occasion with Jana to the Met-calf Shopping Center. Susan claims that her giving of directions was a benefit to Jana sufficient to take the case out of the guest statute and that it provided a substantial consideration for the trip. In Gorelick v. Ernstein, 200 Kan. 619, 438 P. 2d 93, and in Rothwell v. Transmeier, 206 Kan. 199, 477 P. 2d 960, we held that where sociability is the motivating cause of the transportation, the guest rule of K. S. A. 8-122b applies even though the host driver might receive some incidental trifling benefit from the presence of his guest during the trip. The rationale of Gorelick and Rothwell is controlling in the case at bar and requires the application of K. S. A. 8-122b.
The trial court properly sustained the motion for summary judgment and the judgment of the trial court is affirmed. | [
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Per Curiam:
This is a proceeding in discipline. The complaint against respondent is based on alleged violation of Canon 6 of the Code of Professional Responsibility. Canon 6 reads: “A Lawyer Should Represent a Client Competently.” DR6-101 recites that a lawyer shall not “neglect a legal matter entrusted to him.”
After charges were heard before a panel of three members of the Board of Law Examiners, the board recommended that public censure be imposed as provided in Rule No. 205 (m) (2). (205 Kan. lxii.) Respondent filed exceptions to the board’s report. Thereafter the matter was heard by this court and the case now awaits our decision.
We have carefully studied the record, and although the respondent may not have been as skillful or painstaking in keeping avenues of communication open between himself and his client as would have been advisable under the circumstances, we cannot say that neglect on his part is established by clear and satisfactory evidence. (In re Smith, 73 Kan. 743, 753, 754, 85 Pac. 584; In re Ratner, 194 Kan. 362, 366, 399 P. 2d 865; In re Phelps, 204 Kan. 16, 17, 459 P. 2d 172.)
The problems arising between respondent and his client developed during a transitional period after Mr. Townsend had accepted a responsible legal position in a neighboring city and was phasing out his legal practice in Topeka, and closing his office there. The failure in communication which resulted cannot be laid solely at the respondent’s door; it was mutual in concept.
The proceedings are dismissed.
Owsley and Prager, J. J., not participating. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an interlocutory appeal pursuant to K. S. A. 60-2102 (b) and Rule No. 5 of this court. There is a single issue to be resolved. The appellant, the state of Kansas, contends the district court erred in suppressing physical evidence, seized by the Reno County and Harvey County sheriffs, which related to the prosecution of the appellee, Douglas M. Sumner, for burglary and felony theft.
On May 3, 1972, the appellee filed a motion pursuant to K. S. A. 1971 Supp. 22-3216 requesting the district court to suppress certain evidence which was secured as a result of the search of a house located on East 4th Street, in Hutchinson. The relevant allegations of the motion to suppress were that (1) the contraband was seized without a valid search warrant, (2) the search of the premises was not voluntary, and (3) no consent was obtained from the occupants of the house prior to the search by the law enforcement officers.
On May 4, die district court heard the arguments of counsel based upon a stipulated set of facts:
“By virtue of a search warrant issued by the District Court of Harvey County, Kansas, the Reno county sheriff, his deputy, Charles Maddox, and the Harvey County sheriff went to the premises of James W. Starks, located in Harvey county. Mr. Starks informed them the stolen goods were not there but were located in a house on East 4th Street, Hutchinson, Reno County, Kansas. Mr. Starks was then placed under arrest for burglary and grand larceny at that time and then transported to the East 4th residence occupied as tenants by Duane Carey and Max Miller. (1419 East 4th). Mr. Starks knocked on the door and same was opened by Max Miller. The law enforcement officers identified themselves as such whereupon Mr. Starks told Mr. Miller that he had come for the things that he had left on the prior day. Mr. Miller did not say the officers could or could not enter ... he said nothing. The officers and Mr. Starks entered the premises and found the evidence for which they had been looking. No search warrant was ever obtained or issued to search the premises at 1419 East 4th, Hutchinson, Kansas. Said evidence was taken by the officers with no receipt given in compliance with K. S. A. 22-2512. Subsequently, a major portion of the property belonging to Alfred Weins was returned to said owner by authority of the Reno county attorney but a sufficient amount was retained to be more than $50 in value. Permission to return said property to Mr. Weins was not sought or obtained from the defendant.”
On May 6, 1972, the stipulation was amended in a subsequent opinion of the district court. The supplemental memorandum corrected the stipulation in the following manner:
“That portion of the stipulated facts reported as ‘Mr. Starks told Mr. Miller he had come for things he had left on the prior day’ should be changed to show Mr. Starks said, ‘We have come for the goods’ or ‘We have come to pick up the stuff.’ ”
At the pretrial suppression hearing, the state vigorously challenged the appellee’s standing to object to the search and seizure in question. In a memorandum opinion the district court sustained the appellee’s motion to suppress upon the grounds the state failed to show the appellee had no standing to complain, or interest in the premises searched or the property seized, and that he was not required to establish such an interest.
This court has previously considered the question of standing to object to the infringement of the constitutional right to be secure in one’s person, house, papers, and effects against unreasonable searches and seizures. It has been held it is proper to require of one who seeks to challenge the legality of a search as the basis for suppressing relevant evidence that he allege, and if the allegation be disputed, that he establish that he himself was the victim of an invasion of privacy. To establish “standing” this court has required the movant claim either to have owned or possessed the seized property, or to have had a possessory or proprietary interest in the premises searched. (State v. Edwards, 197 Kan. 146, 415 P. 2d 231; Wheeler v. State, 202 Kan. 134, 446 P. 2d 777; State v. Grimmett & Smith, 208 Kan. 324, 491 P. 2d 549; State v. Williamson, 210 Kan. 501, 502 P. 2d 777; State v. Masqua, 210 Kan. 419, 502 P. 2d 728.)
The state has the burden of proving that a search and seizure is lawful (K. S. A. 1971 Supp. 22-3216[2]), however, under the statute, the movant must allege he was in fact aggrieved by the search and that his constitutional right to be secure in his property has been violated. In short, the movant is required by 22-3216 (2) to allege facts showing wherein the search and seizure was unlawful and establish he personally was aggrieved by the alleged illegal search and that his rights were prejudiced thereby.
Having carefully reviewed the record, this court can find no evidence to support a conclusion the appellee owned or had in his possession the contraband in question, nor is there any factual allegation in his motion to that effect. The record is to the contrary. Likewise, the stipulated facts show the premises searched were occupied by Duane Carey and Max Miller as tenants. The appellee was not present when the search was conducted as the stipulation reveals that only Miller was present. The record is barren of any evidence to indicate the appellee had a reasonable expectation that his right to be secure from searches intruding on his right of privacy extended to those premises, nor is there any evidence to establish he had a possessory or proprietary interest in the premises. Under the facts and circumstances, we hold the appellee had no standing to object to the search of someone else’s house or to the seizure of someone else’s property in which he claimed no interest.
The appellee places controlling significance upon Jones v. United States, 362 U. S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725, 78 A. L. R. 2d 233, to support his contention that possession alone confers standing. In a supplemental statement following oral argument counsel for the appellee stated he relies upon possession of the premises searched (the second holding in Jones) as a basis for conferring standing to object to the invalidity of the search in question. We are of the opinion Jones does not apply. There, the aggrieved party was charged with a possessory crime — the possession of nar cotíes. In addition, he was the only person present in the apartment searched and there was evidence he was in control of the premises with the consent of the individual who occupied the apartment. The Supreme Court of the United States held first that illicit possession of narcotics which both convicts and confers standing, eliminates any necessity for a preliminary showing of an interest in the premises searched or the property seized, which ordinarily is required when standing is challenged, and second, that even were the prosecution not one turning on illicit possession, the legal requisite interest in the premises was satisfied under the facts and circumstances of that case. The Jones case is clearly distinguishable from the instant case in which this appellee neither claimed to have owned or possessed the property seized. Moreover, it is difficult for this court to believe that one who is charged with burglary and the felonious theft of property in connection with that burglary has standing by judicial pronouncement to assert ownership or possession of the stolen property which had been seized — particularly under the stipulated facts of this case. In addition, there is nothing in the record to show the appellee had any interest in the searched premises that would give rise to a reasonable expectation on his part of freedom from governmental intrusion upon those premises. (Mancusi v. DeForte, 392 U. S. 364, 20 L. Ed. 2d 1154, 88 S. Ct. 2120.) Consequently, he may not be heard to protest the search. (State v. Edwards, supra.)
The judgment is reversed and the case is remanded to the district court to proceed in a manner consistent with this opinion.
It is so ordered. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an interlocutory appeal by the state from an order sustaining defendant’s motion to suppress evidence. The issue raised involves the validity of the seizure of property not listed in a search warrant.
On the 6th day of April, 1972, the residence of Frank Bruner in Wichita, Kansas, was burglarized. Upon the return to his home and the discovery of the missing items (tan glass piggy bank, small wooden barrel bank, Kodak camera, and eight foreign silver coins), Bruner remembered seeing a 1964 red panel truck parked near his home at the approximate time of the burglary. Bruner drove around his neighborhood, and located the truck parked at a residence at 2117 North Kansas. He saw a black male run from the residence as he approached, so he went to the rear and noticed his tan glass piggy bank in the trash can. Bruner thereupon looked through the open rear door, and noticed his wooden barrel bank sitting on the kitchen table. He immediately notified the police of his observations.
Shortly after receiving Bruner’s call, a police officer filed an affidavit in support of an application for a search warrant. A search warrant was thereafter issued. Based upon a showing of probable cause, the court issued a warrant to search a residence located at 2117 North Kansas, for the items previously listed as stolen from Bruner.
At approximately 5:30 p. m. on the 6th of April, 1972, the officer and Bruner proceeded to the defendant’s residence to execute the warrant. Upon arrival, the defendant was observed approaching the house and, due to information obtained by the officer that the defendant owned the truck and lived in the house, he was stopped and subsequently arrested.
In the process of searching for the stolen items, the officer picked up a stereo which was located on the north wall of the living room and looked under it. Upon lifting the stereo, the officer noticed that it was an ABC Rental, Muntz Stereo Unit, which he recalled being the same type recently stolen from Sarah Kirkendall on the 29th day of March, 1972. The officer immediately looked at the case file on that burglary, which contained the date of the burglary, the brand name of the stereo, and the stereo’s serial numbers, which matched, and thereupon seized the stereo.
It took the officer and Bruner approximately one hour to locate the items listed in the warrant. All of the items were hidden in some manner. One of the banks and the billfold were located in a partition of the kitchen ice box. Pieces of the pottery bank were found in the backyard trash can, and the foreign coins were found in a drawer of the kitchen table. These items were found subsequent to the discovery of the stolen Muntz stereo.
During the course of the search the officer noticed a peculiarly large number of items scattered in plain view through the house. These items included electric signal flares with the city’s brand on them, a school’s desk bell, check books with non-resident’s names on them, a billfold with an ID not matching that of the residents’, a .22 caliber rifle on the kitchen table, a dismantled TV under the kitchen table, another TV by the kitchen table, a stereo on the living room floor, a partially dismantled revolver behind the living room couch, a cordless Victor adding machine on the front room floor, an 8-track car stereo on the front room floor with the wires off, and a shotgun behind the bedroom door.
Upon completion of the search for the items listed on the search warrant, the officer decided to seize the items previously mentioned in order to check them against the police reports of recently stolen articles. This decision was based upon the fact that the items were scattered all over the house in plain view, obviously not in use, and missing cords and wires; that a stolen Muntz stereo and Bruners stolen items had also been found in the house; and that due to the joint occupancy of the residence, the items might be removed if not immediately seized. In addition to the items taken at this time, the officer obtained a waiver from the other occupants of the home, and returned to seize other stolen items. Of the items seized, later investigation determined almost all of them to be stolen property.
The defendant was arrested and charged with the burglary of the Bruner residence and with obtaining control over stolen property. Of the items seized in the search of the defendant’s residence, and other than the Bruner property, the second count encompassed only the Muntz stereo and its attached speakers.
On the 7th day of April, 1972, an officer met with the defendant in the city jail where the defendant was incarcerated pending his first appearance. The officer read the defendant’s rights to him, and the defendant agreed to sign a waiver of his right to remain silent. Thereafter, the defendant admitted that he had purchased the stolen Muntz stereo from a friend at the time knowing that it was stolen.
On April 10, 1972, a complaint was filed, charging the defendant in Count One with burglary of the Bruner residence, and in Count Two with obtaining control over tire Muntz stereo, an 8-track car stereo, and $45.00 in currency; the latter items belonging to ABC Rental. At defendant’s preliminary healing, on the 25th day of April, 1972, the magistrate discharged the defendant on Count One, and bound him over to district court to stand trial on Count Two. Defendant’s oral motion to suppress was overruled, and on May 10, 1972, defendant waived arraignment and trial was set for May 22, 1972.
On May 16, 1972, the defendant filed a motion to suppress all of the evidence seized in the search. The defendant claimed that, in addition to the physical evidence seized in the search, if the court suppressed the physical evidence it must also suppress any state ments made by the defendant in reference to that evidence as fruit of the poisonous tree.
Defendant admitted the search warrant was proper and seizure of those items which the officer had reasonable cause to believe stolen was proper. However, defendant contended that seizure of other items based upon officers mere suspicion vitiated the legality of the entire search. He therefore concluded that all of the physical evidence, including the Muntz stereo, and the defendant’s statements, should be suppressed. The trial court sustained the defendant’s motion, and ordered all of the physical evidence suppressed. In addition, the court suppressed the defendant’s statements made in relation to the stereo, as fruit of the poisonous tree.
The state first contends that the seizure of the Muntz stereo was proper. We agree with this statement. In State v. Yates, 202 Kan. 406, 449 P. 2d 575, we held that an officer, while conducting a legal search pursuant to a search warrant, may lawfully seize other stolen goods found on the premises but not mentioned in the warrant. To the same effect is State v. Bolen, 205 Kan. 377, 469 P. 2d 422, where we said:
“While the warrant issued by the magistrate or judge must describe the property to be searched for and seized (K. S. A. 62-1830), the fact the officer executing the warrant seizes an unlisted item does not convert the search to one of a general exploratory nature within the prohibition of the fourth amendment to the United States Constitution or § 15 of the Bill of Rights of the Kansas Constitution against unreasonable searches and seizures . . . The search, of course, must be directed in good faith toward the objects specified in the warrant; but if in the course of that search the officer discovers items not described that might have been seized in a search incident to a lawful arrest, such evidence may also be legally seized in the search pursuant to the warrant. (Harris v. United States, 331 U. S. 145, 91 L. Ed. 1399, 67 S. Ct. 1098; Warden, Maryland Penitentiary v. Hayden, supra; Gurleski v. United States, 405 F. 2d 253 [5th Cir. 1968], cert. denied, 395 U. S. 981, 23 L. Ed. 2d 769, 89 S. Ct. 2140; United States v. Robinson, 287 F. Supp. 245 [N. D. Ind. 1968].) . . .” (pp. 378, 379.)
In Yates and Bolen it appears there was a relationship between the property described in the warrant and the undescribed property which was seized. In the instant case there is no relationship between the stereo and the property described in the warrant. This distinction, in our judgment, does not invalidate the seizure of the stereo. This was the position of the court in Aron v. United States, 382 F. 2d 965 (8th Cir. 1967), where it was stated:
“. • • We believe that where an officer is proceeding lawfully and making a valid search under a properly issued search warrant and comes upon evidence of another crime being committed in his presence, he is entitled to seize the fruits thereof and testify to the violation he saw committed in his presence. . . (pp. 973, 974.)
Although these authorities support the seizure of the stereo, the trial court found that the whole of the search and seizure was vitiated by the seizure of some 35 other unlisted items. The trial court made its ruling in the following words:
“Now, the Court concludes, as a matter of law, that the seizure of the goods having a general character or general description similar to that which had been reported as stolen, in the quantity shown by the evidence in this case, was an unreasonable seizure. It makes illegal the entire search and seizure and renders the acts of the police officers in the execution of the search warrant, unlawful and the Court concludes that the evidence seized should be suppressed in this case; and the Court finds that the confession is a product and fruit of the illegal search and under the doctrine of the fruit of the poisonous tree. It is the fruit of the illegal search and the confrontation of the defendant with the possession of the Muntz Stereo set induced the confession or induced the statement wherein the admission was made that it was acquired with knowledge of its stolen character and so the confession is suppressed.”
The state maintains the trial court’s conclusion of law was erroneous. The state argues that it would be inconsistent with the purpose and intent of the Fourth Amendment to hold an otherwise legal search invalid because certain items seen in plain view during the course of that search were unreasonably seized. Further, since the state declared the intent not to introduce any of the property in evidence other than the stereo, it was irrelevant whether other items were unreasonably seized.
The issue was analyzed in Anglin v. Director, Patuxent Institution, 439 F. 2d 1342 (4th Cir. 1971), where the officers armed with a search warrant for 27 items, seized over 700 items. The court said:
“By virtue of the lawful warrant in their possession, the officers searching the Anglin trailer had a ‘right to be in the position’ to observe the entire contents of the trailer. Those items seized were discovered in the course of a lawful search. The testimony of Sergeant Donovan indicates that, in fact, many of the items were not only in plain view, but were thrust upon them by Mrs. Anglin. Once the privacy of the dwelling has been lawfully invaded, it is senseless to require police to obtain an additional warrant to seize items they have discovered in the process of a lawful search. ‘There is no war between the Constitution and common sense.’ Mapp v. Ohio, 367 U. S. 643, 657, 81 S. Ct. 1684, 1693, 6 L. Ed. 2d 1081 (1961). To so hold would again tempt the police to proceed without a warrant, for even now searches incident to arrest are not so confined. Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969); Terry v. Ohio, 392 U. S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Harris v. United States, 390 U. S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067 (1968). If the search has not extended beyond the scope of the warrant and the officers chance upon items which they would have had probable cause to seize in the course of arrest, we think it serves the Fourth Amendment well to allow the seizure of those items for use as evidence at trial. See, United States v. Eagleston, 417 F. 2d 11 (10th Cir. 1969); United States v. Teller, 412 F. 2d 374 (7th Cir. 1969). To hold otherwise will again put a premium on search incident to arrest at the expense of the warrant procedure contemplated by the amendment itself. As Judge Learned Hand remarked in a pre-Marron decision: ‘Once in, the question is whether the officer’s added seizure was “ ‘unreasonable’ ” under the Fourth Amendment.’ United States v. Old Dominion Warehouse, 10 F. 2d 736, 738 (2d Cir. 1926).
“Whether viewed in terms of probable cause or reasonableness, we think on the facts of this case the police officers had a duty to seize and take into protective custody the 700 items of personalty that were subsequently put on display at the Baltimore Police Station. . . .” (pp. 1347, 1348.)
This opinion pointed out that the basis for the seizure of unlisted items in a search warrant was reasonableness and probable cause, and continued with a recital of the facts on which it determined the seizure was valid.
The validity of a seizure of property not listed in a search warrant depends on the circumstances existing at the time of the seizure and tire information available to the officer at the time of his decision to seize the property. Without repeating the facts previously stated herein we are satisfied that at the time of the seizure of the property the officer had probable cause, as distinguished from mere suspicion, to believe the property was stolen. We hold the seizure of the property within or beyond the scope of the warrant was valid.
Reversed and remanded. | [
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The opinion of the court was delivered by
Fontron, J.:
This is a products liability case. The appeal raises questions with respect to the liability of one who manufactures, processes or sells cosmetic preparations such as hair rinses, shampoos, hair tints and the like, where personal injury results therefrom to persons with allergy problems.
In the present case the offending product was Rinse Away, a preparation primarily for the treatment and control of dandruff. The product is admittedly manufactured by the defendant, AlbertoCulver Company. The plaintiff, Beverly Robbins, who has since remarried and will be referred to herein either as plaintiff or Beverly, came into contact with Rinse Away when she used the rinse, diluted as per directions, on her former mother-in-law’s hair, which had just been shampooed. This operation required Beverly to rub or massage the preparation into the hair and scalp of the mother-in-law with her finger tips. The following day Beverly’s fingers began to ache, she had chills and her mouth began to swell. Her condition was medically diagnosed as contact dermatitis and it persisted for some six weeks. During that time Beverly had hive-like eruptions and blisters over various parts of her body, her hands and fingers became swollen, red, tender to the touch, and quite painful. The doctor related plaintiff’s condition to an allergic reaction and there was evidence from which the inference could be drawn that she was sensitive to Rinse Away and that such was the cause of her misery.
So far as the record discloses, the plaintiff introduced no evidence as to what the ingredients of Rinse Away may have been or as to the chemical analysis or characteristics of the product.
The defense, in brief, was based on the claim that Rinse Away contains no sensitizers or primary irritants and that it is an innocuous product which is harmless to the vast majority of people who use it according to the directions, even though it may be harmful to the extremely rare individual who is hypersensitive to it — a minority, so it was said, of some two users per million sales.
The matter was tried to the court on the basis of breach of implied warranty. After making certain findings, the trial court entered judgment in favor of the plaintiff and the defendant company has appealed. In its statement of points the defendant maintains there was no substantial evidence to establish a breach of warranty, that the evidence proved as a matter of law that the injury was due to an allergy or idiosyncrasy on the part of the plaintiff and that the trial court erred in holding the defendant to be an insurer of its products.
Certain findings are strenuously challenged by the defendant. They are as follows:
“(6) The Court further finds that said Rinse-Away product as related to the plaintiff had a deleterious quality contained therein which gave rise to plaintiff’s injuries and pain related thereto, which the expert witness, one Dr. Snodell, testified created a condition known as contact dermatitis.
“(7) The Court further finds as a matter of law that the manufacturer impliedly warrants such products are suited and fit for the purpose for which they are sold and an insuror that said products will not cause harm to the user by reason of the contents contained therein.
“(8) That as a matter of law the facts set forth by the testimony in this case indicate that as far as the plaintiff was concerned the product was unfit and unwholesome for the purpose intended.”
The predominant issue on appeal, as we conceive it to be, is whether the trial court, in trying the cause and in entering judgment, proceeded on the correct legal basis, and whether it adopted the proper legal standard for determining the issue of liability.
In a general way we might point out that early in its history this court opined that where food is sold for human consumption there is an implied warranty on the seller’s part that it is fit and wholesome for its intended use. (Lukens v. Freiund, 27 Kan. 664.) In a much later case, Swengel v. F. & E. Wholesale Grocery Co., 147 Kan. 555, 77 P. 2d 930, it was held in respect to the sale of food intended for human consumption that the manufacturer, the packer and each intermediate dealer, as well as the retailer, each impliedly warrants that the food is wholesome and fit for immediate human consumption, whether or not it be sold in bulk or in sealed packages or containers.
This rule of liability as to foodstuffs, based on an implied warranty of fitness and suitability for intended use, was extended to apply as well to the sale of a hair preparation known as “Miss Clairol.” (Graham v. Bottenfield’s Inc., 176 Kan. 68, 269 P. 2d 413.) The defendant in that case was a wholesale distributor. The Graham case was later followed by Patterson v. Weyer, Inc., 189 Kan. 501, 370 P. 2d 116, where the defendants, a manufacturer and a distributor, had produced and marketed a cold wave permanent preparation with the exotic title of Rayette Goddess. In the opinion, this court said:
“At the outset it may be stated that in this jurisdiction a manufacturer, distributor or retailer who sells hair preparations does so under the implied warranty that such product is suited and fit for the purpose for which it is sold. (Graham v. Bottenfield’s, Inc., 176 Kan. 68, 269 P. 2d 413; 1 Products Liability, Hursh, § 3:18, pp. 429-431.) . . .” (p. 502.)
The recently enacted Uniform Commercial Code also deals, in part, with the subject of implied warranty. So far as pertinent to this case, K. S. A. 84-2-314 provides:
“(1) Unless excluded or modified (section 84-2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. . . .
“(2) Goods to be merchantable must be at least such as
(c) are fit for the ordinary purposes for which such goods are used . . .
In the Kansas Comment which follows this section, the Legislative Council Judiciary Committee had this to say:
“Subsection (2) (c) states the fundamental concept which underlies much of the rapidly developing law of product liability. The concept of fitness for ordinary purposes is part of the warranty of merchantability and extends protection to the ultimate consumer as well as to a merchant buying for resale. The modern line of Kansas authority accords with the Code. (Citing cases.)”
While it is apparent that the rule which imposes liability on the producers and vendors of beauty preparations is no stranger within our sun-kissed borders, we are plowing a somewhat virgin field where allergic reactions occur. This is a case of first impression in this state, although it is true that the question raised its homy head in Patterson v. Weyer, Inc., supra. However, the jury before which that case was tried expressly found that the plaintiff’s injuries did not result from an allergy, or an idiosyncrasy as the term is sometimes used in a medical sense.
Our task now is to define the proper standard to be followed in ascertaining the liability of the producer or purveyor of cosmetic preparations, and similar products, for personal injuries occasioned thereby to persons who are allergic or hypersensitive to their use. The authorities are not in complete accord, but we believe we would be safe in saying at the start that as a general rule neither the vendor nor the producer of such products is held to be an insurer of his wares. (Howard v. Avon Products, Inc., 155 Colo. 444, 452, 395 P. 2d 1007; Cudmore v. Richardson-Merrell, Inc., 398 S. W. 2d 640, 644 [Tex. Civ. App.]; Gerber v. Faber, 54 C. A. 2d 674, 682, 129 P. 2d 485.) In Bradley v. Conway Springs Bottling Co., 154 Kan. 282, 288, 118 P. 2d 601, an action to recover damages for personal injuries sustained when a Pepsi-Cola bottle exploded, this court said that the bottlers and distributors of such beverages were not insurers.
In Bennett v. Pilot Products Co., Inc., 120 Utah 474, 477, 235 P. 2d 525, 26 A. L. R. 2d 958, the Utah court expressed itself this way:
“. . . [We] cannot require the merchant to assume the role of absolute insurer against physiological idiosyncrasy. . . .”
The concept of imposing absolute legal liability upon the manufacturer of merchandise was urged upon this court in Evangelist v. Bellern Research Corporation, 199 Kan. 638, 433 P. 2d 380, where it was contended that a home bottle capping device, the “Handy Dandy”, was defective in design, by reason of which a bottle exploded while being capped causing personal injury to the plaintiff. In reply to the plaintiff’s contention we said:
“We note that nearly all the cases from other jurisdictions which have dealt with the manufacturer’s duty of design have predicated liability on the ground of negligence rather than implied warranty. (Anno. 76 A. L. R. 2d 91, et seq.; 3 Hursh, American Law of Products Liability § 20:1, et seq.) The courts are nearly unanimous in saying the product-design duty of a manufacturer is that of reasonable care, but he is not an insurer that his product, from a design standpoint, be accident-proof or incapable of producing injury.” (p. 648.)
See, also, 1 Products Liability, Frumer-Friedman, § 6.04, p. 101.
In her brief, the plaintiff calls attention to certain language found in Simmons v. Wichita Coca-Cola Bottling Co., 181 Kan. 35, 309 P. 2d 633:
“. . . [A] manufacturer, intermediate handler or a retailer-dealer of food for human consumption is, in effect, an insurer that such food will cause no harmful efFects because of deleterious matter therein. . . .” (p. 39.)
This language was echoed in Cernes v. Pittsburg Coca Cola Bottling Co., 183 Kan. 758, 761, 332 P. 2d 258.
The significance of these observations must be weighed in the scales of attending circumstances. The deleterious matter referred to in Simmons was a partially burned book of safety matches, and a chemical analysis of the coca-cola revealed antimony. In Cernes the foreign substance found in the bottle was apparently a kola nut which had fermented and had degenerated into a yeasty, slimy substance. In neither instance was the offending substance an indigenous element of the coca-cola drink. The late Judge Huxman, speaking for the court in Ray v. J. C. Penney Company, 274 F. 2d 519, explained the Cernes case in this way:
“. . . In that case, there was a foreign substance in the particular bottle which caused the injury. The court did not say there would be liability from drinHng a wholesome bottle of coca-cola, free from foreign substances, merely because of a rare form of allergy the consumer had which made him allergic to wholesome coca-cola.” (pi 522.)
There are two principal positions taken, with some variations, by those authorities which have had to deal with products liability vis-a-vis allergic reactions. One line of authorities, which in general appears to be most prevalent, would deny recovery under a breach of implied warranty claim, where the offending product can be used without harm by a normal person. The other cases proceed on the theory that protection cannot logically be restricted to a predetermined arbitrary class such as the normal buyer, and that the seller is not absolved of liability in a breach of warranty action simply because only a small percentage of users are harmed by use of the product. A good many cases on the subject are found in annotations in 26 A. L. R. 2d 963, et seq., and A. L. R. 2d Later Case Service, Supplementing 25-31, p. 223, et seq.
The dichotomy is pointed out in Crotty v. Shartenberg's-New Haven, Inc., 147 Conn. 460, 162 A. 2d 513, but the court suggests that the cleavage is not as broad or irreconcilable as might first be thought, because of the factual distinctions existing in many of the cases. This view finds expression, also, in Esborg v. Bailey Drug Co., 61 Wn. 2d 347, 378 P. 2d 298, where the court said:
“A critical analysis of the lines of decision referred to in the Crotty case, leads us to the conclusion, not infrequently expressed by other writers in the field, that the so-called majority and minority views are, upon their facts, at least, reconcilable. The first cited cases, representative of the majority, arrive at their denial of liability upon the factual premise that the plaintiff before them was, under the evidence presented, peculiarly unique in susceptibility to the content of the product involved, and was not representative of any definable or significant group of consumers. The second line of cited authorities accord liability, upon the basis of the facts before them indicating the complaint to be a member of an identifiable and significant class or number of consumers, composed of the innocently allergic.” (p. 357.)
The common thread of foreseeability lies at the core of a good many cases where allergic reactions are involved. This is recognized in 3 Products Liability, Frumer-Friedman, § 29.03[1], where the authors say:
"It has been held or recognized in a majority of cases that if a product can be used by a 'normal’ person without injury, there is no breach of an implied warranty of fitness or merchantability. It should be noted that, while knowledge of danger is not ordinarily a prerequisite to liability in warranty, the cases in this area seem to stress the lack of such knowledge on the part of the supplier.” (pp. 120, 121.)
At the risk of seeming over-simplistic, we believe the concept of foreseeability is the key in determining liability on the part of one who manufactures or sells a fabricated product which causes an allergic reaction in a person who may be susceptible to it. In this connection we may point out that we are not speaking here of products in their natural state, such as eggs, strawberries, etc.
The rule appears to be well stated in Ray v. J. C. Penney Company, supra, an action based on breach of warranty, in which the plaintiff was seeking damages for personal injuries sustained from wearing gloves purchased at a Penney store. There was medical evidence which related the injury to the gloves and there was evidence that the plaintiff had a rare allergy and an unusual sensitivity to something contained in the gloves. In an instruction which was challenged by the plaintiff, the trial court charged the jury:
“ ‘You are instructed that warranties do not extend to injuries caused by peculiar idiosyncrasies or physical condition of a user which are not reasonably foreseeable.
“‘The law requires a person to reasonably guard against probabilities, not possibilities, and one who sells a product on the market, knowing that some unknown few, not in an identifiable class which could be effectively warned, may suffer allergic reactions or other isolated injuries not common to ordinary or normal persons, need not respond in damages.
“ ‘If you find that the plaintiff’s injury was an isolated instance to an unusually susceptible individual then you must find for the defendant.’ ” (p. 521.)
In affirming a judgment entered in favor of the defendant, the United States Court of Appeals, Tenth Circuit, concluded that the instruction given by the trial court “stated the correct principle of law as announced in the overwhelming number of cases which hold that warranties do not extend to injuries caused by peculiar idiosyncrasies or physical conditions of a user which are not reasonably foreseeable.”
In Cudmore v. Richardson-Merrell, Inc., supra, where recovery was sought for injuries alleged to have resulted from the use of a drug, it was said by the Texas court:
“. . . We believe and we hold that in such cases the manufacturer of a drug intended for human consumption or intimate bodily use should be held liable on the grounds of implied warranty for injurious results only when such results or some similar results ought reasonably to have been foreseen by a person of ordinary care in an appreciable number of persons in the light of the attending circumstances. . . .” (p.644.)
A like rule of foreseeability was announced by the Supreme Court of Washington in Esborg v. Bailey Drug Co., supra, where the allergic reaction stemmed from the use of a hair tint preparation. The court said it would be reasonable to require the plaintiff, in seeking to establish a breach of warranty against which the defense of allergy was interposed, to produce evidence to show that the suspect ingredient “is harmful to a reasonably foreseeable and appreciable class or number of potential users of the product.”
The principle of foreseeability has been recognized by this court. In the recent case of Huebert v. Federal Pacific Electric Co., Inc., 208 Kan. 720, 494 P. 2d 1210, we applied the rule in an action to recover damages for personal injuries in a proceeding based on an express warranty.
It is obvious that the trial court did not base its decision in the present case on the reasonable foreseeability of harm. The court made no finding whatever in this respect, nor have we discovered in the record any findings of fact from which a determination as to foreseeability might be drawn or inferred. On the contrary, as the findings clearly indicate, the court concluded as matters of law that the defendant was an insurer that its products would not cause harm, and that as to this plaintiff its products were unfit and unwholesome for their intended purpose. It is thus apparent that this cause was tried and judgment was entered on an erroneous legal theory. Accordingly, the judgment cannot stand.
Under ordinary circumstances, whether harm is reasonably foreseeable from a given action is a question to be determined by the trier of the facts, be it jury or the court. In this respect the procedure is no different than when any disputed question of fact arises which is material to the outcome of a lawsuit. It is only when the minds of reasonable men could arrive at but one conclusion that the question may be determined as a matter of law. This proposition was tersely put by the court in Esborg v. Bailey Drug Co., supra, in this fashion:
“What constitutes, in a given case, a reasonably foreseeable and appreciable class or number of potential users, is incapable of precise or quantitative definition. In the absence of proof to the contrary, upon which the minds of reasonable men could not differ, it would appear to present a question of fact for the trier of the facts, bearing in mind the usual and ordinarily accepted meanings of the words employed.” (p. 358.)
Under the circumstances shown to be present here, we think the issue of foreseeability may not be determined as a question of law, but that a question of fact is presented which must be resolved. Evidence was presented on behalf of the defendant that over a period of some ten years the company had received ninety-nine complaints, the last one in 1970, which averages out as two complaints per million bottles sold during that period of time; that the complaints covered such problems as rash on head and ears, hair loss, breaking out of scalp, itching, skin trouble, allergic reaction and swollen eyes; and that the company does not have a written requirement that all distributors and retail stores selling Rinse Away report any complaints received. Whether the accumulation of complaints of allergic reactions up to the time of injury (see Merrill v. Beaute Vues Corporation, 235 F. 2d 893, 897) was sufficient for the defendant to have reasonably apprehended that its product would harm an appreciable class of people is a matter for determination as a fact question.
For the reasons given, this case must be reversed and returned for a new trial where the relevant issues will be determined in accordance with the views expressed herein.
It is so ordered. | [
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|
The opinion of the court was delivered by
Fatzer, C. J.:
The appellant, Sherman L. Kelly, was convicted by a jury on October 28, 1970, of two counts of rape (K. S. A. 1971 Supp. 21-3502), one count of aggravated sodomy (K. S. A. 1971 Supp. 21-3505), and two counts of aggravated burglary (K. S. A. 1971 Supp. 21-3716). A motion for new trial was overruled on November 13,1970, and he was sentenced under the Habitual Criminal Act. (K. S. A. 1971 Supp. 21-4504.)
On August 3, 1970, prior to the filing of the original complaint in the magistrate court, a lineup was conducted at the Shawnee County jail by Topeka Police Department Detectives Howard Stanley and Ross Riggs. The appellant was present in the lineup along with six other subjects. The suspects were approximately the same age and size and were dressed in a similar fashion. Prior to the actual lineup for identification by some eleven witnesses, each witness was given a lineup card to be marked at the close of the viewing. The identification cards had a place to write the witness’ name and to mark each suspect if recognized by the witness, and a place to mark if no one in the lineup was identified. All witnesses were directed not to speak during the viewing of the suspects. If a witness wanted a particular suspect to say or do a particular act, the request was to be made in writing so it could be documented and given to one of the detectives conducting the lineup. After all were viewed in the lineup, the witnesses were directed to tihe library of the county attorney’s office to mark their cards.
The appellant’s counsel was present during the entire viewing of the suspects; however, he was excluded from the marking of identification cards in the library. At the trial, the district court held an in camera hearing to inquire into the procedures followed subsequent to appellant’s counsel being excluded from the marking of the lineup cards. The record shows counsel was present when the witnesses were instructed how to mark their cards. At that point he was asked to leave. Detective Stanley testified that after appellant’s counsel was excluded, the cards were picked up. During the time up until the cards were marked and picked up, no discussion was had between the witnesses and the authorities as to any particular suspect in the lineup. The cards marked by witnesses Donna Houston and Marilyn Hines showed an identification of the appellant, and statements were taken from them at that time.
The district court ruled the lineup procedure did not violate the appellant’s constitutional rights, and permitted the state to question Detective Stanley as to the lineup identifications by Miss Houston and Mrs. Hines. That evidence was then admitted over the objection of the appellant. Moreover, the district court ruled that the identification of the appellant in court by Miss Houston and Mrs. Hines was based upon an on-the-scene recognition of the defendant independent of the lineup identification on August 3, 1970.
The appellant contends it was error for the district court to ádmit evidence of the lineup identification of him by Miss Houston and Mrs. Hines because his counsel was excluded from the marking of the identification cards after the viewing had been completed. In short, he asserts he was denied an opportunity to insure that the entire lineup procedure was fair and impartial. The point is not well taken.
The court has held that a claimed violation of due process in the conduct of a lineup confrontation depends upon the totality of the circumstances. (State v. Hill, 209 Kan. 688, 498 P. 2d 92.) See, also, Stovall v. Denno, 388 U. S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967. The facts need not be reiterated. When the lineup was held, adversary judicial criminal proceedings had not been commenced against the appellant. (Kirby v. Illinois, _ U. S. _, _ L. Ed. 2d _, _S. Ct.__) However, it is sufficient to say the record supports a conclusion the lineup procedures in this case were not deficient. In addition to counsel being present to protect the appellant’s rights when the lineup was conducted and the explanation was made as to how the identification cards were to be marked, the district court made lengthy inquiry into the proceedings after appellant’s counsel was excluded. Without further statement, we hold the district court did not err in concluding the appellant’s constitutional rights were not violated by the lineup in question.
In addition, it must be pointed out that both Miss Houston and Mrs. Hines made in-court identifications of the appellant, and the district court declared those identifications independent of the lineup identifications. In State v. Hill, supra, it was held:
“Even though identification procedures are suggestive, due process of law is not denied a defendant when the totality of the circumstances justifies the action taken by the law enforcement officers.
“In-court identifications may be found capable of standing on their own feet even though preceded by deficient pretrial confrontations.” (Syl. ff 2, 3.)
Under such circumstances, the in-court identifications would be capable of supplying the requisite identification regardless of any alleged deficiency in pretrial confrontations. See Clemons v. United States, 408 F. 2d 1230 [D.C.].
The appellant next contends the district court erred in overruling his motion at the conclusion of the state’s evidence for acquittal on the count of aggravated sodomy because the necessary element of penetration of the body of Miss Houston was not established.
Before a verdict of guilty, which has been approved by the district court, may be set aside because of insufficiency of evidence, it must clearly be shown that upon no hypothesis whatever is there substantial evidence to support the conclusion reached by the district court. (State v. Brizendine, 114 Kan. 699, 220 Pac. 174; State v. Murphy, 145 Kan. 242, 65 P. 2d 342; State v. Gregory, 191 Kan. 687, 383 P. 2d 965; State v. Hale, 207 Kan. 446, 485 P. 2d 1338; State v. McCollum, 209 Kan. 498, 496 P. 2d 1381.)
This court is of the opinion the test was met in the instant case as there was a basis in the evidence for a reasonable inference that the element of penetration had been proven. Miss Houston testified on cross-examination and on redirect examination:
“The Court: All right, cross?”
“Q. Isn’t is possible that there was not an actual penetration while you were on the floor?
“A. I am almost positive there was.
“Q. But you are not absolutely convinced, are you?
“A. Yeah, more or less, yeah. I could feel it; it hurt.
"Q. Miss Houston, there is no medical evidence to substantiate that part of your testimony though, is that correct?
“A. Not that I know of, no.
“Q. So it is only based on your feelings then that you are testifying that there was an actual penetration?
“A. I guess you could say so.
“Q. In all fairness to the jury, you would have to admit there was a possibility that there was no actual penetration even though your assailant may have been on top of you on the floor, isn’t that true, penetration of the body?
“A. In my opinion, I really — in my opinion I couldn’t say that there was— I mean that there wasn’t.
“Q. All—
“A. But in the doctor’s view, maybe, yeah.
"Q. But in your opinion you can’t say for sure that there was an actual penetration on the floor?
“A. Well no, I can’t, because I don’t have any medical knowledge.”
“Q. Miss Houston, you stated on cross-examination that you weren’t absolutely sure that he achieved penetration in your rectum; is that correct?
“A. Yes.
“Q. What are you basing your testimony on that you were — that he did achieve penetration in your rectum?
“A. The pain.
“Q. The pain?
“A. Yes, it hurt.
“Q. And could you tell us where the position — you said he had you lie on the floor face down?
“A. Yes.
“Q. Could you tell us where his body was in relation to yours at the time you felt the pain?
“A. It was on top of me, directly on top of me.”
It is clear that a jury could conclude the appellant was guilty o£ aggravated sodomy from the uncontroverted facts that he was on top of the victim and she felt pain in her rectum. The contention is without merit.
Lastly, the appellant argues the district court erred in refusing to permit him to personally cross-examine Miss Houston concerning her testimony. While this question is one of first impression in this state, the great weight of authority is that a defendant’s right to participate with counsel in the conduct of his defense is not a constitutional guaranty but is within the sound discretion of the district court to permit or deny. See Anno. Right of defendant in criminal case to conduct defense in person, or to participate with counsel, 77 A. L. R. 2d 1233; A. L. R. 2d Later Case Service, Supplementing 73-78 A. L. R. 2d; People v. Bales, 189 Cal. App. 2d 694, 11 Cal. Rptr. 639, cert. den. 368 U. S. 866, 7 L. Ed. 2d 64, 82 S. Ct. 116; Strosnider v. Warden, 245 Md. 692, 226 A. 2d 45. This court adopts the rule and holds that a defendant’s right to participate with counsel in the conduct of his defense is within the sound discretion of the district court.
The district court made inquiry into the reasons why the appellant sought to personally question the witness and concluded that his lack of legal education and interrogation in the trial context might prejudice his constitutional rights. Under the facts and circumstances, we are of the opinion the district court acted within its discretion in denying the appellant an opportunity to personally cross-examine Miss Houston.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Fatzer, C. J.:
This appeal arises out of a claim for alimony and child support against a decedent’s estate. The facts are not in dispute.
Following several years of marriage and the birth of five children, Virginia J. Sweeney sued John E. Sweeney for separate maintenance. Before the matter was heard, and on October 11, 1966, Virginia and John entered into what was characterized as a “stipulation” in which they stated they had been unable to reconcile their differences and believed that a permanent separation must ensue.
The stipulation is too extensive to be presented here in full. It is sufficient to say that Virginia agreed to amend her separate maintenance petition to the extent necessary to seek a divorce from John. The stipulation provided for (a) the division of all the real and personal property of the parties; (b) the custody, support and education of their minor children, and (c) the future support of Virginia, denominated as alimony.
On the same day, October 11, 1966, the district court permitted the petition for separate maintenance to be amended; granted a divorce to Virginia; found the terms of the stipulation to be fair, just and equitable, approved the same, and ordered the stipulation be incorporated into the decree.
The stipulation contained 18 paragraphs which were written in full in the district court’s decree of divorce as separate findings of the court, and were likewise written in full in separate paragraphs in the judgment portion of the decree. In the interest of brevity and to avoid repetition of quoting from the stipulation and the judgment portion of the decree, the various pertinent paragraphs of the stipulation, as well as the separate findings of the court incorporating such paragraphs into the decree, are quoted as follows:
“And now the court, having heard the testimony of plaintiff and her witness, and after hearing the statements of counsel, examining the files herein, and being well and fully advised in the premises, finds:
“3. The court further finds that plaintiff should be awarded, as and for her property settlement with defendant, free and clear from all right, title, interest, lien, claim or encumbrance of defendant, the following described real and personal property:
“a. $3500.00 cash
“b. The 1962 Buick station wagon
“c. The household goods and furnishings, including drapes, rugs, pictures and books located in the dwelling house where plaintiff resides at 812 Gage Blvd., Topeka, Kansas, except certain items of furniture and personal effects which the parties have agreed should be awarded to defendant, said articles being more particularly described in findings No. 13 and No. 14 following
“d. The real estate commonly known as 812 Gage Blvd., Topeka, Kansas, more particularly described as follows: (description.)
“6. The court further finds that plaintiff should be awarded for her future support and maintenance, to be denominated as alimony, the sum of $650.00 per month, payable by defendant to plaintiff through tire Clerk of the above entitled District Court, commencing $650.00 on January 1, 1967, and $650.00 on the first day of each succeeding month until plaintiff’s remarriage or death, in either of which event said support payments shall cease and terminate.
“7. The court further finds that defendant should pay plaintiff through the Clerk of the above entitled District Court for the support, maintenance and education of the minor children of the parties the sum of $100.00 per month per child, commencing January 1, 1967 and continuing on the first day of each succeeding month until each of said children shall have attained his majority or until the further order of the court.
“10. The court further finds that until January 1, 1967, or the effective date of the divorce decree, whichever is sooner, defendant should continue to pay plaintiff the sum of $650.00 per month, as well as the monthly mortgage installment on plaintiff’s home, payable to the American Savings Association of Topeka; that defendant should also bring any delinquent payments to date in order that plaintiff will receive the said home commonly known as 812 Gage Boulevard, Topeka, Kansas, as of the effective date of the said decree, with no payments in arrears as of the said effective date; that the award to plaintiff of the said real estate should include all account balances reserved for the payment of ad valorem taxes, hazard insurance and mortgage insurance.
“12. The court further finds that defendant should keep in effect his Prudential Life Insurance policy No. 31199270, the proceeds of which are to be used, in case of defendant’s death, for the payment of the unpaid balance on the present mortgage loan on said real estate, and will make all necessary changes.
“13. The court further finds that defendant should be awarded all his corporate stock in the Medical Building Company, Inc., his partnership interest in the Topeka Medical Center, together with his proportionate share of the reserves and accounts receivable in connection with said medical center, and should be awarded his life insurance policies, subject to the provision for the payment of the mortgage balance in the event of his death, as referred to in paragraph 12 above, all of said interests to be awarded him free and clear of any right, title, interest, lien, claim or encumbrance of plaintiff.”
The journal entry was filed of record as of January 11, 1967. Virginia was awarded the care, custody and control of the minor children. On March 5, 1970, when the proceedings out of which this appeal arises were commenced, there were three minor children in the home — Craig, born April 7, 1951; Michael, bom December 18, 1954, and Mary Catherine, born December 2, 1961.
Virginia has not remarried; she was 50 years of age on December 2, 1969, and is in good health.
Sometime after the divorce, and on a date not disclosed by the record, John married Martha Maynard Sweeney, his surviving spouse, hereafter referred to as Martha.
On July 23, 1969, John executed his Last Will and Testament in which he directed his executor to pay all his debts, including funeral expenses and all federal and state inheritance taxes; he bequeathed all of his household goods, wearing apparel, and his automobile to Martha. He devised the residue and remainder of his estate to the Merchants National Bank of Topeka, hereafter referred to as the bank, the executor, or the trustee, in trust for Martha’s benefit during her lifetime, then to his children. The bank was named executor of John’s estate, and was also named Testamentary Trustee in his will.
No other instrument or document setting forth the terms of the trust (other than a will) had been executed before, or concurrently with, the execution of John s Last Will and Testament.
