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The opinion of the court was delivered by
Mason, J.:
Thomas Bowles recovered a judgment-against John McGlinchy upon his liability as a stockholder of the Bank of Garnett in the form of an order allowing execution against him on a judgment against the bank. Defendant in this proceeding seeks to reverse the judgment upon two grounds : (1) That he was not in fact such a stockholder; (2) that the action was barred by the statute of limitations. It will be necessary to consider only the second contention. The case was tried on an agreed statement of facts. The bank ceased to do business October 19, 1895. Bowles recovered judgment against the bank June 17, 1897. No execution was issued on this judgment until March 30, 1900, when one was issued which was returned unsatisfied April 4,1900. On June 26,1897, an action was brought by Bowles against McGlinchy and other stockholders, seeking to charge them with the payment of the judgment. In this action the plaintiff recovered a judgment which'was reversed by this court. (Woodworth v. Bowles, 61 Kan. 569, 60 Pac. 381.) In accordance with this decision an order dismissing the case was made by the district court March 15, 1900. On February 25, 1901, the present action was begun by plaintiff’s filing a motion for execution against McGlinchy on the judgment against the corporation. From this statement it is evident that, the bank having ceased to do business more than four years before this proceeding against McGlinchy was ' instituted, it was barred by the statute of limitations, unless it was saved by being brought within one year after the order was made dismissing the other case. (Bank v. King, 60 Kan. 733, 57 Pac. 952; Cottrell v. Manlove, 58 id. 405, 49 Pac. 519.)
Section 23 of the code (Gen. Stat. 1901, § 4451) reads:
“If any action be commenced within due time and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, Ms representatives, may commence a new action within one year after the reversal or failure.”
Where an action is prematurely begun upon a cause of action otherwise complete a new action may be brought within a year after the disposal of the first one. (Seaton v. Hixon, 35 Kan. 663, 12 Pac. 22.) But a petition which does not state a cause of action at all does not delay the running of the statute of limitations. (Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189.) If the petition in the action begun June 26,1897, stated a cause of action at all, or could, by any permissible amendment, have been made to state a cause of action, it must have been by virtue of sections 1200 and 1204 of the General Statutes of 1889, which authorized a direct action against the stockholders of a corporation whenever it had ceased business for over a year. It could not have been based upon section 1192, which authorized a proceeding against a stockholder when an execution on a judgment against the corporation had been returned unsatisfied, because at the time it was begun and for more than four years after the corporation quit business no execution had been issued. If it stated a cause of action based upon the fact that the corporation had suspended business for more than a year, it could not have been converted into one depending upon the return of an execution unsatisfied. The two remedies are not only different, but have been held to be so inconsistent that the adoption of one precludes the subsequent resort to the other. (Remington v. Hudson, 64 Kan. 43, 67 Pac. 636.) A cause of action cannot be saved by the section relied on by plaintiff unless the second action is substantially the same as the first. (Hiatt v. Auld, 11 Kan. 176.)
For these reasons the judgment is reversed, and the cause remanded with directions to render judgment for defendant.
All the Justices concurring. | [
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Per Curiam:
This is an original proceeding in discipline. The respondent, Larry L. Kopke, as a member of the bar has been practicing law in Great Bend, Kansas, since 1963. This proceeding is the result of three complaints filed against the respondent. One of the charges involves solicitation of business and two charges involve conflict of interest. A hearing was held on the complaints by a three-man panel of the State Board of Law Examiners. The panel filed its report containing its findings and a recommendation that the respondent should be disciplined by public censure. The state board after consideration of the report of the hearing panel adopted the same and recommended to this court that the respondent should be disciplined by public censure. The respondent filed his exceptions to the report of the state board and the matter is now before this court for determination.
The first charge has been designated by the parties as the “Napolitano matter.” The testimony at the hearing disclosed that on September 22, 1968, respondent was at the Central Kansas Medical Center in Great Bend on behalf of his church to give communion to patients at the hospital. There he met James Napolitano whose son had been injured the day before in an automobile accident. Napolitano was respondent’s mailman in Great Bend and they were well acquainted. According to the testimony of the Napolitanos, respondent stated that he was sorry to hear about the Napolitano boy and asked if there was anything that he could do. Mr. Napolitano asked respondent if he would look into it and find out what happened. Mr. Napolitano testified that he did not intend to hire Kopke at that time. The next day the Napolitanos received a copy of a letter directed to the driver of the vehicle stating that respondent represented them and requested the driver not contact the Napolitanos further but to contact only Kopke. Respondent contended that Mr. Napolitano requested that he arrange it so that Mrs. Napolitano would not be disturbed about the accident. Mr. Napolitano did not remember making such a request. Mr. and Mrs. Napolitano testified that they did not want to file a lawsuit because of the possible expenses involved; that all they wanted was to find out what had happened and asked their friend, the respondent, to find out for them. Thereafter respondent persuaded the Napolitanos to sign a medical authorization, to file suit and finally to go to trial. The Napolitanos testified that they understood that they would not be hable for any costs or expenses of litigation. Respondent was to handle the matter for them on a % contingent fee basis. The respondent, Larry L. Kopke, testified that it was understood that the Napolitanos were to pay the expenses of litigation in the event there was no recovery. It is clear from the record that the Napolitanos received and paid a few minor expense bills of $20 for photographs and $2.70 for the court reporter. The night before trial the Napolitanos asked Kopke what other expenses there would be and Kopke estimated they would be around $100 to $150; after the trial Kopke said they would be $300 to $350. The Napolitanos later received a bill of $608 which arose from the necessity of paying the expert fee of a medical witness and the cost of a deposition which was used in part at the trial. The jury found against the Napolitanos and for the driver of the motor vehicle in the personal injury action.
The thrust of the first charge is that the Napolitanos really did not want to file a lawsuit because of the expense; all they wanted to find out was what had happened. Their complaint is that the case was filed and was tried as a result of Kopke’s persuading them to proceed against their will. The hearing panel and the state board found from consideration of all the evidence that the conduct of the respondent constituted solicitation of business in that the complainants were persuaded by respondent to file a lawsuit and go to court when they did not so desire and when they understood it would be at respondent’s expense. We find that the charge of solicitation is not sustained by clear and convincing evidence in this case. It is clear that the problem between respondent and the Napolitanos arose primarily from lack of communication — the fact that Mr. Kopke did not take time to develop a full understanding with his clients about who should bear the impact of the expenses of litigation. Also respondent may have well been overly zealous to file a case and proceed to trial. However, we agree with the respondent that there was not sufficient evidence of solicitation of business to sustain the charge in the “Napolitano matter.”
The second charge involves a claim of conflict of interest and has been designated by the parties as the “Stanley Mai matter.” This complaint was received from the Barton County Bar Association. The evidence in the record discloses that Stanley Mai lived in Great Bend, Kansas, where he was employed by Sun Oil Well Cementing Company. On December 13, 1963, he was in an automobile accident in which he suffered injury to his teeth and to his knee. The respondent, Larry L. Kopke, as Mai’s attorney filed an action and represented him in his claim for personal injury in the United States District Court for the District of Kansas. The issues in that case covered liability for the collision and also the nature and extent of the injuries sustained by Mai. While the federal court case was still pending, Mai suffered injury to his back in the course of his employment at Sun Oil Well. Without being represented by counsel Mai claimed workmen’s compensation and settlement was made with his employer. Later Mai suffered a second back injury while working on his job.
It is clear from the record that Mai was a longtime employee of Sun Oil Well, apparently well liked by the company and considered a valuable employee. When Mai notified respondent of the second injury to his back, respondent advised Mai to get another attorney if he wished. Mai, however, felt he did not need an attorney and therefore filed the workmen’s compensation claim himself. Respondent Kopke called Mai and stated that he, Kopke, would represent Sun Oil Well and its insurance carrier at the hearing on Mai’s claim. Kopke also advised Mai that there would be a hearing to determine whether Sun Oil Well or the Second Injury Fund should pay workmen’s compensation to Mai. The company impleaded the Second Injury Fund and the matter proceeded to a hearing. At the initial hearing the workmen’s compensation examiner, Hugh Mauch, became concerned as to the need for Mai to be represented by counsel and told Mai that he had better hire an attorney. Following this hearing Mai consulted John Carpenter, another attorney of Great Bend, Kansas, who represented him in further prcoeedings. One of the issues in the workmens compensation case was the nature and extent of the injury which Mai suffered to his back while on the job. The respondent Kopke called Dr. Brown as a witness on behalf of Sun Oil Well and its insurance carrier. Dr. Brown rated the claimant’s disability as 5% of the body as a whole. Dr. Joyce, who was called by John Carpenter on behalf of the claimant Mai, rated his disability at 25%. The examiner found Mai’s disability to be 20% of the body as a whole and ruled further that the Second Injury Fund was not liable. The respondent Kopke appealed the finding, maintaining that the Second Injury Fund was liable.
Mr. Carpenter was concerned about the relationship between respondent and Mai due to respondent’s continuing representation of Mai in the personal injury case still pending in federal court. Carpenter filed a motion in the workmen’s compensation proceeding asking that respondent be required to withdraw as attorney for Sun Oil Well and its insurance carrier in the workmen’s compensation proceeding. Respondent opposed ihe suggestion but finally acceded to the district judge’s suggestion that he withdraw. He withdrew as counsel for Sun Off Well after the case reached district court. The respondent contends that he never did any thing to reduce the amount of Mai’s recovery or to oppose his claim in any way; that his sole point of contest sought to impose payment of Mai’s claim on the Second Injury Fund rather than on the insurance carrier of Sun Oil Well. Although respondent urges that he conceded the nature and the extent of Mai’s back injury, the record discloses otherwise. As pointed out heretofore, Kopke called a medical expert on behalf of Sun Oil Well who testified that Mai’s permanent disability was only 5%, whereas claimant’s medical witness testified that Mai’s medical disability was 25%. It is clear from the record that respondent cross-examined claimant’s medical witness Dr. Joyce about the nature and extent of Mai’s disability.
Actually Stanley Mai found nothing questionable about Mr. Kopke’s conduct and did not complain at the hearing before the panel in this case. Notwithstanding the friendly attitude of Mai toward respondent we agree with the state board that there was a conflict of interest present in the “Stanley Mai matter.” Canon 6 of the Canons of Professional Ethics, no longer in force but applicable at the time of hearing, declares that a lawyer represents conflicting interests:
. . when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.”
The State Board of Law Examiners found that because of the “special relationship” between Kopke and Mai, Mai could have felt secure in not obtaining other counsel to represent him in the claim, particularly if assured by respondent that the company wanted Mai to have all he was entitled to. The state board also noted Canon 9 of the Canons of Professional Ethics which reads in part as follows:
“It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.”
We agree with the state board and find that there is a clear conflict of interest presented in the evidence. Regardless of what respondent could have thought or done, or what Mr. Mai could have thought or done, it is obvious that such a special relationship did in fact exist which demanded that respondent either withdraw or absolutely insist that Mr. Mai secure independent counsel.
The third complaint has been designated as the “Dorothy Cropp matter.” The evidence discloses that in May of 1967 Dorothy Cropp employed Mr. Kopke to represent her in a divorce case to be filed on her behalf. Respondent prepared the papers but could not get Mrs. Cropp to return and sign them nor could he get her to pay the $75 balance of the $100 retainer fee which she had agreed to pay. He finally closed the file and accepted the $25 as a partial payment on his fee. It later developed that Mr. Cropp had secured an Oklahoma divorce and that in order to enable him to do so Mrs. Cropp had signed an Entry of Appearance. The divorce decree required Mrs. Cropp to pay certain bills of the couple, including one owed to Sears Roebuck and Company in the amount of $322.09. In early October 1967, Mrs. Cropp sought respondent’s legal assistance to compel her ex-husband, Gary Cropp, to pay these bills including the Sears account. In October and November 1967 respondent sought by correspondence with Gary Cropp and his Oklahoma attorney to have the Oklahoma divorce decree changed in order to. require Gary Cropp to pay tire bills. The ex-husband refused.
The problem arises in this case because of the fact that respondent regularly represented Sears on its collections and in November 1967, actually received the unpaid Cropp account for collection. On November 22, 1967, the respondent wrote a letter to Mrs. Cropp advising her that he had been contacted by Sears in regard to the balance of the account and that he was continuing to work on the possibility of getting Gary Cropp to pay the balance. He suggested that Mrs. Cropp make arrangements with Sears to make partial payments on the account. In this letter respondent suggested that Dorothy Cropp come in and discuss the matter with him. She did not do so. Again early in February of 1968, he suggested Mrs. Cropp come to his office for a discussion and again there was no response. On February 23, 1968, the respondent wrote Sears suggesting that a suit be filed against Mrs. Cropp to collect the account. In this letter respondent stated that he would be using a legal technicality approach to collect this money from Mr. Cropp. The lawsuit would be filed by respondent for Sears with the full knowledge and consent of Mrs. Cropp. After the lawsuit was filed against Mrs. Cropp, Kopke then would implead her ex-husband as a third-party defendant and attempt to get him to pay the bill to Sears. He suggested to Sears that Mrs. Cropp understood that the debt was her obligation to pay if Mr. Cropp did not pay it. A copy of this letter was mailed to Mrs. Cropp. On or about March 27, 1968, respondent filed a suit on behalf of Sears against Mrs. Cropp and Gary Cropp. About the time suit was filed respondent wrote Mrs. Cropp advising her that he had filed suit against Gary Cropp and herself but that he would continue to work toward the end of getting Gary Cropp to pay this amount. On July 30, 1968, judgment was entered in favor of Sears against Dorothy Cropp in the amount of $322.09 and judgment was also entered in favor of Gary Cropp. A reading of the record discloses a great deal of confusion as to who Mr. Kopke actually represented in the Sears suit against Mr. and Mrs. Cropp. We note for example that on February 28, 1968, Kopke billed Mrs. Cropp for his services as an attorney including charges for telephone conferences with Harold Walls, credit manager of Sears, and charges for correspondence with Walls in regard to filing the suit. Reminders were sent by respondent to Mrs. Cropp in regards to this unpaid bill both before and after suit was filed. It is certainly understandable in this case why Mrs. Cropp concluded that she was being represented in the Sears litigation by respondent in view of the fact that she was being billed for the services discussed above. It is difficult to see how respondent can reasonably deny representing Mrs. Cropp in the Sears matter when he billed her for telephone conferences and correspondence with Sears’ credit manager. Mrs. Cropp testified that respondent told her that she would get a summons on the Sears account suit but not to worry about it. The journal entry of judgment showed that Kopke appeared on behalf of Sears, that Mr. Cropp was represented by his attorney but that Mrs. Cropp appeared neither in person or by attorney. Respondent later sent Mrs. Cropp a copy of the judgment entered in favor of Sears against her; the accompanying letter contained a threat of garnishment proceedings if a payment schedule was not worked out. Shortly thereafter respondent withdrew from any further representation of Mrs. Cropp. Mrs. Cropp testified that she thought Mr. Kopke’s actions in the Sears matter were “funny” and she didn’t think he had done it right.
She complained to the Barton County Bar Association whose committee suggested that Mr. Kopke pay off the full amount of the Sears judgment which he did. The hearing panel and the State Board of Law Examiners found a conflict of interest in respondent’s representation of Sears in its suit against Dorothy Cropp to recover the Sears account. We agree.
We have concluded that the recommendation of the state board that the respondent, Larry L. Kopke, be disciplined by public censure should be accepted by this court. While there was nothing about respondent’s conduct that amounted to fraud, dishonesty or moral turpitude, nevertheless in the Stanley Mai and Dorothy Cropp matters we find a violation of the canons discussed above pertaining to a conflict of interest.
It is therefore by the court considered, ordered and adjudged that Larry L. Kopke be and he is hereby censured by this court. Costs of this proceeding are taxed to respondent.
Owsley, J., not participating. | [
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The opinion of the court was delivered by
Foth, C.:
Plaintiff had a contract with the Osborne county com missioners whereby they paid him $500 per month to furnish ambulance service in the county. When his contract expired the commissioners awarded a new contract to another operator. Plaintiff successfully sued to enjoin the commissioners from carrying out their new contract or from entering into any similar contract with anyone other than him so long as he continues to furnish ambulance service. The defendant commissioners and other county officials have appealed.
For many years ambulance service was furnished in Osborne county, as it was in many parts of the state, by local funeral directors as an adjunct to their main enterprises. By early 1968, however, those who had been serving the major portion of the county, and in particular the northeast communities of Osborne, Downs and Portis, went out of the ambulance business, claiming they were operating at a loss. Service remained only at Natoma, in the extreme southwest corner of the county. The operator there drew two-thirds of his business from the neighboring counties and made the bulk of his runs to hospitals in those counties. He, too, found it a losing business.
Plaintiff, then a farmer by trade, entered into a series of negotiations with the city fathers of Osborne, Downs and Portis over the question of starting a subsidized ambulance service in that part of the county. As a result of these meetings he bought a 1963 Pontiac stationwagon from one of the mortuaries and in March, 1968, went into the ambulance business with a $100 per month subsidy from the city of Osborne. A commitment of an additional $50 per month from the city of Downs led to the purchase of a new Plymouth stationwagon, and beginning in April, 1968, the city of Portis came through with another $25 per month.
This arrangement lasted through that year, but then the cities dropped their payments one by one until, in March, 1969, plaintiff was receiving nothing from the public coffers. Before reaching this unfortunate plight, however, he commenced negotiations with the county commissioners for a subsidy. He was not immediately successful, and for a time he was forced to operate without the benefit of public assistance. His efforts ultimately led to a contract dated August 28, 1969, calling for payments from the county of $500 per month, retroactive to July 1, 1969, and terminating December 31, 1969.
As this contract was nearing its expiration the commissioners tendered plaintiff a new contract for the calendar year 1970, on identical terms as his old one. Plaintiff refused to sign this contract, maintaining that he would need more money. The figure he suggested was $1,000 per month. No true accord was ever reached, but on March 30, 1970, plaintiff did sign a new contract at $500 per month retroactive to January 1, 1970, to extend, however, only to July 31, 1970.
According to the commissioners he stated at that time that unless he received the $1,000 per month he demanded he would quit, and that he had bid on service in two other counties at $1,200 and $1,500 per month. They, in turn, indicated that they could not meet his demand and would have to look for someone else to furnish the needed service; the new contract with plaintiff was only a stop-gap arrangement. They thereupon proceeded to advertise in area newspapers for persons interested in furnishing the service to get in touch with them before June 1.
The only serious prospect turned up by the advertisements was Robert L. Burch, then the sheriff of Osborne county. Burch, like plaintiff when he first proposed to go into the ambulance business, had no equipment or experience, but figured to use the proposed subsidy contract to finance the venture. Burch offered to perform for $650 per month the services then being rendered by plaintiff under his contract.
Shortly before June 1, 1970, and before settling anything with Burch, the commissioners summoned plaintiff to see what his best figure would be. This meeting was inconclusive, but as he left plaintiff wrote the figure $750 on a piece of note paper, signed it, and left it with the commissioners. The commissioners naturally understood this to be his best offer for ambulance service; plaintiff testified and the trial court found that it was meant to be merely a figure for their guidance in preparing the next year’s budget. He said it was based on $500 per month for his services and $250 per month for the operator at Natoma. While the trial court found that plaintiff did not refuse at this meeting to sign a new contract, it is equally clear that he did not agree to sign one, nor did he convey in any intelligible fashion that he might be willing to do so.
The upshot of it was that the commissioners contracted with Burch for $650 per month for one year, commencing on the expiration of plaintiff’s contract on July 31, 1970. Burch proceeded to purchase the necessary equipment, and on August 1 he com menced business and tbe county commenced paying him the $650 per month.
In the meantime plaintiff was not idle. He consulted counsel who, on June 22, 1970, wrote to the commissioners setting forth his position that any contract for ambulance service entered into while plaintiff was providing service was invalid; he threatened suit if the contract with Burch were carried out. This letter evoked no response, nor did a follow-up letter of July 26, 1970, and the result was this action. There was a false start in that a petition filed September 18, 1970, was dismissed for failing to show plaintiff’s standing to sue, and hence to state a cause of action; the amended petition on which the parties went to trial was filed December 2, 1970. Plaintiff, despite his threats, continued to operate his service and was doing so at the time of trial.
At the threshhold we are met with a challenge to plaintiff’s standing to maintain the action, a point presented below and preserved on appeal. Plaintiff predicated standing on his dual status as a taxpayer and as a competing ambulance operator.
We would agree with defendants that as a mere taxpayer, affected no differently than other taxpayers, plaintiff lacked standing to challenge the alleged unlawful expenditure of county funds. Haines v. Rural High School Dist. No. 3, 171 Kan. 271, 232 P. 2d 437; Dunn v. Morton County Comm'rs, 162 Kan. 449, 177 P. 2d 207. However, as the operator of the only ambulance service in the county with which Burch’s subsidized service would compete, we think he was affected differently from the general public, and thus fit into the well recognized exception to the general rule against private citizens’ enforcing public rights. Watson v. City of Topeka, 194 Kan. 585, 400 P. 2d 689; Tripp v. Board of County Commissioners, 188 Kan. 438, 362 P. 2d 612. Estoppel wasn’t pleaded, and we see no basis for a claim of laches. We therefore turn to the merits.
The case turns on the interpretation of the 1965 act (Laws 1965, ch. 200) which authorizes counties to furnish ambulance service to their residents at county expense, and a 1968 amendment to it (Laws 1968, ch. 42). Section 1 of the act now appears as K. S. A. 1971 Supp. 19-261. As amended in 1968 it now reads (with 1968 deletions stricken and additions italicized):
“. . . 19-261. The board of county commissioners having a papnlatiea e# lees than éá#v • of any county may provide as a county function or may contract with any city, person, firm, or corporation for the furnishing of ambulance services within all or any part of their respective counties upon such terms and conditions, and for such compensation as may be agreed upon which shall be payable from the county general fund: Provided, . . . [here follow immunity and liability insurance provisions]. The board of county commissioners shall not provide ambulance service under the provisions of this act in any paid of the county which receives adequate ambulance service, but the county shall reimburse any taxing district which provides ambulance services to such district with its proportionate share of the county general fund budgeted for ambulance services within the county. Such reimbursement shall be based on the amount that assessed tangible taxable valuation of the taxing district bears to the total taxable tangible valuation of the county, but in no event shall such district receive from the county more than the district’s cost of furnishing such ambulance services.”
Section 2 of the act, now K. S. A. 1971 Supp. 19-262, requires that if the commissioners authorize service under 19-261 they shall establish by resolution a “minimum set of standards” for equipment and operation and for qualifications and training of personnel. The Osborne commissioners did not establish such standards by resolution but did incorporate them in the various contracts referred to.
Simply put, plaintiff’s theory is that once he commenced operations he was furnishing “adequate ambulance service” in that part of the county he served, and so long as he met the standards contained in his contract the commissioners were forbidden by the italicized portion of the statute to provide other ambulance service. His view prevailed below. The trial court made findings of fact which included the substance of most of those recited above, and the following conclusions of law:
“1. The term ‘adequate ambulance service’ as used in KSA 19-261, has reference to the term ‘minimum standards’ which are to be fixed by the County Commissioners under KSA 19-262. In this instance the service provided under the contracts which were prepared by the County Commissioners specified the quality service which was ‘adequate’ for Osborne County.
“2. KSA 19-261 does not limit tire prohibition that the County Commissioners shall not provide ambulance service in any part of the county which receives ‘adequate ambulance service’ to the reimbursement of taxing districts or to ambulance operators who are not being subsidized under the provisions of the act but applies to any ambulance operator who is providing ‘adequate ambulance service’.
“3. The County Commissioners had no legal right to enter into nor carry out the contract of June 1, 1970, with Robert L. Burch. Any contract entered into for ambulance service in Osborne, except the Natoma area, with anyone except the plaintiff was illegal.
“4. The doctrine of laches is not applicable to the factual situation and is not a defense in this case.
“5. The contract between the County Commissioners and A. F. Pohlman for the providing of ambulance service in the Natoma area is not illegal under the court’s decision.
“6. The plaintiff is entitled to the relief prayed for and the County Commissioners are enjoined from making any further payment under the written contract of Robert L. Burch, dated June 1, 1970, and from entering into any contract with anyone but plaintiff for the providing of ambulance service in Osborne County, Kansas, except the Natoma area, so long as plaintiff is providing adequate ambulance service in the remaining portions of Osborne County, Kansas.”
The correctness of these conclusions, we think, depends on the meaning of the 1968 amendments to 19-261. The first two of these are not relevant here, i. e., that the act is made applicable to all counties regardless of population and that the commissioners may operate their own service as an alternative to providing service through an independent contractor.
The third, that the commissioners may provide service in only part of the county, ties in with the fourth and crucial amendment, which was the addition of that part of the statute beginning, “The board of county commissioners shall not provide ambulance service under the provisions of this act in any part of the county which receives adequate ambulance service. . . .”
One obvious purpose and effect of these two provisions is to provide relief from double taxation to residents of a city, fire district, hospital district or other taxing subdivisions which is already furnishing adequate ambulance service at public expense. The county is not to invade those areas with its service, and is to reimburse such a taxing subdivision its pro rata share of the countywide taxes levied by the county for ambulance service. It may be that this was all that was intended, for we note that the reimbursement provision is part of the same sentence which prohibits the county from providing service in areas already served. However, we are not prepared to so hold, for such a construction might mean that the legislature had authorized counties to provide service in competition with private entrepreneurs who were furnishing adequate service. We are reluctant to ascribe such an intent to the legislature without unambiguous language to that effect. (Cf. State, ex rel., v. City of Hiawatha, 127 Kan. 183, 272 Pac. 113; State, ex rel., v. Kaw Valley Drainage District, 126 Kan. 43, 267 Pac. 31; State v. Kelly, 71 Kan. 811, 81 Pac. 450.) We therefore assume that if “adequate ambulance service” were being furnished in part of a county by a private operator county commissioners would have no authority to provide competing service. The question remains whether the service being furnished by plaintiff in this case was “adequate” within the meaning of the statute.
As a first step in resolving this question it seems appropriate to look at the situation confronting any county commissioners when they first contemplate putting their statutory authority into practical operation. The first and primary question they face is whether there is a need for county-furnished service, either through direct operation or by contract, i. e., a “subsidy.” Obviously if all of the county is receiving adequate service no need exists, and the county is forbidden to provide additional or competing service; if part of the county is being adequately served, the commissioners are not to duplicate existing services in that part at public expense. This is what the statute says.
What factors may the commissioners consider in determing whether existing service is “adequate”? The trial court agreed with plaintiff that “adequate ambulance service” under 19-261 means simply and exclusively service meeting the “minimum set of standards” established by the commissioners under 19-262. We think that logically this cannot be, because the commissioners are to establish minimum standards only after they have authorized service under 19-261, while before they authorize service they must determine that some part of the county is not receiving “adequate” service. As we see it the county-fixed minimum standards are designed solely to govern the operation of county-furnished ambulance service, and have nothing to do with the initial determination of the need for county-furnished service.
It seems to us that whether a need exists (i. e., whether present service is “adequate”) is a practical question, to be answered in the first instance by those epitomes of practicality, the county commissioners. It is they who are charged by law with the management of the county’s business in general (K. S. A. 19-103, 19-212) and with this determination in particular; it is they who are the watchdogs of the public purse. Their judgment on matters entrusted to their discretion is not subject to review except for arbitrariness, capriciousness or bad faith. (See, e. g., Boehm v. Board of County Commissioners, 194 Kan. 662, 400 P. 2d 739; Smith v. Reno County Comm'rs, 121 Kan. 444, 247 Pac. 1046.) In making their determina tion they may consider any factors which a prudent man would consider relevant, and are not limited to any one controlling fact. We think the likelihood that any existing service will continue is one such relevant factor.