John held two insurance policies on his life; one in the amount of $40,000 with the Security Benefit Life Insurance Company, and one for $5,000 with the Topeka Medical Center Self Employment Retirement Trust. Both policies designated as the beneficiary the bank as trustee of the testamentary trust created by John’s Last Will and Testament.
On November 15, 1969, John died suddenly and unexpectedly, leaving Martha as his surviving spouse. As indicated, three of his children were still minors.
John’s Last Will and Testament was duly probated, and on December 29, 1969, letters testamentary were issued to the bank as executor in Case No. 32,754 (the probate estate). On January 12, 1970, letters testamentary trustee were issued to the bank in Case No. 32,754A (the trust estate).
On March 5, 1970, Virginia filed a petition for allowance of demand (K. S. A. 59-2237) on behalf of herself, asserting a contractual claim for future alimony for a life expectancy of 21 years at $650 per month by virtue of the stipulation and the decree of divorce.
The prayer was as follows:
“Wherefore, your petitioner prays that her demand against said estate under said contract be allowed at the present value thereof in the amount of $171,600, and that the Court order the executor to retain in its hands sufficient funds to the extent of at least $171,600 to satisfy the payments under said contract as they mature, and that this claim be assigned as a claim of the fourth class.”
All alimony payments under the stipulation and the decree of divorce were paid in full up to November 1,1969.
On April 8, 1970, Virginia filed a petition for allowance of demand, on behalf of the minor children, asserting a contractual claim of child support by virtue of the stipulation and the divorce decree. The prayer was:
“Wherefore, your petitioner prays that her demand against said estate under said contract be allowed at the present value thereof in the amount of $26,950.00, as well as $600.00 in arrearages, payable immediately, and that the Court order the executor to retain in its hand sufficient funds to the extent of at least $27,550.00 to satisfy the payments under said contract as they mature, and that this claim be assigned as a claim of the fourth class.”
The claim for the $600 in arrearage was not disputed.
The bank, as executor and as trustee of the testamentary trust, filed corrected inventories in both estates, listing the insurance policies heretofore referred to in the total amount of $45,000 as. assets of the trust estate.
On April 20, 1970, Virginia filed a third petition to correct the inventory of the probate estate (K. S. A. 59-1201), seeking to have the two insurance policies made a part of the corpus of the probate estate. We quote from the petition insofar as here material:
“Third: That said inventory and appraisal does not contain the following described personal property, to-wit: a $40,000.00 Life Insurance Policy Security Benefit Life No. GL932 Cert. 55 (12-10-70 E. M. V.), payable to his testamentary trustee and $5,000.00 representing proceeds of Topeka Medical Center Self Employed Retirement Trust (also life insurance).
“Fourth: That the said decedent at the time of his death was the owner of said personal property and that the same should be included in the inventory and appraisal of the said decedent’s estate.”
It should be noted that Virginia never challenged the validity of the testamentary trust established by Johns Last Will and Testament, other than seeking to have the proceeds from both insurance policies placed in the probate estate as assets to pay her claims for alimony and child support in the event those claims were sustained.
All three petitions were filed in Case No. 32,754 (the probate estate) and were transferred from the probate court to the district court pursuant to K. S. A. 59-2402a and 59-2402b, for hearing and determination. At the conclusion of the hearing, the district court entered judgment that:
“1. The claims of Virginia J. Sweeney for alimony and child support are valid claims against the estate of John E. Sweeney, deceased, by virtue of the contractual agreement between claimant and decedent.
“2. The executor should retain in his hands such sums as are necessary to carry out the terms of the agreement within the limitations of said estate.
“3. That the claimant shall have judgment immediately on the sums due to date by virtue of the contractual agreement between claimant and decedent, to-wit: $14,300.00 plus $750.75 interest of the alimony and $7,200.00 plus $420.00 interest of the child support.
“4. The Petition to Correct Inventory is denied.
“5. That the executor should carry out the terms of the Last Will and Testament of the deceased with regard to the trust.
“The costs of this action will be taxed to the estate.”
Virginia perfected an appeal to this court, designating her points on appeal as follows:
“1. The Trial Court erred in holding that the decedent set up a valid trust in his Last Will and Testament.”
The bank as executor cross-appealed, and its statement of points reads:
“1. The Trial Court erred in holding that the claims of Virginia J. Sweeney for alimony and child support are valid claims against the estate of John E. Sweeney, deceased.
“2. The Trial Court erred after holding that the child support was a valid claim against the estate of John E. Sweeney, deceased, by then not allowing the estate credit for the Social Security and Veterans Administration benefit payments received by Virginia J. Sweeney on behalf of the surviving children of John E. Sweeney, deceased.”
We first turn to the cross-appellant’s contention the district court erred in holding Virginia’s petitions for allowance of alimony and child support were valid claims against John’s estate. If the contention is correct, the other issue raised will become moot or immaterial.
The bank, as executor, makes two contentions. First, that under K. S. A. 1971 Supp. 60-1610 (d), the stipulation was merged into the divorce decree and each alimony payment became a judgment when due; that after the decree, there was no contract for a monthly sum, but rather an award per month made by the court and when due each month, became a judgment in favor of Virginia; but after John’s death there could be no judgments, since the obligation of support terminates upon the former husband’s death, and periodic payments of alimony likewise terminate upon that event. Second, assuming arguendo, the district court possessed the power on January 11, 1967, to enforce alimony payments against the estate of John E. Sweeney pursuant to K. S. A. 60-1610 (d), neither the stipulation nor the divorce decree contained John’s voluntary agreement to bind his estate for future alimony payments, or a clear statement of intent to do so, hence, liability for alimony ceased upon John’s death.
In 1963, the Legislature made substantial changes in the law of divorce and alimony when it enacted K. S. A. 60-1610 (since amended in particulars not material to this controversy [now K. S. A. 1971 Supp. 60-1610]) and designated matters which might be included in a decree. The section relates (a) to the care and custody of minor children; (b) the division of property of the parties; (c) the allowance of alimony to either party, and (d) the approval of separation agreements found by the court to be valid, just, and equitable. Subsection (d) reads:
“If the parties have entered into a separation agreement which the court finds to be valid, just, and equitable, it shall be incorporated in the decree; and the provisions thereof on all matters settled thereby shall be confirmed in the decree except that any provisions for the custody, support, or education of the minor children shall be subject to the control of the court in accordance with all other provisions of this article. Matters, settled by such an agreement, other than matters pertaining to the custody, support or education of the minor children, shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent.”
The section has been touched upon in Drummond v. Drummond, 209 Kan. 86, 495 P. 2d 994; Baird v. Baird, 209 Kan. 604, 498 P. 2d 83; Cramer v. Wohlgemuth, 195 Kan. 622, 408 P. 2d 644; Tager v. Tager, 199 Kan. 26, 427 P. 2d 484; Tyler v. Tyler, 203 Kan. 565, 572, 455 P. 2d 538, and Dodd v. Dodd [No. 46,400], 210 Kan. 50, 499 P. 2d 518.
The subsection changed the law with respect to separation agreements entered into by parties to a divorce action. Previously no statutory law existed in this area other than the married women’s property act (K. S. A. 23-207) which recognized marriage settlement contracts and provided for their enforcement. See Harrah v. Harrah, 196 Kan. 142, 409 P. 2d 1007. Separation agreements and property settlements have always been subject to the scrutiny of the courts to prevent fraud and oppression, or unfair advantage. (Gard, Kansas Code of Civil Procedure, §60-1610 [d], p. 733.) The terms of the subsection now control the matter in all aspects, and the requirement of scrutiny is in accord with generally recognized principles to assure the agreement is valid, just, and equitable.
Where parties to a divorce action have entered into a separation agreement and the same has been found by the district court to be valid, just, and equitable, the statute directs it shall “be incorporated in the decree,” and all matters settled by its terms and provisions “shall be confirmed in the decree,” except that provision for the custody, control and education of minor children shall remain subject to the control of the district court. All matters settled by such agreement, except with respect to provisions for minor children, shall not be subject to subsequent modification by the court, except as the agreement itself may provide, or the parties may subsequently consent.
Pursuant to the foregoing, we are of the opinion the intent of the subsection is to merge all matters settled by such agreement into the court’s decree. The phrases “be incorporated in the decree” and “shall be confirmed in the decree” must be read together, and are intended to mean that the terms and provisions of a separation agreement are to be ratified and approved by the court by its formal consent so as to provide judicial evidence of the terms and provisions of the agreement. In Larned v. Larned, 98 Kan. 328, 332, 158 Pac. 3, it was said the definition of the word “confirm” is to make firmer, to strengthen, sanction, or ratify. By its judicial sanction through confirmation, the court makes the agreement judicial in character, entitling the parties to the full benefit of the agreement which is no longer executory but executed. When confirmed, the executed agreement is subject to enforcement pursuant to its terms and the decree of the court. In determining the effect of the decree, the agreement is properly to be considered, and this court is of the opinion the confirmation of the agreement and its merger into the decree does not abolish the contractual aspects of the agreement, but leaves the court in the position to construe the provisions of the agreement consistent with the facts and circumstances and the expressed intention of the parties.
Such a conclusion follows from the language of the subsection that “matters, settled by such an agreement . . . shall not be subject to subsequent modification by the court except as the agreement itself may prescribe, or the parties may subsequently consent.” While the court is directed to examine and confirm the agreement and incorporate it in the decree, it may not subsequently modify the agreement except as its provisions prescribe, or the parties subsequently consent. In Dodd v. Dodd, supra, it was held:
“Payment of alimony settled by agreement, found by the trial court to be valid, just and eguitable, and incorporated in the divorce decree, is not subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent (K. S. A. 1971 Supp. 60-1610 Id]).” Syl. fl.
This clearly indicates the agreement was intended by the statute to have force and effect in addition to being incorporated in the decree. Thus, the effect of the court’s confirmation is to create a hybrid in the law having the characteristics of a judgment and retaining the contractual rights of the parties.
We conclude the executor’s first contention that the separation agreement is unenforceable except through its merger with the judgment is without merit.
Did the liability for monthly alimony payments provided for in the stipulation and written into the decree continue to accrue after John E. Sweeney’s death? While considerable authority from other jurisdictions bears directly upon the question, it seems to be an open one in this state.
The general rule is that periodic payments of alimony to a divorced wife terminate upon the former husband’s death in the absence of a provision in the settlement agreement, or in the decree, which expressly so states, or contains language which makes the intent unmistakably clear that such payments are to continue after his death. (24 Am. Jur. 2d, Divorce and Separation, § 642, p. 763, § 911, p. 1035; 27A C. J. S., Divorce, § 240b, p. 1155; 101 A. L. R. 323, 324.) Likewise, there is authority that a court has no power without the husband’s consent to require payments of alimony to continue after his death. (Ibid.) It has been said the basis for the general rule is that an allowance of alimony is a substitute for the right of marital support and since such right of support terminates upon the husband’s death, periodic payments of alimony should likewise terminate upon such event.
The authorities are likewise in accord that parties to a divorce action have the right to agree in a separate agreement that alimony payments to the wife shall continue after the former husband’s death, and where such agreement is approved by the court and incorporated in the decree, it is valid and enforceable against the husband’s estate. (27A C. J. S., Divorce, § 240b, p. 1155; 24 Am. Jur. 2d, Divorce and Separation, § 911, p. 1035; 2 Nelson on Divorce and Annulment, 2d Ed., 1961 Revision, pp. 92-94; Anno: 101 A. L. R., 323, 327, 328; Schouler Divorce Manual [1944], §280 [d], p. 421.)
Under our statute (K. S. A. 1971 Supp. 60-1601, 60-1610) and our decisions (Ediger v. Ediger, 206 Kan. 447, 479 P. 2d 823; Drummond v. Drummond, supra; Flannery v. Flannery, 203 Kan. 239, 452 P. 2d 846, and cases cited therein) divorce ends the marital relationship, and a judgment for alimony is a final determination of the rights of the parties with respect to alimony. Likewise, the statute (60-1610) prescribing an allowance to the wife for future support, is denominated as alimony. In Ediger it was said that alimony is a substitute for marital support which a husband may be compelled to pay his former wife after there has been a divorce. In Drummond it was held:
“Alimony is a future support concept and it has no relationship to a division of property aspect.
“A trial court after entering an original decree which determines a division of property has no continuing jurisdiction of that part of the decree and no power to modify that part of the decree.” (Syl. ¶¶ 1, 2.)
It is clear that, under our statute (60-1610), our decisions (Ibid.), the separation agreement in this case, and the final decree itself (which specifically fingered the matter), Virginia’s claim in the instant case is for future support money, denominated as alimony— a substitute for marital support — and that it has no relationship to the division of the parties’ property as therein prescribed.
Without further discussion of the matter, and responding directly to the question involved in the case, we are of the opinion the rule is sound that before monthly alimony payments may be held to continue after the death of the former husband, the decree or the stipulation on which the decree is based, must expressly so state, or contain language which makes such intent clear and unmistakable, and we adopt the same in this jurisdiction.
In 24 Am. Jur., 2d, Divorce and Separation, § 642, p. 763, it was said:
“Where the court has the power to order that permanent alimony shall be payable after the death of the husband, the question whether the liability for payments ceases at his death depends upon the intention of the court as determined in the light of the circumstances of the particular case, with particular emphasis upon the nature and terms of the decree allowing alimony. Moreover, it has been said that the issue depends solely upon the language of the court as embodied in the decree. At any rate, in order that payments may be held to continue after the husband’s death, the decree must say so expressly or contain language which makes such intent clear and unmistakable. In the absence of a specific statement, or clear manifestation of intent in the decree, that alimony shall continue after the death of the husband, it will be presumed that the payments abate on his death. A mere decree that the husband shall pay monthly alimony, without stating how long the payments shall be made, does not manifest an intent that the payments shall continue after the husband’s death, and thus they abate on his death. An order for monthly payments until further order of the court does not purport to continue the liability for payments beyond the date of the husband’s death.
“A divorce decree providing for the payment of alimony ‘as long as she remains unmarried’ does not purport to continue the liability for alimony after the death of the husband. And it has been held that a decree for the payment of alimony to the wife ‘until her death or remarriage’ does not, expressly or by fair implication, show an intent to extend the payments beyond the husband’s death. . . .” (Emphasis supplied.)
The court has made a careful examination of the separation agreement and the final decree entered thereon in this case, and it has not been able to find any provision which would manifest a clear intent that alimony would continue after the death of the divorced husband. In fact, the indication is quite to the contrary.
In the instant case, the separation agreement of the parties was agreed upon by them. The district court, after considering the circumstances, confirmed this agreement and decreed judgment accordingly. Paragraph No. 10 of the stipulation was finding No. 12 of the court’s findings, heretofore quoted. The judgment portion of the final decree with respect to that finding reads:
“It is Further by the Court Considered, Ordered, Adjudged and Decreed that defendant be and he is hereby ordered to keep in effect his Prudential Life Insurance policy No. 31199270, the proceeds of which are to be applied, in case of defendant’s death, to the payment of the unpaid balance on the present mortgage loan on said real estate, and said defendant is ordered to execute all necessary endorsements on said policy to accomplish that end.” (Emphasis supplied.)
It will be noted that specific provision was made for payment of the mortgage on the home that was awarded to Virginia under the property settlement portion of the stipulation and the decree, in case of the death of John, but there was no reference to, nor provision for the payment of monthly alimony after the death of the divorced husband. Moreover, it is obvious that the intention of the parties, at the time they negotiated the separation agreement in the divorce action, was that the installments of $650 per month were to be paid out of the income received by John from his profession. As we have seen, provisions in the stipulation and in the decree that John was to make payments of alimony each month to Virginia “until her death or remarriage” do not expressly or by fair implication show an intent to extend the payments beyond his death.
It would serve no useful purpose to annotate in this opinion the many cases pro and con on the question. However, those wishing to research the rule that an agreement to pay monthly alimony does not survive the death of the husband in the absence of a specific provision in the separation agreement or decree of divorce showing an intention that monthly payments should survive the husband’s death should see Prime v. Prime, 172 Ore. 34, 139 P. 2d 550; Mullen v. Mullen, 246 Iowa 1255, 69 N. W. 2d 420; Snouffer v. Snouffer, 132 Ohio St. 617, 9 N. E. 2d 621; Cooke v. Cooke, 154 N. Y. S. 2d 757, 2 App. Div. 2d 128; Masters v. Masters, 155 Neb. 569, 52 N. W. 2d 802; Parsons v. Parsons’ Estate, 70 Colo. 333, 201 Pac. 559, 18 A. L. R. 1038; Berry v. Berry, 208 Ga. 285, 66 S. E. 2d 336; Carrell v. Carrell, 250 Iowa 983, 96 N. W. 2d 315; Durrett v. Durrett, 204 Va. 59, 129 S. E. 2d 50; Bird v. Henke, 65 Wash. 2d 79, 395 P. 2d 751; In re Freeland’s Estate (Fla.), 182 So. 2d 425. See, Anno: 39 A. L. R. 2d, § 4, p. 1412.
The appellant relies heavily on the case of In re Estate of Shideler, 172 Kan. 695, 242 P. 2d 1057. The Shideler case and the case under consideration are distinguishable under the facts. The Shideler case involved a property settlement in contemplation of divorce and the husband was to make monthly payments in connection therewith.
In the case under consideration, tire property settlement was complete with the payment of the loan against the home property from the insurance policy. We are here considering only a claim for monthly payments for “support and maintenance,” “denominated as alimony.”
We see a clear distinction between monthly payments as part of property settlement where the husband desires to retain the lion’s share of the property, and monthly payments for support and maintenance, denominated as alimony, where an attempt is made to establish a claim against an estate.
We turn now to the question whether an allegation in a petition for allowance of demand, based upon a separation agreement between parents in a divorce action, which was confirmed by the district court and incorporated in the decree, ordering the decendent father to pay “for the support, maintenance and education of the minor children . . . the sum of $100.00 per month per child . . . until each of said children shall have attained his majority or until the further order of the court,” alleges a claim for relief against his estate for installments accruing after his death. The question appears to be one of first impression in this state, and we find conflicting decisions and pronouncements of rules controlling the disposition of the issue.
In this jurisdiction a parent, and particularly a father, has a continuing obligation of support for his minor children, which is not suspended by the divorce of the parents. (Ediger v. Ediger, supra, p. 454.) In that case it was said the duty of the father to make such payments “rest[s] on statutory and parental relationship.” In Scudder v. Scudder, 55 Wash. 2d 454, 348 P. 2d 225, the court said a decree ordering payment of child support was “simply a recitation of the husband’s common-law duty to support his children during their minority, and nothing more.”
At common law, a father’s duty to support his children ended with his death. See Newman v. Burwell, 216 Cal. 608, 15 P. 2d 511, 512; note 35 Va. L. Rev. 482; Anno: 18 A. L. R. 2d 1126, 1127.
While there is a sharp conflict of judicial authority on the question, many courts of last resort hold that, absent a contractual obligation binding the father to make payments for the support of his minor children after his death, courts are without power to make the support order a charge against his estate. (Streight v. Streight, 226 Or. 386, 360 P. 2d 304; Cooper v. Estate of Cooper, 350 Ill. App. 37, 111 N. E. 2d 564; Byrne v. Byrne, 201 Misc. 913, 112 N. Y. S. 2d 569; Fessman Estate, 386 Pa. 447, 126 A. 2d 676; Bailey v. Bailey, 86 Nev. 483, 471 P. 2d 220; Gardine v. Cottey, 360 Mo. 681, 230 S. W. 2d 731; Kruvant v. Kruvant, 100 N. J. Super. 107, 241 A. 2d 259; In Re Kerby's Estate, 49 Tenn. App. 329, 354 S. W. 2d 814; Wiedrich v. Wiedrich [N. D.], 179 N. W. 2d 728. Anno: 18 A. L. R. 2d 1100; 24 Am. Jur. 2d, Divorce and Separation, § 856, p. 971; 27B C. J.S., Divorce, § 323f. p. 729.)
We are of the opinion that a separation agreement entered into between parents of minor children in a divorce action pursuant to K. S. A. 1971 Supp. 60-1610 (d), which expressly contains language binding the father’s estate to make child support payments after his death, may constitute a valid claim against his estate. However, we decline to hold that an agreement and a decree based thereon which merely recites an obligation to pay child support during the minority of such children or until the further order of the court, constitutes a valid claim against the father’s estate. We are convinced that if such an agreement is to be held to impose upon the father a greater duty of child support than required by the common law, the agreement must expressly state that such obligation is to survive the death of the obligor. In Streight it was said:
“We also find that the majority of the states which have been confronted with the question hold that on the death of a parent who has been ordered to make payments for the support of a child such order terminates automatically with respect to payments which would have accrued after such death. This is true, at least, where the court has not, pursuant to the agreement of the parties, in effect ordered that the payment shall not be affected by the parent’s death. . . .
“If we follow plaintiff’s argument to its ultimate conclusion, we would find ourselves in the position of circumventing in part the long-established right of testator to make an unrestricted disposition of his estate . . . [T]he effect of which would be to invest children of divorced parents with a preferred status akin to a mandatory right to inherit from a deceased father, at least to the extent of assured support to and until they attain their majority. Such a privilege is one not enjoyed by children of families where the marital ties have not been dissolved. This we decline to do. If such a change in public policy seems warranted, then its proponents should address the legislature.” (pp. 390, 391.)
See, also Bailey, supra.
After the fullest consideration of the separation agreement and the decree, and weighing from a sympathetic standpoint the court’s awareness of the public policy to be served in molding the law to provide for the support of minor children, as against the public policy and rule of law which permits a father to remain in charge of his property and dispose of it as he will, we think the logical rule to be adopted is that support payments for minor children do not survive the death of the father so as to bind his estate unless there is express language in the agreement evidencing that intention of the parties.
It is clear from a reading of the separation agreement and the divorce decree that the parties never had in mind the question of survivorship of the monthly support payments or for the education of the minor children, since there is no language in either which expressly or impliedly evidenced that intent. As previously indicated, the only reference in the agreement or in the decree concerning the event of John’s death was that the mortgage payments on the home be paid from an insurance policy on his life. In addition, and with respect to the educational provision, both the agreement and the decree contained language evidencing an intent to relieve John of that obligation — “in the event of a change of circumstances where defendant may not be able to carry out the said educational plan, he shall not be required to do so.”
In view of conclusions heretofore announced, it is unnecessary to discuss and decide other questions raised in the appeal. There is no dispute as to the claim for the $600 support payments which John was in arrears, and that claim was properly allowed against his estate. However, the district court erred in allowing Virginia’s claim for alimony and child support payments which became due after John’s death, and that order is reversed with directions that it be set aside and judgment entered thereon in behalf of the executor.
It is so ordered.
Prager, J., not participating. | [
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|
The opinion of the court was delivered by
Prager, J.:
This is an appeal from an order overruling the petitioner’s motion to set aside his sentence and conviction pursuant to K. S. A. 60-1507, after a full evidentiary hearing.
On May 1, 1968, a gasoline service station in Wyandotte County, Kansas, was burglarized. Briefly the facts are that a Kansas City, Kansas, police officer, while cruising his district, noticed a window on the service station door broken at three a. m. He called for assistance and, upon entering the station, found the appellant and another man hiding near the door on the inside of the station building with a crowbar. Both men were advised of their rights and refused to make any statement. They were placed under arrest when the station manager arrived and stated that the men had no authority to be in the building.
On June 13, 1968, a complaint was filed charging the appellant and his companion with burglary. On June 25,1968, both men were bound over to the district court for trial after a preliminary hearing, and an information was filed on July 11, 1968. At the next docket call on January 28, 1969, when the appellant failed to appear, a bench warrant was issued for his arrest.
On March 14, 1969, an unlawful flight warrant was issued by the United States Attorney. By telefax, on July 14, 1969, the Wyandotte County Attorney was notified that the appellant was in custody in the Alameda County, California, jail. One day later, July 15, 1969, copies of the Kansas warrant, complaint, information and bench warrant were mailed to the California authorities. Extradition proceedings were instituted and Governor Docking’s requisition was mailed to Governor Reagan in California on August 12, 1969. The appellant was returned to this jurisdiction and upon his return on September 9, 1969, an attorney was appointed to represent him on the outstanding charge. That attorney was Joe Russell.
Notice of Intention to Invoke the Habitual Criminal Act was filed and served. On January 20, 1970, the trial began. The jury returned a verdict of guilty of burglary as charged. A motion for a new trial was filed, heard and overruled. After evidence of three prior felony convictions was received, the appellant was sentenced to a term of not less than 15 years in accordance with K. S. A. 21-523, and 21-107 (a). At that time the appellant requested that his appointed attorney Joe Russell continue to act as his attorney for the purposes of an appeal. The court thereupon appointed Joe Russell for the appeal. Apparently because of some misunderstanding, Joe Russell failed to file a notice of appeal on behalf of appellant.
On June 11, 1971, about 17 months later, the appellant instituted an action under K. S. A. 60-1507, alleging that Joe Russell refused and failed to perfect his direct appeal, and because of this he was denied an appeal from his conviction.
The district court granted an evidentiary hearing at which Joe Russell and the appellant testified. The district court refused to discharge the appellant but did give the appellant his choice: (1) to take an out-of-time direct appeal from the criminal conviction; (2) to appeal from the court’s denial of relief in the K. S. A. 60-1507 case; or (3) to have a rehearing under K. S. A. 60-1507. The appellant chose to appeal the K. S. A. 60-1507 ruling, and it is from that ruling that this appeal originates.
The only point raised on this appeal is that the trial court erred in refusing to grant the appellant his discharge from confinement following the 60-1507 hearing. The thrust of the appellant’s argu ment is that he was denied the right to a speedy appeal following his conviction of burglary and the imposition of sentence. He reasons that since he was not provided a speedy appeal from the time he was sentenced until he initiated this 60-1507 proceedings 17 months later, he is entitled to be discharged from confinement. He argues that since the attorney who was appointed by the state to appeal his conviction failed to perfect his appeal, the state should be held responsible and the-appellant should be discharged.
We hold that the contentions of the appellant under the circumstances shown in the record in this case are without merit and that he is not entitled to discharge from confinement. The district court at the time of the 60-1507 hearing granted appellant an opportunity to present his evidence. At the close of the hearing the court refused to discharge the appellant but did give the appellant three choices as follows:
(1) To take a direct appeal from his criminal conviction notwithstanding the delay in its perfection;
(2) To appeal from the court’s ruling in the present 60-1507 case; or
(3) To have a rehearing under K. S. A. 60-1507.
The court also appointed appellant’s present counsel, Philip Sieve, to represent appellant in any of the three alternative proceedings just mentioned. The appellant declined the opportunity to take a direct appeal from his conviction or to have a rehearing and chose to appeal the ruling of the court denying his discharge in this 60-1507 hearing.
A case with a factual situation similar to the instant case is Johnson v. State, 203 Kan. 947, 457 P. 2d 181. There the clerk of the district court was declared to be derelict in his duty in failing to transmit the defendant’s notice of appeal to the clerk of this court. In a 60-1507 hearing to vacate the judgment and sentence, the district court offered to the defendant the opportunity to withdraw his 60-1507 motion and stated that it would direct that the notice of appeal from his conviction be certified to the supreme court for filing so that a direct appeal from his conviction could be had. In Johnson sentence was imposed by the trial court on December 28, 1965. Defendant’s motion under K. S. A. 60-1507 was filed December 11, 1967, and was heard on February 5, 1968, a period of approximately 26 months after his original sentence was imposed. The appellant in Johnson declined the district court’s offer to permit him to take an out-of-time appeal and refused to appeal his original conviction but instead took an appeal in the 60-1507 hearing. In Johnson we held that the failure to timely certify the defendants notice of appeal did not affect the validity of his conviction and further that defendant was not entitled to be discharged from confinement.
There are a number of federal cases involving similar factual situations where an accused wás denied effective assistance of counsel thereby resulting in the denial of an appeal from a conviction. In each case the court held that an outright discharge of the prisoner was not proper but rather he was entitled to an opportunity to take an out-of-time appeal from his original conviction. (Anders v. California, 386 U. S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396; Atilus v. United States, 406 F. 2d 694; Benoit v. Wingo, 423 F. 2d 880; Kent v. United States, 423 F. 2d 1050.) We find nothing to the contrary in Dickey v. Florida, 398 U. S. 30, 26 L. Ed. 2d 26, 90 S. Ct. 1564, cited by the appellant here. Appellant was offered an opportunity to take an out-of-time appeal in the case at bar but refused to take such an appeal. He now has no cause to complain.
We have fully reviewed the record and find that the appellant has failed to show that the district court committed any error in its findings of fact and conclusions of law and in denying his motion to vacate his sentence pursuant to K. S. A. 60-1507.
The Judgment of the district court is affirmed. | [
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|
Per Curiam:
The appeal is from a conviction for the sale of narcotic drugs in violation of the Uniform Narcotic Drug Act, Article 25 of Chapter 65 of Kansas Statutes Annotated.
The alleged sale was of two small pills which were described in the information as “Dilaudid” and identified as such by chemical analysis.
Appellant first claims that he was denied due process of law by the refusal of the court to grant his pretrial request for production of the pills for independent chemical analysis, and for refusal by the court to suppress the evidence. JThe trial judge based his rulings on (1) that the request for production was untimely, and (2) that the pills in question had been used up in the process of analysis by the state.
K. S. A. 1971 Supp. 22-3212 ( 6) requires a pretrial discovery motion to be filed “no later than twenty (20) days after arraignment or at such reasonable later time as the court may permit.” The defendant’s motion was in fact not filed until September 29, 1971, which was 131 days after arraignment on May 21, 1971, and a short time before trial. We hold that the trial court did not abuse its discretion in denying the motion on the basis of its being unreasonably late.
Since the information described the drug as “Dilaudid,” it appears the pills were consumed in the analysis process before the information was filed. Such identification was the result of the tests made in order to determine whether the subject of the sale was a prohibited narcotic and to form the basis for the charge. Hence, it appears that even if the defendant had made his request for produc Ron within twenty days after arraignment, it would have been fruitless as the pills were then non-existent.
This raises the question of whether the defendant was denied due process of law by the act of the state in using up the physical evidence to determine whether it had a case for prosecution, thus denying the defendant an opportunity to have the pills independenRy analyzed in the course of pretrial discovery.
We know of no principle which, in the absence of fraud or bad faith, imposes any duty on the part of the prosecuRon to invite an accused to parRcipate in its invesRgatory and trial preparaRon procedures. Due process of law does not reach this far. Under K. S. A. 1971 Supp. 22-3212, a defendant may make a timely motion for permission to inspect such tangible objects as exist in the possession, custody or control of the prosecuRon upon showing that the request is “reasonable.” A request is hardly reasonable if the object has ceased to exist by reason of valid conduct bringing about its nonexistence, such as for the making of a necessary chemical analysis. Other examples come to mind such as a blood or breath test to determine intoxicaRon, or analysis of minute particles of any kind.
The .discovery statute, mentioned above, also permits the inspecRon of results or reports of scienRfic tests in the hands of the prosecution. The record shows that the files of the state, including the results of the test for narcoRcs, have been open and available to the defendant. A pretrial conference was held on July 9, 1971, more than two months before trial. The defendant makes no claim that he was denied access to the results of the laboratory tests.
Appellant also claims that the drug “Dilaudid” does not come within the statutory designation of prohibited narcotics. On this point there was competent tesRmony that Dilaudid is Dihydromorphinone and is a narcotic drug produced from opium. The modem dicRonary definition of “Dilaudid” is “The hydrochloride salt of dihydromorphinone.” “Dihydromorphinone” is “a narcoRc compound prepared from morphine and used chiefly as an analgesic.” “Morphine” is “the most important narcoRc principle of opium.” Of these we take judicial notice as corroborative of the testimony. Thus, it is evident that Dilaudid is a narcotic drug within the definiRon of K. S. A. 65-2501 (18).
The final point made by appellant is that the Rial court erred in permitting officer Vaughan to testify that he had been at the defendant’s home twice before the day he made the purchase. The court excluded testimony as to what transpired at the two prior visits. Appellant would assume that the jury attached implications of prior guilt to the fact of the prior visits and the prosecutor’s comment in his final argument. The evidence was relevant as showing prior acquaintance and the reasonableness of the testimony of the purchase. No prejudicial error appears.
The record shows that the defendant had a fair trial and there was evidence to support a verdict of guilty beyond a reasonable doubt. 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 a judgment of the district court of Cherokee County sustaining an order of the Kansas State Board of Healing Arts, herein called the board, revoking the licenses of James E. Seasholtz and Ira John Seasholtz to practice the healing arts in the State of Kansas. In this opinion we shall refer to the Messrs. Seasholtz either by name or as respondents.
Both respondents are shown to have been licensed doctors of osteopathy having offices in Galena, Kansas where they participated in the social welfare program of this state as providers of services to medical assistance recipients.
Apparently as a result of complaints which reached official ears, the attorney for the board filed a petition against each of the respondents seeking to revoke their respective licenses to practice osteopathy, medicine and surgery in this state. The petitions were consolidated for hearing before the board and the actions have remained consolidated throughout the appellate process.
The charges lodged against the Doctors Seasholtz fall under two classes: (1) The presentation of false and fraudulent claims and charges against public funds for medical services furnished to welfare patients, and (2) the solicitation of medical assistance business from welfare patients.
After an extended series of hearings, the board found generally against the respondents on the charges set forth in the petition and revoked their respective licenses. However, some two months before concluding the hearings and entering the orders of revocation, the board suspended the respondents’ licenses to practice under circumstances which will shortly be detailed.
K. S. A. (now K. S. A. 1972 Supp.) 65-2836, which was in effect at all times pertinent herein, provides that a license to engage in the practice of the healing arts may be revoked or suspended for any one of eleven enumerated acts or offenses including “immoral, unprofessional or dishonorable conduct.” The transgressions charged against the respondents are alleged to come within this category.
Two contentions are listed in the statement of points. Turning to the first point, it is said the board had no authority to revoke the respondents’ licenses after it had previously issued an order suspending them. This claim finds its origin in an action taken by the board on July 26, 1969, when the respondents, during an extended series of hearings, failed for a second time to show up in person for a scheduled session. On this occasion the board adopted a motion to suspend their licenses for a year and to continue the hearing for revocation until a date to be fixed by the board. The record reflects that members of the board believed they should have the benefit of the doctors’ personal testimony before finally determining the issue of revocation. A final hearing was eventually held on September 27, at which both respondents appeared to testify and it was only after this hearing that the orders of revocation were entered.
Was tlie Board of Healing Arts precluded from revoking the respondents’ licenses because of its previous action in suspending them? We believe not. It seems clear to us that the suspension order was entered, not as the ultimate judgment of the board, but as a purely interim measure. At a hearing scheduled for July 10, 1969, at which neither the respondents nor their counsel had made an appearance, a discussion ensued between board members from which it appears that the respondents had not renewed their Kansas licenses as required by K. S. A. 1971 Supp. 65-2809 but had simply kept on practicing. At that time a motion was presented, although it was not acted upon, to obtain a restraining order to prohibit the respondents from practicing until the hearing was completed by the board.
The respondents argue that while the board is empowered by K. S. A. 65-2838 to revoke or suspend a license for any ground listed in 65-2836, it is not authorized to do both. This might be true so far as the board’s ultimate judgment is concerned, since it would appear somewhat incongruous for suspension and revocation to be decreed simultaneously as a penalty. The revocation, in such event, would simply engulf the suspension.
But under the circumstances shown here the suspension had a separate and distinct role to play. The revocation hearing had not been concluded when the suspension was ordered; the case was not then ripe for any final judgment and the suspension took up the slack.
Although several hearings had already been held, the proceedings had been plagued by delay, occasioned in large part by the respondents. More than five months had elapsed since the action was filed, and respondents were still engaged in the active practice of their profession — despite their failure to obtain the required annual renewal of their licenses. Two additional months were to transpire before the final hearing would be held and the respondents would give their testimony.
In this state of affairs we believe the board acted reasonably and with justification in suspending the licenses until the revocation proceedings could culminate in a final hearing and a final determination could be reached. The suspension order, although couched in terms of one year, was tied in with a continuance of the main pro ceedings and obviously was intended to prevent the respondents from practicing until those proceedings could be terminated. In Anonymous v. Superior Court In And For Co. of Pima, 10 Ariz. App. 243, 247, 457 P. 2d 956, the court said that “the term ‘suspend,’ given its ordinary meaning, means nothing more than a temporary cessation, i. e., a holding in abeyance.”
Such, we believe, was the intended purpose of the suspension order issued here.
As this court said in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 453, 436 P. 2d 828, 28 A. L. R. 3d 472, the healing arts act is designed to protect members of the public against the unprofessional, the improper and the unqualified practice of the healing arts. Kansas has sought to attain this objective by requiring potential practitioners to be licensed, in the first instance, and by suspending or revoking the licenses of those who are later found to be incompetent or engaging in dishonorable, shady or unprofessional conduct. The purpose both of granting and of suspending or revoking a license is to eliminate the unscrupulous or incompetent doctor from practice of the healing arts. In suspending the respondents’ licenses to practice we believe the board acted in furtherance of the purposes sought to be achieved by the healing arts act, and that its action in this respect cannot be said to have transcended its authority.
The second ground set forth in respondents’ statement of points is fashioned in these words:
“That knowingly and intentionally making excessive and unwarranted charges upon public funds under claims as medical providers does not constitute grounds for revocation of appellants’ licenses to practice Osteopathy, medicine and surgery.”
We view this contention as untenable. Among the grounds for revocation contained in K. S. A. 65-2836 is that of “immoral, unprofessional or dishonorable conduct.” The petition filed against the Doctors Seasholtz alleged they had been guilty of “unethical, dishonorable and unprofessional conduct.” Although the petition uses the adjective “unethical” rather than “immoral”, which is used in the statute, we see little substantial difference between the two terms so far as the present case is concerned. The words “moral” and “ethical” are shown as synonyms for each other in Webster’s Third New International Dictionary, Unabridged. The terms “immoral” and “unethical” both import a lack of probity and may be used interchangeably in the context of the charges made here. “Dishonorable” conduct is likewise conduct which is dishonest, unprincipled and shameful.
Overall, we have no hesitancy in holding that the intentional making of excessive and unwarranted charges for medical services by a licensed practitioner of the healing arts is indeed reason for the revocation of his license, whether the charges are presented to a public agency or to a patient. Numerous cases may be found to the effect that where a doctor has been guilty of making false medical claims, reports or billings, his conduct justifies revocation of his license to practice his profession. (See 95 A. L. R. 2d Anno: Doctor — False Claim, Report or Bill, pp. 873, et seq.)
The respondents are also charged with soliciting medical assistance business from welfare patients and their attendants. The solicitation of professional patronage is one of the fifteen types of unprofessional conduct listed in K. S. A. 65-2837. Thus another ground for revocation must be said to have been established, since no point is made concerning the sufficiency of the evidence.
The respondents have devoted a portion of their brief to constitutional questions, none of which appear to have been raised in the trial court. This court has been consistent in holding that issues which have not been presented to the trial court will not be considered by us on appeal. (Shinkle v. State Highway Commission, 202 Kan. 311, 448 P. 2d 12; Pacific Indemnity Co. v. Berge, 205 Kan. 755, 473 P. 2d 48.) Furthermore, no constitutional question is included in the respondents’ statement of points. For this reason, also, the constitutional issue is not subject to appellate review. (Supreme Corut Rule No. 6 [d], 205 Kan. xxix.) It is the rule in this jurisdiction that no issue, other than one going to jurisdiction, will be considered on appeal unless it has been included in the statement of points. (Shinkle v. State Highway Commission, supra; Erdman v. Sowle, 207 Kan. 488, 492, 485 P. 2d 1392.)
We find no error in the judgment of the court below and the same is affirmed. | [
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Per Curiam:
On February 21, 1968, plaintiff Roe filed suit for $10,000 for personal injuries proximately caused by the negligence of the defendant Stigall. Defendant filed an answer and a counterclaim specifically raising the issue of plaintiff’s own negligence. In her counterclaim she prayed for $35,000 for injuries sustained, and for $15,000 punitive damages.
Plaintiff was attempting to pass defendant’s car when defendant made a left turn into a driveway. Plaintiff wasn’t expecting the turn because, according to him, defendant’s left turn signal had been on for several blocks.
The jury found for plaintiff, and defendant claims plaintiff was contributorially negligent as a matter of law.
The existence of contributory negligence is ordinarily a question of fact for the jury to determine under the circumstances of each particular case. In ascertaining whether the plaintiff is contributorially negligent as a matter of law, the evidence and all inferences reasonably to be drawn therefrom must be accepted as true and considered m the light most favorable to plaintiff. If the facts, so viewed, be such that reasonable minds might reach different conclusions therefrom, the issue of contributory negligence must go to the jury. (Bender v. Bulger Cadillac-Oldsmobile, Inc., 208 Kan. 72, 74, 490 P. 2d 361, and cases cited therein.) The factual circumstances shown in the record here raised a genuine issue of fact as to the contributory negligence of plaintiff which was properly submitted to the jury.
Appellant urges the trial court also erred in not granting defendant a new trial by reason of the misconduct of juror Beashore in talking to defendant and defendant’s husband.
After the trial of the case began, the defendant’s name was mentioned frequently by tibe attorneys and several references were also made to the community of Mountain Grove, Missouri. Juror Beashore had a friend by the name of Jerry Stigall who lived in Mountain Grove, Missouri, and as the trial progressed, Beashore became curious about the possible relationship between the defendant and his friend, Jerry Stigall. To satisfy his curiosity, Beashore approached the defendant and her husband in the hallway on two or three occasions while court was in recess and inquired about their relationship to Jerry Stigall. All of these conversations were brief and no mention was made in them of the case or of any subject other than defendant’s relationship to Jerry Stigall.
The defendant raised the matter of Juror Beashore’s conduct as one of the grounds of her posttrial motion, claiming that it constituted prejudicial misconduct and required the granting of a new trial. After a full hearing, which included oral testimony by the defendant and her husband, the trial court overruled defendant’s motion.
“Our rule is that, in the first instance, it is for the trial court to determine whether misconduct on the part of the jury has resulted in prejudice to a litigant’s rights, and its judgment will not be disturbed in the absence of a clear abuse of discretion.” (Furstenberg v. Wesley Medical Center, 200 Kan. 277, 436 P. 2d 369, Syl. ¶ 7.)
“When a party or his counsel has knowledge of an act or a statement of a juror or an occurrence in which a juror is involved that might amount to misconduct and fails to bring it to the attention of the court or to request remedial action until after the rendition of a verdict, the failure operates as a waiver of the occurrence or act as a ground for a new trial.” (Nelson v. Hardesty, 205 Kan. 112, 116, 468 P. 2d 173.)
An examination of all the points presented on appeal reveals no reason to modify the judgment of the trial court.
Judgment is affirmed. | [
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Per Curiam:
This is an appeal in a workmens compensation case. The district court reversed the award entered in favor of the claimant-appellant by the examiner which was affirmed by the director, and entered judgment in favor of the employer and its insurance carrier, the appellees. In so doing, the court made a negative finding that the claimant did not sustain personal injury by accident arising out of and in the course of his employment.
Whether the disability of a workman is due to an accident arising out of and in the course of his employment is a question of fact and the district court’s determination will not be disturbed by this court when there is substantial competent evidence to sustain it. (Callahan v. Eby Construction Co., 192 Kan. 814, 391 P. 2d 315.) Further, this court will seldom set aside a negative finding of a district 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. (Schmidt v. Jensen Motors, Inc., 208 Kan. 182, 490 P. 2d 383.)
Although the evidence was conflicting on the question whether appellant sustained personal injury by accident arising out of and in the course of his employment, we conclude there is ample substantial competent evidence in the record to sustain the district court’s judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Foth, C.:
Charles F. Ritson was convicted of two counts of aggravated robbery and he appeals. Trial errors are claimed which relate separately to each count, and each will therefore be separately discussed.
I
On October 30, 1970, at about 8:00 or 8:30 p. m., two armed men wearing masks robbed the Town and Country Food Market in Wichita at gunpoint, while a third man waited outside in a car. Employees of the store testified that the defendant looked like one of the masked men, although their identification was far from positive. .
A detective, alerted by radio, was en route to the scene in his patrol car when he saw a man running across the street about a block away from the market. He called out to stop, gave chase on foot, fired a warning shot, and finally caught up with the man about a block and a half away from the scene of the robbery. The man arrested, the defendant, had a dollar bill and some loose change in his pocket. The householder in whose yard the arrest was made found a number of quarters — eighty, to be exact — in the grass the next morning.
At police headquarters that evening the defendant discussed his earlier activities with Detective Gary Caldwell. (No contention is made that there was any unlawful interrogation.) His story to Caldwell at that time was, in essence: that he was at home when he received a call from an old friend named Shirley asldng him to meet her at a nearby tavern; he did, and after a couple of beers the two of them went in Shirley’s car to another tavern; while they were sitting in a booth there Shirley told him not to turn around, that her husband had just walked in; they managed to exit and were on foot when they encountered a car; he thought it was the husband and ran; after he was shot at he stopped, and then discovered that his pursuer was a policeman.
Detective Caldwell promptly set out to check defendant’s alibi, and it is his testimony concerning the manner in which he did so that gives rise to the chief claim of error on this count. Before permitting the testimony to go to the jury the trial court conducted an in camera hearing at which Caldwell testified that on the night of the robbery he and another detective took the defendant in a police car to search for the second tavern. In due course defendant identified the Lamplighter as the site of his interrupted tryst with Shirley, and they parked while Caldwell went in the tavern. He came out with a waitress and, according to his testimony, the following took place:
“Q. And did you have any conversation with her in the presence of the defendant?
“A. Yes, sir.
“Q. What was that conversation?
“A. I asked her — I brought her out to the car where Mr. Ritson was sitting. I opened the door and she looked at him and I said, ‘Have you seen this man before,’ and she said, ‘I’ve never seen the man in my life.’ I said, ‘Has he been in the tavern tonight, and she says, ‘No.’ She says, ‘Everybody that’s been in tonight is customers that I know,’ and she said, ‘There hasn’t been any strangers in at all,’ and she came to work at 6:30.
“Q. And Mr. Ritson was present during that conversation?
“A. Yes, sir, he was sitting in the front of the car.”
Defense counsel objected to this testimony going to the jury on the ground that it was “hearsay and unfairly prejudicial.” After hearing argument the trial court overruled the objection and ruled that it would admit the testimony — on condition the state furnish defense counsel the name, address and telephone number of the waitress. This was done, she being identified as Mrs. Tsianina R. Good.
Still out of the presence of the jury, on cross-examination, Caldwell testified that the defendant may have said something to the waitress at the car but that he did not remember.
With this background the trial court permitted Caldwell to repeat the whole story to the jury and by doing so committed what we regard as reversible error.
There can be no doubt that this testimony was highly prejudicial. If Mrs. Good’s statements were to be believed they effectively forestalled any alibi by the defendant and made him out a liar as well. It is equally clear that her statements to the officers were pure hearsay, i. e., they were made by a person other than the witness and “offered to prove the truth of the matter stated” (K. S. A. 60-460.) The purpose of the offer obviously was that the jury should believe that defendant was not in the tavern, where he said he was and where Mrs. Good said he wasn’t.
As hearsay the testimony was inadmissible unless it came within one of the statutory exceptions. At trial the state offered no specific theory that we can ascertain from the record, although the court’s condition that defense counsel be furnished Mrs. Good’s name, address and telephone number might indicate reliance on K. S. A. 60-460 (a), dealing with persons who are present and available for cross-examination. At all events, in this court the state relies exclusively on K. S. A. 60-460 (h) which makes admissible:
“As against a party, a statement . . . (2) of which the party with knowledge of the content thereof has, by words or other conduct, manifested his adoption or his belief in its truth. ...”
The question is whether the defendant “by words or other conduct” adopted Mrs. Good’s statements or indicated his belief in their truth. We think the evidence is sorely deficient on this point.
It is clear defendant did not expressly adopt Mrs. Good’s statements. If he had, we would have the situation found in State v. Greer, 202 Kan. 212, 447 P. 2d 837, our only decision dealing with adoptive admissions since the enactment of the present statutory rules of evidence. There the defendant listened to a tape recording of his codefendant’s statement and acknowledged its veracity; the statement was held to be admissible as the defendant’s own adoptive admission. What the trial court here did not know when it made its ruling was whether defendant denied the statements or maintained silence. Had he denied her statement, it would have been inadmissible under any theory. The closest thing to evidence of any reaction was Caldwell’s testimony that he couldn’t remember whether defendant said anything or not.
There is, of course, a long standing rule that silence in the face of an accusatory statement, under circumstances calling for a denial by an innocent man, may be introduced as evidence of guilt — at least where such silence is not the product of the exercise of a constitutional right. Compare State v. Shaw, 195 Kan. 677, 408 P. 2d 650, and State v. Moskowitz, 115 Kan. 485, 223 Pac. 279, with State v. Bowman, 204 Kan. 234, 461 P. 2d 735 and State v. Dearman, 198 Kan. 44, 422 P. 2d 573. The general rule is aptly summarized in 29 Am. Jur. 2d, Evidence, § 638:
“The uncertainty which attends interpreting an accused’s silence as an implied admission of the statement made, or as exhibiting a consciousness of guilt, has led courts to consider such evidence as dangerous and to be received with caution. Recognizing that at its best, the doctrine of assenting silence brings about die weakest assumption known to the law, the courts generally have imposed conditions upon the introduction of evidence that an alleged admission by silence has occurred. To constitute proof of an admission by silence the evidence must disclose that (1)' the statement was extrajudicial; (2) it was incriminatory or accusative in import; (3) it was one to which an innocent man would in the situation and surrounding circumstances naturally respond; (4) it was uttered in the presence and hearing of the accused; (5) he was capable of understanding the incriminatory meaning of the statement; (6) he had sufficient knowledge of the facts embraced in the statement to reply thereto; and (7) he was at liberty to deny it or reply thereto.”
But it is said that “The statement must be specific as to a criminal act charged against the defendant.” (Vol. 2 Wharton’s Criminal Evidence, Confessions and Admissions, §405, pp. 156-157.) Further, “The inference or conclusion of guilt cannot be drawn from the defendant’s silence if there is any other interpretation equally consistent with his silence. It cannot be drawn if the defendant denies the statement, and in such case, the accusatory statement is itself inadmissible.” (Id., p. 157.)
Here, Mrs. Good made no specific accusation against the defendant, but merely stated she did not know him — a conclusion embellished by her account of when she came to work and her acquaintance with all the tavern “regulars.” Assuming defendant was silent in the face of this entire account, we can conceive of several inferences other than his acquiescence in or wholesale adoption of it. He might have shrugged her story off as a lie or a mistake; he could have been there and she might have not seen him or have forgotten; he might have been served by another waitress; or he might have concluded that he had the wrong tavern. Any of these, we think, might have resulted in silence — if that was in fact his response. Learned commentators note that before admitting hearsay under this provision of the statute “An affirmative finding must be made that the declarant actually intended to assent to the truth of a statement made hy another.” (Vol. 4 Vernon’s Kansas Statutes Annotated, Code of Civil Procedure, Rules of Evidence, § 60-460, p. 484.) We do not see how the trial court could have made such an affirmative finding on the ambiguous state of the record.
It may be suggested that the omission in the foundation for this hearsay was supplied by defendant when he testified in his own defense. He related the encounter with Mrs. Good as follows:
“Q. All right Did you go out with him to the Lamplighter?
“A. Yes, I did.
“Q. Do you remember the girl coming out?
“A. Yes, I do.
“Q. What happended when the girl came out of the Lamplighter?
“A. I was sitting in the back seat and he brought her out to the car and asked her if she had ever seen me before and she looked awhile and I think she said, ‘I don’t believe so,’ or she said no anyways.
“Q. All right.
“A. And—
“Q. Did you say anything to her?
“A. No, I said to her and to Detective Caldwell, Tve never seen her before either.’
“Q. And then what happened?
“A. Oh, he got kind of mad and said, ‘You’re putting a story on me,’ and took me to the police station.”
We cannot read his comment as he relates it as an adoption of Mrs. Good’s statement. The best that can be said of it is that it acknowledges that they didn’t know each other. We think his own version results in the same ambiguity as would silence.
We might concede that the portion of Mrs. Good’s statement to the effect that she could not identify defendant was “adopted” by defendant under his version of the encounter — although his version was not before the trial court at the time admissibility was determined. But this would not change the result. The really damaging portions of her statement related to when she came to work, her continuous presence throughout the evening, and her familiarity with all of the evening’s customers. Without these added ingredients Mrs. Good’s statement would have had but slight probative value on the question of whether defendant was in the tavern that night. “In order that any significance may attach to the failure of a party to reply to a statement he must have been possessed of knowledge concerning the subject matter of the statement sufficient to enable him to reply if he was inclined to do so.” (31A C. J. S., Evidence, § 295, p. 757.) The crucial factors of Mrs. Good’s statement were all outside of defendant’s knowledge. He therefore could not be expected to affirm or deny them, and no inference could be drawn from his mere silence. (See also, 29 Am. Jur. 2d, Evidence, § 638, supra.)
We are constrained to hold that the admission of this testimony was error. It seems to us that this case affords a classic illustration of the situation the hearsay rule was formulated to prevent. No reason is given why the state did not produce Mrs. Good. She was apparently available, since the state complied with the court’s condition that it furnish her name, etc. But this information was no substitute for her testimony, live from the witness stand and subject to cross-examination. We think this is what the defendant had a right to expect and what the rules of evidence demand.
Defendant makes a similar claim with respect to an encounter between himself and the “Shirley” he was supposed to have been with on the night of the robbery. It appears, however, that this episode was first injected into the case through defendant’s own testimony. The state’s version, which did not vary substantially from his, came in only on rebuttal. Defendant is in no position to claim error under these circumstances. State v. Nirschl, 208 Kan. 111, 490 P. 2d 917, Syl. ¶ 6; State v. Burgess, 205 Kan. 224, 227, 468 P. 2d 229.
II
The second robbery involved a Quick Shop food store in Wichita, and occurred at about 9:00 p. m. on November 18, 1970. Of the two men who actually held up the store neither was the defendant; one was identified by a clerk as a Marshall W. White.
Detective Caldwell testified that at about 8:36 p. m. that night he observed defendant and White with another man in a yellow 1970 Ford Torino in the vicinity of the Quick Shop. Detective Ed Miller testified that at about 9:19 p. m. he arrived in Valley Center, a community near Wichita, and found defendant, White, and an Eddy Robinson pulling into a driveway in a 1970 yellow Ford Torino. He pulled in behind. Defendant got out on the driver’s side, the other two on the right side. A sack containing checks from the Quick Shop was on the console between the front seats, a .45 caliber automatic was under the passenger seat, and another pistol was found on the grass near the car.
Defendant testified that the night the Quick Shop was robbed he, White and Robinson had gone to a horse auction near his home at about 7:00 p. m. He was there all evening, but White and Robinson left for a while, coming back for him about 9:00. They all then went to Robinson’s home in Robinson’s yellow Torino, where they were arrested. He knew nothing of the Quick Shop robbery.
The primary claim of error on this count relates to Detective Caldwell’s testimony on rebuttal. He had talked to the defendant about his activities that night and had been told of going to the horse auction. Detective Caldwell continued:
“. . . I asked him if they all three stayed at the auction and he said that they did. I asked him if at any time did Mr. White and Robinson leave the auction without him and he said no. I said at any time did they leave your sight or the vicinity you were in at the auction and he said definitely not. He said they all three stayed in the auction up until a little after 9:00 where they went straight back to Valley Center. I then approached him in the manner — or I told him that I had seen them in Wichita at 29th and Amidon and he had no answer. I said if I told you that I had seen you, and . . . gave him the time that I seen him at 8:40 p. m., I said, are you saying this would be incorrect? And he had no answer. He wouldn’t say anything. As a matter of fact, this is when I stopped talking to him. He asked for an attorney. (Emphasis added.)
[Defense Counsel]: I object to that, Your Honor, and move for a mistrial.
The Court: Overruled.”
There can be no doubt that the interjection of this evidence was error. Its sole purpose was to show that when defendant was confronted with evidence contradicting his alibi he had refused to talk and demanded counsel. It was clearly a use of defendants invocation of his constitutional rights to silence and to counsel as substantive evidence of guilt — otherwise it had no probative value as rebuttal of defendant’s story. Such a use is not permissible under Miranda v. Arizona, 384 U. S. 436, f. n. 37, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3rd 974; and our own holding in State v. Bowman, 204 Kan. 234, 461 P. 2d 735; and State v. Dearman, 198 Kan. 44, 422 P. 2d 573. Cf. Griffin v. California, 380 U. S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229; Chapman v. California, 386 U. S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824.
The only question here is whether it is harmless error. The error being of constitutional character, it is not harmless if “there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U. S. 85, 86-7, 11 L. Ed. 2d 171, 84 S. Ct. 229. Put another way, to be harmless it must be “harmless beyond a reasonable doubt.” Chapman v. California, supra, 386 U. S. at 24. The latter case also holds that this is a constitutionally imposed standard for determining whether error may be deemed harmless.
While there is room for a “harmless error” argument, when this error is combined with the error under Part I above — with its devastating effect on defendant’s credibility which may well have permeated the entire trial — we cannot say that there is not at least a reasonable possibility that it affected the verdict. It follows that the conviction on this count must also be reversed.
In view of the conclusion reached it is unnecessary to consider defendant’s additional contention that the trial court permitted redirect examination beyond the scope of the direct. In any event we find no abuse of discretion which would have required reversal on this point alone.
The judgment is reversed and the case remanded for a new trial on both counts.
approved by the court. | [
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Per Curiam:
This is an appeal from a proceeding under K. S. A. 60-1507 in which the district court summarily denied the appellant’s motion.
The appellant entered a plea of guilty to the crime of grand larceny under K. S. A. 21-533 (since repealed, K. S. A. 1971 Supp. 21-3701) and was sentenced to not more than five years in the penitentiary under the provisions of that statute. He was given credit for some time spent in jail. He was represented by experienced counsel.
The appellant raises two issues on appeal. First, he complains he was not advised by either the court or his counsel of his right to appeal. This court has held that the right to appeal is not a right granted or guaranteed either by the Kansas Constitution or the United States Constitution. (Ware v. State, 198 Kan. 523, 426 P. 2d 78; McGee v. State, 200 Kan. 188, 434 P. 2d 481, cert. den. 390 U. S. 1007, 20 L. Ed. 2d 108, 88 S. Ct. 1253; King v. State, 200 Kan. 461, 436 P. 2d 855, Mathues v. State, 204 Kan. 204, 460 P. 2d 545, Wasson v. State, 210 Kan. 205, 499 P. 2d 1128.)
Second, he complains that the district court did not give him a full evidentiary hearing. He contends this was the only way he could present testimony that his plea of guilty was coerced by threats to use evidence against him which was unlawfully obtained. He claims a full hearing was required with reference to the admissibility of evidence obtained by a search and seizure.
Once a plea of guilty has been voluntarily entered by an accused, there is no necessity to introduce evidence to maintain the convic tion. The question of the sufficiency or admissibility of evidence is no longer an issue. A voluntary plea of guilty is a confession of guilt of the crime charged and the facts alleged therein. (Stiles v. State, 201 Kan. 387, 440 P. 2d 592, Wisely v. State, 201 Kan. 377, 440 P. 2d 632, Allen v. State, 199 Kan. 147, 427 P. 2d 598, McCall v. State, 196 Kan. 411, 411 P. 2d 647, Hughes v. State, 206 Kan. 515, 479 P. 2d 850.)
The record shows conclusively that the plea of guilty was voluntarily, freely and understandingly entered, and that no force, coercion or duress of any nature was exercised to obtain the plea. It was not error for the district court to summarily deny appellant’s 60-1507 motion.
The judgment is affirmed. | [
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Per Curiam:
The appellant was paid by the defendant insurance company the amount of medical benefits available on account of injury sustained while occupying the Pontiac automobile covered by a liability insurance policy and described in the policy as the “Owned Motor Vehicle.”
The appellant had separate liability insurance policies with the defendant company with similar medical benefit provisions covering two other automobiles which he owned. His total medical expenses were more than the amount received from the insurance on the occupied vehicle. He sues to recover the balance on the strength of the other policies.
The trial court denied the claim, holding that the language of the policies was clear and unambiguous in excluding liability except for injuries sustained while occupying the “Owned Motor Vehicle” as defined in the policies.
Appellant relies on Lavin v. State Farm Mutual Automobile Ins. Co., 193 Kan. 22, 391 P. 2d 992, and other decisions. While this appeal was pending this court handed down its decision in Simpson v. KFB Insurance Co., Inc., 209 Kan. 620, 498 P. 2d 71, denying recovery for medical expenses under policy provisions like those involved here and distinguishing the Lavin case.
Simpson v. KFB Insurance Co., Inc., supra, supports the trial court’s judgment and is controlling in the disposition of this appeal. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from an order of the district court summarily denying relief on petitioner’s motion under K. S. A. 60-1507.
On November 15, 1965, a complaint was filed in the city court of Leavenworth County charging petitioner with the offense of second degree forgery in violation of K. S. A. 21-609 (now 1971 Supp. 21-3710, 21-3711). At that time, and during all of the proceedings herein, petitioner was confined in the Kansas State Penitentiary under sentence for a previous conviction. On September 1, 1966, petitioner appeared in person before the city court, waived preliminary hearing, and was bound over for trial to the district court of Leavenworth County. On October 12, 1966, the district court appointed John H. Murray, a member of the Leavenworth County Bar, to represent petitioner and set petitioner’s case for trial on December 7, 1966. On October 17, 1966, the county attorney served on petitioner and his attorney a notice of intention to invoke the provisions of K. S.A. 21-107a (repealed L. 1969, ch. 180, now K.S.A. 1971 Supp. 21-4504).
On June 14, 1967, petitioner entered a plea of guilty to the charge of forgery in the second degree and pursuant to 21-609, supra, was sentenced to imprisonment for a term of not more than ten years with directions that the sentence should run concurrently with the sentence being served by petitioner. Petitioner did not appeal from the conviction.
On April 17, 1971, petitioner initiated these proceedings by filing a motion on the form prescribed by Rule No. 121 (205 Kan. xliv). In paragraph 10 petitioner stated all of his grounds for relief as follows:
“a. The trial court was without jurisdiction to render judgment and sentence, or any plea, and violated due process of law of K. S. A. 62-2901.
“b. and that equal protection of K. S. A. 62-2901 was also violated.
“c. Recent proof of such has been found in the records and flies of the Kansas State Penitentiary, Lansing, Kansas.”
In paragraph 11 of his motion, in response to the requirement that he state concisely and in the same order the facts supporting the grounds which he set out in paragraph 10, petitioner stated:
“a. Petitioner had signed the papers and complied with the requirements of K. S. A. 62-2901 but the staff and its agencies and the court failed to proceed pursuant to provisions and process of K. S. A. 62-2901. See State v. Broops, 206 Kan. 418-422 PLD 1/23/71, State v. Goetz, 187 Kan. 117-121 353 PLD 816”
On May 26, 1971, the district court considered petitioners motion and summarily denied relief. Thereafter this appeal was perfected.
As we have related, the record shows that a complaint was filed against petitioner on November 15, 1965, and that his case was not finally disposed of until June 14, 1967. In his motion, which we assume was properly filed under oath although not revealed by the record, petitioner says, as we have noted, that he “had signed the papers and complied with all the requirements of K. S. A. 62-2901,” and that “proof of such had been found in the records and files of the Kansas State Penitentiary.”
The Uniform Mandatory Disposition of Detainers Act, K. S. A. 62-2901, et seq., (repealed L. 1970, Ch. 129, now K. S. A. 1971 Supp. 22-4301, et seq.), provides, as construed by this court in State v. Ellis, 208 Kan. 59, 490 P. 2d 364, that where a prosecution is pending against an accused confined in a state penal institution for another offense the warden, superintendent or other officials having custody of prisoners shall promptly inform each prisoner in writing of the source and nature of any untried information or complaint against him, and of his right to make a request for final disposition thereof.
As we have noted, petitioner claims that he had requested disposition but that no action was taken on his request until long after the 180 days after such request was made pursuant to K. S. A. 62-2903. The section further provides that if the untried information or complaint is not brought to trial within that period of time no court of this state shall any longer have jurisdiction thereof, and that the untried information or complaint should be dismissed with prejudice.
In the instant case petitioner by his own allegations in paragraphs 10 and 11 of his motion at least raised a question which warranted inquiry by the district court in an evidentiary hearing. The case must be remanded with directions to set aside the judgment, appoint counsel and proceed with an evidentiary hearing to determine the truth or falsity of petitioner’s allegations to which we have referred.
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The opinion of the court was delivered by
Burch, J.:
The action was one to contest a will which made nominal bequests to the testator’s children, and devised and bequeathed his property, real and personal, to his grandchildren. The plaintiffs were children of the testator. They were defeated, and appeal.
The petition alleged the will was void on its face for indefiniteness and uncertainty, for impossibility of execution because of its vagueness, and as violative of the rule against perpetuities. The petition also alleged the testator lacked testamentary capacity. The answer was a general denial. Plaintiffs moved the court for judgment on the pleadings, on the ground the will was void on its face for indefiniteness, uncertainty, ambiguity, and impossibility of being carried into effect, and because it violated the rule against perpetuities. The motion was orally argued, and afterwards counsel for the respective parties filed briefs. On July 22, 1924, the court determined the motion should be denied. The decision was in writing, and contained fifteen numbered findings. The first twelve interpreted the will, paragraph by paragraph. The last three were in the nature of conclusions, and stated the will did not violate the rule against perpetuities, the provisions of the will were not too vague to be given effect, the will was prima fade valid and effectual, and the motion should be denied. The findings were duly filed, and became part of the record. (State v. Baxter, 121 Kan. 852, 250 Pac. 294.)
In April, 1925, the issue of fact was tried before the court and a jury. The jury returned findings of fact which the court declined to approve, and on August 28, 1925, at the request of plaintiffs, the court stated findings of fact covering in detail the issue relating to testamentary capacity. In reciting the history of the case, the court referred to findings of July, 1924, holding the will to be valid and effectual,, and the last paragraph of the findings of fact stated that the findings and conclusions of July, 1924, were reaffirmed, since they interpreted the will paragraph by paragraph. Two conclusions of law were stated. The first was that plaintiffs should take nothing, and defendants should recover costs. The second was stated for the purpose of providing the basis of a judgment relating to the manner in which the will should be executed.
Plaintiffs filed a motion for new trial in the usual form, which was denied on August 31,1925. On February 4,1926, plaintiffs appealed from the order denying the motion for new trial.
A new trial is reexamination of an issue of fact (R. S. 60-3001). The only issue of fact involved was'whether the testator possessed testamentary capacity, and the motion for new trial stated grounds for reexamination of that issue. The trial of that issue had nothing to do with any one of the challenges of validity of the will presented in the motion for judgment on the pleadings. No appeal was taken from the order denying the motion for judgment on the pleadings, and a new trial would have nothing to do with the subject of that motion. The result is, the question whether the district court properly interpreted the .will is not open to consideration by this court.
The conclusion just stated is inevitable for another reason. The question whether the will was invalid on its face was not a question of fact. The general denial did not raise an issue of fact relating to that subject. The motion for judgment was equivalent to a demurrer (Smith v. Lundy, 103 Kan. 207, 173 Pac. 275), and the decision on the motion was a final determination of the issue of law which it raised. No appeal was taken within six months from the order denying the motion, and the court’s interpretation of the will became incontestable.
Plaintiffs contend the findings relating to testamentary ‘ capacity are not sustained by evidence, and are contrary to the evidence. Oral testimony favorable to plaintiffs is confidently quoted, which the district court' may have discredited, or may not have believed at all. Inferences of the district court are questioned, in disregard of the rule that, when testimony is open to different inferences, this court is bound by the district court’s findings. At the oral argument in this court, it was stated this is an “equity case,” apparently implying that the nature of the case affects in some way the function of this court in reviewing oral testimony. In other respects, the case is the usual one of dissatisfaction with findings sustained by evidence.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Marshall Oil and Gas Corporation owned an oil and gas lease, in the attempt to develop which it incurred a number of debts for supplies. Several .liens were filed against the lease and appurtenant property, and an action was brought to foreclose one of them. Other parties were brought in. and receivers were appointed to take charge of and operate all the corporation’s property. By order of the court the property was sold by the receivers, the proceeds being applied first to the liens that had been allowed. On June 6, 1923, several personal judgments, not secured by liens, were rendered in favor of various parties, the court ordering the residue of the proceeds of the sale to be prorated among them. In April, 1924, two personal judgments were rendered against the corporation in separate actions. These were assigned to George J. Gleim, who thereafter asked permission to intervene in the case in which the receivers were appointed. His request was granted, and he was allowed to share proportionately with the other judgment creditors in the funds in the hands of the receivers after the payment of the specific liens. One of the judgment creditors appeals from these rulings, on the ground that Gleim had no right to intervene, and that the appellant was entitled to priority of payment over him because of having by its judgment obtained a lien on the property which was thereafter sold by the receivers. The receivers join in the appeal, although their interest in it is not apparent.
1. Intervention may in many situations be allowed without express statutory authority, in the discretion of the court. (Gibson v. Ferrell, 77 Kan. 454, 94 Pac. 783; Ball v. Oil & Gas Co., 113 Kan. 760, 763, 216 Pac. 420, 422.) We think the present case falls within that rule. The appellants urge that the receivers were not appointed to wind up the affairs of the Marshall corporation, and that no order was made for creditors generally to assert their claims against the property in the receivers’ hands. The court, however, in rendering judgment expressly retained jurisdiction for the purpose of making further orders and judgments, and enjoined the parties in whose favor personal judgments had been rendered from having execution issued thereon. The fair inference is that "the court’s purpose was to hold matters in abeyance to give other creditors opportunity to intervene if they so desired.
2. A personal judgment is a lien on the real estate of the debtor within the county from the first day of the term at which it is rendered. (R. S. 60-3126.) The property placed in the control of the receivers consisted of the lease and a variety of personal property used in connection therewith. So far as concerns anything except the lease itself it is clear beyond controversy that no lien attached upon the rendition of the judgment. The lease was an incorporeal hereditament, and the same reasoning which resulted in holding that such an interest is not within the operation of the mechanics’ lien statute (Suppy Co. v. McLeod, 116 Kan. 477, 227 Pac. 350) requires us to hold that it is not subject to a judgment lien.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal by Richard L. Thomas from an order overruling a demurrer filed by him against the amended petition of R. E. Crummer upon the ground of misjoinder of causes of action.
Walter E. Wilson was appointed state bank commissioner and gave an official bond signed by Richard L. Thomas and other sureties, that Wilson would faithfully discharge the duties of his office. In the petition as first filed, it was alleged that Wilson was guilty of misconduct, both individually and of acts done by virtue of his office, and upon a challenge of misjoinder the trial court ruled that there being a manifest purpose to charge acts done other than as a bank commissioner, for which the sureties would not be liable, two causes of action were stated and improperly joined. Upon an appeal to this court the judgment was affirmed with the suggestion that two petitions may be filed, one based upon the defaults for which sureties are liable, and another for the defaults for which the commissioner alone is liable, or the petition might be amended so as to eliminate any claim other than on the official bond and for liability against the sureties. (Crummer v. Wilson, 119 Kan. 68, 237 Pac. 1035.)
Afterwards the plaintiff amended the petition in several particulars in which he undertook to eliminate charges of the private and per sonal acts and defaults of Wilson from those done by virtue of his office, leaving only those acts for which the sureties would be responsible. The defendant Thomas then filed another demurrer alleging a misjoinder of causes of action, and also made a motion to strike out certain averments of the second amended petition. The demurrer for misjoinder was overruled, and the motion to strike was also overruled. Thomas alone appeals, and is contending here that error was committed in overruling the demurrer. While the ruling on the motion to strike is assigned as error the defendant has manifestly abandoned that branch of the case, and is only asking for a review of the ruling on the demurrer. The real question presented is whether the petition contains two causes of action, and for that reason the action should be separated by filing two petitions, one on claims upon which both Wilson and his bondsmen are liable, and the other on claims for which the sureties on his bond are not answerable. If it be granted that there are allegations in the petition charging acts or defaults of Wilson upon which he would be liable, and his bondsmen would not, it is now clear from the entire record in the case and from the attitude of plaintiff that he is in fact not seeking a recovery against Wilson for which his bondsmen would not be liable. He has practically, although not in set terms, disavowed such an intention, therefore there is no object in splitting the action into two separate actions, and the order overruling the demurrer will therefore be affirmed.
There are allegations in the petition giving some basis for a charge of personal misconduct on the part of the commissioner for which his sureties would not be liable. These should receive attention at some stage of the proceedings when the questions are clearly defined and fully argued. In view of the fact that the ruling on the motion to strike is not argued in the briefs the court does not feel justified in passing on questions that may be developed in the case relating to what are official defaults as distinguished from personal ones, and defaults for which Wilson might be liable but the sureties would not. This phase of the case can better be determined when it is fully argued, and neither party will be concluded on it by reason of the affirmance of the judgment overruling the demurrer.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover rental for certain land in Rice county in lieu of the performance of an oil drilling contract. Defendants prevailed and plaintiff appeals.
The facts are substantially these: Early in 1924 activity in oil development was started in Rice county. On February 20 a number of landowners met at Little River and appointed a committee to outline and canvass the territory, secure leases in blank and hold them until a drilling company could be secured to do the work. The com mittee proceeded, and on March 10,1924, entered into an agreement with the defendants, Carey and Shears, which reads:
“Whereas, there has been appointed a committee consisting of Geo. H. Weld, J. L. Flock, E. H. Hodgson, A. J. Smith, and J. J. Hatfield, by a large number of landowners in the following-described sections of land for the purpose of securing the drilling of oil and gas wells on said blocks of land and are willing to put their leases in escrow, to be delivered to the parties or association that is willing to finance and put down an oil or gas well on said blocks, on the commencement of actual drilling operations toward the drilling of said well.
“Now, therefore, we, Emerson Carey and J. H. Shears, in consideration of the mutual covenants and agreements hereinafter contained, agree with the above-named committee, hereinafter called parties of the first part, that they will procure the financing and drilling of an oil or gas well on the blocks of land hereinafter described to a depth of 3,500 feet, unless oil or gas is found in commercial quantities at a lesser depth, provided the said committee will procure valid oil and gas leases on not less than 3,280 acres of land in each block, situated in the following sections of land, to wit:
“Block No. 1, to be known as Carey & Shears Little River No. 1, consisting of sections or parts of sections No. . . . , in Rockville township 20, range 6, Rice county, Kansas.
“Block No. 2, to be known as Carey & Shears Little River No. 2, consisting of sections or parts of sections No. . . . and such other sections or parts of sections as may be added hereafter, all in township 19, range 6, Rice county, Kansas, this same to be sufficiently solid to meet the approval of said Emerson Carey and J. H. Shears; said leases to be in the hands of the first parties and assigned to R. L. Carrillo, trustee, and placed in escrow, with the agreement that said leases are to be all delivered to the said R. L. Carrillo, trustee, when actual drilling operations are commenced on any piece of land leased in the above blocks by the said committee and to be delivered to said R. L. Carrillo, trustee.
“In consideration of the above the said committee agrees to secure leases for oil and gas purposes on not less than 3,280 acres of land in, each of the above-described blocks, and to procure an agreement on the part of all of said lessors in accordance with the provisions above outlined.
“Said Emerson Carey and J. H. Shears agree further that they will commence actual drilling operations on said blocks of land, as follows: On block known as Carey & Shears Little River No. 1 within 60 days, and on said block No. 2, known as Carey & Shears Little River No. 2, within 100 days from the time said blocks of 6,760 acres as above provided shall be procured, assigned and placed in escrow, and for failure to comply with the above the said parties, Emerson Carey and J. H. Shears, shall pay a rental of one dollar per acre.
“It is further agreed by Emerson Carey and J. H. Shears that when drilling operations commence the funds of the drilling company or companies, sufficient to finance each well in full, will be deposited in the Citizens State Bank of'Little River and disbursed from there to drilling contractors and to satisfy the obligations of the company; as applies to Carey and Shears Little River Nos. one and two drilling projects.
“Witness our hands this 10th day of March, 1924.
Geo. H. Weld (and others),
Emerson Carey, H. J. Carey,
J. H. Shears, George C. Shears.”
The contract was confirmed at a meeting of the landowners March 14 following and the committee proceeded to complete its acquisition of leases. On May 7 an escrow agreement was executed at Little River by the parties which reads:
“Escrow Agreement.
“Entered into this 7th day of May, 1924, by and between, Geo. H. Weld, J. L. Folck, E. H. Hodgson, A. J. Smith, and J. J. Hatfield, a committee appointed by the landowners in the vicinity of Little River to secure a drilling contract on two blocks of acreage, and Emerson Carey and J. H. Shears, who have fulfilled the requirements of the above-named committee. Under this agreement the following leases having been completed by the committee through the placing the name R. L. Carrillo as trustee for Carey & Shears, of Hutchinson, Kansas, are hereby placed in escrow in the Citizens State Bank of Little River, Kansas, to be delivered to Carey & Shears through R. L. Carrillo, trustee for Carey & Shears, upon their performance under the terms of the original contract — a copy of which is hereto attached.
“These leases are all duly numbered from one to sixty-three consecutively. Those leases bearing numbers 57, 59, 60, 61, 62 and 63 are not entirely valid as of this date, and it is hereby agreed by Carey & Shears that these leases will not be recorded until such time that said leases are made valid on Carey & Shears account. The following described leases are hereby acknowledged by the parties to this agreement to be in escrow, and the Citizens State Bank is hereby instructed to deliver same to Carey & Shears, through their trustee, in accordance with the terms of attached contract: (Then follows list of names of owners and descriptions of their lands.)
“The foregoing is a true list of the leases numbered and is hereby accepted by all parties to the agreement.
“Witness our hands, etc.
“The above described leases, together with the original -contract herein described, hereby receipted for escrow this 7th day of May, 1924.
“The Citizens State Bank of Little River, Kansas,
By W. H. Burke, President.’’
The same day defendants addressed a communication to plaintiffs which reads:
“We hereby accept the acreage in the two blocks known as Carey & Shears Little Rivers Nos. one and two as completed, with a total acreage as represented by leases now in escrow in the Citizens State Bank of Little River, Kansas, and do hereby make the original contract operative and time start to run from May 7, 1924.
' “We will immediately finance a company and we will agree to start a well b3r July 6fch, 1924, on Block No. one and the remaining well of Block No. two by August 14, 1924, or we will pay rentals as per the original agreement.”
“Very truly yours,
Carey & Shears,
By Lloyd S. Brown.
“The above is hereby accepted by the undersigned committee.
Geo. H. Weld, et al.”
There was.evidence that the defendants erected a derrick on one location, but did no drilling. The action was to recover the rental payments of $1 per acre. Claims of the various owners were assigned to the plaintiff to the extent of 7,112 acres.
Trial was to the court. A memorandum opinion was filed in which the court found substantially that the action was based upon a certain contract entered into between Carey and Shears and certain parties designated as a “committee”; that the committee was to secure certain oil leases covering a certain amount of acreage, which leases when secured were to be deposited in escrow, duly assigned to a trustee, and delivered to the trustees upon Carey and Shears beginning operations within sixty days on block No. 1 and within 100 days on block No. 2, by beginning to drill a well, one on a tract in each block within said time. Carey and Shears further agreed to deposit sufficient money to cover the expenses of this drilling to 3,500 feet. Upon failure to comply in starting operations, Carey and Shears would pay a rental of one dollar per acre. Acting under the authority of the contract the committee, assisted by Carey and Shears, proceeded to acquire leases, which leases are substantially in accordance with the terms of the contract.
The trial court concluded that the contract authorized the committee to obtain leases; that the committee was appointed as agents of Carey and Shears to bind Carey and Shears in leases entered into by them, which comply with the contract; that the contract was not made for the benefit of the landowners, and no landowner who subsequently entered into a lease could recover for any breach of the contract between the committee and Carey and Shears, but was limited to the terms of the lease entered into by the committee under authority of the contract in controversy; that the action was not for damages for breach of contract suffered by the com mittee but was an action to recover for an alleged breach of a contract by landowners to which they were not parties, but were unknown and not in existence at the time of that contract and the contract was not made in reference especially to the great majority of the leases obtained; that the rule of the right of a third party to sue and enforce a contract made for his benefit had no application; that the preliminary contract was merged in the subsequent leases and the terms and conditions of the leases are controlling and not the terms of the contract; that the matter of the payment of one dollar per acre is incorporated in the leases and supersedes the matter of payment of one dollar per acre provided for in the contract in lieu of performance; that the only obligation Carey and Shears assumed was that if they did not commence wells within the specified time their rights were forfeited, unless they paid a rental of one dollar per acre which would extend the period of performance for one year, according to the terms of the leases.
Was the committee agent of Carey and Shears to bind them in leases which complied with the contract? The contract states:
''Whereas, There has been appointed a committee consisting of Geo. H. Weld, J. L. Folck, E. H. Hodgson, A. J. Smith and J. J. Hatfield, by a large number of landowners, in the following described sections of land. . . .”
The committee was to get leases from the landowners in certain defined territory. These leases were to be deposited in escrow subject to certain stated conditions. The committee did not act for Carey and Shears. It acted for the landowners, and the landowners by executing the leases and putting them in escrow according to the contract adopted the contract as their contract with the defendants.
Was the contract for the benefit of the landowners, and have they the right to maintain this action?
“Of couz’se, the name of the person to be benefited by the contract need not be given if he is otherwise sufficiently described or designated. Indeed, he may be one of a class of persons, if the class is sufficiently described or designated. In any case where the person to be benefited is in any manner sufficiently described or designated he may sue upon the contract.” (Burton v. Larkin, 36 Kan. 246, 250.)
In Maddock v. Riggs, 106 Kan. 808, 190 Pac. 12, it was said:
“Upon the facts stated in the preceding paragraph the rule is applied that a thiz'd party, not privy to a contract nor pi’ivy to the consideration thereof, may sue to enforce any part of it made for his special benefit and interest; that the promise is deemed made to the plaintiff if adopted by him though he was not a party nor cognizant of it when made.” (Syl.)
“A sister who was not present at the settlement and who did not participate therein, but to whom a note was given, by accepting it and suing to recover upon it ratified the settlement, and the maker cannot avoid paying the note for the reason that the sister did not take part in the settlement.” (Bottom v. Harris, 108 Kan. 7, 193 Pac. 1058.)
Ross v. Bank, 113 Kan. 213, 214 Pac. 94, was a case where a contract provided that a third party working on a farm should be paid by the bank for his services, the bank advancing money to operate the farm in order to protect its loan to the owner. Ross was not a party to the contract, knew nothing about it until some time after it was made, but had performed the services and in an action against the bank it was held the contract was for his benefit and he could recover. (See, also, Ballard v. Bank, 91 Kan. 91, 136 Pac. 935; Goeken v. Bank, 104 Kan. 370, 179 Pac. 321; Staley v. Weston, 92 Kan. 317, 140 Pac. 878; 13 C. J. 705, 711.)
The identification of the landowners for whose benefit the contract was being made was direct. It was in the contract itself. Had further identification been needed, it could have been found in the escrow agreement. The two agreements and the leases beyond question identify the persons for whose benefit they were made. They were known to defendants by reference to the various tracts of land enumerated in the two blocks when the original contract was executed. These persons were fully identified by name, by description of real estate owned by each, by acreage and by lease numbers, when the escrow agreement was executed. Also when the leases were gathered together and deposited. Having a right of action in themselves, each of the landowners had a right to assign it and the assignee was the proper party to sue. (Hull v. Bonding Co., 86 Kan. 342, 120 Pac. 544; Rullman v. Rullman, 81 Kan. 521, 106 Pac. 52.)
It is contended that the escrow agreement with the leases superseded the contract; that the original contract was merged in the latter. We think' not. The conditions of the escrow were never met. The leases were never taken from the depositary.
“An escrow is an obligatory writing (usually, but not necessarily, in the form of a deed) delivered by the party executing it to a third person, to be held by him until the performance of a specified condition by the obligee, or the happening of a .certain contingency, and then to be delivered by the depositary to the obligee, when it becomes of full force and effect.” (Davis v. Clark, 58 Kan. 100, 104, 48 Pac. 563.)
“Where an instrument is deposited as in escrow, it cannot become operative until the condition upon which it is deposited has been performed or the contingency agreed upon has happened.” (21 C. J. 880.)
"A bond for a deed deposited with a disinterested third party, to be by him held until.a certain sum of money is paid, and then to be delivered to the obligee, is in escrow; and until the condition is performed, it is a mere nullity, and no right of action accrues or can accrue thereon to the obligee.” (Roberts v. Mullenix, 10 Kan. 22.)
In Taylor v. Thomas, 13 Kan. 217, it was said:
“Whatever rights of action the plaintiffs may have had upon the contract, upon delivery of 75,000 plants, they had no right to the note, and could maintain no action upon it until after a full compliance with the conditions of the escrow. Until such time it is as though no note had ever been signed.” (p. 219. See, also, 21 C. J. 865, 882, 883; 10 R. C. L. 627.)
Under all the circumstances we are of opinion the plaintiffs were entitled to recover.
The judgment is reversed and the cause remanded with instructions to enter judgment for plaintiff. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover the value of twenty-two cars of crude oil shipped over the lines of the defendant and delivered without surrender of the bills of lading therefor. Plaintiff prevailed and defendant appeals.
The facts substantially were as follows:
One C. C. Morgan was engaged in buying crude oil at Tonkawa, ' Okla., from the Golden Rule Oil Company. The oil was loaded in the defendant’s cars, bills of lading issued to Morgan as consignee, “Notify the Sheridan Refining Company,” and thereupon sent to the Kansas State Bank with a draft attached, drawn by the Golden Rule Oil Company for the entire purchase price due from Morgan. The bank, upon their arrival, would pay the drafts and thereby become the owner of the bills of lading and the shipments of oil represented thereby. In some instances the bills of lading bore Morgan’s indorsement when they reached the bank. Those which were not so indorsed were indorsed on Morgan’s behalf by one of the officers of the bank, who had been authorized so to do by Morgan. Morgan had made arrangements to sell the oil to the Sheridan Refining Company, the bank to draw a draft on the refining company for the amount of the purchase and send it with the bill of lading attached to its correspondent at Npwkirk, where the refining company would pay the draft and take up the bill of lading. The refining company desired to obtain possession of the oil without paying for it in advance. It therefore furnished the defendant with an indemnity bond, the effect of which was to hold the defendant harmless on account of making delivery of the oil without surrender of the bills of lading. Thereafter the refining company obtained from the defendant the twenty-two shipments in controversy without surrendering the bills of lading which had been, by the bank, handled in its usual manner, that is, by sending the same with a draft attached on the refining company, to its correspondent at Newkirk. The refining company failed to pay for the oil, the drafts being returned protested for nonpayment. The bank asked the defendant to divert the cars which had been consigned to the refining company, and learned that the cars had already been delivered. The bank then made demand on the defendant, after which it brought this action to recover the value of the oil.
Thereafter, on January 29,1924, the bank was closed by the bank commissioner. On July 17 following, a receiver was appointed, and on September 6 the receiver sold the assets of the bank, among which were the claims sued upon in this action and pending in the district court, to the Security State Savings Bank. Afterwards, on February 13, 1925, the Security Bank filed its motion to revive this action against the defendant and to be substituted for the Kansas State Bank. The motion was allowed March 23, 1925, and- an amended petition later filed; in due course trial was had, resulting in judgment against the defendant.
The defendant maintains that plaintiff, the Kansas State Bank, “died” January 29, 1924, the day the bank was closed by the bank commissioner; that the order of revivor and substitution entered on March 23, 1925, was of no effect because more than one year had elapsed since the death of the plaintiff. Various statutes and authorities cited by defendant in support of its contention have no application to the facts under consideration, and the contention is without merit. The Kansas State Bank was a corporation organized and operating under the laws of Kansas. It cannot properly be said to have gone out of existence until its dissolution. The statute provides two ways by which a corporation may be dissolved: first, by expiration of the time limited in its charter; and second, by judgment of dissolution rendered by a court of competent jurisdiction. (R. S. 17-807.) In the case of banks, a special method for voluntary liquidation is also provided. (R. S. 9-132.) It is not contended, however, that the Kansas State Bank went into voluntary liquidation, nor that the time limited in its charter had expired, nor that a judgment of dissolution had been rendered against it. If it was “killed” January 29, 1924, as maintained by the defendant, it was not killed by the bank commissioner’s having taken charge of it under the provisions of R. S. 9-130, which provides that when it appears that a bank is insolvent or has willfully violated any requirements of the banicing act, it shall be the duty of the bank commissioner to take charge of such bank. The bank commissioner may appoint a special deputy to take charge of the affairs of an insolvent bank temporarily until • a receiver is appointed. Upon taking charge of any bank the bank commissioner shall, as soon as possible, ascertain by an examination into, its affairs its actual condition, and whenever he becomes satisfied that it cannot resume business or liquidate its indebtedness to the satisfaction of its creditors he shall forthwith appoint a receiver to wind up its affairs. The statute makes it the duty of the bank commissioner to appoint a receiver forthwith upon having ascertained that it cannot resume business or liquidate its indebtedness to the satisfaction of all its creditors. It will be presumed, in the absence of a showing to the contrary, that the commissioner did his duty and appointed a receiver as soon as he became satisfied the bank could not resume business and liquidate its indebtedness. It would appear, therefore, that the bank commissioner had not determined until about July 17, 1924, that the bank was insolvent and could not resume business. Therefore, it had not “died” before July 17, 1924. When after that its dissolution may have occurred is immaterial so far as the present áction is concerned. It was not dead until dissolution.
“Insolvency of a corporation and the appointment of a receiver to manage its business and wind up its affairs do not work a dissolution of the corporation, nor will these things, of themselves, impair its capacity to sue or to enforce judgments previously obtained.” (Leonard v. Hartzler, 90 Kan. 386, 133 Pac. 570. See, also, State, ex rel., v. Pipher, 28 Kan. 127; Bank v. Sewing Society, 28 Kan. 423; 14A C. J. 1118, 1119; 8 Fletcher on Corporations, 9056; notes in 2 L. R. A. 256, and 50 L. R. A., n. s., 383.)
• The defendant contends that the delivery of the oil without the surrender of the bills of lading was a performance of its contract rather than a breach thereof. It claims that it delivered the shipments of oil in accordance with the terms of an agreement for such delivery entered into at the instance, request and full knowledge of the Kansas State Bank. There was evidence that the refining company asked Morgan to arrange for it a meeting with the officers of the bank for the purpose of arranging for the refining company a line of credit under which the bank would, instead of sending the bills of lading to its correspondent with a draft attached, send the bills direct to the refining company, so that it might obtain possession of the oil without paying the amount of the purchase price in advance; that Morgan arranged the meeting in the office of the bank; that it was attended by Morgan, Ayers, president of the refining company, and the bank’s president and cashier; that at the meeting Ayers made his request for a line of credit, which the bank declined; that the president of the bank stated “that the bank absolutely could not give up the bills of lading without their pay.” That during this conversation, the president of the bank suggested to Ayers that he had known of instances where under an indemnifying bond the carrier made delivery without surrender of the bills of lading; that Ayers replied that he would endeavor to obtain one; that the bank’s president denied that he suggested to Ayers that such'a bond be furnished the defendant.
“Q. Mr. Hanna (president of the bank), did you suggest to Mr. Ayers that he go to the Santa Fe and get a contract? A. Absolutely not; the Santa Fe was not mentioned as to this bond or contract in any way whatever that morning.
“Q. And did you make any such suggestion? A. I did not. No, sir.”
There was evidence that following this meeting, Morgan and Ayers went to the defendant’s office in El Dorado, Kan., and obtained a form of “indemnity bond for diversion and for delivery of shipper’s order freight without -bill of 'lading”; that they took it to Wichita and obtained its execution by the United States Fidelity and Guaranty Company as surety; that the bond was also signed by Morgan as surety; that the bank continued to handle the bills of lading as before, sending them to its correspondent at Newkirk, with draft attached, on the refining company, for the purchase price of such oil..
The defendant stresses the point that the bank knew of the execution of the bond, and contends that it could not have been an innocent purchaser in taking the bills of lading. It is argued that Morgan’s relations with the bank were of a very intimate character, and that if a recovery could not be had by Morgan none could be had by the bank. It appears that the bank knew that a bond had been executed to indemnify the defendant in the case of loss arising through delivery of the oil without surrender of the bills of lading, but it was not informed that Morgan had signed the bond as surety. It also appears that the railway company is defending- the action because notified by the bonding company to do so. A letter from the defendant to the plaintiff in part reads:
“Further referring to your telegram of August 24, requesting) advice as to when you might expect payment of your claim for $12,118.11 for value of 22 cars crude oil consigned to order C. C. Morgan, notify Sheridan Refining Company, Newkirk, Oklahoma.
“We find that this is a transaction involving the interests of three different concerns: viz: The Kansas State Bank, C. C. Morgan, and the United States Fidelity and Guaranty Company. There seems to be considerable variance of opinion as regards the legal responsibilities of each of these parties in the premises, and we have been notified by the representative of the United States Fidelity and Guaranty Company at Kansas City that we should make no payment of claims filed on these 22 cars without first securing their approval. There is a large amount involved in this matter, and of course the railway company in order not to jeopardize its rights against the surety company, must be guided by the notice served upon us by the surety company’s representative.”
Knowledge by the bank that the bond had been executed to indemnify the defendant was not, of itself, sufficient reason to' prevent recovery on the claims. Under the facts and circumstances we find no difficulty in determining that the bills of lading acquired by the bank were negotiable and that the bank did not acquire them in bad faith. (See Burdg v. Scott, 111 Kan. 610, 208 Pac. 668; Bank v. Reid, 86 Kan. 245, 120 Pac. 339; Gigoux v. Moore, 105 Kan. 361, 184 Pac. 637; Thresher Co. v. West, 108 Kan. 875, 196 Pac. 1061.)
A contention that the court erred in its instructions need not be dwelt upon at length. The matter has been given due consideration, but no error is discerned which would warrant a reversal.
Complaint is made of other trial errors, but we find none requiring a reversal.
The judgment Is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
In an action by Cal D. Fusselman against Nellie May Fusselman, a decree of divorce was granted to the plaintiff on July 5, 1923. The matter of alimony or a division of property was not presented nor considered nor anything more than the dissolution of the marriage, except that defendant was restored to her maiden name of Nellie May Feaster. In November, 1923, defendant moved to set aside the judgment in order that her property rights might be adjusted, and she stated in her motion that the reasons she allowed the judgment to be entered without asking for alimony or division of property was that her attorney had advised her that her rights in that respect would be determined in another pending action which she had brought against her husband. It was shown that the action referred to was brought by her in 1920 for a divorce and a division of property, wherein a judgment was rendered denying a divorce to her, but the court at that time approved a contract of division of property made by the parties, and it was so adjudged. On July 7, 1922, she brought another action against her husband to set aside the earlier judgment pertaining to a division of the property, but upon a hearing on April 1, 1924, judgment was given against her. The motion in question was first filed, as we have seen, in November, 1923, after the judgment in favor of the husband had been granted, and was heard and overruled in 1924. A motion for a rehearing of that motion and order was filed in June, 1924, and a rehearing was allowed and had on May 2, 1925, when the court refused a reopening of the case to determine the property rights of the plaintiff. She appeals and insists that there was error in the refusal.