Thus, the city officials who first agreed to subsidize plaintiff properly considered that the funeral directors were faltering and going out of the ambulance business as a factor in determining that a need then existed, even though service was still being provided. Similarly, when plaintiff first approached the county commissioners for a subsidy the fact that the cities were about to discontinue their subsidies, together with plaintiff’s professed inability to operate without governmental aid, was a proper matter for the commissioners to consider in determining whether there would be adequate service — again, even though service was still being provided.
If plaintiff’s theory were correct, he himself would have unlawfully collected $6,500 from Osborne county during his thirteen months of subsidy. Under his theory the fact that he was furnishing service at the time would have precluded the commissioners from contracting with him in the first place. Alternatively, even if his previous service did not meet the “minimum standards” set by the contract (the record is silent on that subject) the moment he started operating under his contract — and therefore, by his definition, began furnishing adequate ambulance service — the commissioners were deprived of their authority to pay him.
The argument is self-defeating, and we reject it as a proper construction of the statute. “Adequate ambulance service” must be read to mean service provided by some agency, public or private, not being subsidized by the county. Further, as indicated, in determining whether such service is adequate we think the commissioners are entitled to consider among other things the likelihood of the existing service continuing. Factors which might reasonably be thought to bear on that likelihood include the past financial success of the venture, the public or private financial resources of the operator, and any indications of the operator’s future intent.
Putting an ambulance service in operation requires time both to acquire equipment and to train personnel. We do not believe the commissioners must sit idly by in the face of the threatened termination of service, or that in this case they were required to wait to see whether plaintiff would actually carry out his threat. The commissioners were not required to gamble the health and lives of their constituents on the remote possibility that plaintiff might continue his service; the public welfare could not be made to depend on plaintiff’s whim.
In this case the award of the contract to Rurch carried with it an implied finding that after July 31, 1970, the service of plaintiff would not be adequate. There was no finding or even any allegation that the award of the contract — and with it the implied finding —was the result of arbitrary or capricious action by the commissioners or the result of anything but their good faith efforts to solve a continuing community problem which had been thrust upon them by the retirement of the funeral directors and the termination of the previous municipal subsidies, and which was currently aggravated by the increased demands of plaintiff.
Were there reasonable grounds for the commissioners’ conclusion that after plaintiff’s contract expired there would not be “adequate ambulance service” in that part of the county he was serving? In June, 1970, the commissioners knew that the funeral directors had found ambulance service a losing business; that plaintiff had repeatedly told them that $500 per month subsidy was not enough to keep him going and that unless he got $1,000 he would have to quit; and that plaintiff had refused to finish the year at $500. (His only retreat from that position, so far as they knew, was his apparent willingness to accept $750.) We think they were amply justified in concluding that if there was to be ambulance service in Osborne county after July 31, at a price they were willing to pay, it would have to be furnished by someone else.
It is true that plaintiff in fact continued to operate after his contract expired. However, the decision of the commissioners must be judged in the light of the circumstances at the time they made it, not in the light of hindsight. Had plaintiff advised the commissioners that he wished and intended to operate without a subsidy it may be more doubtful that they could have properly found a need for county-financed service. (Even that is not certain, for they might well have found that his repeated statements of need and the financial history of ambulance operations in Osborne county indicated plaintiff’s probable collapse in the near future.) He did not indicate any such intention, however. Quite the contrary, he repeatedly insisted on a doubling of his subsidy, and said he would have to quit if he didn’t get it. We think the commissioners were entitled to take him at his word and are not to be faulted for failing to anticipate his present position.
Since the contract with Burch was entered into within the authority of the commissioners, it was error to enjoin them from carrying out its provisions. The judgment is reversed with directions to enter judgment for the defendants.
APPROVED BY THE COURT. | [
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Per Curiam:
This action steins from a motor vehicle collision occurring in Pittsburg, Kansas. The plaintiff recovered judgment against the defendant and the latter has appealed.
No useful purpose would be served by setting forth the various contentions raised on appeal. It is sufficient to say that one of the members of this court is disqualified to participate in the appeal because of his prior connection with the case, and the remaining six members are equally divided as to how the appeal should be decided.
Article 3, § 2(a) of the Kansas Constitution provides that the concurrence of four justices is necessary to a decision, and the rule is that when one justice is disqualified to participate in a decision, and the remaining six justices are equally divided in their conclusions, the decision of the trial court must stand. (Ward v. Davis, 177 Kan. 629, 281 P. 2d 1084; Scott v. Harber, 187 Kan. 542, 358 P. 2d 723; and Fink v. City of Topeka, 208 Kan. 805, 494 P. 2d 411).
The judgment is affirmed.
Owsley, J., not participating. | [
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The opinion of the court was delivered by
Fromme, J.:
Terry Lee Widener was sentenced on pleas of guilty to second degree burglary (K. S. A. 21-520) and escape from jail (K. S. A. 21-736). Pleas were entered July 13, 1970. He is presently in custody at the Kansas State Industrial Reformatory at Hutchinson, Kansas. No question is raised as to the terms of the sentences imposed.
This appeal is from an order denying post-conviction relief under K. S. A. 60-1507. Appellant’s motions to set aside his convictions were summarily denied on the record. Two matters are raised in this appeal.
His first contention is based on a claim of denial of his constitutional right to counsel at the time of the arraignments and pleas.
A city court appointed attorney Richard E. Cook to represent the appellant. Mr. Cook was at the time in question the elected probate judge of Cowley County. It is now claimed the judge’s representation of appellant conflicted with his duties as probate judge. It is argued a conflict of interest precluded the appointment and rendered the appellant’s convictions void.
The probate court of Cowley County is located at Winfield, Kansas. Richard E. Cook maintains a law office in Arkansas City. Mr. Cook was appointed to represent appellant on June 18, 1970, by The Honorable Ted M. Templar, Judge of the City Court of Arkansas City, Kansas. Appellant waived his preliminary hearing in said city court on July 2,1970. Mr. Cook continued to advise with and represent the appellant during all proceedings in the district court that followed, including the arraignment, pleas and sentencing. At no time was the appellant’s case before the probate court of Cowley County.
The population of Cowley County, Kansas, is slightly over 35,000. There are two city courts located in the county with county-wide jurisdiction. The jurisdiction of these city courts includes preliminary hearings in felony cases. The judge of the probate court of Cowley County is not burdened with the additional duties imposed upon judges of county courts in criminal matters. The probate judge of that county has no jurisdiction to preside over preliminary hearings in felony cases. It should also be noted the legislature has imposed no limitation on the practice of law by probate judges in such counties except to exclude them from practice in their own court and in cases where such practice would conflict with the duties of their office or the interests of those having business before the probate court. (See K. S. A. 1971 Supp. 59-207.) In view of the salary provided for the office by statute it would be difficult, if not impossible, to attract attorney candidates if they were prohibited from all law practice on being elected to such office.
Appellant does not quarrel with the quality of the representation he has received from such appointed counsel. The claim of a denial of his constitutional right to counsel in this case is based solely upon a contention that any attorney who is serving as probate judge cannot be appointed to represent an accused. The conflict of interest claimed arises not because of the factual circumstances of the particular case but by reason of the elected office held by the attorney who represented him. The conflict claimed does not arise from his counsel’s duties as a probate judge or from his participation in any events in the probate court involving the appellant herein.
The cases upon which appellant relies are either from states which have an absolute statutory prohibition against the practice of law by a probate judge or they are cases involving proceedings to discipline an attorney under the Code of Professional Ethics. None of the cases apply to the facts of the present case. This is not a disciplinary proceeding and we do not have a statutory prohibition against private practice by the probate judge in Cowley County.
In Brazzell v. Maxwell, 176 Ohio St. 408, 27 Ohio Ops. 2d 378, 200 N. E. 2d 309, cert. den. 379 U. S. 981, 13 L. Ed. 2d 572, 85 S. Ct. 688, the claim made was similar to that in the present case. There petitioner’s basic contention was that he was deprived of his constitutional rights because his court-appointed counsel was a county judge, allegedly prohibited from private practice by statute. The Ohio court disposed of such claim as follows:
“There is no claim that the counsel appointed to represent petitioner did not competently represent him during the trial. Petitioner bases his argument on the statutory prohibition. The counsel appointed to represent petitioner was a duly licensed attorney at law, and the fact that because of his official position the statute may have barred him from engaging in the active practice of law does not relate to his competency as an attorney nor does it render petitioner’s conviction void. See Berry v. Gray, Warden (Ky.), 299 S. W. (2d), 124; People v. Sardo, 15 Misc. (2d), 69, 178 N. Y. Supp. (2d), 691; and United States v. Bradford, 238 F. (2d), 395.)” (p. 408.)
The cases from other states have generally held that holding the elective office of probate judge does not per se render the judge’s services as appointed counsel a violation of the accused’s constitutional right to the effective assistance of counsel nor does it render a petitioner’s conviction void.
In essence the appellant is claiming that he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. In measuring the adequacy and effectiveness of appointed counsel provided for an accused as guaranteed by the constitution adequacy and effectiveness must be gauged by the actual representation afforded the accused. To be a denial of an accused’s constitutional rights it must clearly appear that the representation of the accused by his counsel was wholly ineffective and inadequate. (State v. Richardson, 194 Kan. 471, 487, 399 P. 2d 799; Toland v. State, 200 Kan. 184, 186, 434 P. 2d 550; Baker v. State, 204 Kan. 607, 464 P. 2d 212.)
Much has been cited concerning the judicial and professional ethics involved when a judge practices law. However, we are not here concerned with judicial or professional ethics. Our problem from the constitutional standpoint is limited to one question. Did the appellant have the effective assistance of counsel? In answer to that question we point out that the appellant does not claim otherwise.
The record clearly indicates that appointed counsel represented the appellant diligently and effectively. Appellant stood charged with three possible felony counts, burglary, larceny and escape from jail. Through the efforts of counsel the larceny count was dismissed by the prosecution, and after a vigorous argument to the court concerning the escape from jail count counsel for appellant succeeded in prevailing upon the court to impose the minimum sentence possible, i. e., six months in the county jail. The maximum sentence authorized by law for that offense is two years in a penal institution. (See K. S. A. 21-736.)
The trial court properly determined the first point raised by movant was without merit as a matter of law. An accused is not denied the effective assistance of counsel guaranteed by the constitution merely because the attorney appointed to represent him holds the office of probate judge of Cowley County, Kansas.
We turn now to appellant’s. second contention that his pleas were involuntary because of the court’s failure to interrogate the accused personally and determine that he fully understood the charges against him.
Notwithstanding the expressed desire of the accused to enter a plea of guilty in a felony case, the court should not enter a judgment upon such a plea without personally making such inquiry of the accused as may satisfy it that there is á factual basis for the plea. This requirement is supported by recent cases from the high court. In McCarthy v. United States, 394 U. S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166, a federal court rule was held to require that the sentencing federal court not accept a plea of guilty until and unless the defendant was addressed personally by the court, that the federal court had determined there was a factual basis for the plea and that the defendant understood the nature of the charge and the consequences of the plea.
In Boykin v. Alabama, 395 U. S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709, this federal rule in McCarthy was fastened on the states as a requirement of due process through the Fourteenth Amendment.
In Kansas, statutory requirements effective July 1, 1970, acknowledge the thrust of these federal cases. K. S. A. 1971 Supp. 22-3210 reads in pertinent part as follows:
“Before or during trial a plea of guilty . . . may be accepted when:
“(1) The defendant or his counsel enters such plea in open court; and
“(2) In felony cases the court has informed the defendant of the consequences of his plea and of the maximum penalty provided by law which may be imposed upon acceptance of such plea; and
“(3) In felony cases the court has addressed the defendant personally and determined that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea; and
“(4) The court is satisfied that there is a factual basis for the plea.
“(5) In felony cases the defendant must appear and plead personally and a record of all proceedings at the plea and entry of judgment thereon shall be made and a transcript thereof shall be prepared and filed with the other papers in the case.”
The requirements of the foregoing statute compare favorably with the Standards for Criminal Justice relating to pleas of guilty adopted by the American Bar Association. (Approved draft, 1968.)
Now let us examine the circumstances surrounding the appellant’s pleas. The factual circumstances of the two crimes were meticulously set forth in separate informations. The colloquy between court and counsel and the personal questioning of the defendant by the court follow an almost identical pattern on each separate plea. We will set forth that portion of the verbatim transcript relating to the burglary charge only. It is as follows:
“Mr. Pringle [assistant county attorney]: May it please the Court, the defendant is personally present in Court with his court-appointed counsel, Mr. Richard E. Cook. The record will reflect that Mr. Cook was appointed in the City Court of ARkansas City, Kansas, and in that court they waived preliminary hearing, and the defendant was bound over to this Court. Mr. Cook was furnished a copy of the complaint filed in this matter, Your Honor, and I’m sure he’s aware of the fact that the information is the same as the complaint, and he has advised me that he will waive the reading of the information.
“Mr. Cook [attorney for appellant]: If it please the Court, Your Honor, the defendant would waive the reading of the information.
“The Court: Very well. Mr. Widener, have you been furnished a copy of the information?
“The Defendant: Yes, sir.
“The Court: Do yon know what you’re charged with?
“The Defendant: Yes, sir.
“The Court: This information charges you with burglary in the second degree and the commission of a larceny in connection therewith. These are felonies, and being felonies, you’re entitled to a trial by jury; you’re entitled to be represented by counsel at all stages of the proceedings against you. At the time of trial, if you desire one, you would be allowed to subpoena witnesses in your defense. You would also be allowed to take the witness stand, if you wished, but you would not be required to do so. Have you had sufficient time to talk to your counsel, Mr. Cook, about this matter?
“The Defendant: Yes, sir.
“The Court: How old are you?
“The Defendant: Twenty.
“The Court: Mr. Widener, are you ready then to plead to this information in Case 6629 charging you with burglary in the second degree?
“The Defendant: Yes, sir.
“The Court: How do you plead to the count charging you with burglary in the second degree, guilty or not guilty?
“The Defendant: Guilty.
“Mr. Pringle: The State at this time, Your Honor, would move to dismiss the grand larceny charge.
“The Court: Very well, permission is granted. Mr. Widener, do you plead guilty to this because you did in fact burglarize this concession stand?
"The Defendant: Yes, sir.
“The Court: You understand that the penalty for burglary in the second degree is not less than five nor more than ten years?
“The Defendant: Yes, sir.
“The Court: You enter this plea of guilty freely and voluntarily?
“The Defendant: Yes, sir.
Although the court’s inquiry as to a factual basis for the plea appears skimpy it did ascertain that a copy of the information had been furnished appellant in advance of arraignment. The details of the particular crime charged were set forth therein. The elements essential to the crime were clearly stated. The information charged that on June 11, 1970, in the night-time, Mr. Widener had unlawfully, feloniously and burglariously broke into a concession stand in the city ball park in Arkansas City by ripping tin from the roof of the stand, entered an inner room by opening a window and had stolen and carried away various described items of merchandise located therein which were the property of the Arkansas City, Kansas Baseball Association. The court, in addition to ascertaining that appellant had had an opportunity to see the information and discuss the matter with his attorney, asked him if he pled guilty because he “did in fact burglarize this concession stand”. The appellant’s answer was an unequivocal yes. We believe all this was sufficient to establish a factual basis for the plea and that defendant understood the nature of the charge and the consequences of the plea.
Our examination of the proceedings as to the plea on the escape from jail charge leads us to a similar conclusion.
From what has been said we conclude the trial court properly determined that appellant’s motion under K. S. A. 60-1507 should be denied summarily on the record as a matter of law. The order of denial is affirmed. | [
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The opinion of the court was delivered by
Foth, C.:
This case involves the eligibility of a candidate at the election of November 7, 1972. Because of the imminence of that election, we announced our decision on September 28, 1972. This opinion is intended to explain the reasoning which led to that decision.
At issue is the interpretation of that part of section 2 of chapter 71, 1972 session laws of Kansas, which prescribes the qualifications for nomination to the newly created office of district attorney:
"No person shall be eligible for nomination to the office of district attorney unless such person shall have been regularly admitted to practice law in the state of Kansas for five (5) years next preceding his nomination for such office: Provided, That an attorney who shall have been a county attorney, assistant county attorney or assistant district attorney for the three (3) years immediately preceding his nomination as district attorney shall be eligible for nomination.”
The. facts are not in dispute. Fred W. Phelps, the plaintiff-appellant, was regularly admitted, to practice law in this state on February 12, 1964, and was issued the customary certificate to that effect.
On, September 24, 1969, this court suspended appellant from the practice of law for a period of two years for unprofessional conduct not relevent here. In re Phelps, 204 Kan. 16, 459 P. 2d 172, cert. den. 397 U. S. 916, 25 L. Ed. 2d 97, 90 S. Ct. 922. Our order had the effect of suspending him also from practicing in the United States District Court for the District of Kansas under Rule 3 (j) of that court’s rules of practice. The suspension expired by its own terms on September 24, 1971.
In June, 1972, appellant filed for nomination for the office of district attorney of the third judicial district (Shawnee county) on the Democratic ticket. He received the highest number of votes at the primary election of August 1, 1972, and was issued a certificate of nomination.
Appellant’s nomination was challenged before the state contest board and on August 28, 1972, that body determined that he was ineligible and that his name should therefore not be placed on the general election ballot. The board found that his two-year suspension, falling as it did within the five year period next preceding the primary election of August 1, 1972, rendered appellant ineligible to be nominated at that election. Plis certificate of nomination was declared invalid.
Thereafter appellant commenced this suit, seeking by mandamus to compel the secretary of state to certify his candidacy and cause his name to be placed on the general election ballot. The action was heard by the district court of Shawnee county, en banc. After making findings of fact, in substance as recited above, the four judges below unanimously reached the following conclusions of law:
“1. The Supreme Court of Kansas has the inherent right to prescribe conditions for admission to the Bar and to define, supervise, regulate and control-the practice of law, including the right to disbar or suspend a lawyer from the practice of law in this state.
“2. A person admitted to the Bar in Kansas is given a certificate issued by the Supreme Court and said certificate authorizes said person to regularly engage in the practice of law in this state.
“3. A lawyer holding this certificate is considered a regularly admitted law yer and has the privilege to practice law in all the courts of this state so long as he possesses this certificate and this privilege.
“4. A suspension is the temporary deprivation of this certificate and privilege to practice law for a period of time. During said suspension, the lawyer is denied the right to appear as counsel in any court of this state or in the U. S. District Court for the District of Kansas, and denied the right to regularly engage in the practice of law in this state for the period of suspension.
“5. During suspension, the lawyer’s status is the same as that of one who is not regularly admitted to practice. The lawyer is still a member of the Bar, but loses his license and the right to practice during said suspension period.
“6. From September 24, 1969, to September 24, 1971, plaintiff was not regularly admitted to practice law in this state.
“7. Where eligibility to public office is restricted to those who have been admitted to practice law, suspension prevents one from assuming such office during this period. Therefore, in computing any period of time prescribed as a requirement to be eligible to hold office, the period of suspension shall not be included.
“8. Section 2, chapter 71, 1972 Session Laws provides that to be eligible for the nomination to the office of District Attorney, the candidate . . .
‘shall have been regularly admitted to practice law in the State of Kansas for five (5) years next preceding his nomination for such office.’ (Ellipsis in original.)
“9. The terms ‘next preceding’ in the above section means that for five (5) years ‘immediately preceding’ the nomination. Therefore, one to be eligible, according to said statutory provision, must have been regularly admitted to practice law in this state for five (5) years immediately preceding the nomination.
“10. Plaintiff has failed to have been regularly admitted to practice law in Kansas for five (5) years immediately prior to August, 1972, as a result of the two (2) year suspension during the period from September 24, 1969, through September 24, 1971.
“11. Plaintiff is denied relief of Mandamus on the basis that he does not possess the qualifications required by law to be eligible for the nomination for the office of District Attorney, Third Judicial District of Kansas, as specifically set out in the findings of fact and conclusions of law made and entered herein.”
We agree with these conclusions, and might well rest our decision on a simple adoption of them. Appellant, however, insists that the trial court misconstrued the statute and misconceived the effect of his suspension. The vigor and sincerity with which his arguments are advanced require that we elaborate upon our reasons for rejecting them.
In his primary argument appellant asserts that the statutory phrase “regularly admitted to practice law” is the substantial equivalent of “admitted to the bar.” In his view this phrase refers to an event, which occurs but once and which confers upon the admittee a status as a “member of the bar.” This status, he says, continues for life, or until disbarment; he cites Hanson v. Grattan, 84 Kan. 843, 115 Pac. 646, Syl. ¶ 2, where such a statement may be found.
His subsidiary argument is that suspension does not sever an attorney’s relationship to the courts or his status as a member of the bar, but merely prevents him from practicing law during the period of suspension. He cites authorities from other jurisdictions which support this proposition, and with which we are in substantial agreement. Thus, for example, a suspended attorney is still subject to the prevailing rules governing the conduct of attorneys, and for their violation during the period of suspension he may be subject to further discipline. In re Oliver, 97 Utah 1, 89 P. 2d 229; In re Byrnes, 97 Minn. 534, 105 N. W. 965; State ex rel. Nebraska State Bar Assn. v. Butterfield, 172 Neb. 645, 111 N. W. 2d 543. Cf., State v. Blase, 208 Kan. 969, 494 P. 2d 1224. The court below accepted this principle in its conclusions 4 and 5.
Taken together, appellant’s argument forms the following syllogism:
(1) the statute merely requires admission to the bar at least fiye years prior to nomination;
.,.(2) he was admitted to the bar more: than five years prior to August 1, 1972 (and his suspension did not deprive him of his status as a member of the bar);
(3) therefore, he was qualified.
. .The chief flaw, as we see it, lies in the major premise. We believe that when the legislature used the phrase “regularly admitted to practice law in the state of Kansas for five (5) years next preceding his nomination,” it meant something considerably more than appellant suggests. First, the legislature required not that the candidate be regularly admitted “to the bar,” but that he be regularly admitted “to practice law.” Second, it went on to require that he have been so admitted “for five years,” not merely “five years before” his nomination. Finally, the five years cannot be any previous five years, but must be those “next preceding” his nomination.
To what end were these specifications and requirements inserted? In examining this question we bear in mind that “the sense and reason of the law are the soul of the law.” (Plowden, quoted in Intoxicating-Liquor Cases, 25 Kan. 751, 763.) Along the same line, in Clark v. Murray, 141 Kan. 533, 41 P. 2d 1042, Syl. ¶ 3, we said:
“When the interpretation of a statute according to the exact and literal import of its words would thwart or contravene the manifest purpose of the legislature in its enactment, it should he construed according to its spirit and reason, disregarding, as far as may be necessary, the strict letter of the law.”
All three elements of the statutory phrase which we consider significant are closely interrelated and reinforce each other. However, in our analysis we look first to the distinction between being admitted “to the bar” and being admitted “to practice law.” If a suspended attorney were asked, “Are you regularly admitted to practice law?” we cannot believe he could give an unqualified affirmative answer, either in good conscience or good law. We believe that when it referred to a person “admitted to practice law” the legislature meant one who possessed the right to practice.
The second factor in the statute is the concept of a lapse of time which we infer from the phrase “for five years.” In our view this concept negates appellants suggestion that his initial admission to the bar was the critical event, without regard to what happened thereafter. If his theory were correct it would mean that appellant would be eligible even if his suspension had continued up until the present; his admission to the bar in 1964 would alone meet the statutory standard, since his suspension would not have terminated his “status” as an attorney. On oral argument appellant conceded this would be the result of his argument, pushed to its logical conclusion, and blamed the manifest absurdity of such a result on legislative oversight.
A similar argument was made and firmly rejected by this court in State, ex rel., v. Stice, 186 Kan. 69, 348 P. 2d 833, cert. den. 364 U. S. 823, 5 L. Ed. 2d 52, 81 S. Ct. 59. There a judge of the Sedgwick county court of common pleas had been disbarred. The applicable statutory provision read:
“Each such judge shall at the time of election be a qualified voter of the county in which such township is located and admitted to practice law before the supreme court of Kansas, and shall have been a practicing attorney for a period of at least five (5) years prior to said election or appointment.” (G. S. 1957 Supp. 20-2001.)
The judge resisted the state’s effort to oust him from his office, pointing out that the above statute spoke only as of the time of election. Since he had been fully qualified at that time he claimed the right to hold office for the full term, despite his subsequent disbarment. This court looked beyond the apparent meaning of the literal statutory language and found that the qualification, although framed with reference only to the time of election, was clearly intended to be a continuing qualification to hold tbe office. This, the court said, was the “only reasonable conclusion,” and “any other conclusion would lead to an absurdity.” (Id., 186 Kan. at 73.) So here, we believe that the “only reasonable conclusion” is that the original admission to practice is not enough — the candidate must continue to have the right to practice for the requisite five year period.
That period, as remarked above, must be the five years “next preceding” the election. We perceive only one possible meaning in this language, and that is the meaning ascribed to it by the court below in its conclusion number 9. The clear implication is a continuous five year period, uninterrupted by any period when the candidate was not “regularly admitted to practice law.” It is agreed that appellant’s suspension fell within this period, and we think the result is the disqualification found below in conclusion number 10.
We see in this phase of the requirements a legislative effort to forestall a contention such as was made in Hanson v. Cornell, 136 Kan. 172, 12 P. 2d 802. There, a would-be candidate for district judge had been indefinitely suspended from practice some sixteen years before he filed his nominating petitions. The relevant statute required candidates to have been “regularly admitted” and engaged in the active and continuous practice of law “for a period of at least four years prior to the date of the general election. . . .” Plaintiff, in an original mandamus action, claimed he met that qualification because he had concededly been regularly admitted to the bar, and had been engaged in the “active and continuous practice of law” for almost twenty years prior to his suspension. Plaintiff, there, like appellant here, claimed to comply with the literal language of the statutory requirements. The court gave short shrift to his contention, saying, “Obviously the legislature intended that for one to be qualified to hold the office of judge of the district court, or of the supreme court of this state, his admission to practice law created a status which continued and under which he was engaged in the active and continuous practice of law up to the time of his election to such office.” (Id., 136 Kan. at 175.) Thus the court read into the statute an otherwise missing requirement that the four year period be that “next preceding” the election.
The present district attorney statute, unlike the district judge statute in Hanson v. Cornell, supra, does not require “active and continuous” practice during tire statutory period, but it does require admission “to practice law” during that period. We find a legislative intent, just as clear as that perceived by the Hanson court, that the candidate should have the right to practice during the entire five years.
One further consideration influenced our decision and deserves to be mentioned. As an alternative to admission to practice for five years, a candidate may qualify by serving three years immediately preceding his nomination as a county attorney, assistant county attorney or assistant district attorney. This alternative clearly suggests that the legislature was concerned with the candidate’s experience as a lawyer. The district attorney’s function is primarily that of a prosecutor, and three years experience in this specialized field was regarded as worth at least as much as five years in the general practice. True, the legislature did not require of the non-prosecutor that he engage in “active” practice during the five years, so that inactivity of the candidate might defeat this legislative policy as well as his suspension. Nevertheless, we cannot conceive that the legislature would have regarded five years of bar membership, all under suspension, as any qualification for this important office. Once again, we conclude that the legislature surely meant the candidate to have at least the right to practice for the crucial five years, even if he did not fully exercise that right.
It was for the foregoing reasons that we entered our order affirming the judgment below.
APPROVED BY THE COURT. | [
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Ter Curiam:
This is an appeal from an order of the district court summarily dismissing a petition for a writ of habeas corpus filed by the appellant, Walter G. Case, Jr., an inmate of the Kansas State Penitentiary. The appellee is the warden of the penitentiary. The proceedings were filed pro se and are designated as a “Petition for Writ of Habeas Corpus Ad Testificondum Pursuant K. S. A. 60-1505 etseq. [60-1501].”