Apart from the fact that a division of property had been agreed upon by the parties and it had been given judicial approval, the defendant was not entitled to an adjudication of property rights after the decree of divorce had become a finality. When a divorce is granted a party asserting error may appeal, but notice of an intention to appeal must be given within ten days after the judgment is rendered, and a proceeding for modification or reversal must be commenced within four months from the date of the decree. This was not done, and the decree became a final adjudication not only on the dissolution of the marriage relation but also of any right which by the marriage, either had acquired in the property of the other. It has been decided:
“When parties have been divorced by a court having jurisdiction, and no proceedings have been taken to vacate or modify the decree by appeal until the statutory time therefor has expired, all the rights which either had to the property of the other by reason of the marriage relation, will be extinguished by such decree.” (Roberts v. Fagan, 76 Kan. 536, 92 Pac. 559. See, also, Roe v. Roe, 52 Kan. 724, 35 Pac. 808; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546; Pinkerton v. Pinkerton, 122 Kan. 131, 251 Pac. 416, and cases therein cited.)
It cannot be said that there was any fraud in the decree that was rendered. Defendant stated that' she made no claim for property rights in the divorce action because she was informed by her counsel that her rights Would be fully protected in a pending action and that she relied upon his advice and did not learn until about the time the motion Was made, as to the effect of the decree. It appears that a suit was pending relating to property rights and the mistake, if any was made by her counsel, cannot be regarded as a fraud of her former husband. The matter of property rights received consideration when her agreement upon a division of property was presented to the court, and also in the later case where the matter of property rights was involved and she had ánother opportunity to bring it to the attention of the court in the present action, when the divorce was granted.
Under the authorities her rights for a division of property, whatever that may have been, were extinguished by the judgment, from which no appeal had been taken within the time allowed by the statute. There was no error in refusing to modify that judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover on an insurance policy covering farm property, consisting of a dwelling house, a barn, and certain personal property. The policy contained a provision that it became void if foreclosure proceedings were commenced. The defense was, foreclosure proceedings were commenced. Plaintiff recovered, and defendant appeals.
The case was tried on an agreed statement of facts which presents an unusual situation. The property was located in Finney county, and was mortgaged to the Warren Mortgage Company. The policy was issued by a state agent at Topeka, Kan., on January 8, 1920, and, through a local agent who transacted the business of procuring it, was delivered to the owner of the property, Fred M. Gilmer. A mortgage clause was attached to the policy when issued, making loss payable to the mortgagee as its interest might appear, and containing stipulations defining the relations between insurer and mortgagee. Among them was a provision that, as to the interest of the mortgagee, the policy should not be invalidated by any act or neglect of the mortgagor. On October 11, 1921, Gilmer died intestate. His widow was appointed administratrix, and continued to occupy the premises as her homestead. On October 3, 1922, the mortgagee commenced foreclosure proceedings, which were prosecuted to sale made on January 15,1923. The sale was confirmed on the day it was made, and a certificate of purchase was issued to the purchaser, I. M. Blanton. The proceeds of sale satisfied the mortgage. Blanton, as holder of the certificate of purchase, insured the property on his own account. On June 12, 1924, the barn burned, and in due time Blanton collected his insurance. On July 12, 1924, plaintiff as administratrix sold the property under order of the probate court, and with the proceeds redeemed from the foreclosure sale. The policy was a five-year policy, and the term expired January 6,1925. On January 12,1925, plaintiff learned the policy was in possession of the Warren Mortgage Company. On January 16, 1925, plaintiff gave notice of loss, and on January 31, 1925, submitted proofs of loss. The action was commenced on February. 25, 1925, and resulted in a judgment for $946, and an attorney fee of $250, besides court costs.
Plaintiff does not dispute that insurer and insured may contract that a policy may be rendered void by commencement of foreclosure proceedings, but she says the policy sued on was not forfeited because the foreclosure proceedings were commenced by a mortgagee whose mortgage was in existence when the policy was issued and in whose favor a mortgage clause was attached. In support of this contention the following is quoted from 26 C. J. 239:
“But where insurer consents to an existing mortgage, a judgment of foreclosure will not forfeit the policy, although it prohibits the institution of foreclosure proceedings; . . .”
The authority cited for this text is Fitzgibbons v. Insurance Co., 126 Ia. 52. The syllabus reads:
“A judgment of foreclosure of a mortgage covering a part only of insured property to which the company consented, will not work a forfeiture of the policy under a provision therein that the company should not be liable if suit for foreclosure be instituted or one in which the title, ownership, or possession ‘of the property’ insured is involved or called in question.” (f 2.)
In the opinion it was said:
“Now, the condition of forfeiture which this policy provides is the institution of foreclosure proceedings against the ‘property insured.’ The ‘property insured’ consists in part of the dwelling house covered by the mortgage, and in part of personal property to which no mortgage or other lien has ever attached; and the foreclosure proceeding did not, therefore, involve the property insured, and no forfeiture resulted.” (p. 55.)
It is clear the authority does not support the text, and the text is unsound.
The reason for a provision for forfeiture on commencement of foreclosure is increase of hazard. Experience has taught insurance companies that, when property owners become financially unable to take care of their secured obligations, or are so neglectful of them that foreclosure must be resorted to, likelihood of fire becomes greater. Under conditions otherwise satisfactory, insurance on property covered by mortgage in good standing is as safe as insurance on unencumbered property. Insurance on property covered by mortgage in default and in process of foreclosure, involves greater risk. If with knowledge of all the facts an insurer does issue a policy on property covered by an overdue mortgage on which foreclosure may be commenced at once, and makes loss payable to the mortgagee, it is possible to say the provision for forfeiture on commencement óf foreclosure was not intended to apply. (Butz v. Farmers’ Ins. Co., 76 Mich. 263.) Consent to insure under safe conditions, however, does not include or imply consent to carry the risk under conditions which have become hazardous, and if consent of the latter kind be negatived by a provision that the policy shall become void on commencement of foreclosure, the provision becomes operative when the condition creating the hazard occurs.
There are two insurable interests in mortgaged property, that of mortgagor and that of mortgagee. Ordinarily it is immaterial to the insurer to which one loss shall be payable. Since the insurance money takes the place of security destroyed, it is common practice to make loss payable to the mortgagee. This is usually done by some form of mortgage clause attached to the policy. The mortgage clause may or may not constitute an independent contract with the mortgagee. When the mortgage clause merely designates the mortgagee as the person to receive the proceeds of the policy, or the forfeiture provisions of the policy are made applicable to him the same as to the owner, whatever forfeits as to the owner forfeits as to the mortgagee.
In the case of Bank v. Insurance Co., 91 Kan. 18, 137 Pac. 78, the court permitted recovery on a policy providing for forfeiture on commencement of foreclosure by a mortgagee claiming under a mortgage clause making loss payable to the mortgagee as his interest might appear, "subject, however, to all the terms and conditions of this policy.” The decision is not in harmony with the general doctrine which was applied later in the case of Burns v. Insurance Co., 103 Kan. 803, 176 Pac. 985. The syllabus reads:
“When an insurance policy contains a provision that its conditions shall apply to a mortgagee in the manner expressed in such provisions and conditions of insurance relating to such interest as shall be written thereon or attached thereto, and the attached clause which makes the loss payable to a mortgagee contains the words ‘subject to all the terms and conditions of this policy,’ all the conditions of the policy are thereby made applicable to the mortgagee, and if the rights of the owner have been forfeited by his breach of any such condition the mortgagee is.likewise precluded from recovery.” (F 2.)
If, as in this instance, the mortgage clause takes the form of an independent contract between the insurer and the mortgagee, pro viding that conduct of the owner shall not invalidate, breach of the terms of the policy having relation to the risk as between insurer and owner does not avoid the policy as to the mortgagee, and he recovers in case of loss in his own right.
Hazard is increased by commencement of foreclosure, whether the loss be payable to owner or to mortgagee. Since the mortgagee’s personal security has failed, and he is obliged to resort to enforcement of his lien, his interest in the property has increased. But the owner’s interest is a step nearer extinction, and it may please Providence that there shall be a fire and some insurance money to apply on the debt. Under these circumstances, a provision in the contract with the mortgagee that commencement of foreclosure shall terminate the insurance as to him unless consent of the insurer be obtained, would be fair. Granting, however, that Bank v. Insurance Co., 91 Kan. 18, 137 Pac. 78, was well decided, and that the mortgagee’s insurance under his special contract should continue notwithstanding it is subject to the conditions of the policy, including the condition respecting foreclosure, it is fair that the insurance should cover his interest alone, and the liability- of the company should be the same as if the policy had been issued to him. The hazard having been increased by the mortgagor’s default in not keeping the mortgage in good standing and in thus bringing on foreclosure, the contract with him that his insurance should cease on the happening of that event, is valid, and being valid, should be enforced.
In this instance the policy issued became void as to Gilmer when the Warren Mortgage Company commenced its foreclosure suit. The policy continued to protect the mortgage company until the sale to Blanton was confirmed and the proceeds of sale were applied to satisfaction of the mortgage company’s judgment. Liability on the policy was then extinguished.
Plaintiff contends the provision relating to commencement of foreclosure proceedings was void because it was framed to operate in vacuo — “or upon the commencement of foreclosure proceedings.” If, in order to give force to the provision, it be read “or upon commencement of foreclosure proceedings against the property,” the Fitzgibbons case referred to above would prevent forefeiture because the foreclosure related to real estate only, and not to the household and kitchen furniture. To read the provision as referring to foreclosure of a real-estate mortgage would exclude forfeiture for foreclosure of chattel mortgage on the personalty. Plaintiff multiplies uncertainties until she is quite bewildered as to the meaning of the provision, and she asserts that because it is ambiguous if not altogether meaningless, it is void.
The subjects of mortgage and foreclosure are placed together in the mortgage clause:
“Or if the property or any part thereof shall hereafter become mortgaged or encumbered; or upon the commencement of foreclosure proceedings; . . .”
There is no doubt about what the foreclosure provision means. It is not indefinite or ambiguous or confusing. Anyone with capacity to understand what the parties were contracting about, knows what they meant. The question is whether the plain meaning was accurately expressed by the words used. In practice the question frequently takes this form: Was the plain meaning set down with such meticulous particularity that a court righteously bent on making the insurance company pay, cannot find so much as a distinction without a difference between thought and expression, which may be seized on and magnified to prevent forfeiture? Without debating the matter, the court is constrained to say that in this mortgage clause commencement of foreclosure proceedings relates to foreclosure of any mortgage or encumbrance on the property insured or any part of it.
Plaintiff contends privilege to forfeit was waived because, with knowledge of ground of forfeiture, the company did not elect to cancel the policy, and made no tender of unearned premium. The agreed fact was that the agent, who was a soliciting agent, knew of the foreclosure proceedings. His knowledge was not knowledge of the company. (Pettijohn v. Insurance Co., 100 Kan. 482, 164 Pac. 1096; Eikelberger v. Insurance Co., 105 Kan. 675, 189 Pac. 139.) So far as the agreed facts disclose, the first knowledge the company had of any of the events occurring after the policy was delivered was contained in the notice of loss and proof of loss sent to it in January, 1925. The policy was self-executing as to Gilmer, and not having notice of ground of forfeiture, the company was not required to elect to cancel and return premium. A contention that the company’s state agent waived forfeiture by a letter denying liability, is without merit.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for defendant. | [
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The opinion of the court was delivered by
Mason, J.;
This case involves the question whether under the law as it existed in Kansas until 1925 the annuitant is required to pay taxes upon a life annuity. Before that time the statutes relating to taxation made no express reference to annuities. In that year they were included in the list of intangibles covered by the term “credits,” which by another act of the same session were subjected to a tax of 25 cents on each $100 of value, and exempted from other taxation. (Laws 1925, ch. 278, § 1, ch. 277, § 2'.)
In 1919 G. R. Wellman, then 70 years of age, paid $1,000 to the Board of Foreign Missions of the Methodist Episcopal Church and received in return a written contract thus worded:
“Whereas, G. R. Wellman, of Burr Oak, Kan., has donated to, and paid into the treasury of, the Board of Foreign Missions of the Methodist Episcopal Church the sum of one thousand and no one-hundredths dollars, which is an executed gift to said Board of Foreign Missions and belongs to said board from this date absolutely.
“Now, therefore, the said Board of Foreign Missions of the Methodist Episcopal Church, in consideration thereof, hereby binds itself and its successors to pay to G. R. Wellman during his natural life an annuity of seventy and no-100 dollars passable in half-yearly installments on the last days of March and of September in each year. Upon the death of said G. R. Well-man this obligation shall be no longer binding, and said annuity shall cease; but the legal representatives of said annuitant shall be entitled to the portion of the semiannual installment for the time between the last payment to the annuitant and the date of said annuitant’s death.”
Later Wellman paid further amounts, receiving similar contracts, bringing the total he had given the board to $13,328, and the total he was to receive annually to $959.40. The taxing officers required Wellman to list these contracts for taxation for the years 1922 and 1923, the amounts charged against him for the two years being $528.21. He brought this action to enjoin the collection of the tax. The district court held the tax valid except in respect to the amount, which was found to be excessive, and an injunction was granted against the collection of more than $214.07. The plaintiff appeals on the ground that the contracts were not taxable, and that even if so the proceedings for arriving at the amount were unauthorized and rendered the tax invalid. Because of the conclusion reached by this court upon the first proposition it will not be necessary to consider the second. Of course the right to tax installments as they fall due is not questioned.
We hold that a life-annuity contract such as that here involved is not rendered taxable by a mere general provision of the statute requiring all property to be taxed, there being no express reference p to annuities by name or description and no indication of a specific method for determining their assessment value. Such a contract confers a valuable right and is in a sense property. But the right conferred is of an exceptional character. The contract is not one to pay money, except conditionally, and upon a condition which may never happen. A mere contingent liability is said not to be taxable. (26 R. C. L. 139; 37 Cyc. 784. See, also, 37 Cyc. 1016; Life Association v. Hill, 51 Kan. 636, 33 Pac. 300.) Nothing is due upon it and nothing is unconditionally owing upon it until the annuitant survives a definite period. It does not represent an investment in the usual sense. The ordinary investor, he of normal health and strength and self-confidence, is naturally reluctant to part finally with his money in exchange for a periodical return which he is likely to believe — perhaps mistakenly — to be no larger than he could by personal supervision cause it to earn while he retained the principal for the benefit of his heirs or legatees. The annuitant is usually one chiefly solicitous about means of support. The annuity contract is not one of insurance, but has something of that quality. Its main purpose is to insure against want and worry.
In the present case it is clear the arrangement out of which the contract grew was not an ordinary commercial transaction, and this is true with respect to the great mass of similar instruments issued by religious and educational institutions. Apparently the plaintiff wished the Methodist board to have the benefit of his accumulations, provision being made merely for his own maintenance during the relatively brief remainder of his life. The result sought has sometimes been attained, while the individual has been left clearly free from taxation by this means: He gives his property or money to the institution to be benefited, subject to the condition that it is to invest it and pay him the income, or a part of the income, derived from it during his life. The right to the future income of property has been regarded as not itself taxable, even under a statute taxing annuities, being like unaccrued rents in this respect. (Chisholm v. Shields, Treas., 67 Ohio St. 374. See, also, State v. Royal Mineral Ass’n, 132 Minn. 232.) In its practical effects the arrangement here involved is quite similar to an agreement to make periodical payments out of specified property. If the Methodist board pays taxes on the money received from the plaintiff, which it presumably does unless exempted by reason of its religious character, a payment by the plaintiff of taxes on what he is to receive as its proceeds in the future would amount to double taxation. This of course does not imply illegality, but the presumption is against such an interpretation of a statute as to permit it. The present contract, however, while similar in purpose and effect to one 'which charges an annual payment for life upon specific property, is not technically of that character. The board has become the full owner of the money paid by the plaintiff, and the plaintiff looks solely to its personal promise for the periodical payments.
Our statute contains these provisions:
“That all property in this state, real and personal, not expressly exempt therefrom, shall be subject to taxation in the manner prescribed by this act.” (R. S. 79-101.)
“. . . That the term ‘property,’ when used alone in this act, shall mean and include every kind of property subject to ownership. . . . The words ‘personal property,’ when used in this act in their general sense, shall include all taxable property other than real property, as hereinbefore defined. . . .” (R. S. 79-102.)
“. . . Personal property shall be valued at the usual selling price in money at the place where the same may be held; but if there be no selling price known to the person required to fix the value thereon, it shall be valued at such price as is believed could be obtained therefor in money at such time and place. . . .” (R. S. 79-501.)
A life-annuity contract is hardly to be regarded as the subject of barter and sale. The obligor would doubtless always be willing to pay something to be relieved from liability, and perhaps some one could always be found to pay the annuitant something for an assignment of it. Under a statute expressly or by clear implication requiring the taxing of annuities doubtless a method of valuation could be found, as by an inquiry concerning the charges made for issuing them, or a computation of present worth'on the theory the annuitant would live out his expectancy according to standard mortality tables and then die, with such variation as his state of health might indicate. We do not suggest that the operation of a statute really intended to tax annuities would be defeated for want of a means to fix its value, but omission to provide an appropriate method has its bearing in ascertaining whether such an intention exists. Obviously, however, a valuation based on averages would not afford any real indication of how much would ultimately be paid on a particular life annuity. The circumstance that prior to 1925 the tax statute neither named annuities nor made an appropriate provision for their valuation is entitled to weight in undertaking to ascertain the actual purpose of the legislature. The force of this consideration is greatly increased by the operative construction heretofore given to the statutes quoted, which have existed practically since the organization of the state. So far as we know the present case is the first instance of an attempt in Kansas to collect a tax on life-annuity contracts. It is true such instruments are now in wider use than formerly, but the device itself is not a new one, and if it were not generally understood that the rights of the beneficiary were not subject to taxation it is only reasonable to suppose efforts at collection would have been made.
A somewhat similar question might arise with reference to the taxability of life insurance policies issued by stock companies on which a number of payments have been made. Such policies are valuable to the owner. They are in a sense property. They have a surrender value as soon as any considerable payments have been made, but it is incidental and not the object of the contract. It is ordinarily salvage after the primary purpose has been abandoned. There is not a large literature of the subject, but what there is favors the nontaxability'view. (The State Board of Tax Commissioners et al. v. Holliday et al., 150 Ind. 216; Lamb v. Furnas County, 104 Neb. 402.) The attorneys-general of a number of states have rendered carefully considered opinions to the same effect. A fire insurance policy is property in the same sense. It has an actual value which is great and a surrender value which is not insignificant. Yet there is no indication of its having been regarded as taxable under our present statute.
In 1899 the Kansas legislature passed an act for the taxation (against the insured) of insurance policies — contracts insuring against loss by fire or otherwise — issued by companies not authorized to do business in Kansas. (Laws 1899, ch. 249.) It was held unconstitutional among other reasons because of discriminating unreasonably between different classes of companies. (In re Page, 60 Kan. 842, 58 Pac. 478.) It was said in the opinion, speaking of such policies:
“They have property value susceptible of measurement, and it was competent, therefore, for the legislature to treat them as property, as it did, and to make them subject to taxation.” (p. 845.)
We are not undertaking to decide now any question not involved in the present action, but it seems fair to infer from the passage of the act that such policies were not regarded by the legislature as taxable under the statutes as they had previously existed, and from the omission to enact any new law on the subject after this one had been held invalid that the legislature did not care to change the existing status.
So far as actual decisions are concerned there is little direct authority on the subject of the taxability of life annuities without an express statute. One case directly in point, decided in 1865, and followed in a number of later cases in the same state, holds upon grounds substantially the same as those already indicated, that under a statute making all property liable to taxation, the holder of a life-annuity contract can be taxed only upon the sum actually due and payable at the time of the assessment. (State, Howell, Pros’x, v. Cornell, 31 N. J. L. 374.) In 1 Cooley on Taxation, 3d ed., 647, the New Jersey cases are cited in a note,' accompanied by the statement: “Annuitants are only taxable in respect of sums which have become due and remain unpaid.” The corresponding text in the fourth edition reads: “Annuities are taxable as personal property, but only, at least in some states, in respect to sums which have become due and remain unpaid.” (Vol. 2, § 571.) The New Jersey cases are likewise cited in support of this statement: “An annuitant can be assessed only for the sum actually due and unpaid on the annuity at the time of the assessment, and cannot be taxed for the principal sum producing the annuity.” (2 A. & E. Encyc. of L., 2d ed., 392.) It has also been said: “In some states annuities are taxable whether created by will, settlement, or otherwise; but in others, where an annuity is charged upon land, it is not taxable in addition to the land itself.” (37 Cyc. 787.) In support of the first clause there are cited only the two earlier Ohio cases discussed below.
In Kentucky, under statutes like our own, a life annuity has been held taxable, but without citation of authority or discussion further than to say:.
“We are of the opinion that the appellant was correct in its contention. The appellee should have listed this obligation according to its present value for each year according to the life table. If she had retained her dower interest in the land, she would have been compelled to pay the taxes on it, and this obligation represented her interest therein.” (Commonwealth v. Nute, 115 Ky. 239, 243.)
The treasury department has made a regulation requiring an annuity, payable during the life of another person, to be valued as a part of the property of a decedent, on the basis of the mortality tables, for the purpose of measuring the federal estate tax. (Estate Tax Regulations 68,1924 edition, pp. 20, 21.)
In a number of cases life annuities are held taxable, but under statutes which expressly mention them in that connection. (Wetmore v. The State of Ohio, 18 Ohio 77; Chisholm v. Shields, Treasurer, 21 Ohio C. C. 231; Wilkin v. Co. Com’rs of Oklahoma County, 77 Okla. 88.)
The second of the two Ohio cases above cited was reversed by the supreme court in the case already'referred to as holding an annuity charged against specific property to be nontaxable, and in the opinion this was said of the first one — the Wetmore case:
“At this day it is impossible to determine all the considerations that may have influenced the court. Besides, the case seems to have been meagerly argued, and the controlling questions entirely overlooked.” (Chisholm v. Shields, Treas., 67 Ohio St. 374, 381.)
The Oklahoma case cites and quotes from the Ohio common plea's court case which was reversed. That consideration is of small moment, however, inasmuch as the Oklahoma case has no effect as an authority on the question here involved, for it did not deal with a life annuity, but with a contract to pay absolutely a stated sum in annual installments.
The judgment is reversed, with directions to grant the injunction. | [
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|
The opinion of the court w|as delivered by
Dawson, J.:
This appeal presents the question whether the sale of an undivided half interest in a partnership stock of merchandise by one partner to his fellow partner is governed by the bulk-sales act. Briefly, the facts were these:
For some time prior to October 1, 1922, E. B. Hopper and Elias Pfannensteil, defendant herein, were partners engaged in merchandising and owned and operated a mercantile store in Ness City. On that date defendant purchased the undivided half interest of Hopper for $4,000 in cash. Neither partner made any effort to comply with the provisions of the bulk-sales act, nor was any notice given touching the dissolution of the partnership except by oral information to some of the commercial travelers who supplied the partnership store with goods. Prior to October 1,1922, Hopper’s part of the work in conducting the business of the partnership was chiefly that of bookkeeper, for which service he had been drawing $125 per month from the business, and after the sale of his interest and retirement from the firm, Hopper served the defendant as an employee without change in the nature of his duties or in his monthly stipend.
On July 1, 1924, Hopper filed a voluntary petition in bankruptcy and was adjudged a bankrupt on the following day. His liabilities exceeded his assets; some of his creditors concerned in the outcome of this lawsuit were creditors of Hopper at the time of the sale of his undivided half interest in the store to defendant.
Plaintiff herein, the federal trustee in bankruptcy, made demand on- defendant for an accounting based on the assumed continuing interest of Hopper in the mercantile stock, so far as concerned his creditors, because of Hopper’s and defendant’s noncompliance with -the bulk-sales act. The demand being resisted, this action was begun. Plaintiff’s petition, filed January 15, 1925, recited the foregoing facts, invoked his rights under the bulk-sales act as official representative of Hopper’s creditors, and prayed for legal and equitable relief.
Defendant’s answer contained a general denial, and pleaded his purchase of Hopper’s interest in the partnership stock of goods for a valuable consideration on October 1, 1922, and his subsequent exclusive ownership thereof.
At the trial the matters leading to the decisive question of law involved herein were developed by stipulation and without material dispute. The court made findings of fact as outlined above, and found that the value of Hopper’s interest in the store at the time of its sale to defendant was $3,000, and gave judgment in favor of plaintiff for that sum.
Defendant appeals, urging various errors, the chief of which raises the question whether the sale of Hopper’s undivided half interest in the stock of merchandise to his fellow partner was void as against plaintiff and the creditors of Hopper whose interests he represents because it was not made in conformity with the provisions of the bulk-sales statute, which reads:
“R. S. 58-101. The sale or disposal of any part or the whole of a stock of merchandise or the fixtures pertaining thereto, otherwise than in the ordinary course of his trade or business, shall be void as against the creditors of the seller, unless the purchaser receives from the seller a list of names and addresses of the creditors of the seller certified by the seller under oath to be a complete and accurate list of his creditors and unless the purchaser shall, at least seven days before taking possession of the property, or before paying therefor, notify in person or' by registered mail, every creditor whose name and address is stated in said list, or of whom he has knowledge of the proposed sale.”
The precise question requiring present solution is new in this state. The cases in other jurisdictions involving the point are not numerous, nor are they quite harmonious. By our statute a bulk sale “of any portion or the whole of a stock of merchandise” in disregard of the statutory regulations is unqualifiedly void as against the creditors of the seller. (Coleman, Trustee, v. Costello, 115 Kan. 463, 223 Pac. 289.) In this respect our statute is typical of the general run, although in Coleman, Trustee, v. Costello, supra, we noted that the Iowa statute merely declares that bulk sales made in violation of that statute are presumptively fraudulent; and the supreme court of West Virginia, in Marlow v. Ringer, 79 W. Va. 568, L. R. A. 1917D, 619, notes that the bulk-sales laws of Idaho, Oklahoma and Oregon are to the same effect. Some of the state courts have also declared that such acts are in derogation of the common law and therefore to be strictly construed (Yancey et al. v. Lamar-Ranlkin Drug Co., 140 Ga. 359) which would be no excuse for such interpretation under our code (R. S. 60-102), and we have repeatedly said the statute is remedial and therefore to be liberally construed to promote its object and to assist the litigants in obtaining justice. (Kemmerle v. Wilson, 110 Kan. 247, 203 Pac. 297.)
Among cases analogous to the one here presented was that of Daly v. Drug Co., 127 Tenn. 412, Ann. Cas. 1914 B 1101, where one Anderson, a druggist, sold a half interest in his business to one Elledge without complying with the bulk-sales statute of Tennessee. Anderson was heavily indebted but informed Elledge that his debts were relatively small and that he, Anderson, would pay them individually. Later, creditors of Anderson made their appearance and demanded payment of their claims. Elledge disclaimed all obligation and said he would resist all such claims in court. Soon after-wards Anderson died and Anderson’s creditors sued Elledge to hold him liable for the value of goods to the extent of the interest he had acquired from Anderson. The trial court nonsuited certain of the plaintiff creditors, and they appealed. The supreme court reversed the judgment, and delivered an instructive opinion, from which we quote :
“We are of the opinion that the case before us falls within the terms of the act. The language of the act is: ‘A sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade in the regular and Usual prosecution of the seller’s business, or a sale of an entire stock of merchandise in bulk, shall be presumed to be fraudulent and void as against the creditors of the seller, unless,’ etc. A half interest is a portion of the stock. We do not think the act means that it must be a distinct portion or part severed from the whole stock. The sale of a half interest by a merchant for the purpose of taking the vendee into partnership is within the purpose and reason of the act, since it very materially changes the relation of the vendor’s creditors to the stock, if such sale be valid. Before the sale a creditor could levy upon the whole stock. After the sale, if valid, the creditor of such vendor could not levy upon any of the stock, but only upon the vendor’s interest in the whole, and in order to obtain this he would have to file a bill in equity and have an accounting with the new partner. So the former owner of the stock might admit three new persons into the business, and so reduce his own holding to a one-fourth interest, and so on as to smaller fractions — at the same time putting the proceeds into his own pocket and holding them beyond the reach of his creditors.” (p. 421.)
In Marlow v. Ringer, supra, the supreme court of .West Virginia held that the transfer by a retail grocery merchant of a half interest in his business and stock of goods to another, in consideration of such other person placing in the store a quantity of goods equal in value to the stock then owned by the merchant, with a view to the formation of a copartnership to continue the business at the same location, constituted a sale of merchandise in bulk, otherwise than in the ordinary course of the seller’s trade or business, and was void in toto as against the creditors of the merchant because of noncompliance with the bulk-sales law:
On the other hand, in Taylor v. Folds, 2 Ga. App. 453, it was held that a sale by one partner of an interest in a partnership bakery business to his two associates was not void although there had been no attempt of the vendor or vendees to conform to the provisions of the bulk-sales act. The court said:
“A sale by one partner of his interest in a mercantile business to his other partners is not within the letter of the act; and the courts will not by construction give the act such an extension as to include it.” (p. 454.)
In Yancey et al. v. Lamar-Rankin Drug Co. 140 Ga. 359, the supreme court similarly held:
“The act is in derogation of the common law, and of the right to alienate property without resolution; and is therefore to be strictly construed. Cooney v. Sweat, 133 Ga. 511, (66 S.E. 257, 25 L.R.A., n. s., 758).
“So construed, the provisions of the act did not apply to a transaction whereby a copartnership composed of two persons engaged in a grocery business sold a two-thirds interest in their stock of goods to two other persons; whereupon one of the original partners retired from the firm, and the same business was thereafter conducted in the name of a new firm, composed of the remaining original partner and the two purchasers. Such transaction did not fall within either of the classes set forth in the first headnote. While it may have been out of the usual and ordinary course of business or trade, it was not a sale or transfer of a stock of goods, wares, or merchandise. See Stovall Co. v. Shephard Co., 10 Ga. App. 498 (73 S. E. 761); Fairfield Shoe Co. v. Olds, 176 Ind. 526 (96 N. E. 592), holding that the provisions of the ‘sale-in-bulk’ law do not apply to a sale by a partner of his interest in a stock of merchandise to his copartner.” (Syl. HIT 2, 3.)
The Georgia statute is not literally so all-inclusive in its terms as ours. It does not specifically declare, as in R. S. 58-101, that “the sale or disposal of any part” of a stock of merchandise otherwise than in the ordinary course of business shall be void unless made in conformity with the Georgia statute. (2 Park’s Ann.. Code of Ga. 1914, §§ 3226-3229.)
In the later case of Virginia-Carolina Chemical Co. v. Bouchelle, 12 Ga. App. 661, 78 S. E. 51, where the owner of a stock of merchandise sold a half interest therein to another and took the latter into partnership with him and later sold his other half interest in the business to that partner, the Georgia court of appeals held that the sale was void as against the creditors of the seller since it was made without complying with the bulk-sales' act. The court referred to its earlier decision of Taylor v. Folds, supra, and said:
“We are unwilling, however, to extend the principle of that decision so far as to include a case like the present, for to do so would practically nullify the sales-in-bullc act and defeat the very purpose which the general assembly had in mind, namely, to protect persons who had extended credit to a merchant on the faith of apparent prosperity indicated by a stock of goods which would be sold out gradually and replenished from time to time.” (p.662.)
In Fairfield Shoe Co. v. Olds, 176 Ind. 526, where the Indiana statute is substantially like our own in its declaration that “the sale, transfer or assignment in bulk, of any part or the whole of a stock of merchandise otherwise than in the usual course of trade,” etc., “shall be void as against creditors of the seller unless” (p. 529.), etc., the court held that a sale by one partner of his interest in a stock of goods to his fellow partner was not governed by the bulk sales act.
In Maskell v. Spokane Cycle & Auto Supply Co., 100 Wash. 16, L. R. A. 1918C, 929, it was held that a sale and transfer of a stock in trade to a corporation organized to take over the business, the consideration being its capital stock, was not within the requirements of the bulk-sales law. The court said:
“We have held that the object of the bulk-sales law was to prevent the vendor, usually a retail merchant, from selling his stock of goods, pocketing the proceeds, and leaving his creditors remediless (McAvoy v. Jennings, 44 Wash. 79, 87 Pac. 53; Kasper v. Spokane Merchants Asso. 87 Wash. 447, 151 Pac. 800), and in the latter case that no such result followed where the property was so disposed of as to make it available to the creditors, and hence, the reason for the rule failing, the rule itself failed.” (p. 20. See, also, 27 C. J. 882, and 4 L. R. A. Dig. 4709 et seq.)
Our time will not permit us to range further afield in search of analogous decisions bearing on this question; but the cases we have noted are sufficient to show that either view can be supported by-respectable authority; and we must adopt that view which preferably commends itself to our own notions of justice. The words of the statute, “Any part or the whole of a stock of merchandise,” refer to the physical things constituting the stock, and not to the group of interests in the things which constitute property in the true sense. Sale of part of a stock involves severance of some of the things from the others; and sale of the whole involves disposition of all the things in a bulk, without severance of part of them. Sale by one partner to another of his half interest in a stock of merchandise is not a sale of either a part or the whole of the goods, in the sense indicated. There is no segregation of a part, and the selling partner neither owns nor sells the whole. Under the statute, sale involves delivery in the sense of physical change of possession. The purchaser must give notice to creditors at least seven days “before taking possession,” and the whole effect of the statute depends on this notice. Personal creditors of a partner may not look directly to partnership goods. The statute involves taking possession by one who is a stranger to the relation of debtor and creditor as it affects privilege to appropriate the goods.
The evil sought to be remedied by the bulk-sales law is this: Without such a law a retailer who has purchased his stock largely on credit may sell it .for cash, put the proceeds in his pocket and walk off, leaving the wholesaler from whom it was bought without remedy against it, the new purchaser having a perfect title. It is impracticable for the wholesaler to protect himself by taking a chattel mortgage. It is unconscionable that he should be subjected to the wrong of having the goods he has sold on time, and to which he has a moral right to look for payment, put wholly beyond his reach in this manner. But a sale made by one partner to another does not expose the wholesaler to that hardship. It in no way impairs his remedy and is not within the purpose and meaning of the bulk-sales act.
Under such a sale as that of Hopper to his partner the stock of merchandise was not physically disturbed, neither the actual nor the legal possession being changed thereby (the purchasing partner prior to its sale having had virtually the same all-inclusive posses sion of the whole stock of goods as he did after its purchase), and the stock of goods after the sale of Hopper’s undivided half interest being just as accessible to the creditors for the satisfaction of their claims for credits extended on account of the partnership, as prior thereto, this court adopts the view that the sale of Hopper’s undivided half interest in the Ness City store to his partner, Pfannensteil, in 1922, was not the sort of sale or disposal of a part of a stock of merchandise otherwise than in the ordinary course of trade the legislature by its enactment of the statute intended to regulate and govern for the protection of creditors.
This conclusion renders it needless to consider'other errors assigned and argued by appellant.
The judgment is reversed with instructions to enter judgment for defendant.
Johnston, C. J., dissenting. | [
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|
The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on a promissory note. Plaintiff prevailed and defendant appeals.
The note was executed under an agreement which reads:
“This mutual agreement entered into on this 30th day of December, 1920, by and between the parties whose signatures are affixed hereto and hereinafter called the signers, Witnesseth: Whereas, the Farmers Equity Cooperative of Dresden, Kan., has sustained a financial loss which has impaired its capital; and whereas, the signers hereto are each and severally the owners of a share of the capital stock, and as members of said association are desirous of restoring the capital of said association; and whereas, certain members of said association have signed and delivered to the said association their certain promissory notes of even date herewith payable one year from date with interest at 8 per cent per annum from date until paid, said promissory notes aggregating and totaling the sum of ten thousand (10,000) dollars; and whereas, the signers hereto as said owners of said capital stock are desirous of having said association continue in operation, and as members and stockholders of said association will be entitled to certain patronage and stock dividends.- It is hereby mutually agreed by and between the signers hereto as follows, to wit: That all of said patronage and stock dividends as above mentioned which shall become due and payable to the signers hereof after the 1st day of June, 1920, in accordance with the articles of incorporation and by-laws of said association, are hereby assigned to and said association is hereby authorized to pay said patronage and stock dividends to the trustee hereinafter named for the purposes hereinafter set forth; that said trustee shall immediately upon receipt of said patronage and stock dividends from said association, apply said sum or sums so received to the payment of said promissory notes and interest hereinbefore mentioned, said payments to be made and indorsed on the back of each note in the same proportion that the face value of each note bears to the aggregate face value of all the notes covered by this agreement so that all of said notes shall be paid, canceled and returned to the makers thereof on the same date; that Oris Hubbard is hereby appointed trustee under the terms of this agreement and for the purposes herein set forth; that this agreement shall remain in full force and effect and be binding upon the signers hereof until all of the notes, above mentioned, together with the interest due thereon shall be fully paid.
"Witness our hands,” etc.
The note reads:
“$100.00 Dresden, Kan., December 30, 1920.
“One year after date, I, we, or either of us, promise to pay to The Farmers Equity Cooperative Association, one hundred dollars, payable at the First State Bank of Dresden, Kan., with interest from date until paid at the rate of 8 per cent per annum. Interest payable annually, and if not so paid to draw interest at the same rate. The makers, indorsers and sureties, guarantors and assignors of this note severally waive demand, presentment for payment, protest and notice of protest and of nonpayment, and agree and consent that, after maturity the time for its payment may be extended from time to time by agreement between the holder and any of them, without notice, and that after each extension or extensions the liability of all parties shall remain as if no extension had been made.”
There was evidence that a note was executed to the bank for which the note in controversy and others were given as collateral; that when the note to the bank was paid the note in controversy was returned to the plaintiff, and that it has been in the possession of plaintiff at all times since, that the “Equity” was in debt and the note was given “to help put it over the bad places.”
The defendant submitted evidence supporting his claim that there was no consideration for the note. With the evidence conflicting, the jury found for the plaintiff. The court approved the verdict, overruled a motion for a new trial, and rendered judgment for plaintiff.
The question is, Was the instrument sued on an accommodation note or one executed for a valuable consideration?
The defendant contends that the court erred in admitting the agreement between the members of the Equity Union. We think not. Both were a part of the same transaction and are to be construed together.
“It is elementary that, when separate writings are executed by the same parties at the same time, in the course of and as parts of the same transaction, and intend to accomplish the same general object, they are to be construed as one and the same instrument. In accordance with this principle, notes and contemporaneous written agreements executed as part of the same transaction will be construed together as forming one contract in a controversy between the original parties to the instrument, and persons standing in their situation are chargeable with notice of the contemporary instruments.” (8 C. J. 196. See, also, Sutton v. Beckwith, 68 Mich. 303; Davis v. Brown, 94 U. S. 423, 24 L. Ed. 204.)
The agreement recites that the signers are owners of the capital stock of the plaintiff and desire to restore its capital and are desirous of having the association continue in operation; that they are entitled to patronage or stock dividends, and such dividends are assigned in order that they may be applied to the payment of the promissory notes and interest, and to be indorsed on the back of each note. That the agreement shall remain in full force and effect and be binding upon the signers until all the notes, together with the interest due thereon, shall be fully paid. The stipulations of the agreement are not repugnant to those of the note. The contents of the note indicate it was to be paid at maturity. No conditions are attached. The agreement provided a method of how the notes might be paid — that is, out of dividends. However, there ■were no dividends since the execution .of the notes. The agreement provided the notes should be fully paid. The board of directors or managers of the plaintiff had the hope that dividends would pay the notes, but there is nothing in the note or agreement to the effect that the note should not be paid if dividends were not sufficient. The note on its face imported a consideration. Provisions of the agreement were not contradictory but were in accordance therewith. The purpose or provision in the agreement regarding dividends was that all dividends were to be applied pro rata on all the notes, so that if the maker of any note did not have a dividend due him by reason of the business he did with the plaintiff, he would nevertheless receive a share of the profits or dividends to be applied on his note, while the maker of a note who had a large dividend due him by reason of his business or patronage with the plaintiff, would hot receive all that dividend as credit on his note, but would prorate it with makers of notes who had a small or no dividend.
A sufficient definition of consideration is:
“A benefit to the party promising, or a loss or detriment to the party to whom the promise is made.” (13 C. J. 311.)
“Bills and notes, like other contracts, are not limited as to kind or amount of the consideration necessary, but any benefit, profit, or advantage to the promisor, or any loss, detriment, or inconvenience to the promisee, is sufficient to support the promise contained in these instruments.” (8 C. J. 212.)
“It may be laid down as a general rule, in accordance with the definition given above, that there is a sufficient consideration for a promise if there is any benefit to the promisor or any loss or detriment to the promisee.” (13 C. J. 315.)
“It is not essential that the consideration shall flow direct from one party to the other, but there must be some benefit flowing to the obligor which he would not have received but for the contract. It has even been held that such benefit flowing to a third party was a.sufficient consideration for a promise.” (Reavis v. Reavis, 247 S. W. 217, 219 [Mo. App.]. See, also, Cosmopolitan Trust Co. v. Cirace, 248 Mass. 98, 142 N. E. 914; Peoples State Bank v. Hunter, 216 Mo. App. 334, 264 S. W. 54.)
The defendant was a stockholder in the' plaintiff association and interested in its welfare and progress. He was interested in seeing that its business was carried on. The execution by the other stockholders of their notes for the benefit of and to aid the company in which the’defendant was interested was a valuable consideration for the execution of his note.
Other objections have been considered but we find no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on a beneficiary certificate issued by defendant to plaintiff’s husband. The plaintiff prevailed and defendant appeals.
The facts are briefly these: Plaintiff’s husband applied for membership in the defendant society November 16, 1923, at which time he was examined by the society’s medical examiner, Dr. C. M. Montee, of Pittsburg. The application, together with the medical examiner’s report, was sent to the home office of the society and beneficiary certificate issued thereon November 20, 1923. About the middle of December following deceased contracted influenza and pneumonia and was told that he was suffering from heart trouble. He died March 8,1924, cause of death being given as “endocarditis,” or “organic heart disease.”
The controversy was one of fact. The defendant contends that answers of the deceased to certain questions in his application were not full, true and complete as warranted by him. The questions and answers over which the controversy arises were:
“Q. Has any physician ever given an unfavorable opinion upon your life or health? A. No.
“Q. Have you ever suffered from any ailment or disease of the heart? A. No.”
Substantially and in brief the testimony was as follows:
Doctor Eayne, who attended deceased in his last illness, testified that he examined him in March, 1924, at which time the patient was suffering from heart disease; that he also attended him in December, 1923, and found that he had a bad heart and pneumonia. (Application made and questions answered November 16, 1923.) Doctor Moberg testified that he examined insured for insurance and found a bad heart murmur, but on cross-examination was unable to recall in what year or month this examination was made, but that it was in the summer time because the garage was wide open. Mrs. Ray, wife of the insured, testified that the doors of the garage (operated by the insured) were kept wide open all the time except in case of a severe storm. Doctor Smith testified that he made a physical examination of insured in June, 1922, and found he had heart trouble, for which he treated him for about one year, and in the presence of his wife told him to take care of his heart. The plaintiff testified that she remembered the occasion of Doctor Smith treating her husband in June, 1922, for a very bad ulcer of the stomach; that at that time Doctor Smith made no statement in her presence of her husband having had heart trouble; that she took care of her husband for a year and a half, and that she was always present when Doctor Smith came to the house when her husband was ill; that Doctor Smith had him in the hospital for the flu and pneumonia in January, 1923; that she was present at that time, and Doctor Smith did not say in her presence that he was suffering from any heart trouble; that he treated him in December, 1923, and at that time said he had developed a slight heart murmur because of the flu and would have to stay in bed for a time; that her husband recovered from that spell. There is also testimony to the effect that Doctor Smith and deceased had had considerable trouble over an- automobile repair bill. Doctor Montee, examining physician for the society, testified that at the time he examined insured (November 16,1923) his heart appeared to be all-right; that cases of influenza and pneumonia can develop heart trouble, and that it might develop in three or four days. Doctor Dudley, who made a physical examination of the insured in March, 1923, testified that he found nothing abnormal in his heart; no chronic heart trouble nor any illness or disease of the heart.
Various authorities cited by the parties need not be analyzed. The controversy in our opinion turned on disputed questions of fact which were resolved by the jury in favor of the plaintiff. There was sufficient testimony to sustain the verdict and judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action, an opinion was filed December 11, 1926, Guilick v. City of Cherryvale, 122 Kan. 210, 252 Pac. 905. The court there said:
“The plaintiffs say that this statute has been construed by this court tc? apply to cities of the second class, and that the" following language taken from, Warner v. City of Independence, 121 Kan. 551, 557, supports their contention:
“ 'Specifications must be framed to permit free and full competition, and that the public officials, after selecting the lowest and most responsible bidder, may not enter into a contract with him by yielding substantial concessions beneficial to him which were not included in or contemplated in the terms and specifications upon which bids were invited.’
“That case concerned a city of the first class operating under a statute which requires cities, acting in conjunction with the board of county commissioners of the county, in improving streets and public roads to advertise for bids for the work to be done and to let the contract to the lowest responsible bidder. (R. S. 12-651.)” (p.211.)
. A motion for rehearing has been filed by the plaintiff in which attention is called to the statement contained in the former opinion that Independence is a city of the first class. Independence is a city of the second class. The court was in error when it stated that Independence is a city of the first class. Does that error necessitate a different conclusion in this case? All that the court said in Warner v. City of Independence, supra, may be given full effect, and no change in the conclusion reached in the present case is thereby made necessary. There is no statute requiring “cities of the second class to advertise for bids or to let contracts for street improvements on competitive bidding, or to the lowest responsible bidder.”
Attention has been given to all matters presented in the motion for rehearing, and it is denied. | [
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The opinion of the court was delivered by
Mason, J.:
The Hartford Accident and Indemnity Company executed to the First National Bank of Lewis, Kan., a bond effective January 1, 1919, for $10,000, indemnifying it against loss by embezzlement of its cashier, and a like bond for $5,000 in the case of its assistant cashier. The cashier was guilty of embezzlements from time to time, beginning December 7, 1920, none of which, however, was discovered until March 5, 1924. They amounted in the aggregate to over $21,000. The assistant cashier embezzled sums beginning in April, 1923, discovered May 8, 1924, and amounting to $600.69. The bank brought this action upon the bonds and recovered judgment for $10,600.69 and interest thereon, from which the defendant appeals.
1. The principal contention of the defendant is that by the terms of the bond it was not liable with respect to any embezzlement occurring prior to the year in which the bond was terminated unless a claim based upon it were made before the expiration of the first three months of the calendar year succeeding that in which it occurred. The plaintiff contends that- it had the option to make the claim within the period just indicated, or within three months after the discovery of the embezzlement. The decision of this question turns upon the interpretation of these provisions of the cashier’s bond, the language of the assistant’s bond being the same except as • to names and amounts:
“The Hartford Accident and Indemnity Company (hereinafter called the surety), in consideration of an agreed premium, binds itself to pay to the First National Bank (hereinafter called the employer), within sixty (60) days after satisfactory proof thereof, such pecuniary loss, not exceeding ten thousand ($10,000) dollars, which the employer shall have sustained of money or other personal property (including money or other personal property for which the employer is responsible) through larceny or embezzlement committed by Lorenzo Pleasant Weaver (hereinafter called employee) as cashier in the service of the employer, at Lewis, Kan., after the 1st day of January, 1919, and before the. termination of this bond by the dismissal or retirement of the employee from the service of the employer, by the discovery of loss hereunder, or by cancellation by the employer or the surety.
“The foregoing is subject to the following conditions, which shall be conditions precedent to any recovery hereunder:
“7th. Any claim hereunder must be made within three.(3) months after the termination of this bond or within three (3) months after the date of expira tion of each and every period of twelve months from the date hereof, during the continuance of this bond, as to the acts or defaults of the employee committed during any such period of twelve (12) months.”
The plaintiff contends that in the situation presented the policy expressly gives it an alternative with respect to the time of making a claim-J-either to make it within three months from the discovery of an embezzlement, which automatically terminated the bond, or to make it before the expiration of the first three months of the year in which the embezzlement occurred for which indemnity is sought. The defendant urges that such an interpretation renders the second alternative nugatory, inasmuch as the bond terminates when an embezzlement is discovered and there would be no room to apply the second clause. That, however, is itself a matter of interpretation. The plaintiff is clearly right in saying that the clause preceding the word “or” in the paragraph designated as 7th, considered by itself, expressly allows a claim to be made within three months after the discovery of the embezzlement. If the clause that follows is inconsistent with that meaning, occasion arises for finding an interpretation of one part of the paragraph or the other such as to effect a reconciliation. One construction that seems open is to regard the words “every period of twelve months from the date hereof, during the continuance of this bond” as including a year during which the bond was at any time in force, although terminated before its end by the discovery of an embezzlement. The effect of this reading would be that a claim under the bond might be made .within three months from the discovery of any embezzlement, or if that were not done the plaintiff would still have three months from the end of the year to assert its demand, upon any defaults that had occurred during the year.
At all events, inasmuch as the bond in plain terms offers the insured an option as to time of making a claim, the rule requiring ambiguous language in a policy to be construed against the insurer justifies the plaintiff in relying upon that portion of the paragraph in question notwithstanding any difficulty in giving effect to the rest. Moreover, since of course a claim could not be made under the bond until a default has‘been discovered, it seems fair to lean away from a construction which fixes a time for making a claim before such discovery. Doubtless the purpose of such a provision, as it is construed by the defendant, would be to provide that there should be no liability for any embezzlement not discovered within three months of the end of the year in which it occurred; but to express this idea by a limitation on the time within which a claim must be made tends in itself to some obscurity.
In the defendant’s brief it was said:
“It will be observed from the above quotations from the bond that the Hartford Accident and Indemnity Company agreed to reimburse the bank for such pecuniary loss as it might sustain from the embezzlement of Weaver as its cashier after the first day of January, 1919, and before the termination of the bond by dismissal or retirement of Weaver by discovery of loss or by cancellation. Had the bond ended here there would be no ground, of course, for the contention that the appellant is not liable for losses which occurred before January 1, 1923, but the above provisions of the bond are limited by the following statement: ‘The foregoing is subject to the following conditions, which shall be conditions precedent to any recovery hereunder.’ Among the conditions which follow are the conditions set forth in the seventh paragraph or cut-off clause. Reading all of the clauses of the bond together, it becomes a condition precedent to recovery that any claim under the bond must be made within three months after the date of the expiration of each and every twelve-months period during which the bond is in force as to acts or defaults of the employee committed during any such period of twelve months, or, in case the default occurs during the last twelve months during which the bond is in force, within three months after the termination of the bond.”
In the last clause of this quotation the phrase “during the last twelve months during which the bond is in force” seems to be used to designate the year in which the default occurs, a meaning the same as that we have suggested may be given to the words of the bond — “every period of twelve months from the date hereof, during the continuance of this bond.”
The defendant’s brief says further on the matter of interpretation:
“The provision for making a claim within three months after the termination of the bond refers to the termination of the bond by the death, dismissal, or retirement of the employee, or by agreement of the parties, and also to the making of a claim for defaults occurring during the elapsed part of the twelvemonths period during which such default is discovered. As to losses occurring during such current twelve-months period, the claim must be made within three months after the termination of the bond by discovery of the loss. As to losses occurring during the immediately previous twelve-months period, the claim must be made within three months after the expiration of such period. Further back than this, all claims are cut off.”
This interpretation might be acceptable were it not for the rule that obscurities and ambiguities are to be construed against the in surer. If the draftsman, when the form of policy was prepared, had in mind what the defendant now urges it certainly would not have been difficult to select language that would have made that purpose clear beyond controversy. We do not question the validity of the contract if interpreted as the defendant asks, but we cannot accept the interpretation.
2. The defendant cites a text to the effect that generally the renewal of a fidelity policy or bond constitutes a separate and distinct contract for the period of time covered by such renewal. (25 C. J. 1109.) The policy in this case, however, seems quite clearly to be a continuing one, requiring no renewal, and running not to any specific time, but indefinitely, until terminated by dismissal or retirement of the employee, the discovery of a loss, or cancellation by one of the parties. The fact of the bond running continuously from January 1, 1919, may have been a feature having the natural effect of making it exceptionally attractive. If so there is the greater reason to avoid a construction which, in the guise of fixing the time for making a demand under it, would in effect confine its protection to embezzlements discovered within a period varying from fifteen months to three months from their commission.
. 3. It was shown that another bonding company had insured the fidelity of the cashier and assistant cashier and had paid the plaintiff $7,258.71 on account thereof. The defendant relies on this fact as to that extent constituting a bar to a further recovery. The payment of the other company is not material here, for the items composing it are not necessary to make up the amount for which judgment was rendered in this action, and as we hold the plaintiff entitled to recover losses from the time the bond took effect, the total loss was over $21,000, being more than the amount of both bonds.
4. The defendant further claims that some of the items embezzled by the cashier were of funds intrusted to him personally for investment, for which the insurer of his fidelity as an officer of the bank was not liable. The cashier in his testimony referred to some of the embezzled money as having been given him personally to invest for the owners. He also said, however, “I mean those parties dealt with me personally. That was through the bank because I was cashier of the bank and they handed it to me for the bank to take care of, but they gave it to me personally to invest for them.” There was other testimony tending to show that he was acting as cashier in the transaction, and whether that was the case in view of all the evidence was a question for the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to set aside a deed to Jennie M. Stevens and to subject the real estate therein described to the lien of a judgment obtained by plaintiff against Chester H. and Curtis D. Stevens. A demurrer to plaintiff’s petition was sustained, and she appeals.
The petition alleged in substance that August 1, 1917, plaintiff was the owner of certain lands in Carter county, Missouri, which she agreed to exchange for certain Oklahoma property belonging to defendants Chester H. and Curtis D. Stevens; that after the exchange was made, plaintiff discovered certain false representations had been made to her as to the value of the Oklahoma property; that she brought suit in Carter county, Missouri, where on October 28, 1920, she recovered judgment for $2,000; that on October 21, 1921, following, she filed an action against the same defendants in Labette county, Kansas, in which, on December 28, 1921, she recovered judgment for $2,441.85; that this judgment was based on the one rendered in Carter county, Missouri; that execution was issued on the Labette county judgment and returned unsatisfied; that from the proceeds of the Carter county, Missouri, land, defendants purchased property in Labette county, Kansas, caused title to be taken in the name of Jennie M. Stevens, deed being recorded July 29, 1920; that defendants were at all times insolvent. This action was brought by plaintiff December 28, 1923, to subject the lot in question to the lien of the judgment.
Defendants demurred on the ground that the plaintiff was barred by the statute of limitations and because of lack of diligence in prosecuting her suit.
The defendants-contend that there being no allegation in the petition as to when plaintiff discovered the fraud, it is presumed that it was discovered at the date of the recording of the deed (July 29, 1920), and that therefore the action was barred by the two-year statute of limitations.
The statute of limitations does not commence to run against a cause of action until the accrual thereof, and the accrual of the cause of action means, of course, the right to institute and maintain an action for its enforcement. (Young v. Buck, 97 Kan. 39, 154 Pac. 213, on rehearing, 97 Kan. 195, 154 Pac. 1010; Hardware Co. v. Semke, 105 Kan. 628, 185 Pac. 732; 37 C. J. 810.)
Plaintiff’s cause of action did not accrue until her claim or demand was reduced to judgment, execution issued thereon to the proper officer and returned nulia bona, or a showing of insolvency on the part of the judgment debtors. (Tennent v. Battey, 18 Kan. 324; Bank v. Chatten, 59 Kan. 303, 52 Pac. 893; Young v. Buck, supra; Bank v. Ternes, 110 Kan. 475, 204 Pac. 699.) And by the weight of authority which we prefer to follow, the judgment must be rendered in this state. (15 C. J. 1394; 8 R. C. L. 22.) Applying the allegations of the petition to the cited authorities, they were, in our opinion, sufficient to avoid the statute of limitations and a lack of diligence on the part of plaintiff.
The judgment is reversed and the cause remanded with instructions to overrule the demurrer. | [
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The opinion of the court was delivered by
Mason, J.:
John H. Riddle sued the Higley Motor Company on account of personal injury claimed to have been caused by the negligence of one of its truck drivers. The defendant among other matters alleged in its answer as a separate defense that at the time the plaintiff claimed to have been injured he was in the employ of the Wyandotte County Gas Company; that he made a claim under the workmen’s compensation act against that company on account of the same injury; that the claim was adjusted by an agreement between himself and the company by which he received $900 in full settlement; and that by reason thereof he was precluded from maintaining the action against the defendant. A demurrer to this part of the answer was sustained, and this appeal is taken from that ruling.
The case is controlled, and an affirmance is required, by the decision in Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784. There a similar defense in an action for damages for negligently causing a death was held to be demurrable. The plaintiff had received money upon the basis of the compensation act,’ but under an agreement with the employer and an insurer that it should be returned if recovery was had against the defendant, but should be credited on the claim for compensation if the employer should be held liable therefor. It was specifically recited in the agreement that the plaintiff did not thereby intend to accept compensation under the statute. A distinction between that case and this mightr be made on account of the terms of this contract, were it not for the fact that in arriving at the decision the court expressly and specifically treated the transaction to which it related as in effect a settlement between the employer and employee under the compensation act. In the opinion it was said:
“When the employer and the one entitled to compensation agree upon the amount to be paid and the time of its payment, there is no necessity for court proceedings. Here the employer and his insurer agreed to pay the maximum amount for a death claim under the compensation act, and to pay it in substantial conformity to the requirements of the act, and under that agreement the insurer has paid, and plaintiff has received, a substantial sum. It is difficult to say this was not in effect a settlement under the compensation act, and since" defendant desires it to be so treated, we shall, for the purpose of this decision, so regard it. But the question still remains, Why should that concern the defendant in this case any more than the amount of property plaintiff inherited from her husband at the time of his death, or the amount of life, health or accident insurance he left her? If defendant’s negligence was the cause of the death of plaintiff’s husband, defendant is liable to plaintiff in damages. That is the issue for trial in this case, and the court does not have before it other property rights of the plaintiff. After a judgment is obtained by plaintiff against defendant in this case — if one be obtained — and defendant is ready to pay the judgment, then it will be proper for defendant to inquire if Hamilton [the employer] or his insurer is entitled to the money, but until that time defendant has no concern with the contract of employment between plaintiff’s husband and his employer, nor with the contract pleaded.” (p. 258.)
In the portion of the opinion preceding this quotation the bearing of the statutes and of earlier cases are fully discussed. The sustaining in the present case of the demurrer to the part of the defendant’s answer relating to the settlement of the claim against the employer accords with the prior decision and results in no injustice. The plaintiff can as the result of a judgment in his favor herein receive and retain no more than he is entitled to — the amount of damage he is found to have suffered by the fault of the defendant. The defendant will be required to pay no more than he is liable for on this account. And the employer, whose liability is not based on fault, can receive no more than reimbursement for the payment of the liability imposed upon it by the statute. As said in the part of the opinion quoted, until a judgment is rendered against the defendant which he is ready to pay he has no concern with the arrangement between the plaintiff and the employer.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, by mandamus, seeks to compel the board of county commissioners of Kingman county to pay the tuition of high-school pupils who resided in Kingman county and who attended the high school in the plaintiff high-school district in Sedgwick county. Both counties were operating under the Barnes high-school law.
1. The petition states facts which bring the case completely within the rule declared in Byers Rural High School v. Stafford County Comm’rs, 121 Kan. 832, so far as the liability of Kingman county to the plaintiff district is concerned. No good purpose will be served by stating in detail the facts in this case. The rule of law declared in Byers Rural High School v. Stafford County, supra, is adhered to and followed.
2. The defendant has filed a motion to quash the alternative writ of mandamus, one ground of which is that inasmuch as the action is one to recover money, the plaintiff has an adequate remedy at law and mandamus will not lie. The action is one for the recovery of money. Payment has been refused. Payment cannot be compelled by mandamus. (Oberhelman v. Larimer, 110 Kan. 587, 204 Pac. 678, School District v. Collins, 110 Kan. 776, 204 Pac. 746; Kreipe, Receiver, v. National Bank, 114 Kan. 910, 220 Pac. 1061; Dolman and Clark v. Kingman County, 116 Kan. 201, 226 Pac. 240; 38 C. J. 558.)
The motion to quash is allowed.
Since the plaintiff cannot prevail by mandamus, the action is dismissed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to enforce the delivery of a deed which had been placed in escrow with the Farmers State Bank of Yinland under a contract by which Cyrus Bolton purchased certain real property of the defendant for a stipulated price and which had been by Cyrus Bolton assigned to the plaintiff. The bank filed a disclaimer. Issue was joined as between the plaintiff and defendant Mary A. De Hek. The case was called for trial, and oral evidence was introduced to show whether or not interest was to be paid on the payments named in the contract. The judgment was that the plaintiff take nothing. There was a finding that under the contract there was due to Mary A. De Hek the sum of $315.37, which had not been paid. The plaintiff appeals.
Part of the contract was as follows:
“In consideration of which the said party of the second part hereby covenants and agrees to pay to the said party of the first part, her heirs or assigns, for the said real estate, the sum of three thousand three hundred fifty dollars ($3,350) in the following manner, to wit: One thousand dollars ($1,000) in cash, the receipt of which is hereby acknowledged, and fifty dollars ($50) on the first day of each and every month, commencing on the first day of December, 1921, until the remaining two thousand three hundred fifty ($2,350) shall have been paid. The indebtedness herein mentioned is solely for the purchase price of said premises. The said monthly payments of fifty dollars ($50) include interest at the rate of 7 per cent per annum. All payments to be made to the Farmers State Bank of Vinland, Kansas.”
The plaintiff contends that “the court erred in holding that the contract in suit was so far ambiguous as to admit oral testimony.”
The plaintiff argues that no evidence should have been introduced to explain the terms of the contract. She contends that the contract is not ambiguous and that the expression contained in it, “the said monthly payments of fifty dollars ($50) include interest at the rate of 7 per cent per annum,” means that no interest shall be paid on any part of the purchase price named in the contract. The defendant argues that this language means that interest at seven per cent per annum shall be paid on unpaid installments named in the contract. With the parties making these contentions at the trial, the court heard evidence concerning the negotiations for the contract.
The contract was not ambiguous and no evidence should have been admitted to add to, contradict, or vary its terms. After the evidence was introduced, the contract remained as it was written. The payments provided for in it included interest on the purchase price for the property. No additional interest could be collected. under the contract, and judgment should have been rendered according to its terms. The record discloses that all payments provided for in the contract had been made. Notwithstanding the evidence that was introduced, the plaintiff was entitled to the deed. .
The judgment is reversed, and the trial court is directed to enter judgment for the plaintiff as prayed for in her petition. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves a construction of the will of Francis Derousseau, deceased. The action, one in partition, was originally brought by Marie Regnier against certain of her brothers and sisters and their respective spouses. Afterwards, upon application, Rosalina Saulnier and Emma Baltazor, sisters of the plaintiff, were allowed to intervene. The intervenors were defeated and appeal.
Francis Derousseau, father of the litigants, died testate, March 9, 1920, the owner of the real estate involved in this action in addition to that specifically devised by his will. Rosalina Saulnier and Emma Baltazor claim an interest in the land not specifically devised through the residuary clause of the will. Plaintiff claims it was not the intention of their father to include them in the residuary clause.
Pertinent parts of the will read:
“I give, devise and bequeath to my son, Edward Derousseau, the following land situated in the county of Cloud and state of Kansas, to wit: ... for and in consideration of such bequeath to my son, Edward Derousseau, he shall pay the sum of twelve hundred dollars ($1,200) to my two daughters, as follows: Six hundred dollars ($600) to Rosalina Saulnier, wife of Joseph Saulnier; six hundred dollars ($600) to Emma Baltazor, wife of Alfred Baltazor; the said Edward Derousseau shall not be required to pay the twelve hundred dollars ($1,200) until three (3) years after my decease. I give, devise and bequeath to my son, Napoleon Derousseau the following land situated in the county of Cloud and state of Kansas, to wit: ... I give, devise and bequeath to my son, Alfred Derousseau the following lands situated in the county of Cloud and state of Kansas, to wit: ... I give, devise and bequeath the residue of my property, both real and personal remaining after the payment of my just debts, liabilities and expenses of administration, to my nine children not herein named, to be divided between them, share and share alike, and in the event of any such child dying before my own decease then the heirs of such deceased child to take the share of such child.”
The following facts were stipulated:
“Francis Derousseau died March 9, 1920, testate, a resident of Cloud county, Kansas, and left surviving as his sole and only heirs at law, his widow and the following children: Edward Derousseau, Napoleon Derousseau, Alfred Derousseau, Rosalina Saulnier, Emma Baltazor, George Derousseau, Anna Hays, Adwidge Provost, Zoia Mailloux, Rosa Bechard, Phoebe Regnier and Marie Regnier:
“That the deceased’s widow, Emilie Derousseau, elected to take under the provisions of the last will on April 16, 1920; that the widow died before this action was brought; that George Derousseau with his wife on July 6, 1920, have had his interest in the real estate sought to be partitioned as plead in plaintiff’s petition; that the original will of Francis Derousseau is admitted in evidence;
“That on the 12th day of December, 1905, the date of the execution of the will of Francis Derousseau, there were twelve children living, and that subsequent thereto and at the time of the probating of the will in question, none of the children of said Francis Derousseau were deceased;
“That on February 23, 1923, Rosalina Saulnier and Emma Baltazor each received from Edward Derousseau, the sum of $600 in full payment of the amount due them from the said Edward Derousseau, as provided in the last will and testament of their father, Francis Derousseau.”
Rosalina Saulnier and Emma Baltazor contend that it was not the intention of their father to exclude them from the provisions of the residuary clause of his will.
The problem is to ascertain the intention of the testator. He had twelve children — four sons and eight daughters. Five children were by name mentioned in the first clause of the will. It-is argued by the plaintiff that since the second paragraph of the will provides that Edward “shall pay the sum of $1,200 to my two daughters,” that to give intent to the testament the word “two,” relating to his daughters, must, in effect, be stricken from the will and that, since the testator had twelve children living, and named five in the first clause, and in the residuary clause gave the remainder of his prop-, erty “to my nine children not herein named,” that the word “nine” should be stricken from the will; that it was the testator’s intention to leave the residue of his estate to the children not specifically named irrespective of their number. Various authorities are cited in support of this contention. (1 Jarman on Wills, 5th ed., 661, 674, 675; 2 Jarman on Wills, 5th ed., 75, 76, 751, 752, 753, 755, 766; Hall v. Hall, 123 Mass. 120; Mason v. Jones, 2 Barb. [N. Y.] 229; Estate of Wood, 36 Cal. 75; Jameson, Appellant, etc., 1 Mich. 99; Bartlet v. King, 12 Mass. 536, 542; Zimmerman v. Briner, 50 Pa. St. 535; Kalbfleisch v. Kalbfleisch, 67 N. Y. 354.)
We think a more reasonable construction can be applied to the will. To sustain plaintiff’s argument, it is necessary to excise the word “nine” or substitute the word “seven” in lieu thereof. While courts, in firder to make clear the intention of the testator sometimes transpose words or supply obviously omitted words, it is only with extreme reluctance that the process of excision is indulged in.
“Words are never to be rejected as meaningless or repugnant if by any reasonable construction they may be made consistent and significant. Excision is a ‘desperate remedy.’ (Matter of Beuchner, 226 N. Y. 440; Adams v. Massey, 184 N. Y. 62.) It is only a last resort to be availed of when all efforts to reconcile the inconsistency by construction have failed.” (Van Nostrand v. Moore, 52 N. Y. 12, 20. See, also, Livingston v. Ward, 216 N. Y. S. 37, 48; In re Roth’s Estate, 211 N. Y. Supp. 510.)
We are of the opinion that when the testator used the expression in the residuary clause, “to my nine children not herein named,” he referred to the phrase “herein named” only to the three who were the direct objects of his bounty. These were the three sons named. The two daughters whose names were mentioned received nothing directly from him. His residuary estate was in no way diminished by his direction that his sons pay these two. daughters a total of $1,200. No reason is apparent, either from the will or the facts disclosed by the stipulation, why the testator should discriminate between the nine children other than the three sons by denying appellants any part of his estate except $1,200 which was not to be paid until three years after his death. It is more reasonable to conclude that he required this payment by his sons, to whom he spe cifically devised real estate, in order to equalize his bequests by reducing the value of the property given to the three sons.
“In construing a will effect should be given to every word and clause if not inconsistent with the general intent of the whole will when taken together. It is presumed that every word is intended by the testator to have some meaning, and no word or clause in the will is to be rejected to which a reasonable effect can be given. Where two constructions are suggested, the one disregarding a word or clause of a will, and the other giving effect to the will as a whole, the latter must be adopted. No part of the instrument is to be discarded unless in conflict with some other part, in which case that part will be enforced which expresses the intention of the testator. Provisions apparently in conflict should be reconciled if this can be reasonably done.” (28 R. C. L. 217. See, also, Holt v. Wilson, 82 Kan. 268, 108 Pac. 87; Brown v. Brown, 101 Kan. 335, syl. ¶ 1, 166 Pac. 499; Markham v. Waterman, 105 Kan. 93, 181 Pac. 621; Hawkins v. Hanson, 92 Kan. 73, 139 Pac. 1022; West v. West, 106 Kan. 157, 186 Pac. 1004.)
The judgment is reversed and the cause remanded, with instructions to render judgment for the intervenors in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The action was one to recover the amount of a promissory note given in payment of an insurance premium for hail insurance on a crop of melons. Defendant Sherman in a cross petition sought to recover certain unpaid commissions. Plaintiff prevailed, and defendants appeal.
The facts are substantially these:
The defendant Sherman who had acted as plaintiff’s agent in other transactions, on inquiry was advised that plaintiff would write the insurance of $20 an acre at 12 per cent. On July 27, 1922, defendant Merrick executed a note for $264 for $2,000 hail insurance on a crop of growing melons. A loading charge of 10 per cent was added because the premium was paid by note instead of cash. Sherman indorsed the note in order that the loading charge might come to him in addition to his regular commission. There was evidence that hail rates for plaintiff, filed with the insurance department, were 7 per cent in Finney county, with an additional 2 per cent charge for vine crops, so that a rate of 9 per cent should have been used in ascertaining the amount of the premium.
A statute (R. S. 40-474) gives the superintendent of insurance practically the same regulation and control over hail, windstorm or tornado companies that he has over fire insurance companies. Another statute (R. S. 40-470) provides that “any fire insurance company or any director or officer thereof, or any agent or person acting for or employed by such company, who shall violate the provisions of the act shall be guilty of a misdemeanor and shall be punished, etc. The defendants contend that the penal provisions of the quoted statute with reference to fire insurance companies also apply to hail companies, and that therefore a note given for a premium on a hail policy which exceeds the standard rate is void. The contention cannot be sustained. Penal statutes are subject to the rule of strict construction. Nothing may be added to them by inference or intendment. (Schultz v. Morgan, 1 Kan. App. 572; State v. Chapman, 33 Kan. 134, 5 Pac. 768; State v. Prather, 79 Kan. 513, 100 Pac. 57; City of Wichita v. Lewis, 97 Kan. 589, 155 Pac. 948; 25 R. C. L. 1081; 36 Cyc. 1183.) The provisions of the statutes to which reference is made contain no language which may be properly construed as extending the penal provisions of section 40-470 to hail companies.
A contention that the trial court erred in arriving at the amount of the judgment cannot be sustained. It is argued that the court should have allowed the defendant Sherman a commission on a note of one Conley, received for insurance and indorsed by the defendant which had been renewed without defendant’s consent. It appears that the Conley note has never been paid. It was renewed only. The renewal did not pay the debt, and defendant was not entitled to his commission until it was paid. The record presents no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by H. Humpert against the Citizens State Bank of Talmadge to recover upon a check for $1,307.83, the purchase price of wheat sold by her to James B.orin, and which is alleged the bank had agreed to pay but had refused payment upon presentation of the check. The plaintiff recovered and defendant appeals.
James Borin was a grain dealer, and it was in effect alleged that under an agreement the bank undertook to finance the grain operations of Borin, in this, that Borin was authorized to give his checks drawn on the bank to persons from whom he purchased grain, and should deposit the proceeds of sales in the bank by depositing there sight drafts drawn on consignees with bills of lading attached, and it was agreed that the checks would be paid out of such proceeds regardless of the state of Borin’s account with the bank at the time. It was further alleged that Borin purchased 984 bushels of wheat from the plaintiff on November 15, 1924, and gave her his check on the bank for the purchase price, $1,307.83, and that he then deposited in the bank a sight draft with bill of lading attached, the proceeds of the wheat, but when the check given plaintiff-reached the bank, payment was refused although the bank had previously received the proceeds of the wheat purchased by Borin. Instead of paying the check as it had agreed to do, it had converted the proceeds to the payment of a note which the bank held against Borin, a note that was not yet due. The bank denied the agreement as alleged by the plaintiff, but admitted the issuance of the check and the refusal of payment, and it further stated that the check was not paid because there were not sufficient funds placed to Borin’s credit in the bank to meet the check.
The principal contention in the case was the existence of the agreement mentioned. Upon that question there was direct conflict in the evidence. Testimony was given by Higdon, the president of the bank, with whom the arrangement with Borin was made, to the effect that there was no agreement that Borin’s checks were to be paid without regard to his deposits in the bank, nor that he was to be favored or treated in any other way than an ordinary customer was to be treated. Borin, on the other hand, testified that his agreement with the bank was substantially as had been alleged by the plaintiff in her petition. The course of business with the bank and some accompanying circumstances tend to support Borin’s version of the transaction. As the business was conducted, Borin’s checks were paid as they came to the bank, in some cases before the proceeds of the sight drafts had been returned, and also when Borin’s account was overdrawn. The books of the bank showed that many of the checks paid were entered as overdrafts. The jury found that the agreement relied on by plaintiff was made. To the finding in the affirmative, the jury added the words, “according to the routine of business.” The added words were interpreted by the court as referring to the routine of business in the payment of the checks of Borin. In view of the fact that in four other answers the jury found that the agreement was made, we think the expression was correctly interpreted or at least that it did not have the effect of neutralizing the affirmative findings that the agreement was made. The agreement found to have been made between the bank and Borin was in part for the benefit of plaintiff and others from whom grain was purchased, and plaintiff was therefore entitled to avail herself of the agreement. A case similar in some respects is Ballard v. Bank, 91 Kan. 91, 136 Pac. 935, where the bank agreed with a customer, who was a stock dealer, that in purchasing live stock he might give checks in payment and the bank would pay them, if when they were presented the drawer should have resold the stock and deposited the proceeds in the bank. Upon that agreement stock was purchased by the dealer, checks on the bank were issued in payment of the stock, sales of the stock were made and the proceeds deposited in the bank. The checks were not paid when presented, but the funds on deposit were applied to the payment of a preexisting debt. It was held that the holder of the check could maintain an action against the bank and recover the amount of it although he did not know of the agreement between the bank and the stock dealer, and although nothing was said about it when the deposit was made. The court in that case made a quotation from another that is pertinent here:
“ ‘All the authorities are agreed upon the rule of law declared in the above case, that a bank which accepts a deposit of money made by a depositor for a special purpose, under an agreement that it will pay the amount when needed for that purpose, cannot rightfully appropriate such deposit to discharge the depositor’s indebtedness to it.’ ” (p. 94.)
It appears that the day on which the plaintiff’s check was refused Borin' had $3,206.75 to his credit in the bank, but as already stated most of it was applied to the payment of a note of Borin’s that, was not yet due. Something is said to the effect that the bank had no notice of the outstanding checks given for wheat purchased, and it therefore had a right to treat the money as the property of Borin on general deposit, and to subject it to the payment of Borin’s debt. So far as the matter of notice is concerned, it appears that the bill of lading, which included the plaintiff’s wheat, indicated what it was given for, the destination of the wheat shipped, to whom it was consigned, and by whom it was shipped, including the quantity of wheat in bushels and weight. Even if the bank had no notice that the check was given for wheat, it would still be liable upon the basis of the agreement made between it and B.orin. Authorities which are applicable to some features of the case are Saylors v. Bank, 99 Kan. 515, 163 Pac. 454; Scoby v. Bank, 112 Kan. 135, 211 Pac. 110. In the Scoby case it was said that —
“If the evidence shows that during the summer and autumn of 1918 there was an arrangement or understanding between Witham and the bank that he was to draw checks on the bank to pay for cattle purchased by him and that he was to deposit sight drafts with the bank drawn on the commission company for cattle shipments, and that the bank would honor and pay such checks regardless of the state of Witham’s account, the defendant is liable.” (p. 140.)
There is a contention that the president of the bank had ho authority to make the agreement shown by plaintiff’s evidence, but that the cashier is the officer‘authorized to administer the bank’s financial affairs. The record discloses that the president, Higdon, was 'the officer who controlled and managed the affairs of the bank and had supervision over its daily affairs, but even if it is not regarded as a one-man bank, or if the authority exercised by Higdon had not been confirmed by the directors or sanctioned by long-continued usage, his arrangement with Borin had been so far acted on and carried out that the defense of lack of authority is not available to the bank. (Ballard v. Bank, supra.)
Some complaint is made as' to a ruling on the admission of testimony as well as to the refusal of instructions requested and of those given, but in view of what has already been determined and the authorities cited, none of them afford ground for a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
In 1893 as a part of the statute giving the owner a right to redeem real estate sold at sheriff’s sale, a^ section of the code of civil procedure requiring the appraisement of realty taken on execution was repealed. Another section forbidding a sale by the sheriff for less than two-thirds of the appraisement, and several other sections assuming the existence of an appraisement, remained unrepealed. This court held in 1905 that notwithstanding the unrepealed provisions such as that in terms forbidding a sale for less than two-thirds, of the appraisement, no appraisal was required. When the code Was revised in 1909 the section requiring appraisement in the case of all executions was not reinserted, but a section relating to writs directing the sale of property previously taken in execution and requiring the seizure of additional property if the sheriff thought that already taken insufficient, was amended by adding a requirement that he should cause the real estate to be appraised. This court held, affirming the trial court, that the amend ment just referred to affected only writs of the exceptional character indicated and that no appraisement was required in the case of the realty here involved, which was seized and sold on an ordinary execution.
In a motion for a rehearing the appellants ask a further elucidation of the grounds .of our decision, with respect to a paragraph of the original opinion reading as follows:
“It is argued that the retention in the statute of the large number of references to an appraisement, all apparently assuming that one is to be made, shows a legislative purpose to that effect. That proposition was involved in Armstead v. Jones, supra, and the decision was against it. It is contended, however, that the reenactment of these sections in the revision of 1923, with the change already discussed, made in 1909, puts a different face on the matter and requires a holding to the contrary. This reenactment seems to us to show merely that the legislature saw no occasion for a change in the law as it stood, and we do not think it requires or justifies any different interpretation from that previously adopted.” (Lemen v. Kansas Flour Mills Co., ante, pp. 114, 117.)
It will be observed that the reenactment referred to in the quoted paragraph is that of 1923. In the motion for a rehearing the discussion in this connection seems to be directed largely to the code revision of 1909. This is mentioned because somewhat different questions are involved with reference to the two reenactments.
In the motion for a rehearing it is said:
“The legislature had repealed a section of statute leaving others cognate with it unrepealed. The court held that the unrepealed sections were appendant to the one repealed in such sense that they had become obsolete, that is likewise repealed. Subsequently the legislature reenacted the obsolete or repealed sections, as to one of them adding a new provision (R. S. 60-3413) in furtherance of the general policy of th'e law or the policy of the restored law or the policy of a particular section of it. Subsequently the legislature enacted an entirely hew provision (R. S. 60-3439) in seeming recognition of the restoration of the appraisement policy of the old law. [As mentioned in the original opinion this enactment was in 1923, and the execution here involved was issued in 1921.] The court, however, dismisses these legislative enactments subsequest to the repeal by saying, ‘they seem to [the exact language of the opinion is, “This reenactment seems to” — the reference being to that of 1923] show that the legislature saw no occasion for a change in the law as it stood/ and hence that, -‘we do not think it requires or justifies any different interpretation from that previously adopted/ This is an impossible view to take.”
We part company with the writers of the motion upon the proposition — the foundation of their argument — that the court in saying the unrepealed provisions of the code relating to appraisement were obsolete, established that they had been repealed. The court had no such thought. Quite possibly the word “obsolete” may not have been the best selection to express the idea that these provisions were inoperative but not entirely nonexistent. It was used, however, in the sense in which it is defined in Bouvier’s dictionary: “A term applied to laws which have lost their efficacy without being repealed.” We conceive the provisions in question were in what might be called a state of suspended animation. They were in the statute ready for use whenever the provision on which they depended was restored. If the legislature in revising the code had reinserted the section requiring appraisement or its equivalent, the section forbidding a sale for less than two-thirds of the appraisal (as well as other provisions dependent thereon) would at once have become operative. Instead of this change being made, however, there was added to the existing statute a provision that an appraisement should be had in the exceptional kind of execution already described. We think the intention and effect of this was to revive the operation of the provisions relating to appraisement only with respect to executions of that character. The attention of the legislature having been directed to the matter of appraisement, and it having chosen to restore it only in a limited class of cases, we see no room to interpret its course as reinstating the original law.
In the motion it is further said:
“The court says the reenactment of the repealed law did not make any change from the law that followed its repeal. The repeal still stood, the sections still obsolete. If that was the case, why go through the form of reenacting it?”
Again we think counsel err in saying the provisions which the court spoke of as obsolete had been repealed. They were for the time being inoperative for want of a provision for the appointment and service of appraisers. The obvious answer to the question, “why go through the form of reenacting” provisions in this condition is that the legislature was revising in 1909 the code of civil procedure and in 1923 the General Statutes, reenacting each as a whole, changing some sections and leaving others unchanged. The reenactment of a section without change in the course of a revision does not indicate as a matter of fact or of law a purpose to alter its effect. But the statute specifically provides: •
“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.” (R. S. 77-201, subdiv. 1; R. S. 77-112.)
By virtue of this rule statutes passed at different times which are included in the same revision without change continue their original relative status as to time of enactment and are interpreted in the light of their origin. (Arkansas City v. Turner, 116 Kan. 407, 226 Pac. 1009.)
It is urged that the conclusion of the court is inconsistent with the decision in State, ex rel., v. Davis, 116 Kan. 663, 229 Pac. 757. There it was argued that a statute included in the revision of 1923 was invalid because an act in the same words had been repealed in 1909 and its inclusion in the revision was an inadvertence. The court held that it was competent for the legislature to insert wholly new matter in the Revised Statutes, and that matter which had at one time been in the statutes, but which prior to the revision had been repealed, stood on no different footing. The supposed analogy to the present case appears to be based on the conception already discussed, that the provisions of the code which the court held inoperative because of the repeal of the section providing for appraisers and appraisement had themselves-been repealed.
The motion for a rehearing is overruled. | [
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The opinion of the court was delivered by
Marshall, J.:
The action, commenced June 5,1925, is one to enjoin the defendants as trustees of the Soldiers and Sailors Memorial building of Kansas City, Kan., and as mayor and commissioners of that city, and the Veterans of Foreign Wars, a corporation, from leasing to the Veterans of Foreign Wars any part of the Soldiers and Sailors Memorial building in Kansas City, Kan. Judgment was rendered in favor of the plaintiff, and the defendants appeal.
Under sections 73-401 to 73-410 of the Revised Statutes, chapter 256 of the Laws Of 1921, Kansas City, Kan., erected a memorial building costing approximately $600,000. Bonds were issued with which to obtain funds for the erection of the building. It is operated and maintained at public expense with funds raised by taxation. The defendants are threatening to lease a part of the building to the Veterans of Foreign Wars for twenty years at $1 per year. The plaintiff is a citizen and taxpayer of Kansas City, Kan.
1. The defendants contend that the plaintiff has no right to maintain this action and that it is one which, if prosecuted, must be brought in the name of the state. There are two sections of the statute which must be examined. Section 60-1121 of the Revised Statutes in part reads:
“An injunction may be granted to enjoin the illegal levy of any tax, charge or assessment, or the collection of any illegal tax, charge or assessment, or any proceeding to enforce the same, or to enjoin any public officer, board or body from entering into any contract or doing any act not authorized by law that may result in the creation of any public burden or the levy of any illegal tax, charge or assessment; and any number of persons whose property is or may be affected by a tax or assessment so levied, or whose burdens as taxpayers may be increased by the threatened unauthorized contract or act, may unite in the petition filed to obtain such injunction.”
Section 13-1403 of the Revised Statutes, in part, reads:
“That no debt shall be contracted, obligation incurred, tax or special assessment levied, charge upon property made, money drawn from the treasury or other act done by any city officer under color of his office unless expressly authorized by this act; and upon application to any court of competent jurisdiction, by any person against whose property any tax, special assessment or burden of any kind may be levied or charged, or whose property or rights may to any extent be injuriously affected by any such illegal act threatened or about to be done by any city officer, an injunction shall be granted to enjoin the governing body or any other city officer from entering into any contract, incurring any obligation or burden, creating any debt, withdrawing any money from the treasury, or doing any act or thing in violation of or that is not expressly authorized by this act.”
Taxes must be levied to pay for the upkeep of the building, for janitor services in it, for repairs to it, and for heat and light for 'it. The purposes for which the Veterans of Foreign Wars is incorporated has no connection with the business of the city. The uses to which Veterans of Foreign Wars will put that portion of the building leased to that organization will be for the benefit of a private corporation, although organized for public and patriotic purposes. The service it Will render will be wholly independent of, separate from, and outside the control of any department of the city government of Kansas City. Taxes cannot be levied for such purposes.
We quote from 26 R. C. L. 41, as follows:
“It is a well-settled principle of constitutional law that no tax can be levied except for the purpose of raising money which is to be expended for the public use. The power to levy taxes is founded on the right, duty and responsibility to maintain and administer all the governmental functions of the state, and to provide for the public welfare. To justify any exercise of this power the expenditure which it is intended to meet must be for some public service, or some object which concerns the public welfare. This principle is fundamental, and underlies all government that is based on reason rather than force. To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes, is none the less a robbery because it is done under the forms of law and is called taxation. This is not legislation. It is a decree under legislative forms. Nor is such a levy taxation, since a tax is an impost assessed for the purpose of raising money for the public use, and an assessment for any other purpose is not a tax.” (See, also, State, ex rel., v. Township of Osawkee, 14 Kan. 418; Blain, Co. Treas., v. Riley Co. Ag. Soc., 21 Kan. 558; C. B. U. P. R. Co. v. Smith, 23 Kan. 745, 752; Winters v. Myers, 92 Kan. 414, 426, 140 Pac. 1033; Beck v. Shawnee County, 105 Kan. 325, 182 Pac. 397; Loan Association v. Topeka, 87 U. S. 655; 37 Cyc. 719; 1 Cooley on Taxation, 4th ed., §80; 1 American Law of Taxation by Desty, p. 14; Judson on Taxation, 2d ed., § 377.)
The plaintiff must assist in paying taxes levied for the purpose of maintaining the Memorial building, for janitor services in it, for repairs to it, and for heat and light for it. This brings him within sections 13-1403 and 60-1121 of the Revised Statutes. He. has the right to maintain this action. •
2. Can this building be leased to the corporate organization known as the Veterans of Foreign Wars? It is a private organiza tion although its purposes are public and patriotic. The court found:
“That the defendants have in the past and at' the commencement' of this action were threatening to and endeavoring to enter into a lease between the Veterans of Foreign Wars and the city of Kansas City, Kan., acting through the defendants James Otterman and Frank P. Strickland as trustees of said building, with the advice and consent of the city commissioners of said city, by the terms of which the'Veterans of Foreign Wars were to be given the exclusive right to use four or more rooms in said building to the exclusion of all other persons for a period of twenty years for the sum of one dollar (SI) per year, the city t'o furnish fuel, water, light's and janitor service for said consideration.”
Section 8 of chapter 256 of the Laws of 1921 reads:
“That the management and control thereof, if a county building, shall be vested in a board of three trustees to be appointed jointly by the, city and county commissioners, and if a city building, shall be appointed by the mayor of such city. Said trustees shall be residents of the county or city wherein the building is located, and one shall be appointed for one year, one for two years, and one for three years, and thereafter each trustee shall be appointed for three years. Said trustees shall serve without compensation, and shall make annual reports and recommendations to the proper county and city officials. The expense of maintenance of said memorial shall be paid out of the general fund of the ■ county or city, or in case the same shall not be sufficient, to be paid out of a special fund which may be created for which the counties or cities are authorized to make a levy of not more than one-tenth of one mill per annum.”
By section 1 of chapter 213 of the Laws of 1923, the following was added to section 8 of chapter 256 of the Laws of 1921:
“Provided, That the board of trustees shall have the authority to lease all or any part of said building for hire to any person or persons desiring to lease the same and fix the rate and terms upon which the charge shall be made and •collected therefor.”
The law was again amended by section 1 of chapter 247 of the Laws of 1925, and the proviso giving to the board of trustees the power to lease all or any part of the building was stricken out. That indicates an intention of the legislature to deny to the board of trustees the power to lease the building or any part of it.
In Spencer v. Joint School District No. 6, etc., 15 Kan. 259, the court said:
“The use of a public schoolhouse for any private purpose, such as the holding of religious or political meetings, social gatherings, and the like, is unauthorized by law, and may be restrained at the instance of any party in jured thereby; and this, though a majority of the electors and taxpayers of the district assent to such use, and an adequate rent is paid therefor.”
The syllabus to State, ex rel., v. Hart et al., 144 Inch 107, reads:
“A lease of rooms in a courthouse to be used for private purposes cannot be lawfully made by county commissioners in the absence of statutory authority.”
One paragraph of the syllabus to Kingman v. Brockton, 153 Mass. 255 reads:
“The legislature has no power to authorize a city or town to appropriate money for the erection of a building to be devoted in part to the use of a post of the Grand Army of the Republic so long as such post shall exist as an organization.”
If a part of the Soldiers and Sailors Memorial building at Kansas City can be rented to a private corporation, the whole of it can, and the purposes of the law and the wishes of the people of that city would be thereby defeated. The. city does not have authority to lease any portion of that building to the organization known as the Veterans of Foreign Wars.
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The opinion of the court was delivered by
Mason, J.:
This is a controversy over the title to a tract of land that was owned by C. A. Spradau at the time of his death. Spradau was never married, and had no children. Both his parents died in his lifetime. He died intestate in 1873. The sole heirs of his mother living at the time of his death were her brothers, George Shaffer and Jacob K. Shaffer. The property therefore descended one-half to the Shaffers and one-half to the heirs of Spradau’s father, unless the matter is affected by the fact that while the mother and her heirs were American citizens the father and all his heirs were aliens.
In 1878 Silas H. Sparks obtained a quitclaim deed to the property from several persons who were described in the instrument as the sole heirs of C. A. Spradau, but who in fact were not his heirs and had no interest in the land. Sparks, however, took possession under the deed and remained in the occupancy of the property until this suit was begun, in 1898, except that in 1887 he was forcibly dispossessed by one B. W. Mat-lack, whom he ousted by action brought for that purpose within a few months. In 1887 Sparks bought the title that had been inherited by Jacob Shaffer, and between that time and 1900 he also acquired by purchase the title that had descended to George Shaffer, so that he had then succeeded to all the rights of the heirs of Spradau’s mother. In 1898 the heirs of Spradau’s father (or their successors in interest) brought'a suit for partition against Sparks, claiming the ownership of a half-interest in the land. They recovered a judgment sustaining that claim, from which Sparks now prosecutes error. The judgment must be affirmed unless it shall be held either (1)- that, by reason of the alienage of Spradau’s father and his heirs, the entire title has passed through the heirs of his mother to Sparks, or (2) that Sparks has acquired title against the foreign claimants by adverse possession for fifteen years.
It is. contended by plaintiff in error that at the time of Spradau’s death the rule of the common law that aliens cannot inherit real estate was in force in Kansas, and that therefore the entire title to the property passed to his only American kinsmen — his mother’s brothers. To this contention we cannot agree. Section 17 of the bill of rights of the state constitution as it then stood provided that “no distinction shall ever be made between citizens and aliens in reference to the purchase, enjoyment or descent of property.” This provision was self-executing. Under its terms the statutes determining the course of descent of the property of intestates of necessity defined the rights of aliens as well as of citizens, and upon Spradau’s death the foreign relatives — the father’s heirs — became the owners of a half-interest in the land.
A provision of a treaty negotiated in 1827 between the United States and the Hanseatic republic, of Bremen, of which Spradau’s father and his heirs were citizens, is invoked as having a bearing on the matter. This provision is substantially that, in case the laws of either country prevent citizens of the other from entering into the possession of inherited real estate on account of their alienage, a period of three years shall be granted in which to dispose of it, but as no such disability was imposed by the law of Kansas when Spradau died there is nothing in the circumstances of the present case to which it can apply.
The amendment to the section of the constitution above quoted, adopted in 1888, which permitted regulation of the rights of aliens to inherit and hold property, and the statute passed in pursuance of it restricting such rights (chapter 3, Laws of 1891, repealed by chapter 1, Laws of 1901), cannot aifect the case, for the title had vested in the foreign heirs in 1873 and could not be devested by subsequent changes in the law. No attempt was made by the state to enforce against the defendants in error the requirement of the statute of 1891 that alien landowners should dispose of their real estate within three years, and the plaintiff in error can take no benefit from it. (Investment Co. v. Trust Co., 65 Kan. 50, 68 Pac. 1089.)
It remains to determine whether Sparks held pos session of the property adversely to the foreign heirs for a period of fifteen years. The physical interruption in his possession by the intrusion of a stranger, to which reference has already been made, was probably not enough to break its continuity in legal contemplation, for it appears that a legal remedy was invoked against it within a reasonable time and was prosecuted to a successful determination. (1 Cyc. 1012.) The vital question is whether, in view of the fact that the plaintiffs were cotenants of Sparks, his possession was hostile to them. It is familiar law that as between cotenants the character of occupancy necessary to constitute adverse possession is very different from that obtaining in the case of strangers.
“The entry and possession of one tenant in common is deemed the entry and possession of all the cotenants, and does not amount to a disseizin. Such possession, therefore, can never be adverse until there is an actual ouster of the cotenants, or some act deemed by law equivalent thereto.” (1 A. & E. Encycl. of L. 801.)
“Mere possession of a tenant in common, no matter how full and complete, does not of itself prove an ouster of his cotenant. There must be something to show a denial or repudiation of his cotenant’s rights, or the possession will be deemed to be held in subordination thereto.” (Squires v. Clark, 17 Kan. 84.)
In Elder v. M’Claskey, 17 C. C. A. 251, 261, 70 Fed. 529, 538, it was said that the rule expressed in the paragraphs just quoted “has no application to any case except where the possession of the person in question was avowedly begun as a tenant in common, or under a deed which defined his title as such.” This statement probably restricts the rule too closely, for it has been held to apply where one of several heirs enters into the possession of land upon the death of the ancestor without any acknowledgment of cotenancy. (Phillipson v. Flynn, 83 Tex. 580, 19 S. W. 136.) Where, however, one takes possession of land under a deed, the terms of the instrument may be very important as indicating the character of the claim asserted. A multitude of cases hold that “where one of several tenants in common executes a deed purporting to convey the entire premises to one who enters into possession thereunder claiming title, or recording his conveyance, this will constitute a disseizin of the cotenants.” (1 Cyc. 1078.) In De Leon v. McMurray, 5 Tex. Civ. App. 280, 23 S. W. 1038, a possession taken under a deed that described the grantors as the sole heirs of the original owners was determined to be adverse to all other heirs upon the principle that the terms of the deed afforded express notice of a claim of exclusive Ownership.