Appellant contends he has been mistreated during his confinement in the penal institution; that his mistreatment is of a continuing nature; that his rights have been denied; that there are substantial issues of fact to be determined, and that habeas corpus is a proper remedy.
The same questions were before this court in Levier v. State, 209 Kan. 442, 497 P. 2d 265, and Hamrick v. Hazelet, 209 Kan. 383, 497 P. 2d 273. The opinions and decisions in those cases control the decision in the present case. In Levier this court said:
“As indicated, we have examined the regulations prescribed by the director of penal institutions respecting grievances and must conclude they are so vague and ambiguous as to be inadequate for their intended purpose. Appellants here have alleged they have unsuccessfully sought relief at the prison under those regulations. Counsel for appellees have suggested nothing by way of administrative action in response to the complaints made. Until such time as adequate administrative provision is made for an impartial resolution of factual issues underlying such complaints there is no alternative to judicial inquiry respecting the facts rather than limiting judicial review of administrative actions to its ordinary scope. When appropriate administrative procedures have been established then those remedies will be required to have been exhausted prior to resort to the courts.” (p. 452.)
Pursuant to our admonition in Levier, the director of penal institutions has adopted revised rules and regulations. The Kansas Penal System Policy, Guidelines, and Inmate Disciplinary Procedures were made effective -August 1, 1972.
The judgment is reversed and the case is remanded with directions to the district court to require the appellant to exhaust his administrative remedies and to order the state director of penal institutions to consider the matter under the inmate grievance procedure provided in the rules and regulations. | [
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|
The opinion of the court was delivered by
Harman C.:
Paul E. Skinner was convicted by a jury of the offense of aggravated robbery. Sentenced, he now appeals.
Appellant was charged with committing the offense jointly with Connie M. Suing. The two were separately tried (see State v. Suing, 210 Kan. 363, 502 P. 2d 718.)
Evidence for the prosecution revealed the following:
On November 17, 1970, at about 11:30 p. m. a woman (later identified as Connie M. Suing) entered the Taco Tico No. 1 restaurant on South Seneca street in Wichita. Displaying a handgun she approached a Taco Tico employee and demanded money. The employee commenced handing her one dollar hills from his cash register. She ordered him to give her his “big bills”. The employee then produced some five, ten and twenty dollar bills which the woman took. She ran out the door and entered an automobile parked outside the restaurant. This vehicle was a white, older model Chrysler, very dirty, with rust spots on the passenger side and a trailer hitch on the rear. The car bore a green license plate with white numerals and the letters SG. A man seated in the driver’s seat drove the vehicle away immediately upon the woman’s entrance into it.
The parked vehicle was observed by the Taco Tico employee and also by a married couple whose attention was attracted to the incident by the woman’s rapid exit from the restaurant and the employee’s cry that he had been robbed. This couple had previously entered the restaurant, had seen the Suing woman enter it as they were leaving, and were preparing to drive from the parking lot in their own vehicle parked near the Chrysler when Suing ran from the restaurant. The husband testified he observed the driver of the white Chrysler and that appellant “looks like” that person. He and his wife followed the Chrysler in their own automobile for a short distance south on Seneca street but lost it.
A description of the Chrysler was promptly given to the Wichita police department and about an hour after the holdup a car matching the description was located in a parking lot at the Gasser Club in Wichita. A license tag check determined this vehicle belonged to appellant. It was a white 1962 Chrysler, dirty, had rust spots on the passenger side, a trailer hitch on the rear bumper and a green license plate with the letters SG on it. Within a few minutes after police observed the car, appellant and Connie M. Suing came from the Gasser Club, entered the vehicle and drove away. Police officers stopped the car, arrested the two and searched appellant’s person. He had $134.00 in currency “stuffed” in his left rear pants pocket — four twenty dollar bills, one ten dollar bill, seven five dollar bills and nine one dollar bills. Appellant had no wallet on his person The amount of money missing from the Taco Tico cash register was $173.74.
Photographs of Connie M. Suing and of the Chrysler automobile were received in evidence.
Appellant testified in his own behalf. On the day in question he had received money from the sale of a business and as a result had $200.00 in cash; that evening he and Connie Suing had been at the Roaring Sixties Club from about 9:00 p.m. to about 11:45 p.m., although Connie did leave the tavern for a while but returned about 11:30; they left to go to appellant’s home where he changed shirts, then they went to the Gasser Club; he was arrested in his Chrysler automobile soon after he and Connie left that club; he had previously lost his wallet and had not replaced it; he was not in the vicinity of the Taco Tico No. 1 restaurant that night and did not take Connie Suing there to rob it. He acknowledged that the photographs offered by the prosecution were pictures of his vehicle.
The proprietor of the Roaring Sixties Club testified in appellant’s behalf that he saw appellant at his club on the night in question, the last time being about 11:25 or 11:30 p.m.
Appellant’s specifications of error will be dealt with chronologically.
During the voir dire examination certain questions were asked respecting ownership in the Taco Tico corporation. This inquiry prompted the trial judge to interrupt and to disclose in a conference outside the jury’s hearing that he owned a one-third interest in a Taco Tico franchise in Topeka but had no financial interest in the Taco Tico operation in Wichita; he further stated he felt no prejudice as a result of his Topeka ownership interest and did not believe he should disqualify himself as trial judge. Appellant asserts the trial judge indicated he would disqualify himself for sentencing if appellant were found guilty. The record does not sustain that assertion and the record must control.
Appellant argues the judge should have disqualified himself and that prejudice is shown because the maximum sentence possible for a class B felony under K. S. A. 1971 Supp. 21-4501 (b) was imposed (fifteen years to life) and this must have resulted from the judge’s lack of impartiality by reason of his financial interest in Taco Tico. The contention has no merit.
Appellant relies on authority pertinent to judicial disqualification when a financial interest is present. As to this the law is clear. A judge should disqualify himself in any proceeding in which his impartiality might reasonably be questioned, including instances where he has a financial interest in the subject matter in controversy (see ABA Code of Judicial Conduct, May, 1972, Final Draft, Adopted August, 1972, Canon 3, C. [1] [c]; also, ABA Standards, The Function of the Trial Judge, June, 1972, Tentative Draft, Adopted August, 1972, § 1.7, p. 34).
The foregoing principle, however, is not pertinent to the case at bar for the simple reason the record affirmatively shows the trial judge had no financial interest, .direct or indirect, in the business which was victimized. This latter fact was expressly conceded, as it had to be, by appellants counsel upon oral argument. There was no connection between the Topelca interest owned by the judge and the Wichita operation other than each was a franchisee of the same franchisor, which obviously is insufficient to raise any reasonable question of partiality. To hold otherwise would operate to disqualify every judge who happened to possess property similar to that which had become the subject of predatory activity. Manifestly, the trial judge revealed his interest in the Topeka operation only from extra circumspection in an effort to prevent any misinterpretation possible from surface appearance and nothing in the record suggests impropriety or partiality on his part. The sentence adjudged was within legal limits and was imposed by the trial judge with the knowledge that appellant had had a previous felony conviction.
Appellant asserts the trial court erred in receiving in evidence a photograph of Connie Suing and two photographs of his automobile. The basis of complaint is the exhibits were never shown to be true and accurate portrayals of the subjects depicted. Appellant conceded he and Suing were arrested in his own automobile and that the two photos depicted that automobile. The photos were taken the day after the holdup — the same .day as the arrest. The arresting officer testified he saw no alterations in or additions to the automobile from the time he first saw it at the Gasser Club to the time the photos were made. The Taco Tico employee and the married couple identified the pictures as portrayals of the vehicle which they saw the robber enter upon running from the restaurant. Appellant was identified as a man who ‘looks like” the person who was the driver of the vehicle portrayed in the pictures.
Connie Suing was not present in court but the exhibit which is conceded to be her photograph was shown to various prosecution witnesses. The Taco Tico employee identified the photograph as depicting the female robber, the married couple identified it as portraying the woman they saw running from the restaurant and who entered the white Chrysler, and the arresting officer identified it as depicting the woman present in the white Chrysler when he stopped it. It is immaterial that no witness testified as to the circumstances of the taking of the photos. The photos were not offered to portray testimonially the particular appearance either of Connie Suing or appellant’s vehicle on the night in question — that was not an issue. They were offered to link appellant to the robbery at the time of its commission and ample foundation for their admission for that puipose was shown. No further sponsorship was needed.
Appellant makes the bare assertion the prosecution failed to present sufficient evidence to support his conviction. Nothing beyond this simple statement is offered in support and in view of the facts already recited the assertion can only be regarded as frivolous.
Appellant complains the court faded to give an instruction to the jury respecting his defense of alibi. He did serve a notice of alibi and, as already indicated, offered evidence which if believed would have placed him elsewhere than at the scene of the crime at the time of its commission. The record does not reveal any request by appellant for an alibi instruction and further consideration might well end at this point by reason of K. S. A. 1971 Supp. 22-3414 ( 3) which, after providing that any party may file written requests that the court instruct the jury on the law as set forth in the requests, states that all requested instructions must be filed as a part of the record of the case.
However, appellant asserts he orally requested such an instruction in chambers and upon argument before this court the state concedes this was true. Because of the importance of the issue to the bench and bar we consider it on the merits.
Appellant cites and relies on State v. Conway, 55 Kan. 323, 40 Pac. 661, wherein the following appears:
“Where there is testimony that the accused was so far removed from the place of the crime at the time of its commission as to make it impossible that he could have committed it, the court should instruct the jury upon the law of alibi.” (Syl.fl.)
In the opinion the cited authority for this rule is State v. Johnson, 40 Kan. 266, 19 Pac. 749. However, the actual holding in Johnson, on this issue was limited to the following:
“Where there is testimony tending to sustain the defense of an alibi, interposed by one of the defendants, it is proper for the court to instruct the jury as to the law of such defense; but where the defendant is prosecuted with others upon the theory that all conspired together to commit the crime, and there is testimony supporting it, a direction to the jury that if they found that one of the defendants was not actually present when the crime was committed they should acquit him, was properly refused.” (Syl. ¶ 3.)
Research reveals that the first syllabus in Conway quoted above has been referred to by this court but once — in State v. McManaman, 120 Kan. 376, 244 Pac. 225. The holding was merely repeated. However, in that case there was no request for an alibi instruction, the evidence revealed the defendant had two accomplices in the commission of the alleged crime, and the courts ruling was summarized thus:
“Where there is evidence which tends to show that the defendant was not at the place where the larceny of cattle was committed and there is evidence which tends to prove that two other persons were connected with the defendant in the larceny of the cattle, it is not error to fail to instruct the jury concerning the law of alibi where no such instruction is requested.” (Syl. f 3.)
Perhaps the reason we have no further precedent on the subject is that in the past trial judges have been giving the alibi instruction upon request. If that be true, and previous records before this court would so indicate, then the winds of change appear to be stirring.
In PIK § 52.19, Criminal, prepared by the Committee on Pattern instructions of the Kansas District Judges Association and published in 1971 under the sponsorship of the Kansas Judicial Council, the following appears:
“ALIBI
“The Committee recommends that there be no separate instruction on alibi.
“Comment
“Alibi is not an affirmative defense, as in entrapment or insanity; it consists only of evidence showing that the defendant was not present at the time or place of the crime. This evidence should be considered as all other evidence. If an instruction is given, attention is called to the defendant’s alibi, which connotes a burden not found in the law.”
Further examination of the opinion in State v. Conway, supra, reveals concern with that which is expressed in PIK, that is, possible connotation in an alibi instruction that the defense has any burden of proof relative to the defense of alibi. The Conway court carefully pointed out that the attempt of the accused to prove an alibi does not shift the burden of proof from the state; further, that it is not necessary the jury believe the proof of alibi before it can acquit the accused and, if the alibi evidence introduced by the accused is such as to raise a reasonable doubt as to his guilt, he is entitled to an acquittal.
Summing up, the following can be distilled from Conway: The function of evidence relating to alibi is not to establish a defense nor to prove anything, but merely to raise a reasonable doubt of the presence of the accused at the scene of the crime.
In Witt v. State of Indiana, 205 Ind. 499, 185 N. E. 645, the court in considering whether an instruction on alibi which had been given was erroneous made this comment:
“Strictly speaking alibi evidence is merely rebuttal evidence directed to that part of the state’s evidence which tends to identify the defendant as the person who committed the alleged crime. And in a sense an alibi is adequately covered by a general instruction which declares that the state must prove beyond a reasonable doubt all the essential elements of the offense charged.” (p. 503.)
In Whitaker v. Commonwealth, 302 S. W. 2d 601 (Ky.), an alibi instruction was not given although the accused produced evidence he was elsewhere than at the scene of the crime at the time of its commission. The court held that an affirmative instruction covering the defense of alibi was not necessary, saying:
“The rule applicable to the instant case ‘is to the effect that where the instruction submitting the Commonwealth’s theory of the case is couched in such language the ordinary juror can easily understand, and its negative (raised by the usual reasonable doubt instruction) completely and adequately covers the defense of accused, it is not necessary to give an affirmative instruction embodying his theory.’” (p. 603.)
State v. Garvin, 44 N. J. 268, 208 A. 2d 402, contains an excellent discussion of the problem. The court stated:
"The subject of alibi has commanded an inordinate amount of judicial consideration. Perhaps the reason is that at one time some courts thought of alibi as a separate defense and charged the jury that the defendant had the burden of proof with respect to it. . . . But it is now perfectly clear in
our State that alibi is merely a direct denial of the State’s charge; and that being so, it is not apparent why such testimony should be dealt with differently from any other direct denial of the State’s allegations.
“Indeed the very discussion of alibi as something apart from a direct denial of the truth of the State’s case tends to obscure its role and to suggest a defendant has some special responsibility with respect to it. . . .
“Moreover, so long as alibi is thought to command special treatment, there will be unrewarding questions as to what constitutes an alibi and the sufficiency of evidence to raise the issue. . . .
“It seems to us that all of this is quite unnecessary. There is no need to speak of alibi in such separate terms, and indeed to do so will more likely obscure the case than clarify it. The important thing is to make it plain to jurors that to convict they must be satisfied upon a consideration of all of the evidence that guilt has been established beyond a reasonable doubt. If a defendant’s factual claim is laid beside the State’s and the jury understands that a reasonable doubt may arise out of the defense testimony as well as the State’s, the jury has the issue in plain, unconfusing terms.” (pp. 273-274.)
The court found no error in the trial courts failure to instruct on alibi.
In State v. Hess, 9 Ariz. App. 29, 449 P. 2d 46, (review denied) the court dealt with a trial court’s refusal to give a requested instruction on the subject of alibi, respecting which this was stated:
“The nature of the ‘defense’ of alibi is not that of confession and avoidance as are coercion, duress, self-defense and insanity; alibi, if successful, is proven under the aegis of a general denial. . . . It is true that our criminal rules require that a defendant who would assert an alibi must give notice of his intention to do so, listing the witnesses who shall testify to establish the alibi. . . . However, the purpose of this rule is to guard against the wrongful use of alibi evidence and to give the prosecution time and information to investigate the sources of this evidence.” (p.33.)
The court went on to hold that error cannot lie in a refusal to charge specifically as to alibi where proper instructions are given on the elements of the crime charged and on reasonable doubt.
This court has always been committed to the rule that error cannot be predicated on the refusal to give specific instructions where those which were given cover and include the substance of those refused (2 Hatcher’s Kansas Digest, rev. ed., Criminal Law, § 306; 4 West’s Kansas Digest, Criminal Law, § 829).
In the case at bar the trial court gave clear and adequate instructions as to the elements of the crime charged, the presumption of innocence and the burden of proof. The court made it plain to the jury that the burden of proof was on the prosecution to establish guilt beyond a reasonable doubt upon the entire case. Under such circumstances, and in order to avoid any possible misleading of the jury on the all important issue of burden of proof, we think the better practice is not to single out the alibi defense for specific treatment in the instructions. As indicated in PIK, the danger in instructing separately relative to the defense of alibi lies in the almost insurmountable difficulty of avoiding connotation of some burden on the accused to prove the defense. Accordingly we hold that a separate instruction on the defense of alibi is not required where adequate and proper instructions are given on the elements of the crime charged and on the prosecution’s burden to prove guilt beyond a reasonable doubt. That which is stated in syllabus f 1 and in the corresponding part of the opinion in State v. Conway, supra, is overruled.
Finally, appellant urges error in the trial court’s failure to give an instruction on circumstantial evidence. The record reveals a request for such instruction but here again does not show the filing of any written requested instruction in compliance with K. S. A. 1971 Supp. 22-3414 (3). A typical circumstantial evidence instruction includes a definition of circumstantial or indirect evidence, a statement that it is to be considered as any other evidence, and lastly, a statement that the accused should not be found guilty unless the facts and circumstances proved exclude every reasonable theory of innocence (see PIK § 52.16, Criminal). However, it has been held that the cautionary last statement should be given only when the proof of guilt is entirely or substantially indirect (see cases cited 2 Hatcher’s Kansas Digest, rev. ed., Criminal Law, § 325; 4 West’s Kansas Digest, Criminal Law, § 784). Moreover, in State v. Logan, 203 Kan. 864, 457 P. 2d 31, we find the following:
“Appellant also complains the trial court refused to give an instruction to the effect that circumstantial evidence must be so strong as to exclude every reasonable hypothesis except that of guilt. In one instruction the court did define circumstantial evidence as proof of one fact from which an inference of the existence of another fact may reasonably be drawn. Having done this, the court could well have supplemented the instruction as requested. However, in view of other instructions given, we cannot say failure to do so constituted prejudicial error. The jury was instructed as to each essential element of the crime charged, burden of proof, reasonable doubt and upon the necessity that each element of the alleged crime be proven beyond a reasonable doubt before appellant could be found guilty. This burden upon the state before a conviction could be had was reiterated throughout the instructions. The evidence was not of an involved or complex nature and, from both a legal and a practical standpoint, presented simple issues. We cannot see how, under the instructions, the jury could have been misled in its consideration of the evidence, to the prejudice of appellant.” (p. 866.)
Here there was substantial direct evidence of appellant’s participation in the alleged crime, the details of which need not again be labored, which rendered unnecessary the giving of any instruction on circumstantial evidence. Again, it should be borne in mind the trial court in its instructions explained the meaning of reasonable doubt and made it clear the jury must be convinced beyond reasonable doubt of appellant’s guilt before returning a verdict of guilty.
We find nothing to warrant disturbing the judgment and it is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Kaul, J.:
This is a criminal action in which Calvin Johnson (defendant-appellant) was convicted by a jury of murder in the first degree (K. S. A. 21-401, now K. S. A. 1971 Supp. 21-3401) and sentenced to a term of life imprisonment in the Kansas State Penitentiary. At the time of the offense charged herein, defendant was serving two life sentences for two previous convictions of murder in the first degree.
A summary of the facts, as disclosed by the evidence' presented at the trial, is essential for an understanding of the several issues raised by defendant in his appeal.
On February 25, 1968, when the offense for which he was convicted occurred, defendant was confined in cell 203 in the Adjustment and Treatment Building together with three other inmates— Steve Boster; Basil Terry and, the victim, William E. Barfield.
About midnight on February 24-25 Lee F. Baragary, a correctional officer assigned to the Adjustment and Treatment Building (hereinafter referred to as A & T Building), while delivering medication to an adjacent cell, passed by cell 203. He testified that everything appeared to be in order at that time. After Baragary returned to the control center he heard a loud moaning and went back to the cell area where he found — in cell 203 — Barfield bleeding and in a great deal of pain from what appeared to be puncture wounds.
Officers Ronnebaum; Little and Rector soon arrived at the scene and found inmates Terry and Boster in their bunks and apparently asleep. Defendant Johnson was sitting on his bunk. Defendant, Terry and Boster were searched and removed from the cell. Bar-field was taken to the penitentiary hospital where he was treated for multiple puncture wounds.
Barfield was later taken to the University of Kansas Medical Center where he died about 7 a. m. on February 27, 1968. Dr. William Strutz, of Leavenworth, performed an autopsy on the same day. Dr. Strutz is a diplómate of the American Board of Radiology and former coroner of Leavenworth County. He testified that the autopsy disclosed puncture wounds below the right eye; one on the left of the sternum or breast bone; another on the right of the sternum, but much lower than the wound on the left; and a puncture wound on the left side of the chest that had been sutured. He also found a small puncture wound in the apex of the heart. Dr. Strutz further testified that his examination of Barfield’s head revealed the condition “to be one of the more severe brain damage cases that he had performed an autopsy on.” He testified that the skull showed multiple traumas to the brain, but that the soft tissues surrounding the skull were not injured. On further examination Dr. Strutz was questioned concerning how the brain could receive such severe traumas and without damage to the external soft tissues. His verbatim testimony on this point is as follows:
“Q. Well, in your opinion, Doctor, is there any way in which one could avoid damage to the scalp or any of the soft tissues of the scalp and still receive trauma?
“A. I am sure there are ways it could be done.
“Q. How?
“A. Well the head would have to be protected.
“Q. Could this head have been protected by a blanket or sheet wrapped around it?
“A. It could.
“Q. If a sheet was wrapped around the head, and the head was struck against concrete or steel would this have been sufficient to cause this massive brain damage?
“A. If the sheet was thick enough if this sheet was thick enough, yes it could be done.
“Q. It could have been done without any apparent injury to the skull?
“A. Without any visible injury to the head or scalp.”
Dr. Strutz further testified that massive brain damage could have been caused without any apparent injury to the head if the head was wrapped in a sheet or cover and banged against the wall or floor of the cell, such as 203.
The state offered further medical testimony by Dr. Richard McKee, who treated Barfield at the penitentiary, and by Dr. Edwin McGee, surgeon in charge of die emergency room at the University of Kansas Medical Center when Barfield was admitted there.
Other evidence was developed by the testimony of correctional officers and inmates which will be referred to in discussing the points raised on appeal.
Defendant submits five specifications of error which will be examined in the order presented.
Defendant first contends the trial court erred in the admission of two photographs (exhibits 6 and 7) showing the arrangement and contents of cell 203, including Barfield’s bunk. The exhibits were offered by the state during the testimony of Kenneth Hockenberry, a correctional officer. Hockenberry identified Barfield’s bunk as shown in both exhibits. He testified the photographs reflected cell 203, as it was found immediately after Barfield was discovered, when Hockenberry saw the cell himself. Hockenberry did not know when the photographs were taken, which was the basis of defendant’s objection on the ground that there was insufficient foundation established to show that the cell was in the same condition when the photographs were taken as it was when Barfield was discovered. Later in the trial it was developed by the testimony of inmate Bletz, who testified for the defendant, that photographs were not taken until the morning after the crime.
Lieutenant Little, of the penitentiary guard force, also used the photographs in his testimony to show the location of Barfield’s bunk and the position of his body. Little and Hockenberry were the first two officers to enter the cell after Barfield was discovered. Both Little and Hockenberry testified that to the best of their recollection the photographs fairly represented the condition of the cell following the discovery of the crime. Their testimony established that the photographs were substantially true and accurate representations of cell 203. The time at which a photograph offered in evidence was taken is important only with reference to the question of change, or probability of change, in the condition of the object or person portrayed. (29 Am. Jur. 2d, Evidence, §789, p. 865.)
In State v. Jefferson, 204 Kan. 50, 460 P. 2d 610, we said:
“. . . Photographs are. generally admissible after proper foundation and identification if they accurately represent an object material and relevant to an issue in the case. Their admission rests in the judicial discretion of the judge and in the last analysis the weight to be given them is left to the jury. . . .” (p. 54.)
Actually, the photographs were used by officers Little and Hockenberry for the purpose of aiding the jury with a description of the cell and its contents. The photographs were only evidence in support of the testimony of Little and Hockenberry, both of whom had personally viewed and examined the cell immediately after the crime. Their testimony was the best evidence, but the admission of the photographs was not in violation of the best evidence rule which has no application to the admission of pictures of the scene of a crime. (State v. Emery, 201 Kan. 174, 440 P. 2d 613.) We believe the issue raised by defendant in connection with the admission of photographs goes to the credibility of Little and Hockenberry as witnesses, and the weight to be given to the photographs as supportive evidence rather than to their admissibility. We find no abuse of discretion by the trial court in admitting the photographs into evidence.
Defendant next contends the trial court erred in admitting evidence offered by the state of two prior convictions of first degree murder. The court heard the arguments concerning this matter in the absence of the jury. The county attorney offered the evidence pursuant to the provisions of K. S. A. 60-455 declaring the purpose thereof in these words:
“. . . [I]t is most relevent (sic) for us to prove the intent of this defendant, identity and I think preparation also or analogous relevent (sic) fact. Accordingly I think that at least for the purpose of identity, for the purpose of intent that this man did this with malicious intent, these prior convictions must be admisable (sic). There is no question that prior convictions were similar they are in fact exactly the same thing, they are murders in the first degree of another human being by stabbing and beating. . .
Defendant’s counsel did not direct his objection specifically to the purposes enumerated by the county attorney but argued generally that the prior convictions were not relevant and served only to prejudice the jury. Defendant makes essentially the same argument on appeal, stating in his brief:
“It is .submitted, under the facts disclosed by the record and as extracted in the abstract of this matter, that the sole purpose of the prior convictions was to prejudice the jury and was not offered for any of the permissible exceptions; that in this situation, relevancy was far outweighed by the prejudice created.” .....
Thé trial'court, after hearing arguments of counsel and examining the documentary evidence, found both prior convictions to be relevant and they were admitted.
.Defendant’s first prior conviction occurred in 1962 and, as described' in the record, consisted of the murder of one Weslay Canttrell by:
“. . . [Scabbing, cutting and wounding the said Weslay Canttrell with a deadly ánd dangerous weapon capable of producing death, to-wit: A homemade knife approximately (twelve) inches long with a blade approximately (eight) inches long, thereby causing and inflicting certain dangerous and deadly mortal wounds from which the said Weslay Canttrell did languish and die on the ninth day of May, AD, 1962. . . .”
The second conviction occurred in Leavenworth County in 1965 and, as shown by the record, consisted of the murder of one James A. Guthrie:
.. . [S]tabbirig the said James A. Guthrie in the back, shoulder, and the stomaoh with a deadly weapon capable of producing death, to-wit: A knife, there by causing and inflicting dangerous and mortal wounds from which the said James A. Guthrie did languish and did [die] on the ninth day of February, 1965. . . .”
Obviously, the previous homicides, which were committed by stabbing the victims at numerous points of their bodies, were similar to and, in fact, almost identical with the characteristics of the offense for which defendant stands charged in the instant case. The similarity is certainly sufficient to establish the prior convictions as relevant evidence on the issue of the identity of the perpetrator in the instant case.
In connection with the admission of the prior murder convictions, the trial court submitted a limiting instruction which was not objected to by defendant who merely says on appeal that the instruction did not cure the prejudicial admissions.
As we are best able to discern from the record, the state’s proffer of prior convictions came near the close of the state’s case in chief. At this juncture of the trial all of the state’s evidence concerning the nature of Barfield’s wounds had been submitted. Dr. Richard McKee, a Leavenworth physician who was called immediately after Barfield’s injuries were discovered, examined Barfield about thirty minutes after the incident. Dr. McKee testified that from the nature of the wounds the weapon used was something “like a ballpoint pen. He did not think it was a knife, ice-pick or file, but was a large, round, pointed instrument about the size of a pen.”
In the two prior convictions, the injuries resulting in death consisted of beating and multiple stabbings, inflicted in one instance by a knife and in the other by a homemade knife. In the instant case the weapon was never found, but in view of Dr. McKee’s description of the Barfield injuries, the manner in which they were inflicted, and the nature of the weapon used puts beyond question the similarity of the offenses. Where one or more of the elements or incidents of an offense enumerated as exceptions under K. S. A. 60-455 is an issue in' the case, we have repeatedly held that the similarity of the two offenses makes the previous conviction relevant. (State v. Holsey, 204 Kan. 407, 464 P. 2d 12; State v. Jenkins, 203 Kan. 354, 454 P. 2d 496; and State v. Dearman, 203 Kan. 94, 453 P. 2d 7, cert. den. 396 U. S. 895, 24 L. Ed. 2d, 173, 90 S. Ct. 194.)