The reasoning of these authorities probably compels the conclusion that Sparks’s original occupancy of the land was prima facie adverse to all the world, inasmuch as he took possession under a deed purporting to convey the interest of all the heirs of Spradau, and that in fifteen years the statute of limitations made his title unassailable by any one, provided his conduct for that period continued to be entirely consistent with a claim of exclusive right. But the contents of the deed under which possession is taken is only one of the matters to be taken into account in determining its character. Whether it is to be deemed adverse in any particular case must be decided in view of all the attendant circumstances, and wherever the element of cotenancy is present the question is necessarily affected by the consideration that one of several tenants in common may exercise complete control of the property without thereby asserting exclusive ownership. (See the very full discussion and collection of decisions, to which citations have already been made, in 1 Cyc. 1071 to 1081; also notes to Boyd v. Boyd, 68 Am. St. Rep. 174, Bader v. Dyer, 68 Am. St. Rep. 338, Soper v. Lawrence Bros. Co., 99 Am. St. Rep. 409, and Baker v. Oakwood, 10 L. R. A. 388, 389.)
Granting that the terms of the deed under which Sparks took possession indicated a claim to an ex- elusive ownership by virtue of its designating the grantors as the sole heirs of Spradau, this consideration would not control if his attitude was afterward that of a cotenant recognizing the interests of other tenants in common. (Van Ormer v. Harley, 102 Iowa, 150, 71 N. W. 241; 1 Cyc. 1079; Price et al. v. Hall, 140 Ind. 314, 39 N. E. 941, 49 Am. St. Rep. 196.) It is true that he retained all the rents and profits of the property without accounting to any one, paid taxes, and made improvements, and these facts tend in some degree to support the theory of an exclusive and adverse possession. But his purchase of the -interest of the American heirs, so far as it may be considered as a recognition of their rights, has an opposite tendency. In Squires v. Clark, 17 Kan. 84, the purchase of the interest of his cotenants by one in possession is spoken of as constituting the plainest possible recognition of their rights. In Elder v. M’Claskey, 17 C. C. A. 251, however, the purchase Of an outstanding real or pretended title is treated as the mere buying of peace, implying no acknowledgment of its validity. These expressions are not necessarily conflicting, for, as pointed out in the discussion in the case last cited, the effect of the acceptance of a deed to an outstanding interest by one in possession under a claim of ownership must be interpreted according to the surrounding circumstances.
In the present case it is important to note that in the deeds taken from a part of the heirs in 1888, which were otherwise quitclaims, there was inserted a covenant that the grantors were in fact heirs of Spradau. Sparks could only be deemed to be asserting a complete title to the land in virtue of the recital of the earlier deed that its makers were the sole heirs. There is much force in the contention that, in accepting the subsequent deeds with a covenant (not a mere recital) of the heirship of the grantors, he abandoned that assertion. The circumstances under which he then acquired the title of the remainder of the Ameri can heirs tend even more strongly in the same direction. These heirs had executed to a stranger a deed which was claimed to have been fraudulently obtained. Sparks entered into a contract'with them that he was to carry through litigation which they had begun to annul such conveyance on account of the fraud, and was then to obtain their title for the sum of $800; and this agreement was carried out by a decree of court for its specific performance, rendered in a suit brought by Sparks in which he alleged that they were owners of the land. It is hardly conceivable that this arrangement could have been planned and consummated in this manner while Sparks was claiming exclusive title in himself.
There may be grounds for contending, however, that the recognition by Sparks of the claims of the American heirs ought not to affect the character of his possession as against the foreign claimants, inasmuch as their title was unlike that of the native heirs, although derived from the same source, in that it depended upon the construction to be placed upon the law of alien inheritance. A further item of evidence becomes of great importance in this connection. Sparks testified, in the course of an examination in which the circumstances of his possession and his knowledge of the condition of the title were gone into at length, that some time after 1887, having heard it reported that there were some German heirs, he employed a Mr. Diffenbaugh to investigate the matter, and inserted a notice in German papers to ascertain whether there were any. He stated that no heirs were reported, but his institution of the inquiry seems wholly inconsistent with a contemporary claim of the complete ownership of the property. He asserted no title except through the heirs of Spradau. Every deed he had came from such heirs and implied a recognition that whoever was an heir of Spradau was a part owner of the land. If there were any German heirs, they were necessarily his cotenants. To admit their existence was to ad mit their ownership, and he can hardly be thought to have been denying their existence and at the same time prosecuting a search for them. Without undertaking to say that this evidence compelled the conclusion that Sparks’s possession was not at that time adverse to the foreign claimants, we are of the opinion that, taken in connection with the other circumstances of the case, it at least afforded such support for a finding to that effect that a reviewing court cannot say that such finding was not justified.
A further question has also been presented by plaintiffs in error. It is urged that because Spradau’s mother survived his father her heirs became entitled to the entire property. The statute reads:
“If one of his parents be dead, the whole of the estate shall go to the surviving parent; and if both parents be dead, it shall be disposed of in the same manner as if they, or either of them, had outlived the intestate and died in the possession and ownership of the portion thus falling to their share, or to either of them, and so on through ascending ancestors and their issue.” (Gen. Stat. 1901, § 2522.)
The argument is that the words italicized must be interpreted to mean that in the circumstances stated the whole of the property shall go to the heirs of that one of the parents who survives the other. Expressions used in Finley et al. v. Abner, 4 Ind. Ter. 386, 69 S. W. 911, support this view. But in Russell v. Hallett, 23 Kan. 276, it was decided, although without discussion of the meaning of the words referred to, that the property in such a case descends one-half to the heirs of each parent. The section of the statute quoted was adopted literally from that of Iowa. The supreme court of that state, in Bassil v. Loffer, 38 Iowa, 451, has said of the words “or either of them”:
“There is no greater foundation or warrant for applying these words to the parent last dying before the death of the intestate than to the one first dying. When both of the parents are dead before the decease of the intestate casting the descent, it is impossible to apply these words to one to the exclusion of the other, for they apply equally to both.”
It may be difficult to assign any real force to these words, but we are satisfied with the interpretation placed upon the section in which they occur by this court and by that of Iowa. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Si Smith appeals from a conviction upon an indictment for a violation of the prohibitory liquor law. The sole ground upon which a reversal is asked is that the court permitted witnesses to testify to sales of liquor made at any time within two years prior to the return of the indictment. There was an interval of three days between the return of the indictment and the issuance of the warrant. The defendant claims that the action against him was not begun, so as to stop the running of the statute of limitations, until a warrant was issued; that therefore he was protected against prosecution for any offense committed more than two years before that time; and that, consequently, the evidence should have been confined to a period beginning two years before the warrant was issued, instead of two years before the indictment was found. He relies upon the cases of In re Griffith, Petitioner, 35 Kan. 377, 11 Pac. 174, and In re Clyne, Petitioner, 52 Kan. 441, 35 Pac. 23, which decide that where a complaint is filed before a magistrate charging a felony a prosecution is not deemed to have been begun until a warrant is issued, nor even then unless reasonable diligence is exercised in its service. In the Griffith case it was said:
“The complaint is the initiative step to determine whether a prosecution shall be commenced, and the warrant does not necessarily follow the making and filing of the complaint, as is the case where an indictment or information is filed.” (Page 379.)
A proceeding instituted by indictment, as suggested, stands upon a different footing. Section 5568 of the General Statutes of 1901 provides that unless a special order is made by the court the clerk must issue a warrant within twenty days after the close of the term. The mere return of an indictment, therefore, imposes an absolute duty upon the clerk to issue a warrant within a fixed time. It starts the machinery by which, without further attention from the prosecutor, process will be issued, within what must be regarded as a reasonable time, for the arrest of the defendant. Where due diligence is shown a criminal action instituted by a complaint before a justice of the peace charging a felony is regarded as begun when the warrant is issued, no matter how long an interval may elapse before it is served. (In re Clyne, Petitioner, 52 Kan. 441.) By what seems a fair analogy we hold that in the case of a prosecution by indictment, where a warrant is placed in the hands of the sheriff within the statutory period referred to, it operates by relation as though issued immediately upon the report of the grand jury, and the running of the statute of limitations is suspended from that time.
The question of when a criminal action is to be considered begun has often received the attention of the courts. Cases on the subject are collected in volume 19 of the American and English Encyclopedia of Law, page 166, and volume 12 of the Cyclopedia of Law and Procedure, page 258. These cases have but little, if any, bearing upon the matter here involved, because they were affected by differences of statutes, and arose under different circumstances — usually where the arrest had preceded the action of the grand jury. However, in Gardner v. State, 161 Ind. 262, 68 N. E. 163, the exact question here involved was presented, under a statute substantially the same as that of Kansas, and the court after reviewing the authorities at length held that the prosecution was begun, and the running of the statute of limitations was interrupted, when the indictment was returned, irrespective of the time the warrant was issued, expressly disapproving on this point Flick v. State, 22 Ind. App. 550, 51 N. E. 951. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
The only question involved in this case is whether the trial court erred in sustaining a tax deed that had been of record for more than five years against several objections made to it for matters apparent upon its face. The tract sold and conveyed is described in the deed as “the S E 4, section 25, township 23, range 8.” It is argued that this is an insufficient and unintelligible description because the letters “S E” followed by the figure “4” cannot be construed as equivalent to the words “southeast quarter.” There are decisions which seem to sustain that contention. (See 1 A. & E. Encycl. of L. 101, note.) Whether it is sound as a general principle need not be determined. In the deed the land against which the taxes were assessed is described in this manner: “The southeast quarter (S E. 4) of section twenty-five (25), township twenty-three (23), range eight (8), situated in the county of Greenwood and state of Kansas.” This explicitly shows that whoever prepared the deed employed “S E 4” as an abbreviation for “southeast quarter,” and gives the clue, if one be needed, for the interpretation of the expression wherever found in the same instrument.
It is claimed that the consideration stated in the deed is excessive. The deed does not disclose what amount would have been required at the time of its execution to redeem the property. It shows that the taxes for three subsequent years were paid by the holder of the tax-sale certificate, and gives the total amount so paid, but does not indicate when these pay ments were made nor how the amount was distributed among the three years. However, nothing is omitted that the statute requires. The only provision of the law applicable to this matter is found in the form of tax deed given in section 7676 of the General Statutes of 1901, which includes the recital: “And whereas, the subsequent taxes of the year -, amounting to the sum of- dollars, have been paid by the purchaser, as provided by law.” The requirement imposed by this recital is met by a statement of the gross amount paid for the years named, without showing its apportionment among the several years. There is no presumption that the taxes of the several years were equal, or bore any other definite relation to each other. On the contrary, the court must assume any distribution of the taxes of the three years that is necessary to the validity of the deed, and not inconsistent with any of its recitals. To uphold the deed after it has been of record for five years the court may assume that the greater part of the subsequent taxes referred to accrued in the year of the sale and were paid at the earliest possible date, so that practically the whole amount bore interest from that time. (Martin v. Garrett, 49 Kan. 131, 30 Pac. 168.)
This principle alone will not save the deed in the present case, for the most liberal presumption in respect to the apportionment of the subsequent taxes will not serve to account fully for the consideration stated in the deed, which upon any possible theory of the time of payment is somewhat greater than the proper amount. The excess, however, viewed in the light of the presumptions most favorable to the validity of the deed, is less than the sum of the fees fixed by statute for the issuance and recording of the deed. These are not items that are intended to be, or should be, included in the consideration of a tax deed; but it has been held that if they are so included the deed is not thereby rendered vulnerable to an attack made after the lapse of the limitation period, although the fact is shown upon the face of the deed, for the reason that these are charges that would have to be paid by the original owner before he could recover the property. (Martin v. Garrett, 49 Kan. 131.) It had already been decided in Bowman et al. v. Cockrill, 6 Kan. 311, 325 (followed in Davis v. Harrington, 35 Kan. 196, 10 Pac. 532), that understating the amount of the consideration does not render a tax deed void, inasmuch as it can result in no possible injury to any one unless it be the grantee. The apparent purpose of stating the consideration being to advise the owner of the property of the amount he would be required to pay if he should succeed in having the deed set aside, it was logically held in Martin v. Garrett, supra, that such owner had no cause to complain of an overstatement of the consideration occasioned by including charges which were not required to be shown in the deed, but which, nevertheless, he would be obliged to pay in the event of his recovering the property.
The favorable treatment always given to one who has been permitted to hold possession of land under a tax deed for jive years without his title’s being questioned warrants the court in presuming in this case that the trifling part of the consideration which cannot otherwise be accounted for was intended to cover the costs of issuing and recording the deed, and for that reason does not render it void.
Other objections to the deed have been made which are not thought to require discussion. As no valid objection has been pointed out, the judgment is affirmed.
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The opinion of the court was delivered by
Greene, J.:
The question decisive of this controversy is the constitutionality of chapter 414 of the Laws of 1905, as amendatory of section 6290 of the General Statutes of 1901. The plaintiff’s contentions are: That the amended act is a general law providing for the organization, maintenance, government and control of high schools in all cities of the first class, and therefore cannot be amended or repealed by a special act; that chapter 414 of the Laws of 1905 is a special act, and is therefore inoperative as a repeal of the general law. In order to understand and determine this question it becomes necessary to examine the section of the constitution involved. It 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.” (Art. 2, §17; Gen. Stat. 1901, § 135.)
It will be observed that this section distinguishes between “laws of a general nature” and “general laws.” With 'reference to this section subjects of legislation may be divided into three classes: (1) Those which the constitution specifically points out as subjects of general laws only, such as conferring corporate powers, etc.; (2) subjects of a general nature, which are as clearly within the inhibition of special legislation as those specifically excluded therefrom; and (3) subjects which are not of a general nature, and which may therefore be controlled by general or special laws within the discretion of the legislature. In the present case we are only concerned with the last two classes.
A law of a general nature is one whose subject-matter is common to all the people of the state. Sutherland defines a law of a general nature as follows:
“Laws of a general nature are such as relate to a subject of a general nature, and a subject of a general nature is one that exists or may exist throughout the state, or which affects the people of the state generally, or in which the people generally have an interest.” (1 Lewis’s Suth. Stat. Con., 2d ed., § 197.)
General laws are those “which apply to and operate uniformly upon all members of any class of persons, places, or things, requiring legislation peculiar to themselves in the matters covered by the laws.” (Bouv. Law Diet. 877, “General Law.”) The difference between a law of a general nature and a general law is that the subject-matter of the former must be one common to the people of the entire state, while all that is required of the latter is uniformity of operation.
Whether or not the subject of an act which is either general or special in form is one of a general nature is always a question for judicial determination. If the subject-matter is one of a general nature, the rule that it must be governed by a law which shall have uniform operation throughout the state is mandatory. If, however, the subject-matter of the act is one not of a general nature, the law falls under the second subdivision of the constitutional provision, and the question whether it shall be governed by a special or a general law is one that lies wholly within the discretion of the legislature. (Rambo v. Larrabee, 67 Kan. 634, 73 Pac. 915.)
The confusion which has arisen in the decisions of this court upon questions arising under this section of the constitution has grown largely out of the fact that no attempt was made to distinguish between those statutes whose subject-matter was of a general nature and those whose subject-matter was not of a general nature, and the absence of an attempt to distinguish between “general laws” and “laws of a general nature.” In all these cases the statutes under consideration were special, and their subject-matter was not of a general nature; hence, it was correctly held that the legislature was the exclusive judge as to whether its object might be attained by a law general in form or by a special law. These cases were all collected, and the apparent conflict reconciled, by the late Justice Cunningham in Rambo v. Larrabee, 67 Kan. 634, cited above.
It will be observed that the question here does not involve the provisions of section 2 of article 6 of the constitution, which provides that “the legislature shall encourage the promotion of intellectual, moral, scientific and agricultural improvement, by establishing a uniform system of common schools, and schools of a higher grade, embracing normal, preparatory, collegiate and university departments.” This provision has been complied with, and the high school of Kansas City belongs to this system and is a common school of a higher grade. (Board of Education v. Dick, 70 Kan. 434, 78 Pac. 812.)
We agree with the contention of the plaintiff that the amended law is a general law, but it is not a law of a general nature. The consensus of opinion of the legislature and this court has always been that the organization, maintenance and control of schools is not a subject of a general nature within the meaning of the constitution. They have always been considered subjects of special legislation, and the enactment of special laws for such purposes has been the rule, and not the exception, in Kansas. Special acts have frequently been passed for such purposes notwithstanding the existence of a general law on the subject. In this particular, more perhaps than in any other, is shown the wisdom of that clause of the constitution, as construed by this court, which permits the legislature, when dealing with subjects that are' not of a general nature, to pass special laws when in its discretion a general law cannot be made to serve the purpose.
Many schools have been organized and maintained in Kansas under special acts which it would have been impossible to maintain under any general law then in existence, or that could have been passed. Instances of this class of special law's are plentiful. Chapter 227 of the Laws of 1889 is a special law providing for the maintenance and control of the common schools in the city of Wichita. This special law was amended by another special law — chapter 188 of the Laws of 1897. Chapter 140 of the Laws of 1893 is a special act providing for the establishment of a county high school in Labette county. This act was held to be a valid exercise of the power of the legislature to pass a special act, notwithstanding there was in existence at the time a general law under which Labette county could have organized and maintained a high school. (Eichholtz v. Martin, 53 Kan. 486, 36 Pac. 1064.) Chapter 35 of the Laws of 1871 is a special act authorizing school district No. 2 in Neosho county to issue bonds to build a schoolhouse. When this act was passed there was a general law in force under which many school districts had built schoolhouses. The court, in passing upon the constitutionality of this act, in Beach v. Leahy, Treasurer, 11 Kan. 23, stated that there may have existed special reasons for passing this special act — that it was a matter of legislative discretion to determine whether their purpose can or cannot be expediently accomplished by a general law.
Chapter 90 of the Laws of 1886 is a special act excepting Kiowa county from the operation of a general law which provided for the organization of counties, and prohibited counties, townships and school districts therein from voting bonds until after the county had been organized for one year. The special act amended the general law, and authorized the county of Kiowa and any township or school district therein to vote bonds at any time after the organization of the county. This act was assailed because it was special, and because a general law of a uniform operation was in fact in existence which prohibited any county, township or school district from voting bonds within one year after the organization of the county in which such township or school district was situated. It was upheld in Rathbone v. Board of Comm’rs, 83 Fed. 125, 27 C. C. A. 477.
If the subject is one of a general nature the discretion of the legislature is at an end, and if it undertakes to enact a law on such a subject it must be general and of uniform operation throughout the state. Whether or not the organization of counties is a subject of a general nature we are not called upon to decide; certainly the voting of bonds for the building of a schoolhouse is not. An illustration may demonstrate that the organization and maintenance of schools cannot be a subject of a general nature within the meaning of the constitution. As illustrative of the injustice and inequality of such a rule let us suppose a condition not at all improbable in a growing state. If in an unorganized county two trunk lines of railroads should determine to make the end of their divisions at the point of intersection, and one or both should establish machine-shops at this point, and within sixty days after the organization of the county the companies should place 5000 people there, an urgent demand would at once arise for the establishment of schools; thus it will be observed that the general law for the organization and maintenance of public schools would be wholly inadequate to meet this emergency. The legislature, in its wisdom and discretion, might constitutionally except such a county from the operation of a general law then in force which prohibited the voting of bonds within one year after organization. Many cases have actually arisen in Kansas which, while probably not so extreme, made the demand for the immediate organization, establishment and maintenance of schools equally important.
Instances might be multiplied where the legislature has enacted special acts providing for the erection, maintenance and control of both grammar and high schools. Indeed, the system could not be effectually maintained throughout the state except by the aid of special laws .to meet special conditions.
We conclude that the subject-matter of the amended law is not one of a general nature, and for that reason the law does not fall under the first clause in section 17 of article 2 of the constitution. Therefore, it was exclusively for the legislature to determine whether the regulation of the high school in Kansas City could be accomplished better by a general or special law. Having tried the general law, and having discovered that its operation was not satisfactory, it was within its discretionary power to amend it by a special act; and with the wisdom of this course the courts cannot interfere. Whether or not a law of a general nature can be thus amended or repealed would present quite another question.
Since the legislature might have passed a special law in the first instance providing for the organization, maintenance and control of the high schools in each city in the state, it can in the exercise of its discretion at any time amend or repeal any part of a general law and enact special provisions for the government of any high school. There is no constitutional prohibition forbidding the legislature from amending a “general law” by a special act.
It is suggested that this law violates the fourteenth amendment to the federal constitution, but our attention is not called to any provision of this amendment that has been violated, nor to what is claimed by the plaintiff upon the question.
It is ■ also suggested that the act of 1905 contains more than one subject. The subject of the general act, of which the act of 1905 is amendatory, is the regulation and control of schools in cities of the first class. The amendatory law does not treat of any other subject.
The writ is denied.
Johnston, C. J., Mason, Smith, Porter, Graves, JJ., concurring. | [
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Per Curiam:
The plaintiffs in error were permanently enjoined from tearing down a grain elevator owned by the defendant in error, and they ask this court to dissolve the injunction. The facts are: The city of Cheney lies on each side of the Atchison, Topeka & Santa Fe railway right of way. The right of way is 300 feet wide. The railway company permitted the defendant in error to build the elevator in question near its depot, on the right of way. The city claims that the elevator has been erected so as to occupy and obstruct Marshall street where it crosses the right of way. The- defendant in error insists that no streets were ever located on the right of way, and that none now exists there.
The elevator was' constructed, and the officers of the city attempted to remove it as a nuisance, and would have done so if they had not been prevented by the injunction. The city claims that streets were located over and upon the right of way by the plat of the city, and, if not, that they have been established by user.
E. S. Wilder, who owned all the land, conveyed the right of way to the railway company by deed, with full covenants of warranty, describing the land by metes and bounds. This deed was executed and acknowledged September 20, 1883. It was recorded September 21, 1883, at 1:20 P. M. The plat of the city of Cheney was recorded September 20, 1883, at 4 o’clock P. M.
There is no direct evidence as to when the deed was delivered. The presumption is that it was delivered when executed, but even when so aided the delivery does not appear to have been before the plat was recorded. It is conceded that deeds become effective when delivered, and plats when recorded. In view of this discrepancy as to time, the city insists that the plat was filed first and the deed became subject thereto.
The trial court made findings of fact and conclusions of law separately. No specific finding was made as to which of these papers had precedence. There was a general finding, however, that the city had no rights on the right of way, and that no streets had ever been located thereon.
This conclusion may have been based upon the fact that the deed was delivered before the plat was recorded, or upon the fact that the plat showed on its face that the streets were not intended to cross the right of way, either of which is justified by the evidence. It is not reasonable that the grantor would deliver a deed with full covenants of warranty to land upon which he had immediately before placed an encumbrance. It would seem probable, therefore, that when the deed was delivered the right of way was capable of being transferred free and clear of encumbrance of any kind.
The plat indicates that the streets were not intended to extend over the right of way; they are all closed at its boundary-line. The certificate thereon states that the length of streets and size of blocks and lots are as shown on the plat. There is nothing on the plat to indicate the length of the streets except the lines that close them at the boundary of the right of way.
The conclusion of the court cannot, therefore, be deemed erroneous. As to dedication by user, that is a fact depending upon the evidence of witnesses, and the finding of the court thereon cannot be questioned here.
The judgment is affirmed. | [
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■The opinion of the court was delivered by
Smith, J. :
The sole question involved is whether á foreign corporation transacting business in this state .can plead the statute of limitations in bar of a cause of action originating here in favor of a resident plaintiff; The statutory language applicable to the case is as' follows;
“If when a cause of action accrues against a person he be out of the state, . . . the period lim-. ited for the commencement of the action shall not begin,to run until he comes into the state,. . and if after the cause of action accrues he depart from the.state, ; . . the time of his absence shaü not be computed as any part of the period within which the action must be brought.” (Gen. Stat. 1901, §4449.)
By the thirteenth paragraph of section 7342 it is provided that the word “person” may be extended to corporate bodies.
It is the contention of counsel for defendant in eN ror that because, at the time of the injury to plaintiff below, the street-railway company was doing business in Kansas, and had a superintendent here on whom process could be served, and so continued to transact business and maintain an office in this state until the action was begun, for the purpose of invoking the bar of the statute of limitations it cannot be held that the corporation was out of the state during said time.
In Mary E. Lane, Adm’r, v. The National Bank of the Metropolis, 6 Kan. 74, it was held that the personal absence of the debtor from the state, even if he retained a residence here at which process against him might be served, was sufficient to take the case out of the statute.. This case has been followed repeatedly. (Hoggett v. Emerson, 8 Kan. 262; Morrell v. Ingle, 23 id. 32; Conlon v. Lanphear, 37 id. 431, 15 Pac. 600 ; Ament v. Lowenthall, 52 id. 706, 35 Pac. 804; Coale v. Campbell, 58 id. 480, 484, 49 Pac. 604; Investment Co. v. Bergthold, 60 id. 813, 58 Pac. 469.)
In the early case of Bank of Augusta v. Earle, 13 Pet. 519, 588, 10 L. Ed. 274, Chief Justice Taney said :
“It is very true that a corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. It exists only in contemplation of law, and by force of the law; and where that law ceases to operate, and is ho longer obligatory, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty.”
Counsel for the street-railway company are in error when they assert that this case has been overruled by St. Clair v. Cox, 106 U. S. 350, 1 Sup. Ct. 354, 27 L. Ed. 222. The last decision went no further than to Ihold that an Illinois corporation could not be subject to a judgment in personam in Michigan unless at the time of service of summons it was doing business in ifche latter state.
In Shaw v. Quincy Mining Company, 145 U. S. 444, 450, 12 Sup. Ct. 935, 937, 36 L. Ed. 768, Mr. Justice dray, after quoting the above language of Chief Justice Taney, said:
“This statement has been often reaffirmed by this ■court, with some change of. phrase, but always retaining the idea that the legal existence, the home, the ■domicile, the habitat, the residence, the citizenship of the corporation can only be in the state by 'which it was •created, although .it may do business in other states whose laws permit it.”
In the same opinion the words of Mr. Justice Curtis In Lafayette Ins. Co. v. French, 18 How. 404, 15 L. Ed. 451, are approved. Pie said :
“This corporation, existing only by virtue of a law of Indiana, cannot be deemed to pass personally beyond the limits of that state.” (See 1 Clark & Mar. Priv. Corp. 356.)
In Land Grant Railway v. Com’rs of Coffey County, 6 Kan. 245, 253, Mr. Justice Valentine, speaking for Hie court, said :
“A corporation, in order to have any legal or valid ■existence, must have a home, a domicile, a principal place of doing business, within the boundaries of the state which creates it. It may send agents into other ■states to do business, but it cannot migrate in a body. If it attempts to migrate in a body, to go beyond the jurisdiction of the laws which bind and hold it together, it dissolves into its original elements, and the persons who comprise it become only individuals. And even where a .corporation has a legal and valid ■existence in its own state, the only recognition that other states will give to it is such as the rules of courtesy and comity between states require.”
The corporation sued in this action, like all others, is, in the words of Chief Justice Marshall, “an artificial being, invisible, intangible, and existing only in contemplation of law.” In The State v. Water Co., 61 Kan. 547, 558, 60 Pac. 337, 341, it was said: “A corporation exists by the will of a sovereign power. To this superior authority it owes an allegiance which it cannot abjure.”
If the Metropolitan Street-railway Company was, in contemplation of law, present in this state from May, 1894, until June, 1901, then the action was barred. The corporation was sued. It is not contended that the body corporate moved itself into this state, but that, having agents here, their presence, while transacting business in its behalf, amounted to the presence of the corporation itself, within the meaning of the statute of limitations above set out. If, as stated by Chief Justice Taney, a corporation cannot migrate from one state to another, then the intangible body which was sued in this action was at all times absent from this state and present in the state of Missouri. In Tioga R. R. v. Blossburg & Corning R. R., 20 Wall. 137, 149, 22 L. Ed. 381, Mr. Justice Hunt said :
“We do not say that a corporation cannot run its cars in a state other than that where it is incorporated and where it is domiciled, nor that it cannot by its lawful agents make contracts and do other business in such state. We assume that it can. In doing these things it does not lose its residence in the former state nor become a resident of the latter. It still resides in the state where it is incorporated and does not depart therefrom.”
The language above quoted was used when the court was considering the effect of a section of the New York statute of limitations exactly like ours. It is true, as counsel state, that in the case last referred to it was held by a majority of the court that in New York no personal judgment can be obtained against a foreign corporation by service on its officers or agents although it may be doing business in that state. We do not conclude, however, that a different result would have been reached had the law there permitted a valid personal judgment to be rendered, based on service on the corporation’s agents in New York. In the brief of counsel for the street-railway company it was said :
, “The full object and purpose of our law has been subserved when a plaintiff for the full period of limitation has been in a position to sue upon his claim and recover a personal judgment against the defendant.”
The same argument was made in behalf of Senator Lane in 6 Kan., supra, who maintained a residence in Lawrence, in this state, where personal service could have been had by leaving a copy of the summons under section 64 of the code (Gen. Stat. 1901, §4494), and a personal judgment obtained thereon, which would be good everywhere. The court, however, held that the statute of limitations which excludes the time during which the debtor is absent from the state should receive the natural meaning the words used import. The plaintiff in the Lane case was nowise obstructed or delayed in bringing his action by the absence of the debtor in Washington, for during the whole time of such absence he could have obtained service of summons as valid in all respects as if had personally on Mr. Lane in this state.
The case of N. M. R. R. Co. v. Akers, 4 Kan. 453, 96 Am. Dec. 183, was an action against a Missouri railroad corporation for breach of contract. The latter pleaded the statute of limitations. The court said, at page 475 :
“The reply to the plea of the statute of limitations was that the defendant was a foreign corporation, created and existing under the laws of Missouri, and having no corporate existence under the laws of Kansas. And there was testimony absolutely proving these allegations. So that the assumption of fact in the instruction is hardly sustained'by the record. But we have already attempted to show that a corporation is a person under the code and within the meaning of section 28 — an artificial being, a corporate body, confined to the state of Missouri, where it remained until this suit was brought, for aught that appears from the record, and is subject to the exceptions enumerated in section 28 of the code. To hold otherwise would be to say that the legislature intended to discriminate in favor of a foreign corporation, without any just grounds for such a conclusion. We think the principle of this instruction was settled by the court in the case of Bonifant v. Doniphan (3 Kan. 35), and against the plaintiff in error.”
There was no showing, however, in the case referred to that the foreign corporation had at anytime transacted business in this state. The court based its decision on the authority of Bonifant v. Doniphan and Walker, 3 Kan. 26, which first adopted the construction of the limitation statute afterward adhered to in the Lane case and others cited above. It will be noted that the court applied the language of section 4449 of the present statute, supra, to an artificial being — a corporate body — and gave it the same effect as if an absent individual were defendant in the action. The same application of the statute was made in Ætna Life Ins. Co. v. Koons, 26 Kan. 215, the third paragraph of the syllabus reading :
“Where the petition alleges that the defendant is a foreign insurance corporation, created and existing under the laws of Connecticut, with its principal office in the city of Hartford, in that state, it sufficiently appears therefrom that the defendant is a non-resident, and not present in the state, and an objection upon the ground that the cause of action therein set forth is barred by the statute of limitations, is not well taken, because the exceptions enumerated in section 21 of the code apply.”
A corporation must be thought of without reference to the members who compose it. The latter may die but the body corporate does not. While a valid judgment may be taken against a corporation in this state by service here on its officers or agents transacting business for it, yet such fact does not compel us to hold that, within the meaning of our limitation law, it is personally present in the state when served. In the case of Senator Lane a valid personal judgment could have been obtained against him by his creditor by service of summons left at his usual place of residence in Kansas, although at the time he was temporarily absent in Washington in discharge of his official duties. In Foster v. Caskey, 66 Kan. 600, 72 Pac. 268, it was held that, although the principal business of a foreign corporation was transacted in this state, such fact did not authorize the taxation of its capital stock here. The case of Commonwealth v. Standard Oil Co., 101 Pa. St. 119, 146, was quoted:
“The domicile of the Standard Oil Company is in the state of Ohio. Being a corporation, it is an invisible, artificial and intangible thing. When it sent its agents to this state to transact business, it no more entered the state-in point of fact than any other foreign corporation, firm or individual who sends an agent here to open an office or branch house.”
Wisconsin has a limitation statute like ours. The clause relevant here reads :
11 If, when the cause of action shall accrue against any person, he shall be out of this state, such action may be commenced within the terms respectively limited (six years) after such person shall return or remove to this state.”
This provision was held to apply to the temporary absence of a resident of the state, although during such absence a summons might have been served by leaving it at his usual place of abode. (Parker v. Kelly, 61 Wis. 552, 555, 21 N. W. 539.) Following this, in Larson v. The Aultman & Taylor Co., 86 Wis. 281, 286, 56 N. W. 915, 39 Am. St. Rep. 893, it was decided that a foreign corporation came within the purview of the limitation statute above quoted. The court said that the word “person” being applicable to corporations as well as to individuals it was obvious that when the cause of action accrued the corporation was “out of the state.” In The Traveler’s Ins. Co. v. Fricke, 99 Wis. 367, 377, 74 N. W. 372, 78 N. W. 407, 41 L. R. A. 557, the case of Larson v. The Aultman & Taylor Go., supra, was followed. On a motion for rehearing it was said :
“The appellant argued that ... a foreign corporation which has acquired a domicile in this state for the purposes of litigation is not a non-resident in such sense as to suspend the operation of’ the statute of limitations against it. 6 Thompson, Oorp. §7841.
“The motion was denied.”
In most of the cases cited by counsel for defendant in error the right of a foreign corporation to plead the statute of limitations is made to depend on whether valid service could be had on it in the state where sued. ( Winney v. Sandwich Mfg. Co., 86 Iowa, 608, 18 L. R. A. 524; Turcott v. Railroad, 101 Tenn. 102, 45 S. W. 1067, 40 L. R. A. 768, 70 Am. St. Rep. 661.) As we have shown, such is not the test in this state. The last case cited expressly recognizes that the doctrine contended for by defendant in error does not obtain in Kansas. It may be said that a foreign corporation doing business in this state, through agents is constructively present here for the purposes of valid service of summons on it although it is actually out of the state. (Merchants’ Manuf’g Co. v. Grand Trunk Ry. Co., 13 Fed. [C.C.] 358.) The constructive presence of Senator Lane in Kansas at his place of abode in Lawrence where valid service might have been had did not avail him during his actual absence from the state.
An examination of the decisions of different states on the subject in hand will disclose that in almost all of them, where it has been held that a foreign corporation situated like defendant in error may invoke the limitation laws of the jurisdiction where it is sued, statutory provisions differing from ours exist. A notable exception, however, is found in Nebraska, where under a statute like section 4449, General Statutes of 1901, supra, the doctrine of the Lane case and others cited above is denied. In Bauserman v. Blunt, 147 U. S. 647, 657, 13 Sup. Ct. 466, 470, 37 L. Ed. 316, the court said:
“But what may be the law of Nebraska is immaterial. The case at bar is governed by the law of Kansas, and the duty of this court to follow as a rule of decision the settled construction by the highest court of Kansas of a statute of that state is not affected by the adoption of a different construction of a similar statute in Nebraska or in any other state.”
On the question involved see, also, Boardman et al. v. Lake Sh. & Mich. So. R’y. Co., 84 N. Y. 157, and cases cited; The State v. National Accident Society of New York, 103 Wis. 208, 79 N. W. 220 ; Hanchett v. Blair, 100 Fed. 817, 41 C. C. A. 76; Barstow v. Union Con. S. M. Co., 10 Nev. 386 ; Clarke v. Bank of Mississippi, 10 Ark. 516, 52 Am. Dec. 248.
Whether foreign corporations which have purchased or leased railroads in this state, as provided in section 5871, General Statutes of 1901, are affected by the principle involved in this case, we do not decide.
The judgment of the court below will be reversed and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
B. O. Williamson sued W. H. Reynolds- in Norton county, and caused an attachment to be issued and levied on lands of the defendant in that county, upon the ground that he was a non-resident of the sta.te. A summons issued to the sheriff of Norton county at. the time of the filing of the petition was returned not served. A summons was then issued to the sheriff of Thomas county, who served defendant there. Plaintiff, afterward filed an affidavit for service by publication, and caused a notice to be published in the usual form. Defendant made a special appearance and moved to set aside the service of summons, showing in support of such motion that he had been in Thomas county continuously since" a time prior to the filing of the petition. The motion was overruled, and the defendant making no further appearance, a judgment was rendered for the plaintiff confirming the attachment and ordering the sale of the 'attached property. Defendant brings' this, proceeding to reverse the judgment, claiming that neither the personal service in Thomas county nor the published notice gave the court jurisdiction. The judgment was based both upon the personal service and the publication, so that if either was sufficient it must be affirmed.
In view of the conclusion reached it will be' necessary to consider only the personal service. Plaintiff in error contends that it was void for the reason that the action was transitory and could only be brought, while the defendant was within the state, in the county where he could be summoned, that is, in Thomas county. Article 5 of the code of civil procedure, consisting of sections 46 to 56, inclusive (Gen Stat. 1901, §§ 4476-4486), relates to “the county in which actions are to be brought.” . The first three sections (46, 47, and 48) describe various kinds of local actions, such as those for the recovery or partition of real estate or the foreclosure of a real-estate mortgage, which must be brought where the land is situated, and those for the recovery of a fine imposed by statute or on the bond of a public officer, which must be brought where the cause arose. Sections 49, 50, 51 and 52 relate to actions not strictly local, but which may be brought in special counties, determined by various conditions. For instance, sections 49 and 50 provide that an action against a Kansas corporation may be brought in the county of its principal office, or in which any of its principal officers reside or may be summoned ; that if the corporation be an insurance company the action may be brought where the cause arose ; that certain actions against railroad companies may be brought in any county through which the roads pass. Section 53 reads :
“An action other than one of those mentioned in the first three sections of this articlé, against a nonresident of this state, or a foreign Corporation, maybe brought in any county in which there may be property of or debts owing to said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company, the action may be brought in any county where the cause, or some part thereof, arose.”
Section 54 provides that an action for divorce must be brought in the county of plaintiff’s residence. Section 55 at the time this action was begun read:
“Every other action must be brought in the county in which the defendant, or some one of the defendants, reside or maybe summoned.”
Section 60 of the code (Gen. Stat. 1901, §4490), a part of article 6, reads :
“Where the action is rightly brought in any county according to the provisions of article 5, a summons shall be issued to any other county against any one or more of the defendants, at the plaintiff’s request.”
According to the express terms of the sections quoted, an action against a non-resident may be brought in any county in which he has property, and when the action is rightly brought in such county a summons may issue to any other county. Plaintiff in error claims that this action is of the class described in section 55, but in fact it is of the class described in section 53. The construction contended for would add to section 53 a requirement that the action must be brought in the county in which defendant can be summoned, if he is within the state, and that it can only be brought in the county where the property is situated when defendant is not to be found in the state. No sufficient reason appears for such an interpretation. The statute in effect makes an action against a non-resident having property in this state quasi-local in it's nature. The plaintiff may sue in the county where he can attach the property and send a summons to any other county, just as in the case of the foreclosure of a real-estate mortgage he must sue where the land is and cause summons to be served upon defendant in whatever county this can be done. The fact that in the attachment case he might, if he prefer, sue the defendant in the county where he could be summoned and send an attachment to be levied in another county does not affect the matter. The statute in this case, as in a number of others, gives the plaintiff an option as to where the action shall be brought.
A similar question arose in Oregon. There the statute, as in several other states (Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am. St. Rep. 726, and June et ux. v. Conant, 17 Vt. 656), provides that a non-resident of the state may be sued in any county which, the plaintiff may designate. In Fratt v. Wilson, 30 Ore. 542, 545, 48 Pac. 356, it was said:
“H. 0. Wilson, a resident of California, was sued by Francis Fratt, in Multnomah county, in an ordinary action to recover money, and service made upon him. while temporarily in Lake county, and the sole question to be determined upon this appeal is whether the judgment subsequently rendered by default is void for want of jurisdiction. The contention for the defendant is that personal service of a summons in this state on a non-resident, in a transitory action, does not confer jurisdiction of his person, unless made in the county where the action is pending; while the plaintiff claims that the action may be commenced in any county which the plaintiff may designate in his complaint and service be made elsewhere in the state. . ■. . The statute was manifestly designed to fix the place of trial of transitory actions against two different classes of persons, viz., persons residing in the state and those not so residing. The first clause of the section clearly refers to persons who are residents of the state, and as to them the action must be commenced ‘ in the county where the defendants or either of them reside, or may be found, at the commencement of the action; ’ while the latter clause just as clearly refers to persons residing out of the, state, and as to them it provides that the action may be commenced ‘in any county which the plaintiff may designate.in his complaint.’ This is but giving to the-words of the statute their general import and customary meaning, and we do not see why they should not. be so construed. The legislature evidently thought a-different rule should prevail in actions brought against, its own' citizens from those brought against .non-residents, and it is not for the courts to speculate as to the sufficiency of the' reasons therefor. The defendant claims, however, that the latter clause of the section referred to was intended to apply only to nonresidents who could not be served with process in the state, and not to such persons when found therein; but the statute itself makes no such exception, and we are not authorized to make any. By the language of the statute it is declared that if the defendant does not reside in the state the action may be commenced in any county which the plaintiff may designate in his complaint, and this provision was admittedly complied with in this case ; hence the judgment is not void, and must be affirmed.”
The Kansas statute, instead of giving the plaintiff an unrestricted right to sue a non-resident in any county of the state, limits his choice to those counties in which the defendant has property (or in which he may be summoned), but this limitation does not affect the application of the reasoning of the Oregon court to the present case. It may have the effect to confine the operation of the judgment to the attached property, but that question is not here involved.
The judgment is affirmed..
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
On February 20, 1901, the Sigel-Cam-pion Live-stock Commission Company, a corporation of the state of Colorado, commenced an action to foreclose a mortgage given by James Haston and Mary J. Haston, bis wife, to the Schirmer Insurance and Investment Company, and assigned to the plaintiff. Various parties were made defendants. Mary J. Haston answered, claiming part of the land as her own ; that the mortgage and the note it secured were accommodation papers; that she was a surety of her husband; that she received no consideration for executing the paper ; that no consideration passed for the assignment of the paper by the payee to the plaintiff ; that the mortgage was void under the bankruptcy law; that a conveyance of a part of the land by her to J. M. English, one of the defendants, was void; and that the plaintiff had no right to recover, on account of failure to comply with the corporation-laws of this state. Howard S. Lewis answered as trustee in bankruptcy of James Haston, claiming the note and mortgage to be void under the bankruptcy law, charging the English transfer to be void, and impeaching the right of plaintiff to recover, as a foreign corporation which had not complied with the law regulating its right to do business in this state.
James Haston adopted the answers of his wife and Lewis, trustee, and pleaded his discharge in bankruptcy. Elmore-Cooper Live-stock Commission Company and Sattley Manufacturing Company, judgment creditors, set up liens upon the land. English made default. At the conclusion of the trial, findings of fact were made, and upon them judgment was rendered for the plaintiff, foreclosing the mortgage against the land of James Haston, but releasing the land of Mary J. Haston from its lien, After the satisfaction of the plaintiff’s lien, the balance of the proceeds of the sale of James Haston’s land, if any, was to be paid to Lewis, trustee. The deed to English was set aside, and judgment creditors were given first liens upon Mary J. Haston’s land. The plaintiff asks for a reversal of so much of the judgment as denies it a first lien upon Mary J. Haston’s land, and the trustee in bankruptcy asks for a reversal of so much of the judgment as enforces the mortgage, against James Haston’s land.
The right of the plaintiff t,o recover against Mary J. Haston is clear, unless she can impeach the acquisition of title to the note and mortgage by the plaintiff. Under the well-understood rule, only the findings of fact and uncontroverted allegations in the pleadings can be considered. (Shuler v. Lashorn, 67 Kan. 694, 74 Pac. 264.)
In April, 1900, James Haston agreed with the plaintiff and the Schirmer Insurance and Investment Company to execute a mortgage upon his own and his wife’s land to the Schirmer Insurance and Investment Company for a loan of $10,000, out of the proceeds of which the plaintiff was to receive certain sums of money then due it from James Haston, and be repaid other moneys which it agreed to advance to James Haston to pay for feeding cattle. .Afterward it was agreed between James Haston and the plaintiff that the amount of the advancements should be increased in order to pay judgment and other liens against the land, and to purchase other real estate to be included in the mortgage, and the amount of the mortgage was increased to $15,000 for these purposes.
At the date of these negotiations James Haston was indebted to the plaintiff in a considerable sum. Before the execution and delivery of the note and mortgage, which were delayed for some months, the plaintiff paid out, according to agreement and for the items specified, sums of money sufficient to make up the full amount of $15,000. After their execution the note was indorsed and the mortgage was assigned by the payee to the plaintiff. The payee paid nothing to the Hastons for the paper, and the plaintiff paid the payee nothing for it. This fact the court expressed in the form of g, legal conclusion relating to consideration, which would be incorrect as a matter of law. Taken as a statement of fact, however, it is clear and correct. Mary J. Haston was not originally a party to James Haston’s agreement to give the mortgage, nor to the subsequent modification of that agreement, increasing the amount to be advanced and to be secured ; but the court expressly found that she was surety for her husband.
From this state of facts it is plain that the plaintiff’s advancement of money to James Haston was for a temporary purpose only, and that it was to be repaid as soon as the mortgage loan could be arranged. After the advancements had been made he was indebted to the plaintiff on account in the sum of $15,-000 for money had and received. In order to enable her husband to satisfy his obligation to repay the plaintiff this money;, and for her husband’s benefit and accommodation in that regard, Mrs. Haston placed in circulation her note, secured by a mortgage on her land. This she fiad a rigfit to do, and the benefit he derived from the transaction was a sufficient consideration to her. (7 Cyc. 723.)
By means of this note and mortgage James Has-ton’s debt to the plaintiff was paid. His immediate liability for the repayment of the money he had received was as effectually satisfied and discharged as if the Schirmer Insurance and Investment Company had paid the plaintiff in cash. It was not in contemplation of the parties that the Schirmer Insurance and Investment Company should pay any money whatever to James or to Mary J. Haston. It was simply to satisfy James Haston’s debt to the plaintiff. How this debt was paid, if in fact it was paid, was of no concern to Mary J. Haston. If, in lieu of cash, the plaintiff was willing to accept the securities themselves, she had no right to complain. No restrictions upon the use of the paper, as a means of securing the payment of her hüsband’s debt, appear. The in-dorsement of the note and assignment of the mortgage by the payee and mortgagee accomplished that purpose. The change in the plaintiff’s situation made it a holder for value. Its knowledge of the suretyship relation between Mary J. Haston and her husband could not affect the plaintiff’s right to recover. (7 Cyc. 725, 947.) The transaction was free from fraud, and she is legally bound.
The findings of fact relating to the validity of the mortgage sued on under the bankruptcylaw fail to show that its execution and enforcement would have the effect of enabling the plaintiff to obtain a greater percentage of his debt than any other creditor of the same class. In this respect the case is analogous to Baden v. Bertenshaw, ante, page 32, 74 Pac. 639, and Dry-goods Co.v. Bertenshaw, ante, page 734, 75 Pac. 1027 ; and the relief'prayed for in the cross-petition in error of Lewis, trustee, on account of a supposed preference given the plaintiff, must be denied for want of sufficient facts to support it.
Regarding the right of the plaintiff to bring suit, the court found as follows :
“That prior to August 1,1899, the defendant, James Haston, and the plaintiff were engaged in the .cattle business as partners in the state of Kansas; that their mode of business was for the defendant, James Haston, to execute mortgages to the plaintiff for the purchase-price of all cattle that were turned in, and that they wei'e engaged in business as partners up to that time.
“That since August 1, 1899, the plaintiff has not been in partnership with the defendant, James Has-ton, but that, on different occasions since said date, plaintiff has prepared notes and chattel mortgages and renewals thereof- and sent the same to James Has-ton, who signed the same in the state of Kansas, and, at the request of plaintiff, had the same filed of record in different counties in Kansas where the defendant lives and where the cattle were located, but that the notes secured by said mortgages were payable to the plaintiff at its offices in Denver, 0010.”