Concerning the matter of relevancy, with respect to the purposes enumerated by the county attorney at the time of his proffer, we believe the evidence of the previous similar homicides was of particular probative value on the issue of identity which was the crucial fact to be established in the instant case. To identify a defendant as a perpetrator of the crime charged, it may become necessary to show former acts of his similar to those of the perpetrator of the crime charged. (2 Wigmore on Evidence, § 306, pp. 206-207.) In a comprehensive discussion of the subject of the admissibility of extraneous crimes as evidence appearing in Vol. 20 Kansas Law Review, the author, concerning proof of identity, states: “The quality of sameness is important when pondering the admission of other crimes to prove identity.” (M. C. Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, p. 420.) The case of State v. King, 111 Kan. 140, 206 Pac. 883, illustrates the significance as proof and tibe rationale for the admission of other crimes evidence to establish identity in a homicide trial. In the King case it was held that the dominant facts surrounding two previous homicides were admissible for their probative force in ascertaining the identity of the slayer in the case on trial. While the previous crimes evidence in the instant case may have been of minimal probative value with respect to intent and preparation which were mentioned by the county attorney, we find no prejudicial error in this regard. Moreover, the defendant’s objection was not directed at this aspect of the state’s proffer.
While the evidence of the prior murder convictions may have been damaging to his case, as claimed by defendant, prejudice, if any, was far outweighed by the probative value on the issue of identity in the instant case.
We find no error in the admission of the previous murder convictions.
Defendant’s third contention of error is the denial of his motion for a new trial. He submits several arguments on this point. First, he claims a state witness, Oliver Nicolay, committed perjury when he testified that he overheard a conversation between defendant and Boster, on how to kill a person by hitting vital areas of the body. Nicolay also testified at the trial of Boster subsequent to defendant’s trial. At the Boster trial a question arose as to whether Nicolay was an inmate at the A & T Building at the time he overheard the Boster-Johnson conversation. In the Boster trial the state moved to strike Nicolay’s testimony because the county attorney thought the records of the penitentiary indicated that Nicolay was not in fact confined in the A & T Building at the time. Defendant claims he was denied an opportunity in his trial to rebut Nicolay’s testimony or establish perjury because Nicolay was not endorsed as a witness until after the trial was commenced. The record does not support defendant’s position. The record shows that defendant was given an opportunity to talk to Nicolay before he was called as a witness and no request for a continuance is shown, nor does the record reflect a motion by defendant to bar Nicolay as a late endorsement.
A trial court, in its sound discretion, may permit or deny the endorsement of additional witnesses on the information at any time subsequent to the filing thereof, including during the trial, and its discretion will not be disturbed on appeal unless it is clearly shown it abused its discretion, and the abuse resulted in material prejudice to the defendant. (State v. Campbell, 207 Kan. 152, 483 P. 2d 495; Peterson v. State, 203 Kan. 959, 457 P. 2d 6; and State v. Law, 203 Kan. 89, 452 P. 2d 862.)
With respect to defendant’s claim that Nicolay was not confined in the A & T Building at the time in question and thus committed perjury, the state responded by producing an affidavit of William R. Barker, record clerk of the penitentiary, and reproductions of the deputy warden’s control cards which indicate that Nicolay was confined in the A & T Building at the time in question. Under the circumstances, it cannot be said the trial court abused its discretion in denying defendant a new trial on any of the grounds urged in connection with Nicolay’s testimony.
Defendant also claims he is entitled to a new trial because of a discrepancy in officer Little’s testimony which appeared when he testified in the Boster trial. In defendant’s trial Little testified, on direct examination, that the photographs (exhibits 6 and 7) were taken before the cell (203) was searched. On cross-examination he admitted he was not present when the photographs were taken. In the Boster trial Little admitted that he had been mistaken as to when photographs were actually taken. In defendant’s trial inmate Beltz, who took the photographs, was called as a witness for defendant. Beltz testified he took the photographs the following morning. Concerning the time of taking the photographs, Little was testifying as to his opinion and to the best of his recollection. The credibility of Little’s testimony was a matter for the jury’s consideration. The real issue is whether the exhibits accurately reflected the condition of the cell; as to this Little testified positively and without variance at both trials.
For his fourth claim of error, defendant contends the verdict was contrary to the evidence. Summarized, the state’s evidence discloses that Barfield died from injuries received in cell 203. The perpetrator had to be one of the three occupants of the cell. Defendant was observed with a magazine picture of a human body explaining to another inmate how a person could be killed by puncturing vital organs of the body. An argument between defendant and Barfield was overheard by an inmate of an adjacent cell about two hours prior to the discovery of Barfield. The same inmate testified that he heard a noise of scuffling and a bump like someone dropping a watermelon. The officer, who discovered Bar-field, testified that he was lying on his bunk, vomiting and, obviously, in great pain. Defendant was calmly sitting on his bunk making no attempt to assist Barfield or call for aid, while Terry and Boster were in their bunks with covers over them. Evidence of two prior homicides, accomplished in a fashion so similar as to be almost identical with the methods employed in the instant case, must be considered as highly probative in identifying defendant as the perpetrator in the instant case. The evidence is ample to serve as a basis for a reasonable inference of guilt, which is the question on appellate review. (State v. Burgess, 205 Kan. 224, 468 P. 2d 229.)
On this point defendant makes an argument on the testimony of Boster who testified that he was the one who inflicted the wounds on Barfield in resisting an attack by Barfield after Boster had retired to his bunk. Obviously, the jury did not believe the testimony of Boster; it was within its province not to do so. This court has consistently adhered to the proposition that it is the function of a jury, not that of an appellate court on review, to weigh the evidence and pass upon the credibility of the witnesses. (State v. Scott, 199 Kan. 203, 428 P. 2d 458.) A defendant may not complain if the jury believed the state’s witnesses, rather than his own. (State v. Mae McLaughlin, 207 Kan. 584, 485 P. 2d 1352.)
Finally, defendant complains that on final argument the county attorney made prejudicial statements, not supported by the evidence, in advancing a hypothetical theory of how Barfield’s wounds were inflicted. In particular defendant complains the sheet or cover on Barfield’s bunk was not introduced in evidence yet it was referred to by the county attorney in developing his hypothesis. True, the sheet was not introduced, but it was described by the state’s witnesses who examined cell 203 and it was shown in the photographs which were admitted. In summing-up a case before a jury, counsel may not introduce or comment on facts outside the evidence, but reasonable inferences may be drawn from the evidence and considerable latitude is allowed in the discussion of it. (State v. Potts, 205 Kan. 47, 468 P. 2d 78; and State v. Lopez, 182 Kan. 46, 318 P. 2d 662.) Defendant’s complaint appears to be more of an afterthought since no objection was lodged nor was any request made to strike the objectionable statements with an admonition to the jury. It is firmly established in this jurisdiction that reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument to the jury where no objection is lodged. (State v. Fleury, 203 Kan. 888, 457 P. 2d 44; and State v. McDermott, 202 Kan. 399, 449 P. 2d 545, cert. den. 396 U. S. 912, 24 L. 2d 187, 90 S. Ct. 226.)
We have carefully examined all of the contentions raised on appeal and find no prejudicial error shown.
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 two promissory notes which had been executed as part consideration for a stock of hardware at Pretty Prairie. The defense was that the purchase of the hardware was induced by an agreement of the seller not to reenter the hardware business at Pretty Prairie, which it was alleged had been broken. Plaintiff prevailed and defendants appeal.
The plaintiff and defendants were engaged in business at Pretty Prairie, plaintiff operating under the name of the J. R. Graber Hardware Company. Negotiations to sell one to the other were commenced and carried to consummation in order that there be but one hardware establishment in the town. After several conversations, a contract was entered into, the pertinent parts of which are as follows:
“Witnesseth: That the said (first) parties do hereby agree to sell and convey to said second parties, the following-described property, to wit: Entire stock of merchandise of the J. R. Garber Hardware company, of Pretty Prairie, Kan., consisting of shelf hardware, heavy hardware and implements. It is agreed that [for-] all shelf hardware, stoves, separators, washing machines and heavy hardware the second party will pay current wholesale net prices, F. O. B. Kansas City, Mo. It is agreed that the second party will pay current wholesale net prices, less 20 per cent P. O. B. Kansas City, Mo., for all new implements and gas engines, all implements and merchandise to be complete. It is agreed that all secondhand and obsolete goods will be appraised by two disinterested parties, chosen by first and second parties. Second parties to pay $50 for two 16-foot counters and three show cases. For and in consideration of the above, the second party agrees to pay the following: Cash $500 on contract; $1,000 upon completion of invoice; Balance in sixty days excepting implements. Implements are to be paid for as follows: By notes one-half of purchase price on July 1, 1925, and balance on September 1, 1925 Notes to be acceptable to first party. Invoice to be made between December 25th and January 1st, 1925.”
The Graber company closed out its business and delivered its stock to the defendants. Some months afterwards, the G. W. Supply Company opened up and began a hardware business in Pretty Prairie. It was alleged by the defendants that J. R. Graber and Bernard Graber originally operated the hardware business as The J. R. Graber Hardware Company, and that, after the sale to the defendants and the execution of the .contract between them, J. R. Graber, Bernard Graber, Albert Graber and Joe Wenzel organized the G. W. Supply Company to conduct a hardware business in Pretty Prairie. Plaintiff contended that J. R. Graber was sole owner of the original business conducted under his name and that he had no interest in the G. W. Supply Company and had not reentered the hardware business. In some respects the evidence was conflicting. The facts found by the court were in substance that an invoice was made and notes given in accordance with the contract; that J. R. Graber was the sole owner of the J. R. Graber Hardware Company; that Bernard Graber was employed at a monthly salary; that the G. W. Supply Company was a partnership consisting of Bernard and Albert Graber and Joe Wenzel; that J. R. Graber had no interest therein; that defendants knew when they signed the contract that a good-will clause was not embodied therein nor an agreement not to reenter the business; that J. R. Graber had no intention of reentering the hardware business at the time of the execution of the contract; that B. R. Graber and Albert Graber endeavored to find a location for a hardware store at Pratt and elsewhere; that J. R. Graber did not become a member or partner of the G. W. Supply Company; that on March 20, 1925, the G. W. Supply Company signed a written lease wherein it was recited that G. W. Supply Company consisted of B. R. Graber, Albert Graber and Joe Wenzel.
The defendants contend that the court erred in refusing findings to the effect that the inducement for the defendants to purchase the stock of goods for which the notes were given was that defendants were to obtain certain agency contracts held by the plaintiff and that the plaintiff would not reenter business at Pretty Prairie.
Touching the question of good will, one of the defendants testified as follows:
“Q. You knew at the time of signing the written contract of sale that there was nothing in it about good will, didn’t you? A. I knew it was left out.
“Q. You knew it wasn’t in there. And it was left out because of your agreement that it was to be left out, wasn’t it? A. Well, yes, it was agreed to be left out.
!<Q. You read it before you signed it or heard it read? A. Yes.
“Q. You all signed it up there? A. Yes.”
The other defendant testified:
“Q. You knew when you signed that contract that there wasn’t anything said in there about good will, didn’t you? A. Yes.”
On the question of whether the younger Grabers were interested in the original business when it was sold, the plaintiff testified:
“Q. Did Bernard draw any salary while he worked in the store for you? A. Well, yes, when he first went in the store, he was under age and didn’t draw any salary then.
“Q. He was under age and didn’t draw any salary up until he was of age? A. No, sir.
“Q. And then what did he draw as salary after he was of age? A. From then after — from then on after he was of age I paid him a hundred dollars a month.
“Q. You paid him one hundred dollars a month? A. Yes, sir.
“Q. Did Bernard ever have any stock or interest — any interest in the business itself at any time? A. No, sir.
“Q. Prior to the sale? A. No, sir. "
“Q. Did Albert? A. No, sir.”
On the question as to whether plaintiff was interested in the G. W. Supply Company, afterwards organized, plaintiff testified:
“Q. Have you any interest in the G. W. Supply Company and did you ever have any interest in that business? A. No, sir.
“Q. Got any now? A. No, sir.
“Q. Did you ever have any interest in that business? A. No, sir.
“Q. Who does the G. W. Supply Company stand for? A. Wenzel and Graber, I suppose.
“Q. Well, were you interested any in that G. W. Supply Company? A, No, sir.
“Q. Did you ever have a dollar in it of your own money? A. No, sir.”
A further recital of the evidence would avail no useful purpose. It amply sustained the court’s finding and no error was committed in refusing the findings requested by defendants. Nor was it error to deny a rescission of the contract prayed for by defendants. The oral negotiations preceding the signing of the written contract between the parties were merged therein. The terms of the contract could not be altered or changed by parol evidence. In the recent case of Tong v. McArthur, 121 Kan. 870, it was held:
“A contract not to engage in a business, in a certain vicinity for a limited time, is ancillary to a contract for the sale of such business. It can have no validity if made alone. When a contract for the sale of a business is in writing, parol testimony of a contemjporaneous oral contract that the seller will not engage in such business in the vicinity within a fixed time, cannot be received.” (Syl. See, also, Milich v. Armour, 60 Kan. 229, 56 Pac. 1; Trice v. Yoeman, 60 Kan. 742, 57 Pac. 955; Samuelson v. Palmer, 96 Kan. 587, 152 Pac. 627; Trust Co. v. Danforth, 103 Kan. 860, 177 Pac. 357; Naftzger v. Buser, 106 Kan. 115, 186 Pac. 997; Macksville State Bank v. Ehrlich, 119 Kan. 796, 241 Pac. 462; 22 C. J. 1169, 1171, 1217.)
What has been heretofore said disposes of the contention that defendants should have been allowed to rescind the contract because of failure to transfer certain dealer’s agency contracts. It is clear from the evidence and findings that J. R. Graber was the sole owner of the J. R. Graber Hardware Company. Also, that he has not reentered the hardware business in Pretty Prairie. The record discloses no error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from a judgment of the district court declaring that section 5 of chapter 214 of the Laws of 1925 is permissive. That section reads:
“That section 68-607 of the Revised Statutes of Kansas for 1923 is amended to read as follows: Sec. 68-607. That the board of county commissioners in any county in which state highways have been built or may be built hereafter under the benefit district plan may apply the county and state road fund to the reimbursement in full of all assessments made and collected from landowners whose land lies one (1) miles or more from the road for which the benefit district tax was assessed and collected, and it may reimburse all landowners whose land lies within the first zone and not exceeding one (1) mile of the highway upon which a benefit district tax has been assessed and collected, in the amount over and above two per cent (2%) of the appraised value of said land and improvements: Provided, That no such reimbursement shall be made until proper maintenance of said road has been provided for.”
The statute says that the board of county commissioners “may reimburse all landowners.” The plaintiff contends that the statute means “must” reimburse all landowners. Statutes which use the word “may” are sometimes construed to mean “must.” The construction must be gathered from the statute itself. There is nothing in the statute under consideration to indicate that the legislature intended to do other than what is declared in the language of the statute. That language is “may,” not “must.” If the legislature had intended to compel the county commissioners to reimburse landowners, it could have used language that would not have been doubtful. Such language was not used. The language used must therefore be followed.
The judgment is affirmed. | [
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The opinion of the court was delivered: by
Marshall, J.;
The plaintiff commenced this action to set aside a judgment rendered against him in favor of the defendants in an action pending in the district court of Anderson county in which E. Reser was plaintiff and C. C. Pease and others were defendants. Judgment was rendered in favor of the defendants and others who were intervenors. The plaintiff appeals.
The judgment which the plaintiff sought to have set aside canceled an oil and gas lease held by the plaintiff and Pelatiah Pease. The present action was commenced under section 60-3011 of the Revised Statutes. The petition to set aside the judgment alleged that the plaintiff, C. C. Pease, had a good and valid defense to the causes of action on which judgment was rendered against him, which defense had been set up in an answer filed in that action; that the cause was tried without his knowledge and in his absence; that he was thus prevented from showing his defense; that he had employed John J. Jones, an attorney at law, to conduct his defense; "that John J. Jones had agreed to notify the plaintiff of the time when the action would be tried; that John J. Jones mailed a letter to the plaintiff at his post-office address, notifying him of the time when the action would be tried, but that the letter was never received by the plaintiff. In the present case, answers were filed by those resisting the petition of the plaintiff.
Evidence was introduced on the trial of the action. The evidence in behalf of the plaintiff tended to prove the allegation of his petition. The defendant introduced evidence which tended to prove that the plaintiff, about a week previous to the trial of the action in which the judgment was rendered against him, in conversation with one of the parties to that action, stated that he knew that the case was coming on for trial on the day for which it was set and that he would be present. There was, therefore, contradictory evidence concerning the plaintiff’s knowledge of the time of trial. The court in an opinion stated that “I can’t find as a matter of fact that there is such unavoidable casualty or misfortune as prevented the defendant in the case of Reser v. Pease from properly defending his action.” Whether or not the plaintiff by unavoidable casualty was prevented from defending was a question of fact to be determined from the evidence. That question was determined against the plaintiff on evidence which supported the finding of the court. That finding is therefore conclusive at this time.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
An opinion in this action was filed June 12, 1926 (Barber County Comm’rs v. Lake State Bank, 121 Kan. 223, 246 Pac. 524). The judgment of the district court was there reversed, and the trial court was directed to render judgment in favor of the plaintiffs for $90,656.80 and interest thereon. A rehearing was granted, additional briefs have been filed, and the case has been reargued. It is not necessary to state any additional facts. They were correctly stated in the former opinion.
1. The defendants argue that “the signers of the bond were uncompensated sureties, favorites of the law, and the condition of their obligation should be strictly construed.” This argument depends for its validity on the principle that sureties are favorites of the law. The law may favor sureties, but the law and public policy require them to pay to the county treasurer public money that he, at different times, has deposited in a bank for which they have become surety in order that the bank might receive the deposits. Sureties are bound by their contracts in the same manner and to the same extent as principals, except that under certain circumstances sureties may be released by the conduct of obligees. None of those circumstances exist in the present case.
2. The defendants urge that “the bond expired on February 4, 1921, was not continuous, but was given by the bank and accepted by the board as a bond for a two-year period only.” Although counsel for the plaintiff made an able argument on the first hearing that the bond was a continuing bond, the court in its former opinion agreed with the contention now made, and what was said on this subject in the former opinion is now adhered to. .
3. The defendants urge that “there was no default on the part of the Lake State Bank on any condition of the bond when it expired and, therefore, no liability.” The argument to support this contention depends on the fact that all checks drawn on the bank during the two years for which the bond was given were paid when presented, but of the amount received during that time there remained on deposit on February 4, 1921, the date of expiration of the bond, the sum of $146,375.50. On that date, the bondsmen were liable for that amount. Payments were afterward made until the amount on deposit was reduced to $90,656.80, the amount for which the action was brought. It was not shown that at any time from that date until the failure of the bank there was less than $90,656.80 on deposit. Unless the payments made after February 4, 1921, are applied to the deposits made before that date, there was a default on the part of the Lake State Bank in the payment of money, the conditions of the bond were violated, and the defendants are liable thereunder.
4. The defendants urge that “the sureties on this bond were discharged: (a.) by extending the old contract and changing the conditions thereof, both without the sureties’ consent, (6) by the negligence of the county in leaving its funds unsecured after April 5, 1921.” There was no extension of time for the payment of the money that was on deposit on February 4, 1921. The money was not taken out of the bank, but there was no extension of time for its payment. The county should have taken security for the deposits made after that date, but the failure to do so did not release the sureties on the bond for the deposits previously made unless payments made after that time should have been applied to deposits made before that time.
5. The defendants argue that “all sums of money withdrawn from the Lake State Bank by Barber county after February 4, 1921, should be applied to the' payment of deposits made prior to that time, since the rule of applying payments preferentially to unsecured debts will not be applied where the other claims are secured by personal guarantors or sureties who are favorites of the law.” Part of the argument to support this contention of the defendants is based on the principle that sureties are favorites of the law. They should not be favored to the extent of being released from liability on the contract which they signed and which has not been performed. The contract binds both principal and surety. To the extent that the principal is discharged, the surety is likewise discharged but no farther, except as has been stated. If application of payments had been made by the Lake State Bank, that application would have bound the sureties. ' If application had been made by the county treasurer, the sureties would have been bound thereby. When application is made by law, the sureties must abide by that application. Application of payment cannot be made one way so far as the principal is concerned and another way so far as the sureties are concerned.
6. The defendants urge that this court made a mistake in ordering judgment in favor of the plaintiffs. Attention is called to the following language contained in the bond which was not set out in the former opinion:
“Know all men by these presents, that the undersigned, the Lake State Bank, of Lake City, Barber county, Kansas, as principal, and the undersigned persons, whose names also appear hereunder and who sign as sureties, are held and firmly bound unto the county of Barber and state of Kansas in the sum of six hundred thousand and no/100 dollars ($600,000), to the payment of which said undersigned hereby bind themselves, severally, but not jointly, in the amounts set opposite their signatures, in the aggregate to be at least six hundred thousand and no/100 ($600,000) dollars, or such pro rata portion of said sum as the aggregate amounts qualified for shall call for in case of default under the terms and conditions of this bond.”
Tliat part of the language to which attention is directed is as follows:
“Undersigned hereby bind themselves, severally, but not jointly, in the amounts set opposite their signatures, in the aggregate to be at least six hundred thousand and no/100 ($600,000) dollars, or such pro rata portion of said sum as the aggregate amounts qualified for shall call for in case of default under the terms and conditions of this bond.”
This is a new proposition; it was not presented on the former hearing. Section 19-530 of the Revised Statutes governing the deposits of county money in banks in part reads:
“Before making such deposits the said board shall take from said bank or banks a good and sufficient bond, in a sum double the largest approximate amount that may be on deposit at any one time, if a personal bond, or the bond of some surety company authorized to do business in the state of Kansas, in a sum aggregating the largest approximate amount which may be on deposit at any one time,' conditioned that such deposit shall be promptly paid on the check or draft of the treasurer of said county; but in no case shall more than one-half of the amount of said bond be subscribed by the officers of said bank.”
Section 78-107 of the Revised Statutes reads:
“That all persons who shall offer themselves as sureties on official bonds, whether the same be state, county, township or city bonds, may designate, opposite their signature to such bond, the amount for which they are willing to be bound; and in case of a forfeiture of the bond they shall not be liable for a greater amount than the sum so designated.”
The “sum” mentioned in the quoted part of the bond refers to the $600,000. The statute requires a bond in double the largest amount that may be deposited at any one time. In the present case, that amount would be $300,000. The bond limits the liability of each surety to that proportion of the $300,000, if that were the total loss, which the amount named by him bears to the total amount of the bond, $600,000. Each surety would then be liable for only one-half of the amount for which he signed. This reduces the effective liability of the total bond to $300,000, one-half of what is required by law. Under this rule the larger the bond the less the liability of each surety for any particular loss. The statute does not contemplate any such situation. The limitation of liability sought to be thus imposed was neither authorized nor permitted by law. A long list of cases might be cited holding that under a bond required by statute, where the bond contains the conditions required by statute and stipulates for liability not required by statute, the additional liability may be rejected as surplusage and the part which conforms to the statute be held valid and binding. However, that is not the present case. Here, we have a limitation on the required liability. An extended note on “effect of insertion of unauthorized provisions in a bond required by statute” is found in L. R. A., 1917 B, pages 990 to 1019.
In Southern Surety Co. v. Kinney, 74 Ind. App. 205, one paragraph of the syllabus reads:
“The conditions imposed by provisions of the statutes concerning official bonds are parts of such a bond though not written therein, and which sureties are bound to know, and the latter are powerless to change the obligations assumed by inserting in the bond any restrictive provision.”
In United States Fidelity, etc., Co. v. Poetker, 180 Ind. 255, 264, the court said:
“It has long been the rule in this state that when a bond is given in obedience to a command of the statute a construction shall be given it which binds the obligors to the performance of the conditions which the statute declares it shall contain even though the bond does not specifically so provide.”
There the action was on the bond of a cashier given to the bank and was required by statute. The surety company attempted to limit its liability. The limitation on liability was disregarded, and the company was held liable.
Adams v. Williams, 97 Miss. 113, was an action on the bond of the treasurer of a levee board to recover interest on public money deposited in banks. The bond was signed by a surety company and contained the following:
“And it is further provided that the said surety shall not be liable to the obligee by reason of public moneys being now deposited, or hereafter placed or deposited with any bank depository or depositories; it being the true intent and purpose of this bond to indemnify said obligee from any loss by reason of the personal acts only of said principal to the extent of the penalty of this bond subject to the terms, covenants, and conditions thereof.” (p. 135.)
The court said:
“But the bond had the proper condition, that said Williams ‘should properly account for and dispose of the money coming into his hands for the Yazoo-Mississippi delta levee board and should faithfully perform all other duties devolving upon him as such treasurer.’ ” (p. 135.)
The restriction on liability was declared to be surplusage, and a demurrer to the bill of the plaintiffs was overruled.
In United States Fidelity & Guaranty Co. v. McLaughlin, 76 Neb. 310, part of the syllabus reads:
“A clause in the bond of a deputy county treasurer, which limits the right of action thereon, for default of the deputy treasurer, to such default as shall be discovered during the continuance of the bond or within six months thereafter, cannot be enforced.”
There the bondsman was held liable.
One paragraph of the syllabus to Trustees of Village of Bath v. McBride, as reported in 142 N. Y. S. 1014, 1017, reads:
“Where the form of an official bond differs from that prescribed in the statute if founded upon a good consideration, the liability of the surety is measured by the provisions of the statute rather than the language of the obligation itself.”
In School Furniture Co. v. McGuire, 46 W. Va. 328, a bond was given that the sheriff would “account for and pay over all money that shall come into his hands by virtue of his said office for school purposes for the year 1893, as provided in section 46 of chapter 45 of the code.” There, the court said:
“Section 46, chapter 45, Code 1891, provides that the sheriff shall receive and disburse all school moneys for the various districts of his county, and requires the county court to require of him, in addition to his general bond, a special bond as to school moneys, and, in prescribing its penalty — merely in prescribing its penalty — directs that the penalty shall be ‘equal to double the amount of school money which will probably come into his hands for school purposes during any one year of his term of office.’ ” (p. 330.)
The time limitation named in the bond was disregarded, and the bondsmen were held liable for other than the year named in the bond.
Any other limitation than that prescribed by section 78-107 of the Revised Statutes was not authorized by law. When the defendants signed the bond securing deposits made in the Lake State Bank, they rendered themselves liable under that bond for the amounts set opposite their names. Section 19-530 does not contemplate that sureties may limit their liability in any way other than prescribed by law (R. S. 78-107). The pro rata limitation which the sureties sought to place on their liability was not authorized by law and must be disregarded.
The former judgment of this court is adhered to.
Burch and Dawson, JJ., dissenting.
Mason, J., dissents from the sixth paragraph of the syllabus and the corresponding part of the opinion. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff caused an execution to be levied on a Ford motor truck and on a Ford four-door sedan automobile both owned by the defendant, the head of a family. He was engaged in the fuel and transfer business. In an application to have the levy quashed he alleged that the truck and sedan were exempt as tools used by him in his business. The levy was quashed, and the plaintiff appeals.