In Thomas v. Remington Paper Co., 67 Kan. 599, 73 Pac. 909, it was said :
“In order to invoke the application against a for eign corporation of the provision of section 1283, General Statutes of 1901, forbidding the bringing of an action by a corporation without first filing certain statements, it must be shown that the corporation in question is one doing business in this state.”
The findings quoted show nothing more since 1899 than fully completed, isolated, independent transactions, only incidentally necessary to the business of the corporation conducted at its domicile. They do not show that repetitions of the acts described were in progress or in contemplation at the time suit was brought, or that the territory of the state was then being made the basis of any kind of operations for the conduct of any part of the corporation’s business. Therefore, no bar to plaintiff’s recovery appears.
The judgment in favor of the plaintiff and against Lewis, trustee, is affirmed. The judgment awarding to Elmore-Cooper Live-stock Commission Company and Sattley Manufacturing Company first liens upon the land of Mary J. Haston is reversed. The judg ment denying the plaintiff a first lien upon the land of Mary J. Haston is reversed, and the cause is remanded, with direction to the district court to enter judgment foreclosing the plaintiff's mortgage as a first lien upon Mary J. Haston's land, and otherwise to proceed in accordance with this opinion. ■
All the Justices concurring. | [
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Per Ouriam:
It appears from the papers attached to-
the petition in error filed in this case that a judgment was-recovered against the plaintiff in error in the court below, and time was given him to make and serve a case-made for the supreme court. The time thus given expired without any steps having been taken to make or serve a case-made. Thereafter the plaintiff in error applied to the trial court for an order fixing a time within which he might make and serve a case-made. This application was denied, on the-ground that the court had no jurisdiction to make such order. Error is prosecuted upon a transcript of the proceedings had upon that application.
The jurisdiction of this court is challenged by defendant in error. The district court lost jurisdiction of the case when the time given to make and serve a case-made expired, and it could not thereafter assume jurisdiction.
“The jurisdiction of the judge to settle the case is a special and limited jurisdiction, which only arises at the times and under the-circumstances specified by law.” ( Weeks v. Medler, 18 Kan. 425, 428.)
It is contended, however, that the omission to make and serve the case-made within the time fixed by the trial court was due to the neglect of the official stenographer in not preparing a transcript of the proceedings, and that for this • neglect the plaintiff in error was not responsible. We think it wholly unimportant why the case-made was not made and served within the time allowed by the court. After the expiration of that time the court had no jurisdiction to fix another time within which a case-made could be • prepared and served.
The petition in error is dismissed. | [
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Per Curiam:
This action was commenced in the name of a minor by her mother, designated in the title as “guardian”, and, it was said, by another person called an attorney in fact. No appointment as guardian was alleged or proved. The mother, however, was the natural guardian and assumed all the duties and liabilities, and became subject to all the obligations and restraints of a next friend.
The action was for the benefit of the infant, and the mother was as substantially a next friend,, so far as the conduct of the cause was concerned, as if she had been so described; and since the trial court has accepted the offices and approved the conduct of the party who, in fact, bore to the infant the relation of next friend, this court will not now overturn a verdict and judgment.for lack of a for mality in name which could have been supplied, if necessary, at any time either before or after judgment.
The admissions of the defendant removed from the controversy the question of ownership of the land by the infant’s grantor. It was also admitted that the wheat sued for was rent wheat'and the amount and value were agreed upon. There could be no controversy, therefore, but that the wheat was a share of the crop, which, under the statute, belonged to the landowner and passed by his deed.
None of the claims of error are of substantial merit, and the judgment of the district court is affirmed. | [
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'Th'e opinion of the court was delivered by
MasoN, J. :
The John Deere Plow Company, a Missouri corporation, sued R. L. Jones and Martha J. -Jones upon a note. A demurrer to plaintiff's evidence was sustained, and this proceeding is brought to review that ruling.
If the pleadings and evidence presented in the ■record here are the same as those upon which the •trial court acted, it is evident that the demurrer was sustained merely because there was no showing that plaintiff had complied with the statutory requirements with respect to foreign corporations doing business in this state. If this be true, the judgment complained of was erroneous, for since its rendition this court has held that non-compliance with the statute in this regard is matter of defense. (Northrup v. Wills, 65 Kan. 769, 70 Pac. 879.) But defendants in error contend that the case-made does not show that it contains all the pleadings and evidence. Its recital is that it contains all the “proceedings." This term, as thus used, includes the evidence. (Lindsay v. Comm’rs of Kearny Co., 56 Kan. 630, 44 Pac. 603.) Whether it also includes the pleadings need not be determined, since to review the question presented it is not necessary that the record should contain all of the pleadings at any time filed in the case. The case-made here sufficiently shows that it contains all the pleadings upon which the trial was had, and that is enough for present purposes.
A contention that the record does not include all of' the pleadings upon which the case was tried might be based with some degree of plausibility upon the fact that the plaintiff designated its final statement of its cause of action as its “amendment to the amended pe tition.-” No “amended petition” other than this is set out. If it is to be assumed that this pleading must be considered in connection with a former one, to which it is merely an addition, the omission of such former pleading prevents a l'eview; but it is apparent from the entire record that such is not the case. However inapt for the purpose, the phrase “amendment to the amended petition” was obviously used by the plaintiff to designate an amendment of the amended petition by changing its entire structure — a recasting of the pleading. This appears from the fact that its subject-matter clearly shows that it is intended to be in itself a complete statement of the cause of action, without reference to any prior pleading. Moreover, the two answers to this very pleading, although called by the plaintiff who prepared the case-made answers to “the amendment to the amended petition,” are designated by the defendants themselves as answers to the “second amended petition,” and throughout these answers this pleading to which they respond is called the “second amended petition,” although the plaintiff in his reply continues to refer to it as the “amendment to the amended petition.” The pleading was in fact just what the defendants themselves aptly entitled it, a second amended petition. With the answers and replies, it constituted the pleadings on which the case Avas tried, and any omission from the record of an earlier petition is immaterial.
It is only necessary that a case-made shall contain ‘ ‘ a statement of so much of the proceedings and evidence, or other matters in the action, as may be necessary to present the errors complained of.” (Gen. Stat. §5033.) The amended pleading entirely superseded that for which it was substituted (Reihl v. Likowski, 33 Kan. 515, 6 Pac. 886), and there was no •occasion for the latter being preserved in the record made for the reviewing court. The situation is very different from that presented in Rinard v. Gardner, 49 Kan. 563, 31 Pac. 134. There the original petition was amended before trial. The record showed only the original petition and did not show the amendment or any amended petition. Consequently this court had no means of knowing upon what issues the case was tried. Here the complete issues, as finally made up, are shown, and the various steps by which the pleadings reached their final stage are not important.
The judgment is reversed and a new trial ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
The wife of the plaintiff, John G. Schaefer, who was an elderly German, died early in the year 1899, and he purchased a lot and buried her in the cemetery belonging to' the Evangelical Lutheran Saint Paul’s Church, an organization composed of his German friends and neighbors, to which his wife had belonged. This cemetery was on land adjacent to the church building.
In 1901 his daughter died with the scarlet fever, and at the same time another daughter and a son were very sick with the same disease. He sent a neighbor to the cemetery where he had buried his wife, with instructions to prepare a grave for the interment of his daughter, and to hasten the same as much as possible, the physicians having directed that, on account of the contagious character of the disease, she should be buried soon. When the neighbor arrived at the churchyard !he was met by the defendant R. Krenke, the preacher in charge of this German congregation, who refused to permit the grave to be dug, and addressed a letter to Mr. Schaefer stating such refusal, and also saying that the congregation had adopted a rule that only members of the church were entitled to be buried in the cemetery; that the daughter could not be buried there; and that he would not officiate at the funeral, nor would any other minister be permitted to do so. This having been communicated to Schaefer, he directed that arrangements be made to bury the dead daughter at Cheney, a point five miles away. The men sent to dig this grave failed to find the authorities so as to get permission and had to return. In returning they- met Mr. Schaefer upon the road with the body of his dead child, hastening to bury it. He was compelled to return to the home and wait until the next day, when the proper arrangements could be made.
This action was brought against the church in its corporate capacity, and the trustees and the preacher in their individual capacities, to recover damages, actual and punitive, for the indignities offered. A verified general denial, admitting, however, the corporate character of the church, was filed, and afterward an amendment thereto, which, as a justification for the refusal to permit the burial of the plaintiff’s daughter, pleaded that she was not a member in good standing in the church nor a communicant, and that the rule of the church denied to such persons burial in the cemetery. Upon the trial the plaintiff showed the denial on the part of Krenke to the right of burial for plaintiff’s daughter, and upon cross-examination it was shown that this right was denied because, as was claimed, the daughter was not a member or communicant of the church. It appears in evidence that Krenke assumed to speak for the church and its trustees, but there was no testimony that he had authority so to speak; indeed, such authority was denied. A demurrer to the evidence was sustained as to all of the defendants.
The matter contained in the answer, being verified, was sufficient to put the burden upon Mr. Schaefer to prove the authority on the part of Krenke to speak for the corporation and for its trustees in their individual capacities. This not having been done, he failed to make out any case against them. As to Mr. Krenke, his only justification was that the church had a rule under which he assumed to act, but merely as a volunteer; he distinctly disclaimed any right or authority from the congregation so to act.
The law, not being made to enforce the amenities nor always the ethics of life, recognizes the right of a church to enact and enforce such a rule, and had it been in existence at the time Mr. Schaefer purchased his lot, or had there at that time been reserved in the by-laws of the corporation the right subsequently to enact 'such a rule, he would be bound thereby ; but no such showing is found in the evidence. Nor could. Mr. Krenke justify his action under a rule of the-church, even had such rule been binding upon Mr. Schaefer, when he had no authority to speak for the-church. One may not push himself forward to defend-, the contract rights' of another without authority and while disclaiming authority.
¥e think the action of the court below was correct as to the corporation and the trustees and wrong as to Mr. Krenke. To this extent the judgment will be reversed, and the cause remanded for further.proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
In February, 1890, Oliver C. Hockman, an unmarried man, was the owner of 160 acres of land which he occupied with one Cynthia Yohe with whom he was living. The land was encumbered by a first mortgage to one Conrad for $1500 and interest, and by a second mortgage to one Koester for $824 and interest. For the purpose of raising money to pay these debts the plaintiff in, error conveyed the land to his father, Daniel Hockman, by warranty deed, and thereafter he and his father executed to George S. Hooker a note for $2000, secured by a first mortgage on the land, and a note and second mortgage to Koester for $200. At the same time Daniel Hockman and wife, .parents of Oliver C. Hockman, entered into a written agreement with the latter to reconvey the premises to him on his payment within ten years of the two notes last mentioned, which were secured by mortgages on the land: The agreement provided for the appointment of Oliver C. Hockman as agent for Daniel Hock-man, and authorized the latter to select another agent if he desired to rent the land and apply the profits to the payment of said debts. The contract was left with Charles F. Koester, a banker, for safe-keeping. It was not recorded.
On March 2, 1892, Oliver C. Hockman, who had occupied the premises since the transactions above mentioned, was arrested, and, together .with his alleged wife, charged with illegal sales of intoxicating liquors, taken into custody and lodged in the county jail. On the morning of that day the house they had occupied on the farm was burned down. Hockman and the woman were convicted, and remained in custody until November 1, 1892. After the destruction of the house, there was left on the place, in a condition of abandonment, a discarded harvesting-machine, a broken plow, a metal cylinder called a feed-cooker, and a frameless grindstone.
On October 21, 1892, Charles E. Thuma bought the land from Daniel Plockman, receiving a warranty deed, in which the consideration was expressed as $3200. This consideration was made up of an assumption of the $2000 mortgage on the land and the sum of $1200, to be paid Daniel Hockman, as evidenced by three notes of $400 each. Before buying, Thuma went over the land and also inquired of Mr. Koester whether the title was good, to which question he received an affirmative answer. Thuma occupied the land through a tenant, built a house on it, and made other improvements. In January, 1901, plaintiffs in error took' forcible possession of the premises, and two months later brought an action to quiet the title. They were defeated in the court below.
There are many assignménts of error, but it is sufficient to discuss only one or two of them. We have, however, given consideration to all the points raised by plaintiffs in error. As to those not mentioned we hold against them. The important question in the case is whether the possession of plaintiffs in error, as indicated by their farming implements left on the land, imparted notice to Thuma, the purchaser, of the rights of the occupant. Conceding that they were indicia of possession, we will treat the case as if Oliver C. Hoekman, the grantor in the warranty deed to his father, had been living on the land at the time Thuma purchased.
The great weight of authority sustains the rule that when a vendor of real estate remains in possession after he has conveyed the property he will not be allowed to assert secret equities in his favor respecting the land, for by his deed he has declared to the world, that he has no right to possession. In McNeil v. Jordan, 28 Kan. 7, 16, Chief Justice Horton, speaking for the court, said :
“A purchaser from the grantee of the party in possession need not inquire whether such party has reserved any interest in the land conveyed. So far as the purchaser is concerned, the actual occupant’s deed is conclusive upon that point. The object of the law in holding possession constructive notice, is to protect the possessor from the acts of others who do not derive their title from him, not to protect him against his own acts, not to protect him against his own deed. Therefore, where a grantor executes and delivers a deed of conveyance to go upon record, he says to the world : ‘ Though I am yet in the possession of the premises conveyed, it is for a temporary purpose, without claim of right, and merely as a tenant at sufferance of my grantee.
See, also, Sellers v. Crossan, 52 Kan. 570, 35 Pac. 205; Groton Savings Bank v. Batty, 30 N. J. Eq. 126, 133; Newhall v. Pierce, 5 Pick. 450; Scott v. Gallagher and another, 14 S. & R. 333, 16 Am. Dec. 508.
Counsel for plaintiffs in error contend that the possession of one Conrad was notice to Thuma of their clients’ rights under the contract. The court found, upon evidence amply sufficient, that Conrad was the tenant of Daniel Hockman, the grantor of Thuma. It may be conceded that the court below erred in excluding the testimony of T. H. Polack, an attorney who had conversed with Oliver C. Hockman in the presence of his father at the county jail. The proof offered, however, concerned the unrecorded contract, of the existence of which Thuma was ignorant.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This was an action by the Amusement Syndicate Company to enjoin the city of Topeka and its mayor and council from permitting the city building, in which there is a large auditorium, from being used for public entertainments for profit.
Plaintiff alleged that it was a corporation owning an opera-house in Topeka; that it was organized for the purpose of giving public entertainments for profit, and that it contributes large sums of money in the payment of state, county and city taxes. It also alleged that the city of Topeka erected with public funds a large city building, used in part for municipal purposes in making provision for city offices, a fire department, and other public purposes; that in the building is a large auditorium, furnished so as to seat 4500 persons, with a large stage, suitable for political conventions, lectures, addresses, and like gatherings; that the city officers have wrongfully allowed and authorized the holding of entertainments for private profit in this building, and were arranging and contemplating the giving of other entertainments at fixed charges; that this course had greatly interfered with plaintiff’s business and the profits derived therefrom, and that its continuation will work irreparable injury to it.
We cannot decide the principal questions discussed here, for the reason that the action is brought by one who has-no right to challenge and correct the administration of purely public affairs. The plaintiff is alleged to be a large taxpayer, it is true, but it has been repeatedly held that a private party cannot maintain an action against public-officers, where the acts complained of affect merely the interests of the public generally. Before a private party can be allowed to maintain an action to challenge the conduct of public business, he must allege an interest personal and peculiar to himself that is not shared by and which does-not affect the general public. Assuming it to be true that the city is using its building in a manner not warranted by law, it affects the plaintiff only as it does others having-halls and buildings in which entertainments may be held. As was said in Comm’rs of Barber Co. v. Smith, 48 Kan. 331, 333, 29 Pac. 565, “It is not enough that his damages are greater than those sustained by the general public, thus differing only in degree, but they must be different in kind.”
Plaintiff refers to Spencer v. School District, 15 Kan. 259, 22 Am. Rep. 268, where an action by a private person was maintained to enjoin the use of a schoolhouse for other than school purposes; but in that case, which may be termed a border one, the action was maintained because of the dest uction of plaintiff’s own personal and private property, whic^ was in the schoolhouse, namely, the books, slates, pens, in kstands, etc., that were wasted and destroyed by the misuse of the building. Here no such reason exists, and the fact that the continuance of the wrong affecting other members of the community interferes with plaintiff’s business in a greater degree than with that of the others gives it no right to complain. If, as has been suggested in the argument, a county having a poor-farm should grow thereon more than enough to supply the wants of the inmates and should sell the surplus, it would hardly be contended that every farmer in the county who might be slightly affected by the competition would have a right to institute an action to enjoin the county and its officers from cultivating the farm and selling the surplus products.
All of the cases, from Craft v. Jackson County, 5 Kan. 518, down to the latest decision on the question, argue against the right of plaintiff to maintain this proceeding. In Mining and Gas Co. v. Gas and Mining Co., 55 Kan. 173, 179, 40 Pac. 326, where one company was seeking to prevent another from interfering with its monopoly of gas business, it was said;
“A private person or corporation will not be recognized in a court of justice as the guardian of purely public interests, nor to further its private ends by assuming that character.”
’ The plaintiff having no right to maintain the action, the judgment of the trial court denying the injunction will be affirmed. | [
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Per Ouriam:
Judgment was recovered against the railroad company for cutting off the foot of Johnnie Matson, a minor about five years old. It is claimed that the company was negligent in allowing a pile of logs, boards, timbers and wood to be placed and to remain in proximity to the railroad-tracks, which were laid in a thickly populated district called “the patch.” This pile attracted the children of the neighborhood, who played upon it, with the knowledge of the railroad company. The ground in “the patch,” which was dose to the river, was of a loose, spongy character, and when heavy trains ran over the ground it was shaken, so that the children on the pile were liable to be shaken off. On a certain day Johnnie and some other children were playing on this pile, when a locomotive and a number of cars ran along the track close by, shaking the pile and causing the boy to fall under the train.
The principal question involved was raised on a' demurrer to the evidence, and the court held that it was sufficient. There is testimony tending to show the dangerous location of the pile of wood; that the ground was susceptible to movement or jar from the passage of trains over it; that children had been allowed to play upon this pile of wood, with the knowledge of the railroad company, for a year or more. There was also testimony, somewhat circumstantial, it is true, from which the jury might fairly infer that the boy was shaken from the pile of wood by the passing of the train, and that he was not hurt, as the company contended, while attempting to climb upon the train.
There is little ground for contention over the question as to whether the wood-pile was attractive to children, since it was shown that it had existed in this place within two feet of the railroad-track for a long time, and that the children had played thereon with the knowledge of the railroad company. The wood-pile, away from the tracks, would not have been dangerous in itself, but when' placed so near the track on loose ground, -it became a dangerous place when trains were passing by. From the testimony it must be inferred that the company knew of the character of the ground and the jarring effect of trains in passing over it. It is immaterial who owned the ground on which the pile of wood was placed, as the railroad company was aware of the situation and the danger. Even if the injury was the result of the concurrent negligence of two parties, the railroad company would be responsible where its negligence-was a proximate cause of the injury.
The questions of law were fairly submitted by the charge of the court to the jury, and we find nothing iñ the rulings on the instructions which approaches error or furnishes any reason for extended comment.
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
Mason, J :
Robert Borchert appeals from a conviction upon a charge of rape alleged to have been committed by his carnally and unlawfully knowing his daughter, she being under eighteen years of age. Various assignments of error are made, only two of which require discussion, one relating to the admission of testimony and the other to communication between judge and jury after the submission of the case.
The state was permitted, over defendant’s objection, to give evidence of a number of acts of illicit intercourse other than that upon which reliance was had for conviction, each of such acts constituting a violation of the statute under which the charge was made. This the appellant contends t,o be error, under the authority of The State v. Stevens, 56 Kan. 720, 44 Pac. 992. The doctrine of that case is that it is not competent in a prosecution for one offense to show that the defendant is guilty of another similar offense merely for the purpose of enabling the jury to infer that as he had committed one crime he would he likely to commit another. It may be that in the course of the opinion too narrow statements are made of the grounds upon which testimony' as to other offenses may be admitted. But these expressions must be interpreted in the light of the circumstances giving rise to them. The true rule is that testimony which is otherwise admissible as tending to prove the defendant guilty of the very crime charged is not rendered inadmissible by the fact that it also tends to show that he has committed some other crime.
The real inquiry here is whether the evidence objected to did fairly tend to show that the defendant was guilty of the one criminal act for which he was prosecuted. The state offered it as supporting the charge by showing the previous relations between the defendant, and the prosecuting witness. It is well settled that in prosecutions for a single act forming a part of a course of illicit commerce between the sexes it is permissible to show prior acts of the same character. (1 Cent. Dig., col. 2013, §30; 27 id. col. 44, § 11.) Such cases are sometimes, as in The State v. Markins et al., 95 Ind. 464, 48 Am. Rep. 733, said to form an exception to the general rule that one crime cannot be proved in order to establish another independent crime. In fact, however, théy fall within the rule already stated. Such evidence is admitted not because it proves other offenses, but in spite of that fact. Its justification is that it is corroborative of the direct evidence of the offense charged. This is illustrated by a peculiarity of the decisions in Massachusetts. There it was formerly held that in prosecutions for adultery the actual commission of the same offense could not be shown, although any prior familiarities between the same parties short of that might- be. This ruling is thus commented upon by Mr. Bishop: ‘‘According to which doctrine, if the evidence is a little weak, yet tending remotely to establish the crime, it may be submitted to the jury; but, if it is a little stronger and tends more clearly to the same result, it must be excluded.” The Massachusetts court has since rid itself of this anomalous doctrine and conformed to the generally accepted rule. (Bish. Stat. Cr. § 680, and cases cited.)
While the reasons for admitting the evidence of former acts of illicit intercourse may be stronger in prosecutions for offenses involving the actual consent of both parties, they have some application in such a case as the present, where force is no essential element of the offense. They have frequently been held to apply in incest prosecutions where the facts differed in no important particular from those shown by the evidence in this case. In Taylor v. The State, 22 Tex. App. 529, 3 S. W. 753, 58 Am. Rep. 656, they were given effect in a case of statutory rape, although they were there inaccurately summarized as having relation to defendant’s “motive.” We but follow the general rule in deciding that the trial court committed no error in this regard.
While the jury were deliberating upon their verdict, 'and while their balloting showed a disagreement on the question of the defendant’s guilt, they sent to the judge a written communication, as follows :
“To Hon. Judge Simpson:
“Some of the jury ask this question : Would a verdict of guilty, accompanied with a recommendation for mercy, be received by the court ?
W. C. Putt, Foreman.”
The judge, without calling in the jury, or notifying the parties, wrote upon the paper, “Yes.— M. P. SimpsoN, Judge,” and returned it to them. Thereafter several ballots were taken, the number of those voting for acquittal being gradually reduced, until finally a verdict was agreed upon and returned, finding the defendant guilty and including a recommendation for mercy. It is argued that' the fact that the judge held communication with the jury relative to their verdict otherwise than in open court is of itself ground for reversal, and that the answer given to the jury was an inducement to them to find the defendant guilty. It is undoubtedly better that no communication whatever relative to the case should pass between the judge and the jury otherwise than in open court and in the presence of the defendant. It has been held that any violation of this rule, however harmless in fact, requires a new trial. (Lester v. Hays, 14 Tex. Cr. App. 643, 38 S. W-. 52, and cases cited.) In Sargent v. Roberts, 1 Pick. 337, 11 Am. Dec. 185, it was said of a written communication between the judge and j ury:
“As it is impossible, we think, to complain of the substance of the communication, the only question is, whether any communication at all is proper, and if it was not, the party against whom the verdict was is entitled to a new trial. .And we are all of opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, unless in open court, and, where practicable, in presence of the counsel in the cause. The oath administered to the officer seems to indicate this as the proper course : ‘He is to suffer no person to speak to them, nor to speak to them himself unless to ask them whether they are agreed ; ’ and he is not to suffer them to separate until they are agreed, unless by order of court. When the court is adjourned, the judge carries no power with him to his lodgings, and has no more authority oyer the jury than any other person ; and any direction to them from him, either yerbal or in writing, is improper. It is not sufficient, to say that this power, is in hands highly responsible for the proper exercise of it ; the only sure way to prevent all jeal-pusies and suspicions is to consider the judge as haying no control whatever over the case,'except in open court in presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the convenience of jurors is of small consideration compared with this great object.”
In Chris Hoberg v. State of Minnesota, 3 Minn. 262-269, Gil. 181, it was said of an oral communication:
■ “Another objection exists in the fact that after the jury had retired to consider upon their verdict, the judge visited and had communication with them without consent of, and apart from the prisoner and his counsel. This is clearly irregular, whatsoever the motive, and howsoever harmless the -communication. The character of the honorable district judge is a sufficient guaranty that, in the present case, the motive that prompted the visit was not improper, and we have no doubt that the communication was limited, as stated in the case, to merely informing the jury that if they desired any information on matters of law, they should come into court and ask for it. Still, a judge has no more right to communicate with a jury after it has retired, than any other person, and we must look upon his visit in this case in the same light that we would view the entry of any third person into the jury-room, while the jury was in consultation. The judge can have no communication with the jury, or give them any or the least information, except in open court in the presence of, or after due notice to the district attorney and the prisoner or his counsel.. We. cannot guard too strictly so dangerous a practice as is' here complained of.”
That the rule so announced is a wholesome one cannot be doubted, yet to require a new trial as a consequence of its every infraction, might be to enforce it too rigorously. It is probably more in keeping with substantial justice and with the spirit of outlaws to hold that a new trial need not be granted where the prevailing party is chargeable with no wrong, and where it affirmatively appears that no injury resulted, or could result, to the loser.
In The State v. Gluck, 49 Kan. 533, 31 Pac. 690, a new trial was refused, although the record showed that during the time the jury were deliberating, neither the defendant nor his counsel being present, the trial judge twice visited the jury-room and held conversations with the jury, to the effect that they must act according to the evidence, and take the law as given them by the instructions. It is at least doubtful, however, if that case should be accepted as a precedent.
We do not find in the facts of this case anything to indicate that the defendant could have suffered any prejudice from what took place. If the jury had in the first instance inserted in their verdict the recommendation for mercy, it is not contended that there would have been error in receiving it, although, the court might properly have rejected it. (The State v. Potter, 15 Kan. 302.) The jury merely inquired in advance whether a verdict with the extraneous matter would be received, and the judge, having authority to accept it or refuse it, chose to accept it, and notified the Jury that he would do so. The communication related only to the form of the verdict, not to any question as to the guilt or innocence of the defendant. (Tilley v. Montelius Piano Co., 15 Colo. App. 204, 61 Pac. 483; McCutchen v. Loggins, 109 Ala. 457, 19 South. 810.) ' There is nothing in the record to justify the contention that the effect of the judge’s conduct was to hold out to the jury as an inducement to a verdict of guilty an implied promise that leniency would be shown in fixing the punishment.
We hold that the irregularity stated does not require a reversal of the present case.
The judgment is affirmed.
All the Justices concurring. | [
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The opinion *of the court was delivered by
Burch, J.:
Briefly summarized, the essential facts of this controversy are as follows: The cashier of a bank organized under the laws of this state was allowed the sole charge and conduct of its affairs by its board of directors. He was indebted individually to a depositor of the bank, and on different occasions pretended to make payments upon such indebtedness by giving the depositor credit upon her pass-book. Such credits were not shown upon any other memo-randa of the bank’s business and were not entered upon its books. The last transaction of this character occurred on November 80, 1900. A final settlement was then had between the depositor and the1 cashier, resulting in the surrender to him of his last unpaid note and an entry upon her pass-book as before. She then demanded her balance in the bank. The cashier balanced her pass-book, she drew a check for the amount shown by the pass-book to be due her,, and he gave her therefor a cashier’s draft upon a bank in St. Joseph, Mo., which was afterward duly paid and returned. No officer of the bank had actual knowledge of the true character of these transactions except the cashier. The depositor herself acted in good faith.
On January 16, 1901, the cashier died. The bank was then found to be insolvent, was immediately taken in charge by the bank commissioner, and in due time, a receiver for it was appointed. Because the books of' the bank did not disclose the personal transactions of the cashier with the depositor her account appeared to-be overdrawn when the receiver assumed control. The-amount of the overdraft following the affair of November 30, 1900, was somewhat reduced by deposits subsequently made by third parties to the depositor’s credit, and the receiver sued for the balance appearing to be due when he took charge.
From the facts found the district court concluded that the cashier had no authority to pay his individual debts to the depositor by giving her credit in the bank and permitting her to draw checks upon it without its having received anything of value therefor; that •the entries of credit upon the depositor’s pass-book were acts beyond the scope of the cashier’s power; and that, because nothing appeared upon the books of the bank to give notice of the facts, the bank was not bound. Judgment was rendered for the receiver, and the depositor asks for a review of these conclusions of law.
The defendant received no money in payment of her debtor’s notes and made no deposit in the bank of anything derived from them. Her debtor made no deposit for her and procured no transfer of funds to •her account as an equivalent. Therefore, the books of the bank spoke true, and any obligation of the bank to pay the defendant’s checks arose from the entries upon her pass-book made by the bank’s cashier. Those entries were made in payment of the cashier’s private debt, and if of any effect at all amounted to an appropriation. of the money of the bank to the discharge of his personal obligations. The cashier -had a right to dispose of the funds of the bank for purposes contemplated by its charter. For this his office is a warrant of authority. But he could not absorb the funds of the bank in the satisfaction of his private debts without an express and especial authorization. The office of cashier does not import such power. Whether or not such authority actually did exist the defendant was bound to inquire. It has been well understood from of old that no man can serve two masters. He will hold either to one or to the other. For a like reason the cashier could not serve both himself and the bank in a single transaction, and because he was attempting such a perilous thing the defendant was put upon guard as to the extent of his power.
•“.It is against the general law of reason that an agent should be entrusted with power to act for his principal and for himself at the same time.” (Bank of N. Y. N. B. Assn. v. A. D. & T. Co., 143 N. Y. 559, 564, 38 N. E. 713, 714.)
“It is not pretended that Collins had any express authority to apply the funds of the bank to the payment of his own note. He had no implied authority' to do so. There are no presumptions in favor of such a delegation of power. He who assumes to rely upon; the authority of an agent to bind his principal to the> discharge of the agent’s own obligation must prove-actual authority if contest arises. No principle of the' law of agency is better settled than that no person can act as the agent of another in making a contract for’ •himself.” (Chrystie v. Foster, 61 Fed. 551, 553, 9 C. C. A. 606.)
The case of Williams v. Dorrier, 135 Pa. St. 445, 19, Atl. 1024, is directly in point. The syllabus reads : •
“The cashier of an unincorporated bank, himself a¡ partner, being indebted individually on a note he had, made to a depositor, wrote to the latter that he had placed to his credit $1000 as a payment on the note.A credit for this amount was placed to the depositor’s, account upon the books of the bank. ,
“Afterward the cashier wrote to the depositor that, he had again placed $1000 to his credit, as a second-payment, but no credit for this amount was placed to, the account. The depositor checked out, from time, to time, both amounts, when the receiver of the bank sued to recover the same from the depositor :
“1. In such case, the bank was estopped from setting up want of authority in the cashier, so far as re-, lated to the credit for the first $1000, but was not estopped by the act of the cashier as to the second $1000, though the cashier had placed them both-upom the depositor’s pass-book ; and the bank could recover, the latter as an overdraft.”
The entry of credits in the defendant’s pass-book in’ payment of the cashier’s private debt is quite analo gous in principle to the payment of a bank officer’s personal obligations by drafts drawn by him in favor of his creditor upon the funds of the bank. In such a case it is the duty of the recipient of the instruments to inquire of those who alone could confer it if the officer possessed the requisite power to execute them.
“Brokers who receive drafts drawn in their favor by the president of a bank upon its funds in settlement of his transactions upon the board of trade are bound to communicate that fact to the bank directors, and inquire as to his authoi'ity to execute the paper.” (Lamson v. Beard, 45 L. R. A. 822, 94 Fed. 30, 36 C. C. A. 56.)
In the case just cited Judge Woods discussed the di-’ rection and scope of such an inquiry in the following manner :
“The inquiry, therefore,'which these plaintiffs in error should have made was whether Cassatt had authority to draw drafts of the bank upon .funds of the bank in possession of its correspondents for use in his individual transactions. Such an inquiry involved no difficulty beyond communicating to the directors of the bank, other than Cassatt, the fact that such a-draft or drafts had been tendered in discharge of liabilities incurred in dealings upon the board of trade i'n Chicago, and asking whether the execution of the paper had been authorized. There can be little doubt what would have been the result of such an inquiry, accompanied with a frank and full statement of the facts as they were known to the payees of any of the drafts in suit at the time of execution. It would not have needed a discovery of Cassatt’s fraudulent bookkeeping to enable the directors to say whether the execution of such paper had been theretofore authorized, or then had their approval. As contended, it was clearly no duty of the plaintiffs in error to undertake an examination of the books, which, once they commenced inquiry into the management of the bank, they would have learned had been wholly in the keep ing of Cassatt and of clei’ks who could not be expected to testify against him. Inquiry of Cassatt, too, it is to be presumed, would have been useless, and therefore, if made, would not have met the requirement of the law. The one thing necessary to be known was whether Cassatt had authority to make the proposed use of the bank’s paper. The authority could have come only from the directors, by direct resolution or by acquiesence or implied assent, and the plain, unmistakable course was to push the inquiry, wherever begun, to the source of authority.”
The rule of law involved, that an agent may not represent himself and his principal in the same transaction, has been applied in many cases.
“Undoubtedly the general rule is that one who receives from an officer of a corporation the notes or securities of such corporation, in payment of, or as security for, a personal debt of such officer, does so at his own peril. Prima jade the act is unlawful, and, unless actually authorized, the purchaser will be deemed to have taken them with notice of the rights of the corporation.” (Wilson v. M. E. R. Co., 120 N. Y. 145, 150, 24 N. E. 384, 385, 17 Am. St. Rep. 625.)
“Ordinarily, the cashier, being the ostensible executive officer of a bank, is presumed to have, in the absence of positive restrictions, all the power necessary for such an officer in the transaction of the legitimate business of banking. Thus, he is generally understood to ha^e authority to indorse the commercial paper of his bank and bind the bank by the indorsement. So, too, in the absence of restrictions, if he has procured a bona fide rediscount of the paper of the bank, his acts will be binding, because of his implied power to transact such business ; but certainly he is not presumed to have power, by reason of his official position, to bind his bank as an accommodation in-dorser of his own promissory note. Such a transaction would not be within the scope of his general powers ; and one who accepts an indorsement of that character, if a contest arises, must prove actual authority before he can recover. There are no presumptions in favor of such a delegation of power.” (West St. L. Sav. Bk. v. Shawnee etc. Bk., 95 U. S. 557, 559, 24 L. Ed. 490.)
“In the absence of special authority for such purpose, neither its president nor its cashier, nor these officers acting conjointly, had authority or right to appropriate and devote any part of the funds of the bank of which the plaintiff is receiver, to the payment of such president’s personal debt due to the defendant. Such authority, ordinarily, was beyond the scope of the purpose and duties of such officers. No doubt the directors — the governing authority of the bank — might allow them to exercise such power, or they might ratify such transaction, but it must in some way. sufficiently appear that they did.” (Dowd v. Stephenson, 105 N. C. 467, 470, 10 S. E. 1101.)
“One man ought not to be permitted to dispose of the property, or to bind the rights of apother, unless the latter has authorized the act. In the case of a partner paying his own separate debt out of the partnership funds, it is manifest that it is a violation of his duty and of the right of his partners, unless they have assented to it. The act is an illegal conversion of the funds; and the separate creditor can have no better title to the funds than the partner himself had.
“Does it make any difference, that the separate, creditor had no knowledge at the time, that there was a misappropriation of the partnership funds? We think not. If he had such knowledge, undoubtedly he would be guilty of gross fraud, not only in morals, but in law. That was expressly decided in Sheriff v. Wilks, 1 East, R. 48; and indeed seems too plain upon principle to admit of any serious doubt. But we do not think that such knowledge is an essential ingredient in such a case. The true question is, whether the title to the property has passed from the partnership to the separate creditor. If it has not, then the partnership may reassert their claim to it in the hands
of such creditor.” (Rogers v. Batchelor, 12 Pet. 221, 229, 9 L. Ed. 1063, 1067.)
“A general authority to the president of a bank to certify checks drawn upon it does not extend to checks drawn by'himself.
“The face of the check showing the president’s attempt to use his official character for his private benefit, every one to whom it comes is put upon inquiry ; and when the certificate is false, no one can recover against the bank as a bona fide holder.” (Claflin v. Farmers’ and Citizens’ Bank, 25 N. Y. 293.)
In the case of Campbell v. Manufacturers’ National Bank, 67 N. J. L. 301, 51 Atl. 497, 91 Am. St. Rep. 438, the receiver of a bank brought an action to recover money obtained by the defendant upon a draft drawn upon the bank’s funds by,its cashier in payment-of his individual debt. In sustaining a recovery, the court said:
“There is no reason, which is founded on principle, that can be given for not applying the same rule of agency to a cashier as to other persons occupying fiduciary relations. No person, can act as an agent in a transaction in which he has an interest, or to which he is a party', on the side opposite to his principal. This must be so where the person dealing with the agent has knowledge of the facts.
“A person cannot deal with .a cashier of a bank as an individual in securing a draft, and claim, after the draft is delivered, it has become the transaction of the bank. To make the acts of the cashier valid, the transaction in which the draft is delivered must be a bank transaction, made by the cashier, within his express or implied authority, in the conduct of the business of the bank. So long as a person deals with the cashier in a matter wherein, as between himself and the cashier, he is dealing with, or has- a right to believe he is dealing with, the bank, the transaction is obligatory upon the bank.
“The cashier is presumed to have all the authority he exercises in dealing with executive functions legally within the powers.of the bank itself, or which are usually or customarily done, or held out to be done, by such an officer.
“But the test of the transaction is whether it is with the bank and its business, or with the cashier personally and in his business. (Claflin v. Farmers’ Bank, 25 N. Y. 293; Moores v. Citizens’ National Bank, 111 U. S. 156, 4 Sup. Ct. 345, 28 L. Ed. 385.)
“As to the former, all presumptions are in favor of its regularity and binding force. In the latter, no such presumption arises; in fact, upon proof that it was known to the claimant to be an individual transaction, and not one for the bank, the burthen is cast upon the claimant to establish, by proof, that the- act of the cashier thus done, for his own individual benefit, was authorized or ratified.
“These are fundamental principles applicable to principal and agent in every transaction arising out of that relation.”
In Williams v. Barnett, 10 Kan. 455, 460, it was said :
“True, each member of a partnership has the jus disponendi in reference to all the partnership property ; but that right is subordinate to the obligation to make all dispositions for the benefit of the partnership. He may not pledge the partnership credit, or use the partnership assets, for the satisfaction of his individual indebtedness without the consent of his partners. That is a use foreign to the purposes of a partnership. Neither can he in any way dispose of the property so as to deprive the partnership of the benefit of it.”
By way of paraphrase it may be observed that the cashier of a bank may not pledge the credit of the corporation or use the corporate assets for the satisfaction of his individual indebtedness,, without the consent of the board of directors. That is a use foreign to the charter purposes of the corporation ; and because such conduct falls outside the scope of a cash ier’s lawful authority any one dealing with him privately must do so at his peril.
The case of G. N. Bank v. State, 141 N. Y. 379, 36 N. E. 316, cited by counsel for defendant, is not opposed to these views, for in that case the cashier “had the right to draw a draft on the corresponding bank of the claimant for himself upon the same terms that he had to draw a draft for á stranger.” (See Campbell v. Manufacturers’ National Bank, supra, and Bank of N. Y. N. B. Assn. v. A. D. & T. Co., supra.)
It is said that the.act of the cashier in entering up deposits on the defendant’s pass-book was an assurance from him that if he was using the bank’s funds he was acting within his authority. The reply is that because he was paying his own debt his assurance was merely that of himself as an individual for his own ends, and not that of the bank through him as its agent, for its benefit.
It is said that when a bank places an officer at the window where he transacts its business with the public it in effect tells the world that he is trustworthy and reliable and that he will act within the scope of his authority. It does nothing of the kind. Such a declaration would protect a recipient in the enjoyment of a Christmas gift of the entire body of corporate as-: sets. By placing an officer at the window to do its business a bank publishes to the world that he is there to do its business and not his business ; that he has no power or authority to do any act outside the legitimate prosecution of the corporate enterprise, and that it will not be bound by any perversion of the corporate funds to his personal use.
“The cashier is the executive of the financial department of the bank, and whatever is” to be done, either to receive or pass away the funds of the bank for banking purposes, is done by Mm or under his direction ; he therefore directs and represents the bank in the reception and emission of money for banking objects. (United States v. Bank, 21 How. 356, 16 L. Ed. 130; Merchants’ Bank v. State Bank, 10 Wall. 604, 19 L. Ed. 1008; Com. Bank v. Norton, 1 Hill, 501.) But neither the president nor the cashier can impose by his own action, on the bank, any liability not already imposed by law or usage.” (Asher v. Sutton, 31 Kan. 286, 289, 1 Pac. 535, 537.)
In an effort to avoid the effect of these conclusions and to establish ratification or estoppel on the part of the bank, the defendant strives to magnify the importance of many minor details of her relations with the bank and its cashier, in which the voluminous findings of fact abound. It may be doubted if the act of the cashier was capable of ratification by the board of directors because it was not within the power of the board to grant him such authority in the first instance.
“May the officers of a corporation make a contract binding on the company by which its property is diverted from the use and benefit of the corporation and applied to the payment of the individual debt of its president ? It is a fundamental principle that the officers and directors of a corporation are trustees for its stockholders. (Sargent v. K. M. Rld. Co., 48 Kan. 672, 29 Pac. 1063.) This fiduciary relation forbids the doing of any act by them by which the corporate assets are applied to any use except such as may serve the purpose of the corporation. It is as much beyond the power of the officers or directors of a corporation to pledge its property to secure the personal debt of its president as it is to use it in pledge for the payment of the obligation of a total stranger.” (Cattle Co. v. Loan Co., 66 Kan. 359, 361, 69 Pac. 332.)
“ ‘A corporate officer who performs the duties of his position is not, in the absence of agreement with the corporation, entitled to any compensation therefor.’
“Nor can the directors, after the services have been performed, pay for such services, unless per contract theretofore made. The reason is that the board cannot give away the money of the stockholders. They can be liberal or charitable with their own private funds, but, as agents, cannot be liberal with money of their principals. ‘A subsequent vote of the board to pay a director for his services, when there was no previous agreement, is not binding.’
“If the directors have no power to bind the corporation by a direct vote, granting pay for past services in any capacity to one of their number who agreed to serve without compensation, a fortiori, the corporation is not concluded by a presumed ratification through a supposed knowledge and acquiescence on the part of such directors. What cannot be done directly through lack of power is never accomplished indirectly by silence, acquiescence, and ratification.” (National Bank v. Drake, 29 Kan. 311, 317, 321, 44 Am. Rep. 646.)
But conceding the transaction to be one which the board of directors could have authorized, a careful consideration of the findings of fact discloses no substantial ground for denying the right of the receiver to recover the money of the bank which the defendant obtained. To state fully .the reasons for this conclusion would require a discussion of the facts far beyond the proper limits of a written opinion. It may be said in passing, however,- that the defendant stands upon precarious ground in invoking the rule of equitable estoppel against the representative of the bank. When the cashier made an entry in the defendant’s pass-book of the receipt of money by the bank she knew the recital was false for she had delivered to the bank nothing of value at all; she knew that something more must be done before she could rightfully demand the payments of her checks ; she knew very well that the money was yet to be supplied, and that unless funds actually were furnished there was nothing which she could have any right to withdraw. No obligation rested upon the bank or upon any of its officials, as such, to deposit or to transfer funds to the credit of her account. She was required to do that herself or to see that it was done. If she depended upon her debtor to act for her it was incumbent upon her to see that he did whatever was required. It did not devolve upon the bank to see that her debtor discharged any duty to her, and when he failed to supply her account with necessary funds the bank was not bound to make good his default. She had no right to ask the bank to return to her money which she never deposited and which it never in fact received from any source ; and when it paid her checks without any money belonging to her in its possession to meet them, it was entitled to be reimbursed.
Other propositions presented by counsel need not be discussed at length. None of them is sufficiently grave to require a reversal of the judgment of the district court. It is, therefore, affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J. :
In October, 1857, James H. Holmes was the owner of a quarter-section pf land in Lyon county, and Annie Archibald owned an adjoining quarter-section. Asa P. Rand, who resided in Massachusetts, had advanced them money with which to defray the expenses of entering the land, and, for the purpose of securing its payment, Holmes and Annie Archibald executed and delivered to Rand separate warranty deeds, dated October 6,1857, receiving back from him bonds for deeds of even date with the conveyances. These bonds obligated Rand to convey the land to Holmes in the one case on the payment by the'latter of $493 on or before October 30, 1858, and to Annie Archibald in the other, on payment by her of $238 at the same time. The bonds for deeds are in the usual form, binding the grantee in the deeds to convey by good and sufficient warranty deeds in fee simple, free from encumbrances, the land in controversy, on the payment of the sums stated. The deeds were recorded on April 12, 1859, and the bonds on January 5, 1860. They were duly acknowledged.
In October, 1857, James H. Holmes and Annie Archibald were married, and lived in a cabin on the husband’s land until the April following, when they both went to the Pike’s Peak country and did not thereafter exercise any rights of possession to the property. •
In May, 1860, Asa P. Rand conveyed both quarter-sections to Marilla Root, J. S. Greenough, and John Alden, for a consideration of $1500. From said grantees the title came' down to the defendant in error, Newman, who purchased the land from Mary G. Mosely and husband in 1900. Rand and the other owners down to Newman were non-residents of the state and possessed the land through tenants.
Annie Holmes, nee Archibald, died in 1887, leaving two children surviving her, and plaintiff in error claims to own three-fourths of the 160 acres of land standing in her name as heir at law of his wife and two deceased children. This was a suit by Holmes against Newman to redeem. He was denied any relief below. The court found that the warranty deeds by Holmes and Annie Archibald, and the bonds for deeds given back to them by Rand, were in legal effect-mortgages on the land. This action was begun in 1901. The good faith of the defendant in error in his-purchase of the land is not disputed.
It is asserted by counsel for plaintiff in error that the transactions between the parties, as found by the court, having created the relation of mortgagor and mortgagee between Holmes, and Annie Archibald on the oné part and Rand on the other, an examination of the public records by Newman would have disclosed that fact. There was nothing in the form of the bonds for deeds to indicate that they were intended as defeasances. The court below was convinced of that fact only by the aid of testimony explaining the nature of the transaction outside of and beyond what appeared from a reading of the deeds and bonds. Section 4217, General Statutes of 1901, reads’:
“When a deed of real property purports to be an absolute conveyance, but is intended to be defeasible on the performance of certain conditions, such deed shall not be defeated or affected as against any person other than the grantee or his heirs or devisees, or persons having actual notice, unless an instrument of defeasance, duly executed and acknowledged, shall have been recorded in the office of the register of deeds of the county where the lands lie.”
To sustain the position of plaintiff in error, we must hold that bonds for deeds, drawn in the ordinary form, are instruments of defeasance within the meaning of the statute.
There is no reference in either bond to a prior conveyance. There is no recital of indebtedness from Holmes or Annie Archibald to Rand. From the language of the bonds the right of purchase on the payment of certain sums in a stated time was given to the obligees — nothing more. (Yost v. Bank, 66 Kan. 605, 72 Pac. 209; Weide v. Gehl, 21 Minn. 449.)
The court below, in disposing of the case, took the position that the rights of the parties were determined iby the application of the rule that where one of two parties must suffer a loss it should fall on him whose •negligence or omission occasioned it, and that Holmes was in equity-that negligent party because he took •the wrong form of instrument to evidence the fact that he was a mortgagor — an instrument which did not disclose the true nature of the transaction. There are other considerations in the matter which, in view of what has already been said, it is unnecessary to discuss, arising out of the neglect for over forty years on the part of plaintiff in error to assert his rights.