1. The evidence was wholly in writing. It consisted of the verified application of the defendant to discharge the. levy and an affidavit of Thomas E. Joyce, the attorney for the plaintiff, to the effect that he accompanied the undersheriff when the levy was made; that the undersheriff levied on the Ford truck; that it was loaded with wood; that the wood was delivered; that the truck was then being driven by an employee of the defendant; and that to the best of the affiant’s knowledge and belief the defendant did not operate the truck in person. Under these circumstances, this court can review the evidence and reach a conclusion thereon contrary to the one reached by the trial court. (Moore v. Pye, 10 Kan. 246; Robinson v. Melvin, 14 Kan. 484; Durham v. Carbon Coal & Min. Co., 22 Kan. 232; Woodward Faxon & Co. v. Clark, 30 Kan. 78; Cheney v. Hovey, 56 Kan. 637, 642, 44 Pac. 605; Bank v. McIntosh, 72 Kan. 603, 610, 84 Pac. 535; Belknap v. Sleeth, 77 Kan. 164, 93 Pac. 580; Bartels v. School District, 89 Kan. 233, 237, 131 Pac. 579; Mathewson v. Campbell, 91 Kan. 625, 627,138 Pac. 637; Broquet v. Investment Co., 105 Kan. 632, 633, 185 Pac. 726; Young v. Schwint, 108 Kan. 425, 428, 195 Pac. 614; Agricultural Ins. Co. v. Ætna Ins. Co., 119 Kan. 452, 459, 239 Pac. 974.)
2. The application of the defendant, used as an affidavit, stated that he used the truck and sedan in his business. That was a conclusion of the affiant. It was not evidence. The affidavit should have stated the facts as to how the truck and sedan were used. (Olmstead, v. Koester, 14 Kan. 463; Center Township v. Hunt, 16 Kan. 430; Howard v. Eddy, 56 Kan. 498, 499, 43 Pac. 1133; State v. Telephone Co., 77 Kan. 774, 95 Pac. 391; Wheat Growers Association v. Schulte, 113 Kan. 672, 685, 216 Pac. 311.) The affidavit of the defendant was insufficient to show for what purpose the truck and sedan were used by him. The affidavit of the attorney for the plaintiff did show that the truck was used by the defendant in his business. There was no other evidence to show how the sedan was used.
3. Was the truck exempt? Section 60-3504 of the Revised Statutes in part reads:
“Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property: . . .
“The necessary tools and implements of any mechanic, miner or other person, used and kept in stock for the purpose of carrying on his trade or business, and in addition thereto, stock in trade not exceeding four hundred dollars in value.”
Under that statute, the following articles have been held exempt:
“A lamp and other articles kept by a watchmaker and jeweler” (Bequillard v. Bartlett, 19 Kan. 382); “cheese vats, cheese presses, curd knives and the like” of one who makes cheese (Fish v. Street, 27 Kan. 270); “one iron safe, and one set of abstracts, and one cabinet and table” of “an insurance agent and abstracter of titles” (Davidson v. Sechrist, 28 Kan. 324); tinners tools (Burton, Moses & Bro. v. Baum, 32 Kan. 641, 5 Pac. 3; Miller v. Weeks, 46 Kan. 307, 26 Pac. 694); “a printing press and printing material used in printing and publishing a weekly newspaper” (Bliss v. Vedder, 34 Kan. 57, 7 Pac. 599); “the horse', harness and buggy of an insurance agent” (Wilhite v. Williams, 41 Kan. 288, 21 Pac. 256); “the bus of a hotel keeper” (White v. Gemeny, 47 Kan. 741, 28 Pac. 1011); “the threshing-separator, traction engine, belts, and all parts necessary to constitute a threshing machine” (Jackson v. Lambertson, 71 Kan. 138, 80 Pac. 55); “a traction engine and the saws, belts, carrier, and other appliances, commonly used in connection with such an engine for sawing logs and making lumber” (Reeves v. Bascue, 76 Kan. 333, 91 Pac. 77); an automobile used by a grain dealer (Wickham v. Bank, 95 Kan. 657, 149 Pac. 433); “a duplicating machine, a check writer, an envelope sealer, an addressing machine, a filing cabinet” and two or three typewriters (Wamberg v. Hart, 121 Kan. 218, 221, 246 Pac. 1010); and an automobile used by the foreman of a construction company (Dowd v. Heuson, ante, p. 278).
The truck was exempt.
The judgment is affirmed so far as the truck is concerned, and is reversed so far as the sedan is concerned. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover under the workmen’s compensation act on account of the death of plaintiff’s son, Clarence Wyant. Plaintiff prevailed, and the defendant appeals.
Clarence Wyant died on February 5,1925, as the result of an accident sustained by him December 20, 1924, in the Douglas mine in Linn county. He was thirty-four years old and able-bodied; had been mining coal for about eighteen years. The Douglas mine was shut down during a considerable portion of the time during the year preceding Wyant’s injury. It was operated, however, most of the time from October 1 to December 20,1924, during which time Wyant worked except two or three days when he was ill. The average daily earnings of the miners during the year next preceding December 20 was from $5 to $5.50 per day.
The defendant contends that it is not liable because the deceased was employed by one R. G. Bowser, who was an independent contractor operating certain entries in the mine; that the plaintiff was not a member of the deceased’s family and not a dependent within the purview of the compensation act, and that if she was a dependent the court erred in the amount of compensation allowed.
A brief history of the case is given by the court’s findings which are in substance as follows:
On October 2, 1924, one R. G. Bowser entered into an oral agreement with the defendant to mine the coal in certain entries in the Douglas mine. He was to receive $1.55 per ton; was to hire and did hire all the miners necessary to dig the coal subject to the approval of the defendant company. He was to and did deliver the coal to the cage at the foot of the shaft, from which point the coal was hoisted to the surface by defendant. Out of the $1.55 per ton, Bowser was to pay the men to dig the coal and the drivers of the cars used to haul the coal to the foot of the shaft. The defendant furnished the necessary mules, cars and equipment necessary to haul the coal furnished, the timbers and studs necessary to support the mine and kept all books and records and accounts of the operations of the mine. Under defendant’s supervision, Bowser hired and discharged the laborers in the prosecution of the work and was so engaged on December 20, 1924. The defendant reserved the right to see that the work was done according to plans and drawings of the mine, according to the law, and reserved the right to discharge Bowser at any time his operations were not satisfactory. The men hired by Bowser furnished their own tools, paper, fuse and powder, employed their own blacksmith to sharpen and repair the tools, the same to be paid for by the miners and to be deducted from their wages. In order to secure the miners for the labor and services rendered by them, defendant agreed to advance and did advance amounts of money earned by them while working in the mine and the amounts so paid to the workmen, and especially to Clarence Wyant, were deducted from the $1.55 per ton due Bowser for mining coal under his contract. The defendant carried compensation insurance on all the men employed in the mine, including the deceased. On October 14, 1924, Bowser hired the deceased to mine and load coal in the entry, agreeing to pay him $1.40 per ton. The defendant from time to time advanced money to the miners and especially to the deceased, the same being deducted from the amount due him. The defendant at the request of the miners, and especially at the request of the deceased, sold to them and charged to their account on the defendant’s books, paper, .powder, and fuse, used by them in the prosecution of their work and deducted the amount thereof from the wages due them. The amount paid by Bowser to the workmen, including the deceased, was $1.40 per ton, this with the consent and approval of the defendant. The last work done by the deceased in the mine was on November 13, 1924, when he put in and fired some shots in the breast of the entry. On November 14 the mine shut down and ceased operation until December 20 following, on which date Bowser requested the men including the deceased to return to work. Wyant, among the other workmen, returned to work. He loaded one car of coal, placed his tools and his father’s tools on the car and rode on the car out of the entry and while so doing fell from the car, receiving injuries from which he subsequently died. The plaintiff, Ida Wyant, mother of the deceased, was wholly dependent upon the earnings of Clarence Wyant at the time of the accident and injuries. The defendant paid compensation to Clarence Wyant in the sum of $27.50. Notice of the accident and injury was duly given and demand made for payment of compensation. Consent to arbitrate was duly given and made by the plaintiff upon the defendant. The defendant consented in writing to arbitrate such matters only as were referable to an arbitrator and demanded that all questions of law or law and fact should be tried by the court or to the court and jury. The cause, except as to the issue of amount of compensation and manner of its payment, was tried by the court without a jury. The court concluded that the relationship of master and servant or of employer and employee existed between the deceased, Clarence Wyant, and the defendant on the date of the accident; that the accident and injury arose out of the employment of said Wyant with the defendant; that at the time of the happening of the accident, Bowser was not an independent contractor and that Wyant received his injuries as the result of the accident while in the employment of the defendant; that the defendant was liable to the plaintiff for compensation on account of the accident and injury suffered by Clarence Wyant and that an arbitrator should be appointed.-
The defendant moved to set aside the findings on the ground that they were either wholly or in part contrary to the evidence and not supported by the evidence. The defendant’s secretary and superintendent testified, among other things, that the contract and arrangement made by and through Mr. Bowser under and by virtue of which the miners were employed, was adopted in order to avoid the strenuous rules of the union scale. There was evidence that the defendant owned the mine and furnished all equipment; that all the work was done under its supervision; that it carried compensation insurance on all of the miners; that all orders given by the miners upon their wages were entered by the defendant; that it bought the powder and distributed it among the miners as they called for it and deducted the pay from their earnings; that the miners did their own blacksmithing work; that defendant kept all the records showing how much time the miners worked and how much coal they dug; that it furnished the mules for hauling the coal in the mine; looked after and fed the mules; that it furnished all the rails, props and ties; that it paid the top.men, the weigh boss, the engineer and the superintendent; that it reserved the right to say who might be hired and fixed the amount Bowser should pay them; that if Bowser did not do his work to suit the defendant, it reserved the right to discharge him; that the defendant paid the drivers of the mules, and the compensation therefor was deducted from the money due to Bowser under his contract; that it paid all royalties on the coal; that the premium charged under the compensation insurance was based upon the gross pay roll which included the pay of the deceased, Clarence Wyant. Other than as stated, the evidence needs no analysis. It was sufficient in all details to support the findings of the court.
The court concluded that the relationship of master and servant or of employer and employee existed between the defendant and Wyant on December 20, 1924, the date of his accident and injuries; that the accident and injuries arose out of Wyant’s employment; that Bowser was not an independent contractor and that Wyant received his injuries as a result of an accident while in the employment of the defendant; that the defendant was liable to plaintiff for compensation on account of the accident and injuries received by Wyant and entitled to recover as his dependent.
The evidence and findings of the court justified the conclusion that Bowser was not an independent contractor and that Wyant was an employee of the defendant. (Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120; Maughlelle v. Mining Co., 99 Kan. 412, 161 Pac. 907; see, also, 20 A. L. R. 684 et seq., Gulf, C. & S. F. Ry. Co. v. Stephenson, 273 S. W. 294 [Tex. Civ. App.]; see, also, cases cited in October, 1926, issue, Cumulative Index to A. L. R., page 57 et. seq.)
In support of the finding that plaintiff was dependent upon Clarence Wyant, there was evidence that plaintiff’s husband had been injured twelve years before, since which time her son Clarence, who was unmarried, had been her sole support; that he paid his mother $30 a month in money and furnished her groceries in addition. There was evidence that plaintiff spent most of her time in Mulberry while Clarence worked at the mine at Worland. It appears that this was only a convenience. Worland was a mining camp and the mother lived in a house at Mulberry. There was other evidence which need not be detailed, which amply sustained the finding of the court;
The arbitrator awarded plaintiff $3,950 as total compensation. On review the court fixed the compensation at $3,800 and $150 for medical services. The defendant contends that the evidence was so indefinite and uncertain that it was unable to make the proper calculation, and that the court erred in fixing the amount of the award. The award of the arbitrator as modified by the court provided for payment at the rate of $15 per week. The court computed the payments to the date of the award (June 5, 1926), and awarded those payments in a lump sum with interest from the date at which the respective payments became due. He then provided that the remainder should be paid at the rate of $15 per week with interest at 6 per cent per annum from the time each payment becomes due. This appears not to have been improper. (See Cain v. Zinc Co., 94 Kan. 679, 146 Pac. 1165, 148 Pac. 251.)
The defendant contends that there was no authority for allowing . $.150 for medical services. In Cain v. Zinc Co., supra, it was said in the opinion:
"The workmen's compensation act contemplates no allowance on account of medical attendance, except where a workman dies as the result of an injury, leaving no dependents. (Laws 1911, ch. 218, ¶ 11, subdiv. a 3, as amended by Laws 1913, ch. 216, ¶ 5 [R. S. 44-510, 44-513.]) It provides, (IT 15) that payments or judgments made under it shall not be subject to levy, except for medical attention and similar matters, implying that such expenses are to be paid out of the compensation allowed, which is based upon an estimate of the extent and duration of disability.” (p. 682:)
In McCormick v. Coal and Coke Co., 117 Kan. 686, 232 Pac. 1071, it was said in the opinion:
“If there are no dependents the employer pays the burial expenses not exceeding $150.” (p.692.)
Under the circumstances, the allowance for medical services was not proper.
A contention that error was made in allowance of costs cannot be sustained. The case was hotly contested and under all the circumstance, there appears no good reason why the costs should not follow the judgment. Other questions raised are disposed of by what has been said.
The judgment is modified by affirming the allowance of compensation of $3,800 and reversing the allowance of $150 for medical services. | [
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The opinion of the court was delivered by
Harvey, J.;
This is an action by the widow, on behalf of herself and as guardian of the minor children of Jess Echord, deceased, for damages on account of his death resulting from the negligence of defendant. The jury answered special questions and returned a verdict for plaintiff. The defendant has appealed.
The petition alleged, in substance, that defendant was operating a coal mine in Linn county; that about October 5,1923, Jess Echord entered the employ of defendant and continued to work as a miner in such mine until November 8, 1923, when he “became violently ill as the result of, and in the course of his employment as such miner”; that he was injured as a result of poisonous gases existing in such mine which he inhaled and which wholly incapacitated him and caused him to become violently ill, and that he “did, as the result of the injuries received from such poisonous gases, die November 10, 1923.” The mine was operated under the room-and-pillar system. The negligence alleged was the failure of defendant to.close openings from abandoned portions of the mine; failure to have proper openings for fresh air, and currents of fresh air; failure to test .for and discover poisonous gases and report to the state inspector of mines, as provided by law, and to provide the miner with a safe place to work. It was further alleged that in a prior proceeding it had been adjudged that the workmen’s compensation law did not apply to the injuries complained of.
The answer contained a general denial, and averred that if Jess Echord came to his death or was injured in the manner alleged in the petition, plaintiffs’ only recourse in law was under the workmen’s compensation act, and further alleged a prior proceeding by plaintiffs against defendant under the workmen’s compensation law in which judgment had been rendered for defendant, and further alleged assumption of risk.
The reply averred that the prior proceeding determined only the question as to whether Jess Echord came to his death by accident arising out of and in the course of his employment.
The evidence disclosed that defendant and Jess Echord were within the provisions of the workmen’s compensation law, and tended to support the allegations of plaintiffs’ petition.
The jury, in answers to special questions, found that Jess Echord’s death was not due to the sudden escaping of poisonous gases in the mine, but the real or proximate cause of his death was inhaling poisonous gases from day to day.
Appellant’s first contention is that plaintiffs’ only remedy is that provided by the workmen’s compensation law. This contention must be sustained. The Corpus Juris treatise on workmen’s compensation acts states the rule thus':
“Where the employer and the employee have elected to come within a compensation act the remedy afforded by it is exclusive.” (p. 135.)
In Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193, it was held:
“The original workmen’s compensation act (Laws 1911, ch. 218, as amended by Laws 1913, ch. 216) leaves an employee in industries within its purview no other remedy than the one provided by the act, where neither the employer nor employee has filed a statement of his election not to accept thereunder.” (Syl. If 1.)
The statute there construed was amended by chapter 226 of the Laws of 1917, by adding a proviso permitting certain employees not included in the original act to elect to come within its provisions — a provision .not material in this case — and, as so amended, is R. S. 44-505.
A rehearing was allowed in that case (see 93 Kan. 257, 144 Pac. 249, for opinion on rehearing), elaborate briefs were filed by the parties and by others as amici curiae, and two other cases (McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247, and Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244) were argued at the same session of court. The court adhered to its former decision, and in the opinion said:
“It was held in the former opinion that where the employer and employee are both under the compensation act, the remedy afforded by that statute is exclusive. It is argued that this conclusion is unsound, and that it should be held that the, employee may still resort to the factory act for relief. Upon a reexamination of the question the court remains satisfied with the views stated in the former decision, for the reasons stated in that opinion, and in the opinion in McRoberts v. Zinc Co., supra. The same result was reached in Feet v. Mills, 76 Wash. 437, 136 Pac. 685. The underlying principle is also clearly stated in 26 A. & E. Encycl. of L. 621. It should also be observed that an employee is not deprived of the right to the benefit of the factory act nor of common-law remedies without his consent. They remain open to his election if made before the injury, by filing a declaration ‘that he elects not to accept thereunder’ — that is, under the provisions of the compensation act.” (p. 358.)
This holding was specifically followed in McRoberts v. Zinc Co., 93 Kan. 364, 144 Pac. 247, and in Frere v. Railway Co., 94 Kan. 57, 59, 145 Pac. 864, where it was said:
“When the parties are actually within the purview of the compensation act no other remedy than the one therein provided remains.”
And in Smith v. Cement Co., 94 Kan. 501, 503, 146 Pac. 1046, where it was said:
“It has been determined that an injured employee has no other remedy against his employer than that given by the workmen’s compensation act where both have elected to accept its provisions. (Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193.) The factory act, however, is not repealed. It remains in full force, but it cannot be invoked by an employee to whom the benefits of the workmen’s compensation act are available, and who has actively or passively signified his acceptance of its benefits. The workmen’s compensation act clearly contemplates that compensation for injury to a workman shall be made under its provisions only where both the employer and employee have elected to be governed by it. This is implied by the option given to each to accept or reject it. Where one accepts and the other rejects it certain enumerated consequences follow (Laws 1911, ch. 218, § § 46, 47), but no action can be sustained under it. Here the employer elected not to come within its provisions. He was exempt from liability under it, notwithstanding any action the employee might take, and having escaped its burdens, he necessarily lost the rights to invoke its benefits.”
This holding was followed and applied in Moeser v. Shunk, 116 Kan. 247, 251, 226 Pac. 784; Chappell v. Morris & Co., 118 Kan. 210, 212, 235 Pac. 117; Hines v. Dahn, 267 Fed. 105, 114; Hawkins v. Bleakly, 243 U. S. 210, 212; and this holding is in accord, with many decisions from other states construing similar statutes. The following are cited without an attempt to exhaust the authorities: Georgia Casualty Co. v. Hay good, 210 Ala. 56; Turner v. Albany Coca-Cola Bottling Co., 32 Ga. App. 518; Eddington v. Northwestern Bell Telephone Co., 202 N. W. 374 (Iowa); Taylor’s Adm’r v. Bates & Rogers Const. Co., 196 Ky. 206; Gillard’s Case, 244 Mass. 47; Victory Sparkler Co. v. Francks, 147 Md. 368; Wirta v. North Butte Mining Co. et al., 64 Mont. 279; Navracel v. Cudahy Packing Co., 109 Neb. 506, 512; Warner v. Synnes et al., 114 Ore. 451; Liberato et ux. v. Royer et al., 281 Pa. St. 227; Mueller v. Eyman, 112 Ohio St. 337.
But appellees say that it has been adjudicated in the prior case in the district court; that the injury sustained by Jess Echord was not an accident within the meaning of the workmen’s compensation law, and therefore that plaintiffs were not entitled to recover -under that law. It is possible that decision was erroneous and should have been appealed from — but we do not have that question before us in this case and do not decide it. However, it is clear from the record in this case that Jess Echord was an employee of defendant, and both were operating under the workmen’s compensation law; that the injury arose from the employment, and as a result of it, and on the premises, in the mine of defendant, and the rights of the parties with respect to such injury are governed by the workmen’s compensation act. If plaintiffs can get no relief under that act they are without relief. When Jess Echord voluntarily worked for defendant under this act — • which he did by not electing not to be bound by it — he gave up, for himself and his dependants, his common-law right to maintain an action for damages for defendant’s negligence with respect to any injury sustained by him growing out of his employment on the premises, just as the defendant, by not electing not to be bound by the act, gave up the comm on-law defenses of contributory negligence, assumption of risk, etc.
Appellees cite and rely upon Swader v. Flour Mills Co., 103 Kan. 378, 176 Pac. 143, and Stamps v. Railroad Co., 113 Kan. 644, 218 Pac. 1115, 114 Kan. 477, 218 Pac. 1115, but those cases involved the liability of a third party (not the employer) whose negligence resulted in injury to an employee, and are obviously not in point.
Some other questions are argued, but in view of the conclusion reached on the question determined it will not be necessary to discuss them.
The judgment of the court below is reversed, with directions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiff in this action sought by replevin to recover from the defendant a certain punch- and-shear machine that it had previously delivered to him under a contract of sale. The court sustained a demurrer to the plaintiff’s evidence, and rendered a judgment accordingly. This is alleged as error.
It appears that the plaintiff contracted to sell and deliver to the defendant a certain punch-and-shear machine, for which the defendant agreed to pay $300. A perfect machine was shipped, and delivered to the defendant at his place of business in Atchison, and he paid the freight thereon, amounting to $17.50. Before bringing this action the plaintiff tendered to the defendant the amount of freight paid by him on the machine. The machine was never removed from the skids upon which it was shipped, and was not used by. the defendant. The defendant refused to pay for the machine, alleging as reasons therefor that it was not the machine contracted for, and that it was wholly insufficient in size to do the work he required of such a machine. So far as indicated by the evidence the machine was perfect in all its parts, but, as stated by the defendant in one of his letters to the plaintiff, it was “a baby machine.” After the machine arrived at the defendant’s place of business he wrote the plaintiff, among other things, as follows:
“You know the machine you shipped me is not the machine I ordered. You know you have utterly failed in every respect to fulfil your part of the agreement. . . . I know I’m not under any obligations whatever to pay you one cent; and, furthermore, I don’t propose to; so you may as well come up to the line now and let me know how you want to settle this matter, and what you want done with the machine. I have been damaged more than the machine is worth.”
Later he wrote a letter containing the following statements:
“Gentlemen : Owing to your utter failure to ship me the machine and tools I ordered in my letter of December 31, I have been delayed more than three months’ use of a machine which is absolutely necessary in my business, and damaged double the amount of the value of the machine sent me. The machine you sent me is still here in my possession, skidded as you sent, unused, and will remain here until you are willing to settle this matter of damage on a reasonable basis. It is utterly useless for you to say, or attempt to prove, that you sent me the machine I ordered of you. . . . Now, I am out on this machine, freight and drayage, some $17.50, and already about three months’ use, which will doubtless be four months before I am able to get another in, which I have already ordered; which loss of time I estimate at not less than $300. But to settle the matter up without delay, if ■you will remit me the $17.50 above mentioned and $100 as a part satisfaction of damages accrued, I will ship you the machine to any point you desire; otherwise not.”
Oral evidence was also introduced tending to show that the defendant had rescinded the contract of purchase and was only holding the machine to compel the plaintiff to pay him what he considered to be his damages resulting from a violation of its contract. One contracting for a machine for a particular purpose, which upon delivery he finds is not the machine contracted for, may either affirm the contract and keep the machine and recoup his damages, or disaffirm the contract and return the machine or hold it subject to the order of his vendor. If he disaffirms the contract he may not hold the machine to satisfy a claim for damages. The law gives no such lien. In this case the contention of the plaintiff was that the defendant had disaffirmed the contract; that the machine was the property of the plaintiff; and that it was therefore entitled to recover its immediate possession. The plaintiff’s evidence tended to show that defendant had disaffirmed the contract. Whether or not he did so was a question of fact, and should have been submitted to the jury.
The judgment is therefore reversed and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
James Blaksley was convicted in the police court of the city of Salina, a city of the second class, of carrying a revolving pistol within the city while under the influence of intoxicating liquor. He appealed to the district court, where he was again convicted, and this proceeding is prosecuted to reverse the judgment of the latter court. The question presented is the constitutionality of section 1003 of the General Statutes of 1901, which reads:
“The council may prohibit and punish the carrying of firearms or other deadly weapons,, concealed or otherwise, and may arrest and imprison, fine or set at work all vagrants and persons found in said city without visible means of support, or some,legitimate business.”
Section 4 of the bill of rights is as follows:
“The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power.”
The contention is that this section of the bill of rights is a constitutional inhibition upon the power of the legislature to prohibit the individual from having and carrying arms, and that section 1003 of the General Statutes of 1901 is an attempt to deprive him of the right guaranteed by the bill of rights, and is, therefore, unconstitutional and void. The power of the legislature to prohibit or regulate the carrying of deadly weapons has been the subject of much dispute in the courts. The views expressed in the decisions are not uniform, and the reasonings of - the different courts vary. It has, however, been generally held that the legislatures can regulate the mode of carrying deadly weapons, provided they are not such as are ordinarily used in civilized warfare.
To this view there is a notable exception in the early case of Bliss v. Commonwealth, 2 Littell (Ky.) 90, 13 Am. Dec. 251, where it was held, under a constitutional provision similar to ours, that the act of the legislature prohibiting the carrying of concealed deadly weapons was void; that the right of the citizen to own and carry arms was protected by the constitution and could not be taken away or regulated. While this decision has frequently been referred to by the courts of other states, it has never been followed. The same principle was announced in In re Brickey, 8 Idaho, 597, 70 Pac. 609, 101 Am. St. Rep. 215, but no reference was made to Bliss v. Commonwealth nor to any other authority in support of the decision.
In view of the disagreements in the reasonings of the different courts by which they reached conflicting conclusions, we prefer to treat the question as an original one. The provision in section 4 of the bill of rights that' “the people have the right to bear arms for their defense and security” refers to the people as a collective body. It was the safety and security of society that were, being considered when this provision was put into our constitution. It is followed immediately by the declaration that standing armies in time of peace are dangerous to liberty and should not be tolerated, and that “the military shall be in strict subordination to the civil power.” It deals exclusively with the military; individual rights are not considered in this section. The manner in which the people shall exercise this right of bearing arms for the defense and security of the people is found in article 8 of the constitution, which authorizes the organizing, equipping and disciplining of the militia, which shall be composed of “all able-bodied male citizens between the ages of twenty-one and forty-five years.” The militia is essentially the people’s army, and their defense and security in time of peace. There are no other provisions made for the military protection and security of the people in time of peace. In the absence of constitutional or legislative authority no person has the right to assume such duty.
In some of the states where it has been held, under similar provisions, that the citizen has the right preserved by the constitution to carry such arms as are ordinarily used in civilized warfare, it is placed on the ground that it was intended that the people would thereby become accustomed to handling and using such arms, so that in case of an emergency they would be more or less prepared for the duties of a soldier. The weakness of this argument lies in the fact that in nearly every state in the Union there are provisions for organizing and drilling state militia in sufficient numbers to meet any such emergency.
That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal constitution, which says: “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Here also the right of the people to keep and bear arms for their security is preserved, and the manner of bearing them for such pur pose is clearly indicated to be as a member of a well-regulated militia, or some other military organization provided for by law.
Mr. Bishop, in section 793 of the third edition of his work on Statutory Crimes, treating of this provision, which is found in almost every state constitution, says: “In reason, the keeping and bearing of arms has reference only to war, and possibly also to insurrections wherein the forms of war are as far as practicable observed.”
The case of Commonwealth v. Murphy, 166 Mass. 171, 44 N. E. 138, 32 L. R. A. 606, strongly supports the position we have taken. In that case the defendant was convicted of being a member of an independent organization that was drilling and parading with guns. The guns, however, had been intentionally made so defective as to be incapable of being discharged. The prosecution was .had under a statute which provided:
“No body of men whatsoever, other than the regularly organized corps of the militia [and certain other designated organizations], shall associate themselves together at any time as a company or organization, for drill or parade with firearms, or maintain an armory in any city or town of this commonwealth.”