The application of the statutory requirements respecting the recording of instruments of defeasance, giving notice to the world of the true character of the transaction, for the protection of innocent purchasers for value, leaves plaintiff in error no ground on which to stand.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, 0. J.:
This was a proceeding to determine who was entitled to the office of city attorney of Junction City. Thomas Dever had been duly chosen and held the office for several years prior to April, 1908, when he applied to. the mayor and council of the city for reappointment, claiming the benefits of the “veterans’ preference law,” being chapter 186, Laws of 1901'(Gen. Stat. 1901, §§6509-6512). He was a soldier in the war of the rebellion, received an honorable discharge, is a man of good reputation, who performed and can perform the duties of the office. The mayor investigated his qualifications and capabilities for city attorney, as well as those possessed by J. V. Humphrey, the defendant. As a result, the mayor found and determined that plaintiff was not fully qualified to perform the duties of the office, and that he did not possess equal qualifications with the defendant, who had not been a soldier in the civil war. Upon these considerations the mayor appointed the defendant on May 1,1903. The appointment was confirmed by the city council, and defendant at once qualified and entered upon the duties of the office. Plaintiff thereupon instituted this quo warranto proceeding, claiming that the appointment was illegal, and the court, upon the testimony, found the foregoing facts and concluded that he was not entitled to the office.
The plaintiff’s term of office had expired, and the duty to appoint his successor devolved upon the mayor. The defendant, who was conceded to be eligible and qualified for the office, was appointed, and if that appointment is not invalid, the judgment of the trial court must stand. The correctness of the rulings and the validity of the judgment depend upon the constitutionality and the construction of the ^veterans’ preference law,” sections 6509 to 6512, General Statutes of 1901. In Goodrich v. Mitchell, post, page 765, 75 Pac. 1034, the constitutionality of the statute was considered, and it was held to be valid.
Plaintiff contends that an ex-soldier or sailor of good reputation who can perform the duties of the office is entitled to be preferred for appointment, although other applicants may have superior qualifications and be better fitted for the place. The statute, as it appears to us, bases the preference required to be given on the theory of equality of qualifications. (Goodrich, v. Mitchell, supra.) That rule is' expressly declared in the first part of section 1, and must be accepted as controlling, unless it is nullified or modified by other parts of the same section. The'law was first enacted in 1886, and section 1 was in these words :
“In grateful recognition of the services, sacrifices and sufferings of persons who served in the army and navy of the United States in the war of the rebellion and have been honorably discharged therefrom, they shall be preferred for appointment and employment to positions in every public department, and upon all public works of the state of Kansas, and of the cities and towns of this state, over other persons of equal qualifications, and the persons thus preferred shall not be disqualified from holding any position in said service on account of his age nor by reason of any physical disability, provided, such age or such disability does not render him incompetent to perform the duties of the position applied for.” (Ch. 160, §1, Laws 1886.)
In 1901 the section was reenacted, and at the end thereof the following was added :
“And when any such ex-soldier or sailor shall apply for appointment to any such position, place, or employment, the officer, board or person whose duty it is or may be to appoint a person to fill such place shall, before appointing any one to such position, make an investigation as to the qualifications of said ex-soldier or sailor for such employment, and if he is a man of good reputation and can perform the duties of said position so applied for by him, said officer, board or person shall appoint said ex-soldier oí sailor to such position, place, or employment.”
In reenacting, the section of the law of 1886, the word “qualification” was pluralized and the word “persons” was put in the singular form, but it is clear that these changes do not affect the meaning of the statute. It is equally manifest that the legislature did not intend to eliminate the requirement that there shall be equality of qualifications in order to obtain the preference. The clauses added by amendment provide that the appointing power shall make inquiry as to the qualifications of such ex-soldier or sailor applying for a position, and if his reputation is good, and he can perform the duties of the place, it shall be given to him. It is true that the requirement that he should be of equal qualifications was not repeated in the latter part of the section, but obviously the person mentioned, whose qualifications are to be investigated, and who is to be appointed if found qualified and fitted for the position, is the one spoken of in the first part of the section, namely, a person who possesses qualifications equal to those of his competitors. If it had been the purpose to eliminate that feature of the former act, the legislature would hardly have reenacted it in the same terms in the amended section. It will be observed, also, that in the amendment providing for investigation and appointment it refers to “such ex-soldier or sailor” — that is, the one previously referred to, who is of equal qualifications with others available for appointment. One purpose of the amendment was to prevent arbitrary and inconsiderate action in the making of appointments. So, in addition to providing that a veteran of equal qualifications shall be preferred, it prescribes a method of ascertaining the qualifications of those seeking preferential appointments.
The different clauses under consideration, including the one providing for equality in qualifications, were chosen by the legislature to express its purpose. They are all embraced in the' same section, and, if possible, all should be given force and effect. It has been said that “it is a uniform rule of construction that one part of a statute should be construed by other parts of the same statute, so that, if possible, no clause or part shall be treated as superfluous, and especially when the two parts are parts of the. same section.” (Wenger v. Taylor, 39 Kan. 754, 18 Pac. 911.) Following this rule, it must be held that the equality clause was intentionally used by the legislature to express its purpose; and the purpose, manifestly, was that the party given the preference provided for must possess equal qualifications for the place with those possessed by a competitor. The trial court took this view of the statute and properly applied this interpretation to the facts in the case. In giving its opinion and judgment the court said :
“When a vacancy occurs in the office of city attorney, and an ex-soldier applies for the position, it then becomes the duty of the mayor to make an investigation as to the qualifications of such ex-soldier for the position of city attorney, and if such applicant is found to possess qualifications equal to or superior to other available applicants for the place, and is a man of good reputation, and is not disqualified on account of any physical disability or on account of age to perform the duties of this particular office, then it becomes the duty of the mayor, under his official oath, to appoint such ex-soldier applicant to the place. Any other construction to be placed upon the statute would have the tendency to lessen the efficiency of the public service. A law would certainly be against public policy that would require anything less than the best available qualifications in public officials.”
The duty of investigating and determining as to the qualifications of applicants for public position is placed .upon the appointing power — in this case upon the mayor. He did make inquiry and decided that the plaintiff did not possess equal qualifications for the office with defendant. That decision, which appears honestly to have been made, is not open to review or revision by the courts. The legislature has placed the authority of making appointments mainly in the administrative officers and boards, and vested them with a discretion and judgment to determine who is best qualified to serve the public, and the general rule in such cases is that the courts cannot supervise the exercise of such authority, nor control the discretion and judgment so vested. (State of Kansas, ex rel. Ross, v. Robinson and others, 1 Kan. 188 ; City of Emporia v. Gilchrist, 37 id. 532, 15 Pac. 532; Martin, Governor, v. Ingham, 38 id. 641, 17 Pac. 162 ; Insurance Co. v. Wilder, 40 id. 561, 20 Pac. 265 ; Lynch v. Chase, 55 id. 357, 40 Pac. 666 ; Meffert v. Medical Board, 66 id. 710, 72 Pac. 247.)
In Keim v. United States, 177 U. S. 290, there was brought before the supreme court of the United States the action of the pension commissioner in dismissing a clerk who had been honorably discharged from the military service by reason of disability received in it. He was discharged because of a decision by the commissioner that his rating was inefficient. He claimed to be'competent and appealed to the courts. It was held, however, that an appointment to office involves the exercise of judgment; that the appointing power must determine the fitness of the applicant, whether he is qualified to discharge the public duties' required of the officer, and that the courts cannot interfere to direct or control the power and judgment thus vested. (Decatur v. Paulding, 14 Pet. 497, 10 L. Ed. 559 ; United States, ex rel. Dunlap, v. Black, 128 U. S. 40, 9 Sup. Ct. 12, 32 L. Ed. 354 ; Redfield v. Windom, 137 id. 636, 11 Sup. Ct. 197, 34 L. Ed. 811; Boynton v. Blaine, 139 id. 306, 11 Sup. Ct. 607, 35 L. Ed. 183; United States v. Schurz, 102 id. 378, 26 L. Ed. 167; Cambra v. Rogers, 189 id. 119, 23 Sup. Ct. 519, 47 L. Ed. 734.)
The plaintiff insists that an unjust measure of qualifications was applied by the mayor. The character and extent of the investigation are not prescribed by the statute. The appointing power is expected to investigate in good faith, fairly to consider the qualifications, and honestly to determine the question submitted for decision. We discover nothing in the evidence or findings which impeaches the good faith of the mayor or would justify the court in treating the decision or the appointment as nullities. Neither do we find any irregularity in the appointment of the defendant.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
The judgment of the court below is reversed and a new trial ordered, on the authority of Insurance Co. v. Arnold, 65 Kan. 163, 69 Pac. 174. | [
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The opinion of the court was delivered by
Atkinson, J. :
In 1895 Wilson A. Koontz, a resident of the state of Ohio, died solvent and testate. Letters testamentary were issued to Reuben R. Freeman, as sole executor and trustee of the estate of deceased. The widow, Louisa G. Koontz, a son, Philip I). Koontz, and eight grandchildren, losa W. King, Enola G. King, Texas B. Koontz, Oarla S. Koontz, Ernest S. Koontz, Mabel C. Koontz, and Helyne L. Koontz, were named as legatees, the six last named being minors at the time of the commencement of this action. Among other real estate owned by the testator at the time of his death was the southwest quarter of section 8, township 25, range 19 east, in Allen county, Kansas. The will devised the premises above described to the grandchildren, with the condition that in the event the testator should die before the period of eighteen years from the date of the will (July 10, 1895), the executor and trustee should take charge of the land and “lease and maintain the same in repair and good condition, with a view to obtaining the best income therefrom, without permitting the same to deteriorate in value or quality,” until such period of eighteen years shall have elapsed.
The widow, Louisa C. Koontz, not having consented in writing to the will, elected to take under the law of descents and distributions. On March 15, 1898, losa W. King and her husband conveyed to Reuben R. Freeman all their interest in said premises. On December 30,'1899, Reuben R. Freeman, as executor and trustee, and Louisa C. Koontz, in consideration of the sum of $802.41, jointly executed to the Lanyon Einc Company a lease, granting unto the company all the oil and gas under said premises, together with the right to enter upon the land for the purpose of drilling and operating for oil and gas, and the right to erect and maintain thereon, and to remove therefrom, buildings, structures, pipes, pipe-lines and machinery necessary for the production and transportation of oil and gas, with the right to the lessors to use the premises for farming purposes. ' The lessee was to be liable for all damage to timber and growing crops by reason of operating under its lease for oil and gas. The lease also provided that if no well was drilled on the premises within ten years, or if the lessee recon-veyed the premises, then, and in either such event, the lease should become and be null and .void. On February 7, 1900, Enola G. King and husband conveyed to Reuben R. Freeman all their interest in the farm. On July 31, 1901, E. K. Taylor acquired by deed the interest of Louisa C. Koontz.
On December 13, 1901, E. K. Taylor filed in the district court of Allen county his petition, asking for a partition of the premises, and claiming to be the owner of an undivided one-half interest therein. In his petition the plaintiff averred that Reuben R. Freeman was the owner of an undivided two-sixteenths interest, and that each of said minors was the owner of an undivided one-sixteenth interest in the premises. The petition further averred that the Lanyon Zinc Company, a corporation, claimed some interest in the land, and asked that it be required to set up its interest therein. All parties were brought into court as defendants, the minors appearing by guardian ad litem. Upon the trial, the Lanyon Zinc Company, answering, admitted the averments of plaintiff’s petition as to the interest of plaintiff and defendants in the premises, averring and contending, however, that the interest of each was- subject to the claim of the company-under its oil and gas lease.-
The plaintiff, by reply, and the defendants, Reuben R. Freeman, individually and as executor and trustee, and the minors through their guardian ad litem, by answer, each denied any right or interest of the Lanyon Zinc Company in the premises by virtue of the lease, and averred that the same was void and without force or effect.
The court found the plaintiff, Taylor, to be the owner of an undivided one-half interest in the premises, subject to the rights of the Lanyon Zinc Company under its oil and gas lease. The court further found that Reuben R. Freeman was the owner of an undivided'two-sixteenths interest; that as to the interest of Reuben R. Freeman and the interest of said minors, the lease of the Lanyon Zinc Company was void and without force or effect; and that plaintiff and the defendants then owning an interest in the premises were tenants in common. Judgment of partition was entered by the court, setting .off and allotting the east half of the premises to plaintiff, decreeing the lease of the Lanyon Zinc Company in full force and effect upon and against the same.
It being found by the commissioners that partition of the west half of the land described could not be made ¿mong the owners according to their respective interests, it was ordered by the court to be sold, if, within twenty days, the parties in interest failed to file their election to take the same at its appraised value. By the judgment and decree of the court, the lease of the Lanyon Zinc Company was held to be without force or effect as to the west half of the premises described, and as to that part the lease was canceled and held for naught. The decree provided, however, that nothing therein should affect the right, if any, of the Lanyon Zinc Company to maintain an action to recover the money it had paid out in obtaining its lease as to the lands upon which the lease had been held invalid. To the judgment and decree of the court decreeing the lease invalid and canceling the same, as to the west half of said premises or any part thereof, the Lanyon Zinc Company excepted, and now brings the case here for review.
Whether this oil and gas lease to the Lanyon Zinc Company was valid as against the interest of the legatees in the premises must be determined by the extent of the authority given Reuben R. Freeman as executor and trustee under the will. The will provided that he should “lease and maintain the same in repair and good condition, with a view to obtaining the best income therefrom without permitting the same to deteriorate in value or. quality.” This language of the will can best be interpreted and the intention of the testator best understood in the light of the facts and surroundings at the time it was made. The admitted facts and the evidence disclose that the testator was a resident of Ohio. The land was farming land and was used for that purpose only. The surrounding lands were agricultural, and were used for such purposes only. Natural gas had but recently been found in the neighborhood, and was being used in the city of Iola, not far distant. It can scarcely be said that oil had been found in the neighborhood at that time. No gas- or oil-wells had been sunk upon these premises. None have since been sunk thereon. The oil and natural-gas industry in that vicinity was then, in fact, new and in its infancy. Did the testator contemplate the making of a lease to include the mineral below the surface, or did he con template the leasing of the surface of the land only? It is quite unlikely that he had in mind or intended otherwise than to lease the surface of the premises for agricultural purposes.
Again, the lease to the Lanyon Zinc Company, in controversy, did not contemplate .the usual tilling or cultivation of soil and the growing of crops thereon. It granted to the Lanyon Zinc Company all the oil and gas under the premises, together with the right to enter thereon for the purpose of drilling and operating for oil and gas, and the right to erect and maintain thereon, and to remove therefrom, buildings, structures, pipes, pipe-lines and machinery necessary for the production and transportion of oil and gas. Whatever may be the origin of petroleum and natural gas, and the question appears as yet to be a matter of controversy, it is well settled that they are minerals. (Donahue on Petroleum and Gas, §§ 7, 8; Thornton on Oil and Gas, §§ 18, 19.) Petroleum and gas, as long as they remain in the ground, are a part of the realty. They belong to the owner of the land, and are a part of it as long as they are on it, or in it, or subject to his control. When they escape and go into other lands, or come under another’s control, the title of the former owner is gone. (Brown v. Spilman, 155 U. S. 665, 15 Sup. Ct. 245, 39 L. Ed. 304; Ohio Oil Company v. Indiana [No. 1], 177 id. 190, 20 Sup. Ct. 576, 44 L. Ed. 729 ; Murray v. Allred, 100 Tenn. 100, 39 L. R. A. 249, 43 S. W. 355, 66 Am. St. Rep. 740; Kelley v. The Ohio Oil Co., 57 Ohio St. 317, 39 L. R. A. 765, 49 N. E. 399, 63 Am. St. Rep. 721.)
In the case of Wilson et al. v. Youst et al., 43 W. Va. 826, 28 S. E. 781, 39 L. R. A. 292, the court held that an oil lease, investing the lessee with the right to remove all t'he oil from the premises, in considera tion of his giving the lessors a certain per cent, thereof, is, in legal effect, a sale of a portion of the land. In the case of Appeal of Stoughton et al., 88 Pa. St. 198, it was said:
“A guardian has ordinarily power to lease any of his ward’s property of such character as makes it the subject of a lease, but without the approval of the orphan’s court he cannot dispose of any part of the realty. Oil is a mineral, and being a mineral, is a part of the realty, and a guardian cannot lease the land of his ward for the purpose of its development, .as it would, in effect, be the grant of a part of the corpus of the estate of his ward.”
In the case of Marshall, Appellant, v. Mellon et al., 179 Pa. St. 371, 35 L. R. A. 816, 36 Atl. 201, 57 Am. St. Rep. 601, it was held that a tenant for life has no right to operate for oil or gas, or to make an oil or gas lease, unless operations for oil or gas were commenced before the life-estate accrued. To the same effect is the case of Williamson v. Jones, 43 W. Va. 562, 27 S. E. 411, 38 L. R. A. 694, 64 Am. St. Rep. 891, and the case of Hook v. Garfield Coal Co., 112 Iowa, 210, 83 N. W. 963.
We do not believe, from the language used in the will and the circumstances and surroundings at the time it was made, that it was the intention of the testator to authorize the executor and trustee to execute-the oil and gas lease in controversy to the Lanyon Zinc Company ; nor did the will authorize Freeman, as executor and trustee, to execute the lease in controversy, and thereby bind the interest of the legatees.
A more serious question arises upon the holding of the trial court that the interest of Reuben R. Freeman in the premises was not subject to the lease of the Lanyon Zinc Company. At the time Reuben R. Freeman, as executor and trustee, joined in the execution of the lease, he had individually acquired the interest of losa W. King. Soon thereafter he acquired the interest of Enola G. King. The lease, by its terms, included and covered the entire quarter-section. The lessee dealt on the basis of acquiring a lease to the entire premises. The lessors dealt on the same basis, and received and retained the consideration therefor. Freeman, at the time the lease was executed, had full knowledge of the provisions of the will. There is nothing in the record to show that the lessee had either actual or constructive notice of the provisions-of the will, or the want of authority of the executor and trustee to execute a valid oil and gas lease upon the premises. Freeman is estopped from denying that his interest in the premises is subject to the lease of the Lanyon Zinc Company. (Lumber Co. v. Tomlinson, 54 Kan. 770, 39 Pac. 694.)
The judgment of the court below is affirmed, except as to the two-sixteenths interest in the premises owned by the defendant Reuben R. Freeman. As to his interest the judgment will be modified. The court below will enter judgment making the two-sixteenths interest owned by the defendant Freeman subject to the lease of the Lanyon Zinc Company.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J;:
Defendants below were non-residents, and were never present in this state for a sufficient length of time to avail themselves of the statute of limitations. (Investment Co. v. Bergthold, 60 Kan. 813, 58 Pac. 469.)
Counsel for defendants in error contend that a suit in the nature of a creditor’s bill will not lié before a judgment has been rendered against the debtor, based on personal service and an execution returned unsatisfied. It is true that a general creditor, before his demand has been reduced to judgment, cannot maintain an equitable suit to set aside a fraudulent conveyance made'by his debtor. (Tennent v. Battey, 18 Kan. 324.)
In this case the creditor attached land of his debtor which, before the action was begun, had been transferred by- such debtor to another. It was attached as the property of the defendant in the action (the grantor), who was a non-resident and absent from the state. Service was had by publication, judgment rendered for 'the amount of the plaintiff’s demand, and the land ordered sold. The plaintiff in the attachment action went no further in that proceeding, but immediately brought this suit in equity to subject the attached land to the payment of his judgment. He might have sold the attached property under the order of the court after judgment, but in such case, the legal title being in a person other than the defendant, another action of some kind by the purchaser would have been necessary to determine the validity of the conveyance from the judgment debtor to the person claiming to own the land. The judgment obtained on service by publication was valid in all respects so far as the property seized was concerned. It was conclusive on all parties and privies to it, and could not be collaterally attacked. (National Bank v. Peters, 51 Kan. 62, 32 Pac. 637 ; Garrett v. Struble, 57 id. 508, 46 Pac. 943.)
If the remedy invoked in this case was denied to the plaintiff below, he could get no relief against the alleged fraudulent conveyance made by his debtor so long as the latter and his grantees avoided personal service of process. The suit had for its purpose the removal of obstacles in the way of the collection of the judgment interposed by the judgment debtor. An equitable interest in land is subject to attachment in this state. (Shanks v. Simon, 57 Kan. 385, 46 Pac. 774; Travis v. Supply Co., 42 id. 625, 22 Pac. 991.) It was to obtain the fruits of the seizure of this - equitable interest that the present suit was instituted. We have no doubt of the right of the plaintiff in error to maintain the action. (Gibbons v. Pemberton, 101 Mich. 397, 45 Am. St. Rep. 417; M. & T. Bank of Jersey City v. Dakin et al., 51 N. Y. 519.)
It was satisfactorily shown, and the court found, ' that at the time the land was conveyed by Commodore P. Lomax to his father-in-law the former was pressed by his creditors and was insolvent. The consideration expressed in the deed to Latimer was $8600, and the consideration written in the deeds from Latimer to Sarah E. Lomax, liis daughter, and to John N. and Hugh L. Lomax, his grandsons, aggregated $11,000. There was no proof that Latimer did not pay to his grantor the full value of the property. Counsel attacking the conveyance confess the fact that the only evidence relative to the consideration paid by any of the parties is found in these deeds. There was no showing that Latimer was not solvent, or that he had not paid to Lomax .the full consideration expressed. We are asked to presume a failure of consideration and fraudulent purpose on the part of Latimer by reason of his relationship to the other parties, and his transfer of the property to his grandsons, who were insolvent. This we cannot do. Fraud is not presumed. (Baughman, Sheriff, v. Penn, 33 Kan. 504, 6 Pac. 890.)
There was one link in the chain of conveyances which was not shown to be unsound. There was no proof that Latimer was not a bona fide purchaser for value. If Latimer was an innocent purchaser the fact that his grantees were insolvent, and were relatives of his and of Lomax, would not subject the land to the payment of the latter’s debts. (Bump, Fr. Conv. §499; Evans et ux. v. Nealis, Adm’r, 69 Ind. 148; Stewart v. Reed, 91 Pa. St. 287.) It is the law of this state that mere knowledge on the part of a vendee that the vendor is largely in debt will not render the sale fraudulent, although the purpose of the vendor was to defraud his creditors, unless the vendee was a participant in the fraud. (Baughman, Sheriff, v. Penn, supra; National Bank v. Jaffray, 41 Kan. 691, 21 Pac. 242; Bliss v. Couch, 46 id. 400, 26 Pac. 706.)
Certain badges or indicia of fraud are pointed out by the counsel for plaintiff in error, and this court is asked to hold that they raise a presumption of bad faith on the part of Latimer, which his grantees were required to rebut. It cannot be said that such indicia or suspicious circumstances create a presumption against the grantee of Lomax which, in themselves, are sufficient to overcome the presumption of good faith. The facts of relationship, hurried transfer of the property, insolvency-of the vendor, and increased consideration stated in the deeds made by Latimer, required that the transactions should have been scrutinized closely by the court, but it cannot be held that such earmarks of bad faith alone are sufficient to break down the presumption of good faith and honest dealing which accompanies every such transaction. In this case the presumption of the innocence of the transaction is fortified by the judgment of the court. The question of fraud arising from circumstances like those developed on the trial is one of fact.
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
Buhch, J. :
On the 4th day of September, 1894, H. 0. Cross, of the city of Emporia, died testate, leaving as his heirs at law his widow, Sue S. Gross, and an adult son, Charles S. Cross. At the time of his death he was the owner of certain contiguous lots of ground within the limits of the city which in their éntirety were less than one acre in extent and which were occupied as a residence by'himself and wife. Their infant granddaughter, Mary, the child of Charles S. Cross, lived with them. Charles S. Cross had been divorced from Mary’s mother. The decree dissolving their marriage awarded the legal custody of the child to her father, but by an understanding of the parties it was arranged that Mary should make her home with her grandparents. Thenceforth they assumed the care and responsibility of her nurture and she was treated as their child. The will of H. C. Cross expressed the desire that his debts and funeral expenses be first paid, and devised the homestead to his wife. Upon its probate the widow elected to take under the will. After the death of her husband, Mrs. Cross and Mary continued to reside upon the homestead property. Mrs. Cross continued to sustain the same cherishing relation toward Mary as before, and ultimately adopted her by formal proceedings in the probate court.
Charles S. Cross survived his father a little more than a year. On February 5,1902, Sue S. Cross died, leaving a will which was afterward properly probated, in which the homestead was devised to F. C. Newman, as executor, to be sold, however, and the proceeds to be invested in interest-bearing securities which, with the income to accrue from them, were to be the property of Mary. On the day .following that of the execution of the will Mrs. Cross executed a deed purporting to convey in fee the homestead, with full covenants of warranty, to F. C. Newman, as trustee for the benefit of Mary, reserving to herself, however, a life-estate, and providing that after her death the •property should be sold and the proceeds devoted to the same uses as the will prescribed. A subsequent codicil to the will annulled a specific bequest and changed the beneficiaries of the residual portion of the estate, but did not disturb the devise of the homestead upon which Mary continued to abide alone.
Creditors of the estate of H. C. Cross secured a judgment subjecting this property to the payment of their claims, and the question for determination is whether that judgment was authorized by our constitution and laws. In support of the judgment the following claims are made :
“I. The constitutional exemption does not survive the death of the owner of the homestead. Any extension of the homestead estate beyond the death of the owner must be found,-if at all, in the statute of descents and distributions.
“II. Under the statute of descents and distributions, a homestead estate does not survive for the benefit of a widow and child or children who have reached the age of majority, there being no minor heirs.
‘ ‘ III. After the death of the homestead owner, who dies testate, leaving children who have attained the age of majority and without minor heirs, his widow may elect to take under the statute of descents and distributions or under the will. If she elects to take under the will, she thereby abrogates her right to claim any homestead exemption against the debts of her husband.
“Applying the foregoing propositions of law to the case at bar, our position may be summarized :
“ (a) At the time of the death of H. C. Cross, he leaving a widow and one son who had attained the years of majority, the homestead character of the. property ceased and determined, and his widow and son, if he had died intestate, would have been entitled each to a moiety of the property under the statute of descents and distributions. Inasmuch as the only living adult son could not claim the integrity and protection of the homestead, neither could the widow. (6) But H.C. Cross died testate, and in his will devised the whole of the property in question to his widow, and she electing to take thereunder, it follows that she thereby took the same subject to the, ante-mortem debts of her husband, the payment of which was expressly directed'by his will.
“IV. Assuming, however, but merely for the purpose of argument, that Sue S. Cross did acquire a homestead under the Will exempt from the debts of her husband, such homestead affected by such exemption could continue only during her life; and while she might sell or convey the property in her lifetime, free from the obligations of her husband, she could not devise it nor could her heirs inherit it exempt from the payment of her husband’s debts.
“V. The trust deed to F. C. Newman, of March 2, 1901, was not a conveyance, but amounted merely to a testamentary disposition of her property in accordance with the terms of the will already made, and this is made conclusively apparent by her subsequent change in the disposition of her property by the codicil of November 21.’’
The principal question here proposed for determination is one of constitutional interpretation.
Out of the womb of history there has come to us an institution known as the family. Its establishment has been believed to be by the ordinance of divinity itself. “ God setteth the solitary W families.’’ The pagan Plato under- , -¶ . .. stood its fundamental importance; “ Whatever is most excellent in the state must always begin at the fireside.” And when the modern critical method of inquiry made it the subject of investigation, and the sciences of biology and anthropology and sociology and the rest had summed up and compared the results of their exhaustive researches, they concurred in proclaiming that, aside from its efficiency as an economic arrangement for the promotion of race and individual progress, the moral virtues which constitute the bright, consummate flower of our humanity all had their origin, received their nurture and attained their perfection within and through the family. Therefore, the present age, with its keener insight and its ampler understanding, regards the family with an enthusiasm and a respect more tender, more intense and more profound than ever before, and the courts will abate none of their jealousy to see that laws intended for its conservation and protection are administered in a spirit as beneficial and as kind as the language of the instruments will bear.
A consideration of the origin and purpose of the homestead right and of its establishment in the constitution of this state will showr that the provisions made in that document were intended to be complete, and that all legislative action in attaining the desired end was intended to be dispensed with.
With a higher appreciation of the function and importance of the family came more liberal sentiments toward its submerged element, the wife, and her elevation, through an amelioration of the law. The word “family” has it root in the Osean word “famul,” which signifies a slave. Much of this primary meaning was applicable to the status of married women at the common law with reference to property. Marriage amounted to a spoliation of the woman and an investiture of the man with property in her personality, and the possession and enjoyment of her realty; and her individuality of management and control of whatever was hers at marriage was completely merged in that of her husband. Under the same common law the creditor could seize and appropriate to' the satisfaction of his debt the goods and the estates of his debtor, without distinction as to whether they were held by virtue of his marital right or by other methods of acquisition and ownership. As a result, wives found themselves stripped of their possessions by the folly or misconduct of spendthrift husbands, reduced to penury' without any fault of their own, and .rendered powerless to retrieve their fortunes by the incapacity which the law imposed.
To eradicate these evils, hoary with the sanction of centuries, two remedial measures were proposed— the married woman’s separate estate and the homestead right; the one seeking to restore to women their just share in the management and control of their own property, and the other seeking to guard against the sufferings of women and children who, through ill conduct or misadventure, were deprived of support, by segregating a modicum of property for undisturbed occupation as a home entirely exempt from the ordinary incidents of ownership — the right of free aliena-ation by the owner and the liability to seizure and sale for his debts.
Article 15 of the constitution contains provisions upon both these subjects. But the saving of a home to the family free from alienation^ without joint consent, and beyond the reach of process of the law, was of overshadowing importance. Therefore, while section 6 directs the legislature to provide for the protection of the rights of women in acquiring and possessing property, real, personal and mixed, separate and apart from their husbands, section 9 itself creates, limits and defines the homestead right. The difference in treatment of the two subjects is strikingly shown by bringing the sections of-the constitution relating to them in juxtaposition.
“6. The legislature shall provide for-the protec tion of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband ; and shall also provide for their equal rights in the possession of their children.”
“ 9. A homestead to the extent- of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists ; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon : Provided, the provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife.” (Secs. 6 and 9, art. 15, State Const.)
Upon the matter of homestead not only is legislative aid dispensed with, but legislative interference is foreclosed. Without any statute upon the subject, no foi’ced sale of any. homestead occupied in the manner prescribed could be lawful, and no conditions may be imposed by statute upon the enjoyment of the right.
Since this is true, it is not apparent why the framers of the constitution, with all their admirable solicitude for the poverty and pain of the innocent victims of weakness and folly and unpropitious fate, should forget the desolation and disaster which follow in the wake of death ; why a wife and children should be so zealously screened so long as a husband and father lives to beat up the stream of the world’s unkindness with them, but that a widow and orphans should be left to the whim and caprice of inconstant legislation.. Indeed, it would seem to be something of an imputation to assert that the constitutional convention stopped short in its labors and left the most delicate and the most urgent portion of its work unguarded to the legislature. The language of the constitution itself forbids such an interpretation. By its terms the area and appurtenances of the homestead are expressly limited; the beneficiary of the right is expressly limited ; the manner of its enjoyment is expressly limited ; the method of transferring the estate in the land it covers is expressly limited ; the charges which may be made against it are expressly limited, and the character of process upon which it may be sold is expressly limited ; but the time during which occupation by the family of the owner shall be a barrier to its appropriation for the payment of debts is not limited. There is no time appointed beyond which it shall not endure.
To satisfy the creditors who press this suit it is necessary to engraft upon the words of the constitution, “shall be exempted from forced sale under any process of law,” the alien phrase “during the lifetime of the owner whose family occupies it.” The constitution itself forbears to express any such limitation. Such an interpretation can scarcely be made in a document which enumerates its own exceptions and prescribes its own limitations, and much less should it be undertaken when the result would be to abridge the scope and curtail the benignant power of a remedial charter.
Whenever, therefore, a homestead is once established it will endure as long as the enumerated elements essential to its existence continue to coordinate. The homestead may be voluntarily abandoned by those entitled to its privileges, it may be conveyed away,- and the family itself may be dissolved until there is no one left to invoke the constitutional protection, as in Ellinger v. Thomas, 64 Kan. 180, 67 Pac. 529; but so long as family occupation as a residence persists, no creditor may obtrude upon the sanctity of the homestead demesne.
Applying these propositions to the case at bar, and for the purpose of the application excluding Mary Cross from the family of her grandfather, it may be observed that, before the death of H. C. Cross his wife, Sue S. Cross, constituted his family. That he had an adult son living apart from him in no way disparaged that fact. She was “the family of the owner" of the lots. Because she was his family and occupied the lots as a residence it was exempt from the payment of his debts. When her husband died the conditions in respect of which the constitution gave her a home were not improved. The gaunt gray wolf of debt that had been skulking in the shadows of hér habitation and crouching at its door could ravage still. She continued, as before, to be the constituent element of the family of H. C. Cross; she continued in the rightful occupation of the homestead as her residence; and it' would turn into mockery the constitutional provision prepared against the days of her adversity to say that her husband’s creditors might enter as soon as his hearse had left the door.
It is said, however, that in the light of the statute of descents and distributions the homestead must be regarded as ceasing at the death of H. C. „ Cross. The statute of descents and distributions can shed no light upon the subject. The' constitution creates the homestead. This court is the final interpreter of that instrument, and no legislative misconception of its scope, if any such should become manifest, can be permitted to diminish the field of its operation.
However, the purpose of the statute of descents and distributions must be taken to be what its name imports — a statute providing for the transmission of title at death in cases of intestacy, and regulating the division of estates among heirs. It is not an exemption or homestead law. Upon the death of the owner the title to his land must vest anew or escheat to the state. If there be no will, the law alone accomplishes the transfer and names the persons who take. With this devolution of title the constitution has nothing to do. Property descending to heirs must be distributed, properly to be enjoyed. With- this distribution the constitution has nothing to do. These are matters left by the constitution to the legislature. But homestead interests are disturbed by them no more than the division of the title and the division of the land necessarily require, and the rights of creditors are enlarged no further than these circumstances necessarily compel. Neither descent nor distribution can make subject to execution for payment of debts any portion of the homestead inherited and occupied by a person who is not by death, or by subsequent circumstances, taken from the category of the family of the owner.
If in this case there had been no will, upon the death of H. C. Cross the title to the homestead would have descended to Sue S. Cross, the widow, and the adult son, Charles S. Cross. It may be granted, for the purpose of the illustration, that because the latter was of mature age partition could have been compelled. But because Sue S. Cross was the beneficiary' of a homestead right in the property her share upon a division would have retained its homestead character as long as she chose to observe the requirements making it such.
The primary function of the statute of descents and distributions, therefore, is the transfer of title and the partition of the estate among its inheritors ; and while it may enlarge the privilege of freedom from appropriation to the payment of debts, it cannot restrict the constitutional guaranty. If it be said that this construction of the constitution is not in harmony with those provisions of the statute of descents and distributions which seem to permit-no homestead privilege to a widow when adult children also survive the owner’s death, it can only be replied that the constitution is the paramount law and its mandates must be obeyed.
It is further claimed that the taking of -title under the will of a homestead owner necessarily abrogates the homestead right because a person must devise his lands “subject neverthe-¡ess to the rights of creditors.” (Gen. Stat. 1901, § 7937.) This proposition ignores the persistence of the exemption from forced sale, independent of changes in the title already illustrated in the case of descent. ' In this case Sue S. Cross occupied the lots in question as a residence and as the family of the owner, IT. C. Cross. By the will of the owner the title was devised to her and she elected to take under the will. But there was no hiatus in her occupation of the premises as a residence and as the family of H. C. Cross. The homestead privilege was no more disturbed than it would have been had H..C. Cross deeded the lots to his wife in his lifetime and while she was occupying, them as a homestead. She continued in the enjoyment of precisely the same right to immunity' from the loss of her hearthstone at the suit of her husband’s creditors, as before his death. And since the lots in question were continually impressed with the homestead interest-of Sue S. Cross in the lifetime of her husband, at the date of his death and during the following years until her own demise, creditors enjoyed no rights to which such lots were subject or to which the making of a will of them was subject.
It is asserted that, since Sue S. Cross elected to take the property in question under the terms of a will in which a request that the testator’s debts and funeral expenses be first paid was-expresse¿; she held it subject to the payment of such charges. In England the validity of the rule that a general direction for the payment of debts creates a charge upon real estate is now doubted.
“Such, then, is the long line of cases in which- it has been held that a general direction by a testator that his debts shall be- paid charges them upon his real estate. Though certainly in some of the wills there were expressions which might be fairly considered to sustain the construction independently of any such doctrine, it seems to be generally admitted that the courts have allowed their anxiety to prevent moral injustice by the exclusion of creditors, ‘and that men should not sin in their graves,’ to carry them beyond the limits prescribed by established general principles of construction.” (2 Jarman on Wills, 2d ed.; 535.)
In Bigelow on Wills, 317, it is said :
“Indeed, as a new question, there would be ground for question whether a direction to pay debts and legacies should be deemed a charge upon land devised.”
In the Matter of City of Rochester, 110 N. Y. 159, 17 N. E. 740, it was said :
“Payment of debts will not be charged upon a devise of real estate without clear evidence of such an intent in the will; the intention may not be presumed merely from the use of formal words, or the presence of commonly employed phrases.”
Other American cases are to the same effect. (Starke v. Wilson, 65 Ala. 576; Cooch’s Exr. v. Cooch’s Admr. et al., 5 Hous. [Del.] 540; Matter of Bingham, 127 N. Y. 296, 27 N. E. 1055; Matter of Powers, 124 id. 361, 26 N. E. 940.)
Much more imperative and unequivocal must be the language of a will which would subject to the payment of debts that property toward which the eye of the creditor need never be turned.
Finally, it is said that even though Sue S. Gross might have the right to enjoy the property in question free from her husband’s debts during her lifetime and might have the right to convey it disencumbered of such obligations, yet the Newman trust deed was insufficient for such purpose because it was testamentary in character. A policy to ’ be followed in the construction of doubtful instruments of the character under consideration was adopted in Love v. Blauw, 61 Kan. 496, 59 Pac. 1059, 48 L. R. A. 257, 78 Am. St. Rep. 334, and applied in Durand v. Higgins, 67 id. 110, 72 Pac. 567. It will not now be departed from. The codicil to the will, executed after the relations of the parties to the deed had become fixed, could not alter their rights.
The constitutional question above discussed is a new one. . Because of the diversity of their provisions and' the contrariety of view of the courts construing them, little assistance has been derived from the constitutions and laws of other states. No previous decision of this court has been made with .the interpretation of the constitution here adopted in mind. Many expressions of opinion to be found in earlier cases point the way. Some affirmations by way of argument and illustration appear to be opposed to the viewhere taken, But upon a careful discrimination of the precise points determined it will appear that no -former decision need no.w be overturned. The case of Battey v. Barker, 62 Kan. 517, 64 Pac. 74, 56 L. R. A. 33, is most in conflict. The doctrine there applied is the strict one upon which Ellinger v. Thomas, 64 Kan. 180, 67 Pac. 529, is based. In the latter case it was held that a sole adult remnant could not himself constitute his own family, so as to preserve land ■exempt from the payment of his own debts. Thus, it might be argued that, after the death of H. C. Cross, Sue S. Cross could not herself be her own family as against the claims of her creditors.
If, however, this be admitted, a single individual, Sue S. Cross, was sufficient to constitute the family of H. C. Cross, and because of her sole existence the precincts of her home were inviolable by his creditors. H. C. Cross and Sue S. Cross alone exhibited the clear distinction of the constitution between an owner whose property is liable for his debts and his family who would be unhoused if the liability were enforced ; and his death could not deprive her of the right to continue to be designated the family of H. C. Cross-as against the claims of those same creditors.
In order that the ground of this decision may not be misunderstood the relation .of Mary Cross to this homestead has been excluded from consideration. If, however, a plurality of persons were reqUired to form the family of H. C. Cross the condition was fulfilled. Even though her father was alive and held a court decree for her custody, by the conduct of the parties Mary Cross became a member of the family of H. C. Cross, within the mean ing of the homestead provision of the constitution. Formal adoption was not necessary, The fact of her actual dependence upon her grandparents and their consequent moral responsibility for her nurture was sufficient. •
“It is also well settled that it is not necessary that the relation of husband and wife, nor that of parent and child, should exist in order to constitute a family. Bradley v. Rodelsperger, 3 S. C. 226; Garaty v. DuBose, 5 id. 493; Moore v. Parker, 13 id. 486; Rollings v. Evans, 23 id. 316. . . . Nor do we think that it is necessary that there should be any legal obligation on the part of one claiming to be the head of a family to support the members thereof; but a moral duty, arising from ties of blood, or possibly other similar relations, will be sufficient. As is said in 7 Am. & Eng. Encycl. L. 804, note 2, ‘ the test of a legal duty has been rarely applied, and unquestionably a moral duty to sjipport the members of a family is sufficient to constitute one its head/ citing Thomp. on Homest., section 45. Accordingly we find that it has been held in Arnold v. Waltz (53 Iowa, 706; s. c., 36 Am. Rep. 248), that an unmarried woman keeping house, and there'bringing up two children of her deceased sister, is the head of a family, though she has taken no steps to adopt said children under the statute of that state; in Wade v. Jones (20 Mo. 75, 61 Am. Dec. 584), that a brother living with his widowed sister and her four small children and providing for them is the head of a family; in Bailey v. Cumings (16 Nat. Bank. Reg. 382), that a bachelor who supports a widowed sister who keeps house for him may be the head of a family.
“We are inclined to agree with what is said by Anderson; J., in Calhoun v. Williams (32 Gratt. 18; s. c., 34 Am. Rep. 759): ‘The whole theory and policy of the homestead (law) is founded upon the principle that there is a natural and moral obligation on the head of a family to provide for the support of his wife and children and other persons dependent on him, towards whom he stands almost in loco parentis, which is, if not paramount, equal to his obligation to pay his debts. 8 . . The family may consist of a Avife and children, or of other persons who may stand in a state of dependence in the family relation ; or it may consist of persons standing in either of these relations, whether the father or mother, or a brother or a sister or other relation, is the head ; but they must be persons who are dependent, in some measure, on the head for support, and who have an interest in his holding his property, and would be prejudiced by its seizure and sale under execution or other process, and who would be benefited by its exemption.’” (Moyer v. Drummond, 32 S. C. 165, 167, 10 S. E. 952, 7 L. R. A. 747, 17 Am. St. Rep. 850.)
“While there was no legal obligation on the part of this widow.to support the minor children of her husband, yet we think that, inasmuch as she undertook to keep them together, and to care for and support them, as the evidence shows she did, they all remained members of the testator’s family, and she thereby became the head of that family and under the laws of this state was entitled to a homestead as the head of a family. See Capek v. Kropih, 129 Ill. 509, s. c., 21 N. E. Rep. 836, where it was held that, on the death of his wife, a widower together with" his minor Step-children was entitled to a homestead in an entire lot of land which he had held in common with his wife. Moreover, when Mrs. Holloway took the minor children under her care and custody, she'stood in the relation of a parent to them and took upon herself that obligation. She then was under a moral obligation to support and maintain these children, and the authorities hold that such a moral obligation is sufficient to entitle her to have a homestead set apart for the benefit of herself and the minor children. ’ ’ (Holloway v. Holloway, 86 Ga. 576, 578, 12 S. E. 943, 11 L. R. A. 518, 22 Am. St. Rep. 484.)
Prom all this, it follows that the judgment of the district court must be reversed, with direction to that tribunal to enter judgment upon the agreed facts in fayor of the defendants, and it is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
GreeNE, J. :
Thomas W. Lloyd sued the Atchison, Topeka & Santa Fe Railway Company to recover damages sustained by him while attempting to use an apron on a coal-chute which was alleged to be either defectively hung or out of repair.
It appears that the plaintiff wras a locomotive fireman employed by the defendant; that on the 23d day of November, 1898, while firing on the California limited train it became necessary to take coal; at Thatcher, Colo., there are several coal-chutes situated on a slight up grade, northeast to the southwest, which are numbered from 1 to 6 ; on the day of the accident the train upon which the plaintiff was firing was going west, and at Thatcher the engineer pulled up to chute No. 2 for the purpose of taking coal, having passed chute No. 1 so that they could slack back to it if they found No. 2 empty ; the plaintiff climbed onto the oil-box on the west side of the engine near the cab, and pulled down the apron to chute No. 2; it was discovered that there was no coal in it and plaintiff so advised the engineer; plaintiff then undertook to shove up the apron, and the engineer, supposing he had accomplished it, released the air and the train immediately slacked back ; the apron did not respond, and the plaintiff was caught between it and the cab and severely injured. He recovered judgment because of the negligence of defendant in permitting the apron to become and remain out of repair. Defendant prosecutes error.
There are several errors alleged, but upon examination we do not find any of them prejudicial to the defendant, except as hereinafter stated. The court instructed the jury as follows :
“No. 26. You are instructed that a condition or state when shown to exist is presumed to continue until rebutted by evidence to the contrary. • This presumption will obtain if applicable to the evidence of plaintiff or defendant. Some evidence has been introduced by the plaintiff tending to show that some of the coal-chutes at Thatcher, Colo., including the. one-in controversy, were out of order prior to May 22, 1898 ; and the plaintiff claims that such condition continued until the time of the accident to him, and that at such time the said coal-chute was by the negligence of the defendant, or its employees, in a defective condition, and that such negligence contributed directly to produce the alleged injury ; and if you find from the evidence that defendant was guilty of negligence with reference to said coal-chute, as claimed by the plaintiff, and that such negligence, if any, contributed to plaintiff’s injury, the plaintiff would be entitled to recover therefor. On the other hand, evidence has been introduced by the defendant tending to show that subsequent to May 22, 1898, and prior thereto, said coal-chutes, includingv the one at which the accident occurred, were inspected at different times, and were repaired and in reasonably safe working order, not only prior to May 22, 1898, but also subsequent to that date and up to the time of the injury complained off by the plaintiff; and if you so find, then the plaintiff cannot recover in this case on the. ground of claimed defective coal-chutes; or, if you find from the evidence that defendant exercised reasonable and ordinary care to inspect said coal-chutes and to repair and keep the same in a reasonably safe condition, then the plaintiff in this case cannot' recover.”
Objection is urged that the rule that, where the éx-istence at one time of a certain condition or state of things of a continuous nature is shown, the presumption arises that such condition or state continues to exist until the contrary is shown by circumstantial or direct evidence was incorrectly stated, in that it failed to state that such presumption may be rebutted by circumstantial, as well as direct, evidence. The plaintiff’s evidence tended to prove that in May, prior to the injury, the chute was out of repair and dangerous. This was the basis for the application of this rale. Defendant offered evidence tending to prove that this particular chute had been in constant and dally use'from that date up to, and including, the day plaintiff received his injury. The length of time from the date plaintiff contends the chute was out of repair and the injury and the constant use of the chute during that time are very strong circumstances tending to prove that the repairs had been made. The court, in stating this rale, should have incorporated into the instruction that such presumption may be rebutted by circumstantial, as well as direct, evidence.
It is very doubtful if the rule, even when properly stated, is applicable in this case. The presumption only applies to conditions once shown to exist which in their nature are continuous. The evidence in this case tended to prove that an attempt to use this appliance when out of repair was dangerous to human life. It also tended to prove that this coal-chute was intended for constant and daily use. Can a defective condition of such a dangerous instrumentality intended for constant and daily use be presumed to be continuous? The natural and almost universal practice is to repair and keep in safe working order such appliances.
The instruction as given does not correctly state the rule, and is misleading and prejudicial to the rights of the defendant in the particulars herein stated.
For this reason the judgment of the court below is reversed, and the cause remanded.
All the Justices concurring. | [
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