On the trial the defendant invoked the provision of the Massachusetts bill of rights that “the people have a right to keep and bear arms for the common defense” in support of his contention that he had the right to bear arms. The court said:
“This view cannot be supported. The right to keep and bear arms for the common defense does not include the right to associate together as a military organization, or to drill and parade with arms in cities or towns, unless authorized so to do by law. This is a matter affecting the public security, quiet, and good order, and it is within the police powers of the legislature to regulate the bearing of arms so as to forbid such unauthorized drills and parades.”
The defendant was not a member of an organized militia, nor of any other military organization provided for by law, and was therefore not within the provision of the bill of rights and was not protected by its terms. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
By reason of changes in the personnel of this court this cause has been twice submitted for argument, and counsel for both parties have been faithful and diligent in their efforts to assist the court in arriving at a correct conclusion.
The path upon which the plaintiff attempted to cross the yards was one that had been traveled by a number of pedestrians living on Mosely avenue south of the company’s line of road. It had been so continuously and constantly used that it was well defined, and was of itself an implied invitation to pedestrians to use it to cross from one side of the right of way to the other. The plaintiff was not, therefore, a trespasser, but was there at the implied invitation of the company, resulting from a long and continuous use of this path by the public without objection by the company.
This path, however, passed over the yards of the railway company in a populous city, where many trains were being operated daily, with all appliances and mechanical devices necessary and essential to insure the greatest safety to the traveling public. When the plaintiff entered upon this path he did so knowing that he was in a city, and would find there railroad-tracks and cars and mechanical devices used in such railroad yards. The jury in their finding stated that the semaphore wires were useful and essential for the safe and convenient operation of the trains in the yard. He therefore entered upon his passage over the yard chargeable with the knowledge that he would probably have to cross semaphore wires, switches, tracks, and all other devices and appliances convenient or essential for the speedy and safe operation of trains in the most convenient and safest manner known to railroad science. The public safety demands of all railroad companies the employment of such safety appliances, machinery, and other devices, and the law will tolerate none other.
The aequiesence of a railroad company in the crossing of its tracks by pedestrians in order to shorten distances at any particular place does not grant an easement to the public, nor cast upon the company the responsibility of keeping a path thus made in a safe condition for pedestrians. This principle is conceded, but it is stoutly contended that if one who permits his premises to be used by the public as a way should, without warning, negligently place an obstruction on or so near the passage that injury results to one who is in the exercise of the implied invitation, he would be liable. Conceding this rule, its inapplicability to the facts of this case makes it immaterial.
The business conducted in the yards of a railroad company in a city is inherently dangerous to pedestrians, and all persons endeavoring to cross such yards are warned of this fact. No special notice is required of this danger. The danger does not arise entirely from the operation of trains, but from the continual changes made in the surface of the earth. The pedestrian who crosses the yards of a railroad company in the morning, on a path made by constant use of the public, has no assurance that this path will remain unobstructed until noon. Notwithstanding the implied invitation, one who undertakes to cross railroad yards in a city by a path does so knowing that the land upon which he travels has been dedicated to a public use, the demands of which are ever changing and increasing, that these demands must be met by this public utility, and that for these purposes the yards are laid with tracks, switches, semaphore wires, and all other machinery and devices known to railroad science for moving cars and trains rapidly and with the greatest safety. This the public demands. Such a person assumes the risk of coming in contact with all such useful contrivances and essential devices. The implied invitation is given and accepted upon these conditions.-
The rule that one who permits the public to use his property as a passageway cannot have a dangerous place unprotected and in close proximity to the passageway without incurring liability for damages is well sustained by the authorities, but such cases are distinguishable from the one under consideration. The case of DeTarr v. Heim, 62 Kan. 188, 61 Pac. 689, which carries the principle to the limit, has no features similar to the present case. There the public had habitually used a path over the vacant part of a lot. Near the path stood a water-closet, under which was a vault. The owner of the lot removed the closet and covered the vault with boards, which soon became unsafe and were not repaired. DeTarr, in attempting to follow the path, missed her way in the darkness of the night, and fell into the vault. That path crossed an unoccupied portion of a lot, not used by its owner in conducting a business which was of itself notice that it was dangerous for the public to use it. Nor was it being used in conducting a business which required the surface to be changed or altered frequently. Nor did the accident come to DeTarr from coming in contact with an instrument necessary in conducting the business on the premises, and with the knowledge of the existence of which DeTarr was chargeable.
Nor does this ease come within the rule of the cases, where one undertakes to cross a railroad-track or yards upon a well-defined path and is injured by the negligence of the company’s employees in the operating of a train. With the rule and the reason stated in such cases by this court we are satisfied. As a matter of law the company was not guilty of negligence in not boxing its semaphore wires at the crossing of the path.
The judgment is reversed and the cause remanded.
Burch, Porter, Graves, JJ., concurring. | [
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Per Curiam:
The questions presented in this case have so often been discussed and decided by this court that little could well be added by an extended dissertation upon them.
(1) The first objection is that the court erred in overruling the demurrer to the evidence of the plaintiff. We think there was abundant evidence to justify the submission of the case to the jury.
(2) The plaintiff in error says that the court erred in refusing ten instructions asked by it. It set out none of them. (See rule 10.)
(3) The plaintiff in error also complains of ten instructions given by the court on its own motion. It sets out two of these, and we think there is no error in them.'
(4) The plaintiff in error contends that the court erred in denying the motion for a new trial by reason of the misconduct of counsel for plaintiff below. It is true counsel did in a measure apparently attempt to override the rulings of the court, did make an improper statement, and did not accord to his opponent all the courtesies the ethics of the profession require, but there was some excuse for this, and the errors of counsel were so far corrected by the court, and by the voluntary withdrawal of the unwarranted remark by the counsel himself, that we are unable to conclude that any prejudice to the rights of plaintiff in error resulted.
We find no prejudicial error in the admission or rejection of evidence. There seems to have been a fair trial and the judgment for a reasonable amount is well supported by the evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
The question involved in this case is whether or not the property in controversy was transferred to the plaintiff in error by virtue of a completed gift. Mary A. Martin, the alleged donor of the property, was at the time of her death the wife of Peter Martin, who was insane; and he took by descent whatever property his wife had at the time of her death.
Peter Martin had property in his own right sufficient for his comfortable support, and his wife did not want her property to go to the relatives of her husband, which result would follow if she should not outlive him. In the month of March, 1903, she was very sick and expected to die. Her nearest relatives were a brother, the plaintiff in error, who lived in North Dakota, and a sister, who resided in Canada. The brother was present during her last sickness, and she desired to leave her property to him. She knew that she could not, by will, prevent one-half of it from going to her husband, and at his death to his relatives, and she therefore sought the advice of a lawyer for some legal way to carry out her wish. Upon such advice she executed and delivered to her brother the bill of sale hereinafter set forth. Soon afterward she died. A controversy thereafter arose between her brother and the guardian of her insane husband concerning the ownership of the property, which resulted in the bringing of this suit by the brother.
Among the assets of Mary A. Martin was a claim against the estate of her insane husband. The guardian of Peter Martin reduced all of the property of Mary A. Martin to possession and claimed that his ward was the owner thereof.
This suit was brought for an accounting and for the value of the property. Upon the trial, which was had without a jury, the court found and filed findings of fact and its legal conclusion as follow: ■
“FINDINGS OF FACT.
“(1) That Mary A. Martin died intestate on the 26th day of March, 1903, without issue.
“(2) That at the time of her death said Mary A. Martin was the wife of Peter Martin, an insane person, and the guardian of his estate.
“ (3) That said Mary A. Martin left surviving her, besides her husband, a brother, J. J. Mahoney, the plaintiff in this suit, and one sister.
“(4) That for a long time prior to her death the said Mary A. Martin claimed that there was a large balance due her for services as guardian of such estate, a part of which it was claimed had been allowed by the probate court. The validity of this claim or the amount thereof was not considered at this hearing, the case being tried upon the single issue as to whether the plaintiff was entitled to an accounting.
“ (5) That on the 28th day of March, 1903, the defendant, Joseph Martin, was, by the probate court of Saline county, duly appointed guardian of the estate of Peter Martin, insane, to succeed said Mary A. Martin, deceased, and, thereupon, duly qualified and entered upon the discharge of his duties as such guardian.
“(6) That said Mary A. Martin was sick from January, 1903, until the.time of her death.
“(7) That the plaintiff lived in Langdon, N. Dak., and that he visited his sister in January, 1903, staying with her a few weeks, and returned home, but came' back again about the 25th of February, 1903, and remained with her until her death.
“(8) That during her last sickness said Mary A. Martin sent the plaintiff, Mahoney, to consult her lawyer, Z. C. Millikin, for advice concerning the manner of disposing of her estate, and, returning, Mahoney reported to her that Millikin had advised that she could dispose of all of her property by gift during her life, but that such gift must be unconditional and absolute, and have immediate effect, and that this communication was made to her a few days prior to the execution of the written instrument hereinafter set out.
“(9) That Mahoney had Millikin prepared an instrument, a copy of which is set out in finding No. 10, the name of the donee being left blank and the date of the month appearing as February, instead of March; that afterward, in the presence of William T. Greenwood, on the 5th day of March, 1903, after having inserted his name as donee and after having changed the month from February to March, the plaintiff presented this instrument to Mary A. Martin while she was lying in bed and told her that it was a bill of sale of all of her property to him; that Mary A. Martin took the instrument, and after looking at it for about two minutes said, Tt is all right,’ and then signed it and returned it to Mahoney, who handed it to Greenwood to witness it, and, after Greenwood had witnessed the execution of this instrument he returned the same to the plaintiff, who has had possession of it ever since.
“(10) That such instrument was in words and figures as follow, to wit:
“‘Bill of Sale of Personal Property. — Know all men by these presents, that Mary A. Martin, in consideration of one dollar and other consideration (dollars) paid by J. J. Mahoney, the receipt whereof is hereby acknowledged, does hereby grant, sell, transfer and deliver unto the said J. J. Mahoney the following goods and chattels, viz.: One promissory note for $1100 or more, secured by a real-estate mortgage executed by Thomas Holmes and wife, and all property of every kind and descrip-tion now owned by me or in which I am in any wise interested, and wherever situated,' to be held by him absolutely. To have and to hold, all and singular, the said goods and chattels, to the_ said J. J. Mahoney and his executors, administrators, and assigns, forever. And the said grantor hereby covenants with the said grantee that she is the lawful owner of said goods and chattels; that they are free from all encumbrances; that she has good right to sell the same as aforesaid; and that she will warrant and defend the same against the lawful claims and demands Of all persons whomsoever.
“‘In witness whereof, the said grantor.has hereunto set her hand, this 5th day of March, a. d. 1903. Mary A. Martin.
“ ‘Signed and delivered in presence of W. T. Greenwood.’
“(11) That no consideration was paid to Mrs. Martin for such transfer, and that, if it operated at all, it was as a gift and not a sale.
“(12) That at the time of the execution of said written instrument Mary A. Martin was of sound mind and in the full use of her mental faculties, and was able to read the English language.
“(12%) That at the time of the execution of such gift said Mary A. Martin expected to die within a short time, and such gift was made by her in contemplation of approaching death.
“(13) That Mahoney did not fully make up his mind whether to accept such gift or not until after the death of Mrs. Martin, but it does not appear that he repudiated it or expressed" any active dissent.
“(14) That finding No. 13 is based entirely on the testimony of J. J. Mahoney, viewed in the light of the surrounding circumstances, as disclosed by the other findings of fact.
“(15) That immediately after the gift the plaintiff asserted a claim of ownership to a little mare by virtue of such gift, and visited thé probate judge for the purpose of getting possession of the note described in such instrument, and to ascertain the balance due from the estate.
“(16) That after the death of Mary A. Martin the plaintiff, claiming under said written gift, attempted to take possession of a certain organ, claiming that it had formerly belonged to Mrs. Martin, but, upon being informed that it had not belonged to her, made no further effort to take it.
“(17) That the supposed indebtedness from said estate to Mary A. Martin was not evidenced by anything capable of a manual delivery, and that no delivery of such property was made, except in so far as the delivery of such written gift operated as a constructive delivery.”
“CONCLUSION OF LAW.
“That said written instrument purporting to be a gift of all her property from Mary A. Martin to J. J. Mahoney is void and of no effect, and that the judgment of this court should be for the defendant.”
It is apparent from these findings of fact that Mary A. Martin felt that her death was at hand, and in contemplation of this fact she wanted to dispose of her property so that her brother would have it after her death. In case of her death the brother intended to take the property. It is easy to deduce these conclusions from the findings of the court, but they do not constitute a completed gift.
The court evidently based his conclusion of law upon finding of fact No. 13, which finding is vigorously attacked by the plaintiff in error. It is urged that this finding is not sustained by the evidence, is contrary to the evidence, and inconsistent with the other findings of fact.
No gift can be complete without the acceptance thereof by the donee. (Calvin v. Free, 66 Kan. 466, 470, 71 Pac. 823; 14 A. & E. Encycl. of L. 1015.) The law presumes such acceptance in the absence of evidence to the contrary. When this fact is disputed its determination will depend, like any other question of fact, upon the evidence. In this case the question of acceptance was one of the important points in dispute. The court found from the evidence that the donee did not accept the gift during the life of the donor..
The evidence upon this subject, as it appears in the record, seems to be strongly against this finding, and, if it were an original question here, depending upon the testimony presented to us, we would be inclined to decide otherwise. At the same time there is some reason for the conclusion that only a gift causa mortis was intended by both parties. There was no reason why Mrs. Martin should wish to part with all of her property while living, and it seems probable that her brother did not expect to take it if she recovered. It appears more reasonable that they each intended the gift to become absolute upon her death, and not before. It also appears from the record that the plaintiff, upon a former trial involving this same question, gave testimony inconsistent with his evidence at the trial of this case.
In view of the fact that the witness was present in court during his examination and cross-examination as to this discrepancy in his testimony, and the court had an opportunity to note his appearance and demeanor on the witness-stand, which at times furnishes strong evidence of the good faith and honesty of a witness, or the want of it, not discoverable from the written testimony given, we feel bound to adhere to the oft-repeated rule that a finding of fact resting upon conflicting or inconsistent evidence cannot be disturbed by this court, and, therefore, the finding is sustained.
This conclusion makes it necessary to affirm the judgment, and it is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
The Atchison, Topeka & Santa Fe Railway Company brought this action to recover certain taxes which it claimed were illegal and which had been paid under protest. The taxes amounted to $837.72, and were levied for general city purposes by the city of Emporia upon property of the plaintiff located in Ruggles’s addition to that city. The board of county commissioners of the county of Lyon, the city of Emporia and the treasurer and county clerk of Lyon county were made defendants. A jury was waived and the case tried by the court, which found that the territory subjected to taxation was a part of the city of Emporia, and rendered judgment against plaintiff for costs. The railway company brings the case here for review. The only errors assigned are that the court, erred in rendering judgment in favor of defendants, and in denying the motion for a new trial.
The legislature, by an act passed in 1877, vacated certain streets in Ruggles’s addition to the city of Emporia. (Laws 1877, ch. 196.) Afterward, on March 18, 1884, the city of Emporia, by an ordinance, attempted to annex this same addition to the city.
Plaintiff in error asserts that there is but one question in the case, and insists that this question is whether or not Ruggles’s addition was legally annexed, basing its argument wholly upon the claim that the ordinance of March 18, 1884, attempting to annex the territory was inoperative and void because the land' then was unplatted property — in effect, acre property, lying outside the city — and that “without the consent in writing of the owners of a majority of the whole number of acres owned by residents of Kansas” it could not be annexed simply by ordinance. The constitutionality of the ordinance is also attacked because the enacting clause does not contain the name of Ruggles’s addition. Defendants in error, on the contrary, claim that the act of the legislature of 1877 never vacated Ruggles’s addition; that, if it did, the ordinance of March 18, 1884, being valid, operated to annex the addition to the city and leave the territory in the same situation as though there had been no vacation.'
Broadly speaking, there is but one question here, which may be stated as follows: At the time of the levy of the taxes sued for was Ruggles’s addition a part of the city of Emporia? This single question is easily disposed of, in our view of the effect of chapter 196 of the Laws of 1877. The title of the act is as follows :
“An act to vacate the town of. Elmdale, and Wood’s addition to Cottonwood Falls, and certain streets and alleys in the town of Cottonwood, Chase county, Kansas, and the town of Republic City, in Clay county, Kansas, and the streets in Ruggles’s addition to the city of Emporia, in Lyon county, Kansas.”
Section 2 reads as follows:
“That the streets in Ruggles’s addition to the city of Emporia, in the county of Lyon, in the state of Kansas, be and the same hereby are vacated; provided, that the street on the east of said addition and the street on the west of said addition shall not be affected by this act.”
It is clear that the legislature did not by this act intend or attempt to vacate any part of Ruggles’s addition to the city of Emporia except the streets. This appears from the language of the title of the act as well as that of section 2. In the title a plain distinction is made between the vacation of platted towns and additions, such as “Wood’s addition to Cottonwood Falls,” and the vacation merely of “streets and alleys” in another platted town and “the streets” of Ruggles’s addition. In section 2 the words declaring the vacation follow the title and refer only to the streets of Ruggles’s addition. Without determining what effect the vacation of the entire addition would have upon the lands embraced therein, it follows from what has been said that no part of Ruggles’s addition was vacated except the streets referred to in the act, and that this left the addition within and a part of the city of Emporia. To arrive at this conclusion we have only to give the words of the statute their ordinary meaning; and this should be done, “unless, from a consideration of the whole act, it apears that a different meaning was intended.” (The State v. Bancroft, 22 Kan. 170, 201.) The citation of additional authorities seems unnecessary. The judgment is affirmed.
All the Justices concurring.
(84 Pac. 1031.)
SYLLABUS BY THE COURT.
Municipal Corporations — Annexation of Territory — Collateral Attack. Where a city of the second class has attempted by an ordinance to annex certain territory, and in pursuance thereof has exercised municipal authority over the same for eighteen years, levying and collecting taxes thereon and creating it in all respects as an integral part of the municipal organization, the validity of the ordinance cannot be attacked in a collateral proceeding by a private party who seeks to recover taxes levied upon property in such territory upon the ground that it is not a part of the city. | [
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The opinion of the court was delivered by
Smith, J.:
The petitioner was prosecuted in the district court of Johnson county on an information charging him with stealing chickens in the night-time. The following is the record of the proceedings had on such information:
“Now, on this day comes plaintiff, by Charles C. Hoge, county attorney, and attorney for the prosecution, and as well also comes defendant’s attorney, Chancy B. Little, who announces to the court that the defendant herein is in the custody of P. K. Hendrix, sheriff of Johnson county, Kansas, and is in the jail of said county, and is desirous of pleading guilty at this time to the information herein.
“Thereupon the court orders said sheriff to produce the body of said defendant in open court. And said order having been obeyed, said defendant duly appears in open court, in his own proper person, and by Chancy B. Little, his attorney.
“Thereupon the defendant is duly arraigned, and listens to the reading of the information, as read by the clerk, and charging him with grand larceny; and is required to plead thereto. And thereupon defendant pleads guilty.
“And now this cause comes on for judgment and the sentence of the court against the defendant, William Howard, upon the plea of guilty, heretofore entered against him herein, upon arraignment upon the information filed against him herein for the crime of grand larceny, and thereupon comes Charles C. Hoge, county attorney for Johnson county, Kansas, on behalf of the prosecution as before, and by order of the court the defendant is brought into court by the sheriff of said county, and appears in court in his own proper person, and by Chancy B. Little, his attorney, and the defendant, being now caused to stand before the court, is informed by the court of the plea of guilty, heretofore pleaded by him herein, upon arraignment to said information filed against him herein by the said county attorney aforesaid for grand larceny, and is asked by the court whether he has any legal cause to show why judgment and sentence of the court should not be pronounced against him upon the said plea of guilty herein; and, no sufficient cause being alleged by the defendant, or appearing to the court, why such judgment should not be pronounced,
“It is, therefore, now by the court here considered, ordered and adjudged that the said defendant, William Howard, be and he is hereby sentenced to confinement and hard labor in the state penitentiary of the state of Kansas until discharged therefrom by due course of law; and that he pay the costs of the prosecution herein against him, taxed at $-, and that execution issue.”
The petitioner alleges that this judgment is void, and that he is unlawfully deprived of his liberty and imprisoned in the state penitentiary by the warden thereof (whom he has made respondent), claiming to act under authority of such sentence. The respondent moves to quash the writ on the ground that the petition does not state facts sufficient to entitle the petitioner to the relief prayed for, and the case is submitted on the petition and motion.
There are only two degrees of larceny under the crimes and punishments act of this state, viz., grand larceny, and petty larceny; but there are two penalties for acts defined as grand larceny. Thus, upon conviction of certain acts defined as grand larceny, a penalty of imprisonment not exceeding seven years is prescribed, and for the commission of certain other acts defined as grand larceny, imprisonment not exceeding five years is prescribed. To the latter class the stealing of domestic fowls in the night-time was added by chapter 218 of the Laws of 1903.
Prior to the enactment of the indeterminate-sentence act (Laws 1903, ch. 375) the trial court, upon the conviction of an accused of grand larceny, having knowledge of the particular acts charged, pronounced a certain determinate sentence of imprisonment. If the criminal act fell in the seven-year class, imprisonment was imposed for seven years or some definite shorter term; if in the five-year class, the sentence was for five years or some definite term shorter than five years. Hence there could be no confusion or uncertainty, even if the record were not made in compliance with section 5699 of the General Statutes of 1901, which reads:
“Whenever judgment upon a conviction shall be rendered in any court, the clerk of such court shall enter such judgment fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty either by the clerk or judge shall in no wise affect or impair the validity of the judgment.”
Under the statutes in force prior to the enactment of the indeterminate-sentence act an accused found guilty of the crime of grand larceny might have been sentenced to confinement and hard labor in the penitentiary for four years. If the record disclosed only these two facts — the conviction and the sentence — it- would have been impossible to tell whether the crime committed was one for which the extreme penalty was five years or seven years. The convict and the prison officials would, however, have known definitely that the convict was placed in their keeping for a definite term of four years, not to be exceeded in any' event, but which might be reduced by good conduct under the rules of the prison.
Under the sentence in question the warden knows only that the court attempted to sentence the petitioner to the extreme penalty for grand larceny (The State v. Page, 60 Kan. 664, 57 Pac. 514), but he has no official knowledge as to whether that penalty is five or seven years’ imprisonment. It is urged that the extreme penalty for the crime of grand larceny is five years, except in certain specified cases in which it is seven years, and that the judgment should be presumed to be in the general class and not in the exceptional class; or, if the term of sentence be in doubt, the culprit should be given the benefit of the doubt and be held to have been sentenced to the shorter term. We cannot accept either of these contentions. A judgment of imprisonment, to be valid, must be so definite and certain in its terms that both the convict and the officer upon whom its execution devolves may know the term of imprisonment. (Picket v. The State, 22 Ohio St. 405; The People, ex rel., v. Pirfenbrink, 96 Ill. 69.) If the punishment attempted to be imposed by the judgment be greater than is authorized by law, the judgment is void. (In re McNeil, 68 Kan. 366, 74 Pac. 1110; In re Dill, Petitioner, 32 Kan. 668, 5 Pac. 39, 49 Am. Rep. 505.)
The statute prescribes one penalty for certain acts denounced as grand larcenies, and another penalty for certain other acts also denounced as grand larcenies. Hence the judgment must show in which one of the two classes of grand larceny the criminal act falls before a sentence under the indeterminate-sentence act can be imposed. This was not necessarily so under the preexisting statute, where the court determined the duration of punishment.
Under the indeterminate-sentence act the law, not the court, says what the duration of punishment shall be. (The State v. Page, 60 Kan. 664, 57 Pac. 514.) It imposes the extreme penalty, and then provides for its mitigation. Before it can be determined from the law what the extreme penalty is there must be a definite sentence to which the law can be applied, and any attempted sentence short of this is a nullity. Such is the attempted sentence in this case. The judgment is so indefinite and uncertain as to the particular grand larceny for which the defendant was to be punished that the law attaches neither extreme penalty thereto; and a commitment to imprisonment in the penitentiary for an unlimited time is a nullity. It is not a case of the imposition of a greater or of a less penalty than is authorized by law. It is a sentence to confinement and hard labor in the state penitentiary to which neither the court nor the law places any duration as to time. The attempted sentence being a nullity, the petitioner stands in the position of one who has not been sentenced at all. He has pleaded guilty to a definite charge of a crime, but has not been sentenced therefor.
We have not overlooked In re Nolan, 68 Kan. 796, 75 Pac. 1021, in which practically the same question was involved, and in which the decision was apparently ad verse to the conclusion herein reached. It will be observed, however, that the Nolan case was decided upon the authority of In re Black, Petitioner, 52 Kan. 64, 34 Pac. 414, 39 Am. St. Rep. 331, and on the question whether the defect in the verdict rendered the judgment thereon void. In the Nolan case the only question that is involved herein was ignored, and the court said that the Black case was “exactly in point” and quoted therefrom as follows:
“We think the record in this case shows that the district court regarded the verdict as a verdict of guilty of burglary in the first degree, and proceeded to sentence the defendant accordingly. In doing so, the court acted judicially, and judicially determined the effect of the verdict. If the court erred, the defendant had his remedy by appeal. He neglected to avail himself of that right. We do not think he can now obtain his discharge from custody because of an erroneous decision of the court as to the force and effect of the verdict.” (Page 69.)
Now the indeterminate-sentence act was not in existence in 1893, when the Black case was decided, and that case is not authority on the question here involved. Nor does the Nolan case purport to decide the question to be decided here — whether the judgment was void for indefiniteness — although it might well have been determined therein. From what has been said it is apparent that the numerous decisions cited relating to judgments not under an indeterminate-sentence law can have little application to the case at bar.
The petitioner claims the indeterminate-sentence act of 1903 is unconstitutional. The case of The State v. Page, 60 Kan. 664, fully disposes of this contention adversely to him.
It is the judgment of this court that the sentence is void; but, the conviction being regular and valid, the petitioner ought not to be discharged. A valid judgment should be rendered, and the petitioner should be returned to the custody of the proper authorities for that purpose. If, however, this be not done within twenty days, the petitioner will be discharged from the warden’s custody.
Johnston, C. J., Burch, Porter, JJ., concurring. | [
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The opinion of the court was delivered by
Mason, J.:
In support of the judgment rendered it is argued that, -inasmuch as the check given by the Union Brokerage Company to Ladd, Penny & Swazey really belonged to Ringo & Askew, it could not under the circumstances of this case be diverted from its true ownership, but after its deposit in the Merchants’ Bank constituted a trust fund for the purpose for which it was intended, namely, the payment of the first Ringo & Askew note. The cases of Cady v. South Omaha Nat. Bank, 46 Neb. 756, 65 N. W. 906, 49 Neb. 125, 68 N. W. 358, and Davis v. Panhandle Nat. Bank et al., 29 S. W. (Tex. Civ. App.) 926, are the strongest ones cited to sustain this contention. Whether the doctrine they announce would apply to the facts here presented need not be determined, for this court has already refused to follow them. (Kimmel v. Bean, 68 Kan. 598, 75 Pac. 1118, 64 L. R. A. 785, 104 Am. St. Rep. 415.) Upon the authority of that case and Martin v. Bank, 66 Kan. 655, 72 Pac. 218, it must be held that the proceeds of this check became the absolute property of the Merchants’ Bank, and the situation presented is no different from what it would have been if Ladd, Penny & Swazey had spent the money which belonged to Ringo & Askew for any other purpose of their own, instead of using it, as they happened to do, to provide for the payment of checks issued by them upon the Merchants’ Bank. As was said in the syllabus of Martin v. Bank, 66 Kan. 655:
“A bank cannot be held to account to the owner of a fund where such fund has been deposited by an agent in his own name and paid out upon his check without knowledge by the bank of any want of power on the part of the agent.”
The two principal questions involved aye: (l)Do the circumstances narrated show a payment of the Ringo & Askew note so as to discharge the makers from liability upon it? (2) Was the conduct of the Inter-state National Bank such as to establish a liability against it in favor of the Watkins National Bank?
The inquiry whether the note was paid may perhaps be simplified by a consideration of the effect of the successive steps in the transaction. The mere delivery and acceptance of the check of course did not constitute a payment and were no evidence of a payment. (22 A. & E. Encycl. of L. 569, ¶ 13.) The surrender of the note (if it is to be considered as having been surrendered) did not affect the matter one way or the other. (22 A. & E. Encycl. of L. 572, d.) If the Inter-state bank had been the owner of the note, and upon receiving the check had made entries upon its books as though a payment had been made, this likewise would have been immaterial, for such entries would be interpreted in the event of the non-payment of the check as evidencing conditional payment only. (Stone and Gravel Co. v. Gates Iron Works, 124 Ill. 623, 16 N. E. 923; Turner v. The Bank of Fox Lake, 3 Keyes [N. Y.] 425.) Credits made upon books of account can have no greater effect in this connection than receipts given acknowledging payment, and these, where exchanged for checks, do not show that absolute payment was intended. (22 A. & E. Encycl. of L. 572, e.) The fact that the Inter-state bank held the note for collection and credited the proceeds to the Watkins bank does not call for a different rule in interpreting the entry of such credit. Whatever effect it may have had upon the relations of the Inter-state bank and the Watkins bank, it was as to the makers of the note merely evidence of a conditional payment.
If, then, ,the note was ever paid so as to protect Ringo & Askew, this condition must have resulted from the transactions between the Inter-state bank and the Merchants’ Bank. In this connection it is important to notice that in the telephone conversation between these banks on June 14 the Merchants’ Bank did not authorize the Inter-state bank to pay the check out of the funds of the Merchants’ Bank then on deposit in the Inter-state bank. If that authority had been given and acted upon the situation would have been the same as though the check had been presented at the counter of the Merchants’ Bank and there accepted for the credit of the holder. In such a case, according to the prevailing doctrine, the check would ordinarily have been deemed paid, whatever might have been the condition of the account of the drawer, upon the principle that in such circumstances the bank is bound to know of the state of its depositor’s' account and cannot be relieved from the effect of any mistake it may make in that regard, and that the entry of the credit closes the transaction. (2 Morse, Banks & Bank., 4th ed., § 569; 2 Dan. Neg. Inst., 5th ed., §§ 1621, 1622; 5 A. & E. Encycl. of L. 1058.) And if the check had been paid, of course this would have operated to change the conditional payment of the note into an absolute payment. But what the Merchants’ Bank in fact did was merely to say that the check was good and to promise to pay it. This was no more than an oral acceptance or certification of the check, and was not binding by reason of section 547 of the General Statutes of 1901, which reads:
“No person within this state shall be charged as an acceptor of a bill of exchange, unless his acceptance shall be in writing, signed by himself or his lawful agent.”
A bank check is held to be a bill of exchange within the meaning of this section. (Eakin v. Bank, 67 Kan. 338, 72 Pac. 874.) It does not appear that the Interstate bank charged the check to the account of the Merchants’ Bank on the 14th — the day it was given— for on that day it was mailed to the latter bank for collection and credit. Such an entry upon the books of the Inter-state bank, however, would have been unimportant, for it would have been made without authority. The matter is not affected by the consideration that the Inter-state bank afterward attempted to hold the Merchants’ Bank liable for the payment of the check, and accordingly made an entry upon its books showing a deduction of the amount from the deposit account of the Merchants’ Bank. The assertion by the Inter-state bank of a claim against the Merchants’ Bank which could not be maintained did not operate by estoppel or otherwise to prevent its standing upon any legal right it might have against Ringo & Askew. It follows that the trial court erred in concluding that the facts found showed that the Ringo & Askew note had actually been paid. As the note until paid was secured by a lien upon the cattle, it was likewise error to hold that the mortgage accompanying the note held by the Boatmen’s Bank was a first lien.
To sustain the trial court in holding the Inter-state bank liable to the Watkins bank the defendants in error invoke the doctrine that a collecting agent who surrenders the note of his principal in exchange for the check of the maker thereby assumes the risk of its payment. The plaintiff in error denies the doctrine, and contends that the collecting agent is protected from liability in pursuing such course by the fact that it is in accordance with a custom of bankers and business men of which the courts must take notice. Of this contention it is said in Daniel on Negotiable Instruments (vol. 2, 5th ed., § 1625) :
“While it may be, and as a general rule undoubtedly is, the practice of creditors, in mercantile communities, to take checks in the collection of debts, and frequently to surrender other instruments on receiving them, such a practice, on the part of the principal, falls far short of a usage which would permit the agent to do likewise.” (See, also, 5 Cyc. 505, 506; 3 A. & E. Encycl. of L. 804.)
Assuming, but not deciding, that ordinarily where a bank holding a note for collection in surrendering it to the maker in exchange for his check upon another bank thereby makes itself liable to the owner of the note for the amount, would not this case be taken out of the rule by the fact that the Inter-state bank regained possession of the note under the circumstances already stated? In Daniel on Negotiable Instruments (vol. 2, 5th ed., § 1625) it is said:
“In the United States it is quite certain that a banker or other agent, holding a bill or note for collection, would act at his peril in delivering it up on receipt of a check for the amount; and that if the debtor did not pay the amount in money, and the drawer or indorsers were not duly notified, they would be discharged, and the loss would fall upon the collecting agent. If, indeed, on the same day that the bill or note was due the agent received a- check for the amount and delivered up the bill or note, but on presentment of the check at the bank, and refusal of payment that very day, it had been returned, the bill or note reclaimed and protested, and the drawer or indorsers duly notified, then no right would be forfeited, but the liability of all preserved. But if the agent neglected to present the check until the next day, it would then be too late to preserve recourse against the drawer, if a foreign bill, by making protest; and if in the meantime the bank had failed, the loss would fall upon the agent.”
This language makes plain the theory upon which the rule referred to is based, which is that the collecting agent who assumes without authority to pursue a course that results in releasing a part of the security of the note, thus rendering it less valuable than it was before, is justly held to become at once liable to the owner for the full amount, perhaps irrespective of any question of actual or probable final loss. There is at least plausible ground for the argument that until the note is paid its owner is entitled to its possession and to all the incidental rights attached to it, and, therefore, an agent who fails to return either the very thing entrusted to him, or its equivalent in money, the only thing he is authorized to accept for it, should not be permitted to haggle about the extent of the resulting injury but should be compelled to respond at once to his principal for the full amount of the note and to look for his own reimbursement to whatever rights he has succeeded in retaining against the maker. But when the note is recovered without its vitality or security having been in any way impaired, no reason is apparent why the agent should be liable at all, unless to the extent of any actual loss that might have been occasioned by his act. Therefore, as suggested by Mr. Daniel, a recovery of the note by the collecting agent upon the very day of its surrender to the maker retrieves any wrong thereby done to the owner. But manifestly the only importance of the two acts being done on the same calendar day arises from the necessity under ordinary circumstances of the note being protested on the day of presentation in order to hold the indorsers.
In the present case there was no indorsement upon the note except that of Ladd, Penny & Swazey, who were hardly in a position to assert a right to notice of its dishonor. Moreover, the note bore upon its face a waiver by the makers and indorsers of both protest and notice of non-payment. Therefore, the fact that the Inter-state bank did not recall the note from Ladd, Penny & Swazey on the very day upon which it was de livered to them is not controlling here. The leaving of the note at the office of Ladd, Penny & Swazey by the collector was clearly only provisional, as well after he had obtained the check as before. The Inter-state bank could not upon any theory be considered as having surrendered the note until it had made inquiry of the Merchants’ Bank about the check. This was after banking hours on June 14. The knowledge that the cheek was worthless was imparted to it before the beginning of banking hours on the next day, and it at once acted upon the information. So far as the mere lapse of time was concerned the interval was no more significant than if these acts had all been done upon the same day, and no just cause appears for giving them any different effect than would have resulted had the Merchants’ Bank succeeded in reaching the Interstate bank by telephone at the time it attempted to do so on June 14 for the purpose of correcting the mistake which it then suspected had occurred.
We do not understand that it is claimed, and it certainly cannot successfully be maintained, that the mere physical exchange of a note held for collection for a check.can at once fix a liability upon the collecting agent, irrespective of all considerations of the subsequent conduct of the parties. If after such an exchange the agent, before the maker of the note left his presence, should become so far doubtful of the sufficiency of the check as to insist upon and obtain a retransfer of the note, this would clearly reinstate the precise situation that existed before any surrender of the note was made. In the present case if, when the Inter-state bank first called up the Merchants’ Bank, it had been told that the check was worthless and had then reclaimed the note, probably no contention would have been made that it had incurred any liability. This is for all practical purposes just what was done, so far as the mere matter of time was concerned — for the delay was really insignificant. We are, therefore, of the opinion that the recaption of the note was ac complished under such circumstances as to relieve the Inter-state bank of liability, unless the matter is affected by its entry upon its books of a credit to the Watkins bank, and by its subsequent dealings .with that bank and the Merchants’ Bank.
We cannot regard this entry of credit upon the books of the Inter-state bank as any more determinative of its relations with the Watkins bank than of the question of the payment of the note. In Bank v. Brightwell, 148 Mo. 358, 49 S. W. 994, 71 Am. St. Rep. 608, it was said:
“When a note or draft is sent by one individual or bank to another bank for collection and to remit the proceeds to the sender, the relation of principal and agent is created, and not that of creditor and debtor. . . . Having received the note or draft for collection it does not owe the amount thereof to the sender until collected, and though it may credit in its books therefor such a credit may be treated as provisional if the paper is afterward dishonored, and it may cancel the credit.”
“The fact that the depositor’s account is credited with the amount of the items taken for collection does not of itself operate to transfer the title to the paper; for, by the custom of bankers, the collection is charged back at once if not paid.” (3 A. & E. Encycl. of L. 817.)
The fact that the credit was given only after the check had been received and an inquiry made about it does not affect the principle by which the matter is controlled. The bank might well elect to give credit only for such collection items as upon investigation it believed reasonably certain would be paid, and to hold others without credit until actual payment, without, by pursuing such course, binding itself to be answerable whenever its judgment that payment would be made should prove mistaken.
The rule, already referred to, that when a bank accepts a check and credits a depositor with it the transaction is deemed closed and cannot be reopened for the correction of a mistake is confined to checks drawn upon the bank which gives the credit, and proceeds upon the principle before stated that the bank is conclusively presumed to know the state of its depositor’s accounts. Even with this limitation the rule has not always been approved. (1 Morse, Banks & Bank., § 419; 3 A. & E. Encycl. of L. 817, second paragraph of note 1.)
In Steinhart v. National Bank, 94 Cal. 362, 29 Pac. 717, 28 Am. St. Rep. 132, it was held, although without full discussion, that a bank to which a note had been sent for collection and which at the request of the maker, its customer, charged the amount to him, marked the note canceled, and deposited in the mail addressed to the owner of the note a draft for the amount, might still upon discovering that the maker was insolvent reclaim the draft, rescind the entry upon' its books, return the note to its principal, and by these means escape liability on its own part, such transactions not having effected a payment of the note. (See, also, Bank v. Cummings, 89 Tenn. 609, 18 S. W. 115, 24 Am. St. Rep. 618; Second Natl. Bank of Balto. v. Western Natl. Bank of Balto., 51 Md. 128, 34 Am. Rep. 300.)
The postal card sent to the Watkins bank is not more effective than the credit upon the books of the Interstate bank. Indeed it is somewhat significant of the character of the entire transaction that while this card acknowledged the receipt of the note, and the entry of credit for the amount, it also gave express notice that all items were credited subject to payment.
The attitude of the Inter-state bank toward the Merchants’ Bank — the attempt to insist upon the payment of the check — cannot avail the Watkins' bank, which was not entitled to rely upon it and was not misled by it. The positions that the Inter-state bank assumed in its communications with the other two banks may not have been entirely consistent with each other, but it was not required to determine at its peril what its obligation might be under the law and at once act accordingly. It was probably in doubt whether it might not be able to hold the Merchants’ Bank accountable upon its oral acceptance of the check, and as it had funds of that bank in its custody it prudently decided to retain enough to cover the amount until its rights should be settled or until it was otherwise indemnified.
The Watkins bank suffered no prejudice through the failure of the Inter-state bank to learn on the 14th that the note would not be paid. The notice that it had been given credit was mailed to it after half-past three o’clock in the afternoon of that day. Even if this had justified an inference of the payment of the note it would have been counteracted by the telephone message given before nine o’clock the next morning. In any view of the case this was a timely notice of nonpayment, and gave the Watkins bank every opportunity to which it was entitled to protect its interests.
We are unable to attach any significance to the circumstance that the Union Brokerage Company saw the. Ringo & Askew note uncanceled in the possession of Ladd, Penny & Swazey on the morning of June 15. Nor can we believe that the case is affected in any aspect by the fact that Ladd, Penny & Swazey deposited certain collateral with the Merchants’ Bank to secure any claims against them, for it is expressly shown that the bank did not agree with them to pay the check in question. The case is a hard one for Ringo & Askew, but their misfortune results from the misappropriation of their funds by agents of their own selection. If the transactions between Ladd, Penny & Swazey and the several banks had resulted in destroying the vitality of the first note, the purely fortuitous circumstance of a mistake occurring in a telephone conversation to which they were not a party would have enabled Ringo & Askew to shift their loss to one of the banks. If any principle of law enabled them to do this they would of course be entitled to the full benefit of their good fortune. In the absence of any such legal doctrine there is no peculiar hardship in permitting the loss to remain where it originally lodged, nor is any rule of equity or good conscience thereby violated.
The judgment is reversed and the cause remanded, with directions to render judgment upon the findings in accordance with the views herein expressed.
All the Justices concurring.
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The opinion of the court was delivered by
BURCH, J.:
The plaintiff recovered damages for an injury to his seventeen-year-old son alleged to have been occasioned by the defendant’s negligence. The injured party was a messenger of the Western Union Telegraph Company, whose duties required him to deliver messages in and about the union depot in Kansas City, Mo., and upon trains arriving and departing from that station, and to bring mail from the post-office, three blocks away.
On the morning of the accident he went to the post-office and received a bag of depot mail. Instead of returning by the usual route he went somewhat out of his way to the railroad-track used by the Chicago, Rock Island & Pacific Railway Company for access to the depot. There he found an empty train of that company waiting for a semaphore signal authorizing it to back into the depot to receive its load of passengers, baggage, express, and mail, preparatory to its departure westward. As the train commenced to move backward after receiving its signal he climbed upon the rear steps of the rear car, and deposited his mailbag upon the platform. The train was upon what is designated as track 5. As it approached the depot a Chicago & Alton passenger-engine was discovered some 250 or 300 feet ahead, standing upon track 6 and emitting clouds of steam which obscured all further view in that direction. This engine was attached to a late passenger-train, which had just arrived from the east.
Upon the arrival of trains the defendant’s work of removing express matter from the cars begins, and employees are kept in waiting with trucks for that purpose. Tracks 5 and 6 are parallel and lie next to each other, track 5 being nearest the depot building. The space between the tracks, however, is narrow, and a truck of standard size placed lengthwise alongside of an express car on track 6, in the usual manner for unloading, obstructs the operation of trains on track 5. While one of the defendant’s employees was engaged in taking express matter from the Chicago & Alton train referred to the rear of the Rock Island empty train emerged from the bank of steam and bore down upon his truck. The messenger boy, standing upon the lower steps of the moving car, tried to climb up to the platform, but was too late. The side of the car passed over the truck, and as it did so the truck carried away the car steps, and crushed the boy’s foot so that amputation was necessary.
The plaintiff charged that the defendant was negligent in placing its truck upon track 5 at a time when the Rock Island train was due without stationing a sentinel to warn persons upon the train whose vision might be obstructed by the escaping steam of the pres ence of the truck. The defendant answered that it was not negligent; that it owed no duty to the boy at the time and place of the accident; and that his injuries were the result of his own carelessness.
The traffic in and out of the union station at Kansas City, Mo., is under the management of the Union Depot Company, which owns the buildings, grounds, and tracks. That company reserves to itself exclusive control over the entrance and exit of trains, and assigns to each railroad company using the depot a certain track for the purpose of loading and unloading its cars. The various express companies operate there under the same authority. There are no special instructions governing the use of tracks 5 and 6, but the servant of the defendant who was in charge of its truck at the time of the accident understands that trains have the right of way. No doubt this is true, since under all ordinary circumstances a truck ought not to block a train; and in any event it must be accepted as true for the purposes of this case. But the fact that the express company is required to remove its carriage in order that the railway company’s carriage may pass does not render its occupancy of the track for the purpose of doing its work negligent merely because a train is due.
The two transportation companies are engaged in the business of serving the public in the same way, at the same time, and in the same busy place, and each is under the obligation of using due care toward the other. The operations of the express company are necessarily limited and guided by the arrival and departure of trains. The Rock Island empty train could not be loaded until it was brought ijxfco the depot and set for that purpose. The Chicago & Alton train could not be unloaded until it came in, and it was then the duty of the defendant to remove express matter as soon as trucks could be placed alongside of the express-car. This duty relates to trains which are delayed as well as to those which are on time. The express com pany finds its cars wherever the union depot regulations stop them, and in reaching those brought in by the Chicago & Alton it is necessarily compelled to infringe upon track 5.. It is impossible to know the precise moment when an empty train will be backed in. It may be delayed by obstructions or may be kept waiting for signals an indefinite period at the various semaphores along its route, and it would be unreasonable to require the express company to suspend its work altogether and refrain from unloading a waiting Chicago & Alton train until a detained Rock Island “back-over,” as it is called, could arrive and pass. All persons using the depot tracks under the orders of the depot company must be held to know when and how the work of the express company must be carried on, and to know that it must place its trucks in dangerous proximity to track 5 when unloading Chicago & Alton trains. Therefore, trucks stationed to receive express matter from those trains are rightfully employed, and the defendant was guilty of no breach of duty on account of the fact that it was in effect using track 5 when the Rock Island train approached.
The Rock Island train in question was made up in the company’s yards from cars cleaned and prepared for travel, and was sent to the depot, there to be turned over to the conductor and to receive its burden of passengers, mail, and express. Not only was the public forbidden to use it while on the way to the depot, but it was accompanied by an escort who was charged with the special duty of keeping people off of it. The escort carried a key to enable him to go through the coaches, and had no business except to prevent persons from undertaking' to ride. The conductor did not become responsible for the train until after it had backed into the depot and stopped there.
The only other person allowed upon the Rock Island coaches was a pilot, who was stationed upon the rear platform of the rear car for the purpose of guiding the train into the depot. He was provided with an air- whistle with which to give warnings and an air-brake with which to stop the train. This brake worked with a small lever, applied to the entire length of the train the instant the lever was pressed down, and had the same power as the emergency brake. With it the pilot could stop the train as the engineer could stop it. The pilot’s position was at the left-hand side of the platform, where the lever of the brake and the lever of the whistle were at his instant command. It was his duty to stop and hold the train for semaphore signals, to obey signals when received, to give signals to the engineer, to look out for pedestrians, vehicles, switching-engines and all kinds of obstructions, see that the train did not run into them, and, as occasion required, to use the whistle and the brake. His attention was entirely taken up with his duties.
When the messenger boy climbed upon the train he was perfectly familiar with the manner in which traffic in and about the union depot is conducted, even to minute details. He knew when and where to catch the train in question, knew it was empty, and was backing in to be turned over to the conductor, knew the pilot was not a conductor or brakeman, and knew he was busy attending to duties of the pilot, which no one else could discharge. He testified that he asked if he could ride and that the pilot said “Yes.” By riding on the steps of the car he escaped the attention of the escort, who did not come outside the rear car door. A conflict between the boy’s testimony and that of the pilot, who was a witness for the plaintiff, cannot, of course, be discussed.
When the train approached the depot both the pilot and the boy saw the cloud of steam and knew that it came from the engine of a Chicago & Alton passenger-train standing on track 6. This fact was of itself a warning, at least to the pilot, that the express company might have a truck in proximity to track 5 opposite the door of the express-car of the Chicago & Alton train. The pilot testified that he slowed down his train because he feared there might be something on the other side of the steam. The boy testified that he knew they might run into something; that he had seen trains run into express trucks before; that he wanted to get off when he saw the steam; and that he would have done so if the platform had not been icy, and he without rubbers. Under these circumstances it is difficult to understand what function a watchman could have performed had he been present. Not only were the facts sufficient to give notice of the specific peril which was encountered, but an apprehension of danger actually existed in the minds of the very persons who were to be put on guard. Evidently what was needed at the critical moment was such control of his train by the Rock Island pilot that, if the truck and train collided at all, the car steps would not be stripped off by the impact, and the truck would not be carried along some twenty or twenty-five feet by the momentum of the car, as actually did occur.
Conceding, however, that the express company owed some duty in the premises, it is not apparent that it was under any obligation to the messenger boy, except to refrain from the wilful infliction of injury upon him. It is elementary law that there can be no liability for negligence, unless in consequence of the violation of some duty owed to the aggrieved party at the time and place the injury occurs.
“Culpable negligence on the part of one person as toward another always involves a breach of duty on the part of the former as toward the latter. Where there is no breach of duty, there can be no culpable negligence, and it is only for negligence of a culpable character that any person can be held responsible in law.” (Rush, Adm’x, v. Mo. Pac. Rly. Co., 36 Kan. 129, 135, 12 Pac. 582, 585.)
“The first requisite in establishing negligence is to show the existence of the duty which it is supposed has not been performed. A duty may be general, and owing to everybody, or it may be particular, and owing to a single person only, by reason of his peculiar position. An instance of the latter sort is the duty the owner of land owes to furnish by it lateral support to the land of the adjoining owner. But a duty owing to eyerybody can never become the foundation of an action until some individual is placed in position which gives him particular occasion to insist upon its performance. It then becomes a duty to him personally. The general duty of a railway company to run its trains with care becomes a particular duty to no one until he is in position to have a right to complain of the neglect.” (Cooley, Torts, 2d ed., 791.)
“Actionable negligence is the failure to discharge a legal duty to the person injured. If there is no duty, there is no negligence. Even if a defendant owes a duty to some one else, but does not owe it to the person injured, no action will lie. The duty must be due to the person injured. These principles are elementary, and are equally applicable whether the-duty is imposed by positive statute or is founded on general common-law principles.” (Akers v. Chicago, St. P., M. & O. Ry. Co., 58 Minn. 540, 544, 60 N. W. 669, 670.)
“In order to justify a recovery, it is not sufficient to show that the defendant has neglected some duty or obligation existing at common law or imposed by statute, but that the defendant has neglected a duty or obligation which it owes to him who claims damages for the neglect. (O’Donnell v. P. & W. R. R. Co., 6 R. I. 211.) It has been said: ‘However great the defendant’s negligence, if it was committed without violating any duty which he owed either directly to the plaintiff or to the public in a matter whereof he had the right to avail himself, . . . there is nothing which the law will redress.’ (Bishop on Non-contract Law, § 446.) In Shearman & Redfield on Negligence (4th ed., §8) the doctrine is thus expressed: ‘If the defendant owes a duty, but does not owe it to the plaintiff, the action will not lie.’ ” (Williams v. C. & A. R. R. Co., 135 Ill. 491, 496, 26 N. E. 661, 662, 11 L. R. A. 352, 25 Am. St. Rep. 397.)
“Negligence is an omission of care and caution in what we do. But the duty to be actively cautious and vigilant is relative, and, where that duty has no existence between particular parties, there can be no such thing as negligence in the legal sense of the term.” (Morris v. Brown et al., 111 N. Y. 318, 326, 18 N. E. 722, 724, 7 Am. St. Rep. 751.)
Besides this, duties are always dictated by the exigencies of some particular state of circumstances.
“If there be no negligence, though there be ah injury, no action will lie. Negligence is essentially relative. In the abstract it is a nullity — it does not and it cannot, in the nature of things, exist. It is metaphysically impossible to evolve a concept of negligence apart from the facts which give rise to it and independently of some imposed or implied correlative duty. The duty must be essentially related to the particular circumstances, and a variance in the circumstances necessarily begets either a modification of the duty or else extinguishes it altogether. Thus the duty which a railroad company owes to a passenger whom it is carrying on its train is widely different from the duty it owes to a trespasser on its tracks; not only because the rights of the two are different, but because the attendant circumstances and facts creating the reciprocal rights, in each instance, are dissimilar. This difference in rights and in duties springs from a divergence in the circumstances out of which they respectively grow. Consequently a condition which would in one case give rise to an inference of negligence would be wholly insufficient to justify its deduction in the other.” (City Pass. Ry. Co. v. Nugent, 86 Md. 349, 356, 38 Atl. 779, 781.)
And in every instance the duty of taking care presupposes knowledge, or its equivalent, of the particular state of facts out of Which it arises. There must be prevision of danger and likelihood of injury, for the law imposes responsibility for that only which reasonable prudence can anticipate. Authorities in support of this proposition would be superfluous.
Conceding that, on account of the conduct of its pilot, the Rock Island company was bound to recognize the messenger boy as a licensee, he enjoyed no higher rights, so far as the defendant is concerned, than a trespasser upon that portion of the railway-track which the defendant was entitled to use. It made no difference that he came on the Rock Island train. His rights were not thereby magnified over what they would have been if he had used a car of his own. The ■circumstances afforded to the express company no admonition of his presence. The guilty knowledge of the pilot could not be imputed to the defendant. The train was not a train for licensees. Nobody had any right there, and nobody ought to have been there, but the trainmen. The defendant had no more reason to Relieve that a Western Union messenger would be riding upon the lower car steps than it had to expect that a packing-house workman would be there, and it cannot be required to expend its resources in employing watchmen to guard the safety of any one whose presence within the range of its activities is not to be anticipated.
It does not aid the plaintiff that the defendant knew the pilot would be upon the rear platform, and that the escort would be somewhere upon the train. That fact did not bring the telegraph company’s servant within the range of the defendant’s foresight. The pilot and the escort were trainmen charged with knowledge of all the union depot regulations, and of all the circumstances surrounding the use of the depot tracks. They had a full comprehension of all the dangers to be encountered there, of the right of the defendant to encroach upon track 5, and of all the means of averting such dangers and dealing with such encroachments. They were in command of an agency for sounding an alarm at their approach, and of an appliance for the instantaneous stopping of the train and averting of injury if their warnings were not observed; and to such persons the defendant owed a due measure of care.
If the train had been a passenger-train those properly upon it would have been within the purview of the defendant’s obligation to protect. They would have been in charge of a conductor and a number of other servants skilled in the exercise of the highest vigilance to avoid imperiling them. The management of such a train is according to its own peculiar and appropriate methods, and to all persons entitled to ride upon it the defendant owes a due measure of care. But the defendant, in the discharge of its important public duties respecting the secure and speedy transportation of property, is not bound to adjust its business to meet the sudden perils of intruders who impose themselves upon it without warning, who voluntarily place themselves in exposed positions where they are without the protection of others, and who are destitute of means for protecting themselves.
Cases like Railway Co. v. Parry, 67 Kan. 515, 73 Pac. 105, and Combs v. Thompson, 68 Kan. 277, 74 Pac. 1127, holding that anticipation of the specific injury which happens to result from a negligent act is not essential in order to charge a wrong-doer, have no application to the facts of this controversy. In each instance a duty to the injured person was established. In the Parry case the duty of the railway company to protect a sick passenger from the consequences of his delirium was involved, and this duty was violated, whether the man wandered away for several miles and was killed upon the defendant’s tracks or whether his illness led him into other danger. In the Combs case the defendant amused himself by recklessly discharging a loaded cannon into a public street of a populous city, along which crowds of people were passing. Of course he was liable to the man he shot, although he did not single out that particular individual as a target. In the Parry case the duty was personal to the passenger. In the Combs case it was general to all who came within reach of the defendant’s missiles.
. In this case the messenger had no personal claim upon the defendant’s attention, and he belonged to no class to the individuals of which generally the defendant owed a duty. Therefore, the fundamental element of a cause of action in favor of the plaintiff is wanting. This conclusion follows from a consideration of the admissions of the injured party and the uncontradicted and unconflicting testimony of the plaintiff’s own witnesses. However, since the facts are not found or agreed to, in the sense of the statute permitting this court to order judgment, the cause must be remanded for a new trial, and to that end the judgment of the district court is reversed.
A preliminary jurisdictional question is decided in favor of the plaintiff.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
John Bertenshaw, as trustee in bankruptcy of the firm of Ridgeway & Co., brought this action against Henry Baden to recover the sum of $183.50 alleged to have been paid to him as a preferential payment within four months before the filing of the petition in bankruptcy. Judgment was for plaintiff.
Many errors are assigned and argued by plaintiff in error, some of which are not assigned in the petition in error. It is argued that the court erred in overruling the demurrer to the petition. This is not assigned in the petition in error and therefore will not be considered. (National Bank v. Jaffray, 41 Kan. 691, 19 Pac. 626 ; Clark v. Schnur, 40 id. 72, 19 Pac. 327 ; Carson v. Funk, 27 id. 524.)
It is contended that the court erred in not sustaining the objection to the introduction of evidence under the petition for the reasons that it was not alleged that a demand had been made on the defendant prior to commencing action, or that any claims were proved or allowed against the estate, or that the money paid to Baden was necessary to pay any of the debts which had been proved or allowed against the estate. If it was necessary for plaintiff to make these allegations, the defendant has waived any questions arising from such omission that he might have presented here by permitting the plaintiff, without objection, to introduce evidence tending to prove such facts.
The petition shows that more than two years intervened between the time of the alleged preferential payment and the time this action was brought. It is contended that the action was one for relief on the ground of fraud, and therefore the petition did not state a cause of action. This action is provided for by the bankrupt law, and fraud is not made an essential element to a recovery. The provisions of the bankrupt law pertinent to a decision of this and some other questions involved are sections 60a and 60b. (30 U. S. Stat. at L. 562.)
“A person shall be deemed to have given a preference if, being insolvent, he has procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class.
“If a bankrupt shall have given a preference within four months before the filing of a petition, or after the filing of the petition and before the adjudication, and the person receiving it, or to benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person.”
A preferential payment to a creditor by an insolvent debtor is not per se fraudulent, and the right of the trustee to recover such payment into the estate is not, by the bankrupt act, made to depend upon a fraudulent intent ofieither party. If a payment intended as a preference is made within four months before the filing of a petition in bankruptcy and the creditor be- lieyed, or bad reasonable cause to believe, that it was intended to give a preference, and such,payment had the effect to enable such creditor to obtain a greater percentage of his debt than other like creditors, the trustee may recover the amount so paid regardless of any fraudulent intent. Such actions are not, therefore, actions to recover on the ground of fraud.
It is contended that'the court erred in giving the following instruction:
“If you find from the evidence in this case that at the time of payment to the defendant Baden of $183.50 by Ridgeway & Co. the said Baden knew that the firm of Ridgeway & Co. were insolvent, and owed to various creditors a large amount, that said Baden knew that the debts of the firm of Ridgeway & Co. were greater than the firm’s assets, and that he had such information as would put a prudent man upon inquiry, and received said payment with such knowledge, it follows as a necessary inference that 'he had1 reasonable cause to believe that the payment was intended as a preference, and he can avoid this inference-only by showing that an amount in proportion to the-payment so received by him was provided for, for-other creditors ; and if said Baden made no inquiries: as to whether a like or proportionate amount was being paid, or intended to be paid, to other creditors,, then you are instructed that it follows as a necessary inference, that the defendant Baden had reasonable cause to believe that said payment was intended as a preference, and your verdict should be for the plaintiff and against the defendant.”
The instruction is that if Baden knew that the liabilities of Ridgeway & Co. were largely in excess of their assets, or that they were insolvent at the time he received this payment, or possessed such knowledge as would put a reasonably prudent man upon inquiry as to their solvency, these facts were sufficient to induce in his mind the belief that the payment was preferential, and the verdict should be for the plaintiff, unless defendant satisfied the jury that a sufficient amount of assets of the insolvents had been provided to pay the other creditors of the same class a percentage equal to that received by Baden.
This instruction is objectionable for several reasons. The deduction made by the court does not follow from the premise, either as a legal conclusion or as a presumption of fact. It does not follow that, because defendant knew that Ridgeway & Co. were insolvent when the payment was made, such payment was preferential or so intended ; nor does it follow that because Baden knew that payment was intended to be preferential and made within the time inhibited within the statute, and when Baden knew the liabilities of the insolvents were largely in excess of their assets, the trustee should recover. Not all preferential payments made within the time inhibited by the statute, to a creditor who knows his debtor is insolvent, are recoverable by the trustee. Before a recovery can be had in such cases it must also be made to appear, as provided in section 60a of the bankrupt act, that such payment had the effect of giving to such creditor a greater percentage of his debt than other creditors of the same class had received .
This instruction is erroneous and greatly prej udi-cial to the defendant in another particular. It places upon the defendant the onus of showing that when the payment was made sufficiént property had been provided by the insolvents to pay the creditors of the same class an equal percentage. The bankrupt act does not place this responsibility upon one who has received a preferential payment from an insolvent; the very reverse of this is true. Before a trustee can recover from such a one he must bring himself within the provisions of the bankrupt act by showing that such payment had the effect of giving to the creditor a greater percentage of his debt than other creditors of the same class had received. This he may do by showing that after such payment there was not property remaining in the hands of the insolvents sufficient to pay an equal percentage to other creditors of the same class. The object of the bankrupt law, as between creditors, is to secure an equitable distribution of the insolvents5 estate, and unless one of the creditors has received an inequitable percentage by way of preferential payment a trustee has no cause of action against him.
Because of this, the judgment of the court below is reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Bükch, J.:
On May 25,1897, J. P. Rose and Emma Rose entered into the following agreement in writing with the Palmer Oil and' Gas Company :
“In consideration of the sum of one dollar, the re: ceipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained, J. P. Rose and Emma Rose, his wife, of the first part, hereby grant unto the Palmer Oil and Gas Company, of Fostoria, Ohio, second party, successors 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, 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 fii*st 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 is described as follows, to wit: N. E. ^ of section No. 9, township No. 25, range No. 19, containing 160 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 one year from this date, or thereafter pay to first party forty 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 tanks, or in the pipe-line with which it may connect the well or wells, the one-tenth part of all the oil produced and saved from said premises.
“8. Should gas be found, second party agrees to pay to first party fifty dollars annually for every well from which gas is used off the premises.
“4. The first party shall be entitled to enough gas free of cost for farm and domestic use on said prem ises-as long as second party shall use gas off said premises under this contract, but shall lay and maintain the service pipe 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, oil and gas 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 of said premises and pay all damages to timber and crops by reason of drilling or the burying, repairing ■ or removal of lines of pipe over the said-premises.
“6. No well shall be drilled nearer than 300 feet to ■any building .on said premises, nor occupy more than one acre.
I'" “ 7.“. Second party may at any time remove his property and reconvey the premises hereby granted, and thereupon this instrument shall be null and void.
“8. A deposit to the credit of lessor in Allen County Bank to the account of any of the money payments herein provided for shall be a payment under the terms of this lease.
“9. If no well shall be drilled upon said premises within five years from this date, .second party agrees to reconvey, and thereupon this instrument shall be null and void.
“10. A failure by second party to comply with any of the above conditions shall render this lease null and . void.
“11. The acre rental as provided for in first clause ■shall be paid until the oil- or gas is used by second party or the lease abandoned. First party may use gas from the Fitzpatrick well as long as second party holds said lease.
“In witness whereof, the parties have hereunto set ■ their hands and seals this 25th day of May, a. d. 1897.
■ ’seal.] Joseph Rose.
seal.] Emma Rose.'
seal.] The Palmer Oil and Gas Company.
By L. C. Beatty, Agent.”
The instrument was duly acknowledged by the grantors and was filed for record in the county in which the land lies.
On July 27, 1897, the Palmer Oil and Gas Company executed and delivered to J. P. Rose a supplemental instrument relating to a part of the subject-matter of clause 10 of the original contract, as follows :
‘ < y0 Whom it May Concern:
“Wp having leased the farm of Joseph P. Rose for oil and gas purposes, a part of the consideration of which is the right to use gas from the Fitzpatrick well No. 1, or Palmer well No. 14, situated on N. W. i of sec. 10-25-19 : No-iv, this is to empower the said Joseph P. Rose to make connection with said well as freely as we might do ourselyes under the terms of our lease on said N. W. i of sec. 10-25-19.
The Palmee Oil AND Gas Company. By L. C. Beatty, Agent. ”
The Lanyon Zinc Company succeeded to all the rights of the Palmer Oil and Gas Company under these instruments.
In January, 1901, J. P. Rose and Emma Rose commenced an action against the Lanyon Zinc Company for the forfeiture and cancelátion of the contract set forth above. On the trial of the action the plaintiffs made an offer of proof, under their pleadings, for the p’urpose of establishing a right to a judgment nullifying the contract. This offer was rejected as incompetent, irrelevant, and immaterial, and was as follows :
“Plaintiffs offer to prove by J. P. Rose, plaintiff, witness now on the stand, and other witnesses, that, at the time of the execution of the contract of lease to the Palmer Oil and Gas Company, set forth in plaintiff’s petition, it was the distinct understanding and agreement that the lease should terminató whenever the Palmer Oil and Gas Company, or.its assigns, should fail to furnish gas from the Fitzpatrick or other wells referred to, for use for domestic purposes for himself and family ; that the said contract and supplemental contract of July 27, 1897, were made and intended by the parties to give this right to the plaintiffs for the use of natural gas, and as one of the considerations for said.lease; that the plaintiffs, relying upon said contract, prepared their stoves and lights in their residence for the use of natural gas, which rendered the stoves unsuitable for other fuel, and did attach to the Fitzpatrick well and used natural gas until on or about January 1, 1900, in midwinter, when the said well became obstructed, and the said Palmer Oil and Gas Company and its assigns wholly neglected and refused to place said well in condition to furnish gas to the plaintiffs ; and that L. C. Beatty, the general agent of the defendant, stated that the said lease would terminate whenever they failed to furnish gas, and they refused to furnish it, or to do anything with the well; and that since said date, to wit, January 1,1900, the plaintiff has had no use whatever of gas from said Fitzpht-rick or any other wells of the defendant; that the plaintiffs were refused permission at their own expense to repair the said Fitzpatrick well or to in any manner work about it or attempt to remove the obstructions from said well.”
On the trial it was either admitted or established by proof that plaintiffs owned the land in question ; that no well had been put down and no operation had been commenced for that purpose; that forty dollars per year for each year subsequent to that ending May 25, 1898, had been paid to plaintiffs, or had been deposited to their account; that plaintiffs had refused to receive any payment except for the years 1898 and 1899, and that they had served upon the defendant, prior to beginning suit, a notice and declaration of forfeiture.
Some evidence was introduced relating to other wells put down by the defendant and wells put down by other persons and acquired and operated by the defendant, all in the immediate vicinity‘of the land in question, in an attempt to show that the defendant was taking advantage of the fugacious quality of gas to exhaust it from under plaintiff’s land without sink-^ ing a well thereon. The court found generally for the defendant, and rendered judgment in its favor.
The offer of proof was rightfully denied. Undey the well-understood rules of law, the written contract,, complete in its terms, expressed its own meaning, and statements of witnesses could neither add to, nor detract from, that signification. The lease itself created no right of forfeiture for any deprivation of benefit from the Fitzpatrick well. The tenth subdivision of the lease provided for its nullification only for a failure to comply with the nine stipulations preceding: it. Subdivision 11 and the supplemental writing relating to the use of the Fitzpatrick well are wholly without the contemplation of subdivision 10 and are independent covenants- collateral to the other purposes of the lease.
This case is precisely analogous to that of Burnes v. McCubbin, 3 Kan. 221, where it was said:
“It was stipulated in the lease that the lessee should forfeit the term : 1st, if the lessee failed to pay the rent when due ; and 2d, if the lessee failed to pay taxes and assessments levied upon the property, or to refund the amount of the same to the lessors in case they should pay them.
“After this agreement concerning forfeiture of the term, and not connected therewith, there is the'further stipulation that the lessee should not assign the lease without the written consent of the lessors. No penalty is expressly provided in case of a breach of this part of the lease, and unless the penalty of forfeiture is held to extend to it by implication, there, could have been no intention on the part of the contracting parties to provide one, but to leave the parties to determine their. rights in this respect under the law applicable to such cases.
“We are not disposed to favor this doctrine of implication, and more especially when applied to those cases where parties have entered into written contracts with express conditions. The rule is that ‘when parties have entered into written engagements with expressed stipulations, it is manifestly not desirable to extend them by implication ; the presumption is,‘that Raving expressed some they have expressed all the conditions by which they intend to be bound under that instrument.
“We think that a fair construction of the terms of the contract in this case justified the court below in holding that the parties thereto did not provide a forfeiture of the lease in case the lessee should assign it without consent of the lessors. The authorities sustaining this view are very numerous.
In Ritchie v.K. N. & D. Rly. Co., 55 Kan. 36, 57, 39 Pac. 718, 724, it was said :
“While the law enforces the lawful contracts of parties, and even gives effect to forfeitures, equity gives relief against the hardships incident to such forfeitures in very many cases. It is a universal rule that the instrument creating the forfeiture will be strictly construed, and that its terms will never be expended by construction.”
'In construing a mining lease the New Jersey court <of chancery laid down the following propositions, which .-are without doubt the law :
“On construing a deed, the question is, not what '■did the- grantor intend to do, but what has he done by apt and proper words?”
“To create a good condition upon which a term granted by a lease shall end before it expires by lapse óf time, a right to reenter, on breach, must be expressly reserved.
' ‘ “A breach of the covenants of a lease, in the absence óf a stipulation to that effect, does not work a forfeiture of the term.
“Where a term is demised in clear and apt words* it can only be defeated by words as strong and express as those by which it is created.” ( Vanatta v. Brewer, 32 N. J, Eq. 268.)
Likewise the supreme court of Pennsylvania, referring to the provisions of an oil lease, said:
“But there was no clause of forfeiture in the lease, and forty dollars per annum was fixed as the price of delay. McClelland could not have recovered in ejectment, therefore, because, by the terms of the lease, it was money, not the possesssion of the tenants, which delay in completing the well entitled him to demand.
“The rule undoubtedly is that the right to declare a forfeiture must be distinctly reserved; that the proof of the happening of the event on which the right is to be exercised must be clear ; that the party entitled to do so must exercise his right promptly ; and that the result of enforcing the forfeiture must not be unconscionable.” (Thompson v. Christie, 138 Pa. St. 230, 248, 249, 20 Atl. 934, 935, 11 L. R. A. 236.)
Whatever may be the tendency of some courts at times to favor the lessor in construing certain contracts supposedly unique in character because of the peculiarity of the subject involved, there is nothing in the contract under consideration, or in the particular provision of it under discussion, to exempt it from the operation of the general rules announced.
Under the first subdivision of the lease two courses were open to the lessee — one to drill a well within one year, the other to pay forty dollars annually, after the expiration of one year, until a well should be drilled. The latter alternative, however, was limited by clause 9, terminating the lease at the end of five years, if no well were drilled within that time. The lease does not in terms or by implication require the iminediate’ sinking of a well. If that were the purpose of the' parties the English language furnished abundant1 mbans to‘ express it. The provisions for forfeiture áre equally plain. If the lessee should fail for one year to drill a well, and thereafter should also fail to pay forty dollars annually until a well should be drilled, the lease was forfeitable ; and if no well wrere drilled in five years the lease was forfeited altogether. This is the indisputable import of the writing adopted by the parties as the expression of their will. Therefore, under the conceded facts appearing on the record no.right of forfeiture was disclosed. The finding of the trial court on the disputed evidence is, of course, 'conclusive.
The extended argument of counsel for plaintiffs in error upon the abstract subject of oil and gas leases a.nd upon certain questions of policy arising from the yapid development of extensive oil- and gas-fields in this state is of no assistance in arriving at an understanding of the rights of the parties to this suit under the specific agreement they have made. The courts 'have no right to declare that, whatever 'the parties may think, operations for sinking a well must begin at once under an oil or gas lease. If this court had done so prior to the time plaintiffs desired to contract they would have rebelled, without any doubt, with the utmost indignation against the decision as an infringement of their liberty to contract with reference to their land and the minerals beneath its surface as they pleased. In so doing they would have been justified. If plaintiffs should desire to contract for an immediate exploration, they must have that right; and if they should desire to give an oil or gas company five years in which to sink a well, upon a consideration satisfactory to themselves, and as the result of negotiations free from imposition and fraud, they must have that right. But having deliberately made a con tract of the latter description, they have no right to call upon a court to declare that it is of the other kind merely because generally it might seem to be better for farmers not to encumber their lands with mineral leases giving a long time for exploration, or because generally such leases do contemplate that forfeiture shall follow a failure to explore at once.
No facts were pleaded warranting a reformation of the contract over which this controversy arises, and the-district court rightfully refused to impose upon it a meaning contrary to its terms.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
The petitioner seeks by this original proceeding to be discharged from his confinement in the Kansas State Industrial Reformatory. He was proceeded against in the district court of Wyandotte county, by information charging him with burglary in the second degree and larceny. Upon his trial, the jury returned a verdict in the following language :
“We, the jury, find the defendant guilty of burglary and larceny as charged in the information, and we find the value of the property taken to be worth $12.”
Thereafter, the court sentenced him to confinement in the Kansas State Industrial Reformatory, there to remain until discharged by law. The statute provides for such a sentence, and that the court ordering it shall not fix the limit or duration of the imprisonment, the time of which is to be determined by the managers of the reformatory, as authorized by law, which time shall not exceed the maximum term of imprisonment provided for the crime of which the prisoner was convicted, which, in this case, is ten years. The petitioner is now being held as though he had been found guilty of burglary in the second degree and could lawfully be imprisoned for the maximum term.
The contention of the petitioner is this : That inasmuch as there was necessarily included in the crime charged the lesser degrees of burglary and larceny, when the jury returned a verdict that he was guilty as charged the verdict was so indefinite and uncertain in not stating the degree of which he was found guilty that it was insufficient to warrant any judgment or sentence, and, therefore, that his imprisonment under the sentence pronounced is void, a commitment thereunder being no sufficient warrant upon which to hold him. This contention is stated in the following language in petitioner’s brief:
“That the judgment and sentence of the district court of Wyandotte county, Kansas, by virtue of which they pretend to hold him is so indefinite and uncertain as to the offense of which he was convicted and sentenced as to nfeke it void, ás no one could determine as to when, under the law, petitioner’s term of imprisonment would expire.’’
This view is energetically contended for at great length, and is sustained by the quotation of numerous authorities from other states. Whether these deci.sions were made under statutes like our own we are unable' to say. Section 671 of the code of civil pro cedure, section 5167, General Statutes of 1901, provides :
“No court or judge shall inquire into the legality of any judgment or process whereby the party is in custody or discharge him when the term of commitment has not expired, in either of the cases following : . Second, upon any process issued upon any final judgment of a court of competent jurisdiction.”
In this state the writ of habeas corpus is not designed as a proceeding to review the mere errors of trial courts. We may grant that the rendition of the judgment upon the verdict was an irregularity of which the petitioner might have availed himself on appeal, such having been the holding of this court in several cases, but that it was and is wholly void we cannot admit; and, unless void, we may not inquire into the legality of the petitioner's detention thereunder in this collateral manner. The case of In re Black, Petitioner, 52 Kan. 64, 34 Pac. 414, 39 Am. St. Rep. 331, is exactly in point. The court there said :
“We think the record in this case shows that the district court regarded the verdict as a verdict of guilty of burglary in the first degree, and proceeded to sentence the defendant accordingly. In doing so the court acted judicially, and judicially determined the effect of the verdict. If the court erred, the defendant had his remedy by appeal. He neglected to avail himself of that right. Wb do not think he can now obtain his discharge from custody because of an erroneous decision' of the court as to the force and effect of the verdict.”
Following this case, we must deny the writ.
All the Justices concurring. | [
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The opinion of the court was delivered by
Cunningham, J. :
The plaintiff in error, who was plaintiff below, brought her action to recover from the city for the death of her husband, occasioned, as she alleged, by its negligence. The facts appearing in the evidence are substantially these : South James street is one of the principal public streets of Kansas City, Kan., running in a southeasterly direction through a populous district near the stock-yards, crossing the state line and extending into Kansas City, Mo. James street is crossed at a point near the state line between Kansas and Missouri by numer ous tracks of the Missouri Pacific Railway Company. To permit the free passage of travel along James street there had been erected over these tracks a viaduct some 3000 feet long, about 1800 feet of which was in Kansas City, Kan., and the balance in Kansas City, Mo. The viaduct crossed the state line at a sharp angle, so that the planks forming the roadway upon it where the line crossed were partly in Missouri and partly in Kansas. The roadway was about twenty-two feet wide and elevated about twenty-five feet above the tracks below. There were no separate ways for foot travel, but pedestrians and teams alike used the entire width.
In October, 1898, some 200 feet of the viaduct immediately over the railroad tracks was knocked down by a passing train and made impassable, in which condition it remained for some two years, during which time a barricade was erected and maintained at each end and travel of all kinds was entirely suspended. After the broken spans were restored in July, 1900, foot travel only was resumed, the floor in the Missoui portion not being in such a condition that it could be used with safety by teams. The barricade, which was still maintained, consisted of a stick of timber two inches by four inches, the ends lying upon the outside railings, supported in the center by a piece of the same dimensions and raised about four feet above the roadway. Large numbers of people came. and went on foot across the viaduct, insomuch that different witnesses spoke of the stream of travel as being “many hundreds” ; as being “a constant stream” ; as being “so many that they could be seen walking over it at any time of day from morning until dark.” Pedestrians coming to the barricade would stoop sufficiently to pass under it and otherwise give it no attention. It was thus used until September, 1901, when the authorities of Kansas City, Mo., preparatory to repairing that end, removed the planks at the Kansas end entirely, and thus, on account of the angle at which the viaduct crossed the state line, left an open triangular space west of the state line and in Kansas City, Kan.
While the plaintiff’s husband had frequently used the viaduct in passing to and from his work during the year from July, 1900, he had not used it for some little time before the floor was torn up, as noted above, and did not know that the hole was there. On October 6, 1901, about eight o’clock in the evening, he started to return home from his work, and for that purpose passed under the barricade at the Kansas end and went along the viaduct until he came to the place where the plank flooring had been removed. It was dark and no lights had been provided, so that he was unaware of the dangerous conditions existing, and stepped into the open space and was precipitated upon the tracks below, causing an injury from which lie died in a few weeks. No other or different barricade had been erected or warning given after the planks had been removed and while the hole was there than had existed from the first — that is, some time in October, 1898.
At the close of the plaintiff’s testimony, which developed the above facts, the court sustained the city’s demurrer thereto, and gave judgment against the plaintiff for costs. This is the.ruling here complained of.
The plaintiff in error contends that the only question here presented is, Was the deceased guilty of contributory negligence in going upon the viaduct and not heeding the barricade? The city claims that the barricade was such a notice to the public that its existence relieved the city from the duty of maintaining the viaduct in a safe condition for public travel; or, in other words, that the closing of the viaduct by the means used suspended the obligation of the city to keep the same safe for public travel during the time it was being repaired and until it should be.reopened by the city. There is little difference in these two statements. The city’s claim assumes the sufficiency of the barricade as a notification to the traveling public of the defective condition of the viaduct. The plaintiff’s statement questions this, or at least claims that the sufficiency of the barricade for that purpose is a question of fact to be submitted to the jury, and not one of law, as the trial court must necessarily have considered it to be, in that it withdrew the question from the consideration of the jury.
That the city was bound to guard the traveling public from the dangers incident to the leaving of the opening in the viaduct by a warning reasonably sufficient to notify the public of those dangers, there can be no question. In the absence of actual knowledge on the part of the deceased of the dangerous condition, it was the duty of the city to inform him of it by some means reasonably adequate to that end. ' A mark across the viaduct or a mere string laid upon the planks would hardly be deemed sufficient, while a tight fence which could not be overthrown or scaled might have been an extreme of precaution not required. Had the danger been slight the precaution to be observed with reference to the notice to the public might have been proportionately lessened. All of these questions are clearly questions of fact and appropriate for the consideration of the jury.
Again, the fact that this barricade had been disre garded for so long a time and by so large a number of people and was so readily passed by pedestrians might reasonably lead to the conclusion that the city knew of such disregard by foot-passengers, and that it was established solely for the purpose of preventing teams from crossing, and was not intended as a warning to those on foot. This, evidently, was the view taken by the plaintiff’s husband, as well as by the public at large. The city, knowing this, as it must be presumed to have known from the extensive and long-continued use made of the viaduct as a footway in disregard of the comparatively slight warning given by it, and when the danger was increased by the entire removal of portions of the floor and the creation of a death-trap, as it were, ought to have increased the notification to the public of the increased danger, by the erection of other additional and more effective barricades or other warnings. By long use, the slight barricade four feet high, easily passed under, ;had come to be regarded by foot-passengers as no notification of danger whatever as to them. By frequent use of the viaduct it was found that there was no danger in crossing it on foot prior, to the tearing up of the planks, leaving a hole there, through which the plaintiff’s husband was precipitated. In many respects the conditions were the same as in the case of Price v. Water Co., 58 Kan. 551, 50 Pac. 450, 62 Am. St. Rep. 625, where a reservoir had been enclosed by a fence, and it was claimed that that should have been sufficient warning of the danger within. Boys had, however, habitually disregarded this warning and had been permitted to play about the reservoir. In that case it was said :
“Whatever merit such precautionary measures might have under other circumstances, it is sufficient to say that, in this case, they were not reasonably effective; because'it was the daily habit of trespassing boys to mount the fence and frequent the reservoirs on the inside, and this habit was known to the company’s responsible agent, and was not only tolerated but went unrebuked by him. Knowing the fence to be ineffective, either as a barrier or warning, it was the duty of the company to expel the intruders, or adopt other measures to avoid accident.
‘‘Whatever advantage the defendant in error might have gained from the erection of a reasonably effective barrier or warning, is neutralized by the facts of its knowlege that the boys did trespass'and its permission to them to do so.”
In Wetmore Township v. Chamberlain, 64 Kan. 327, 67 Pac. 845, where it was claimed that a notice of the defective condition of a bridge and the sufficiency of a barrier upon the approach to a defective bridge should, as a matter of law, be held sufficient to give notice of the defective conditions thereof, this court said:'
“Whether the warning and barriers were sufficient, was a matter for the determination of- the jury; and for like reasons contributory negligence was a question for the jury under the instructions of the court. Un-dér the testimony, a withdrawal of the case from the j ury or an instruction in favor of the defendant would have been gross error.”
We are of the opinion that this quotation fairly expresses the law applicable to this case. A barrier had been erected. Whether, under all the circumstances, it was sufficient to carry notice of defective conditions, is a question of fact which the court should have submitted to the jury.
It is further suggested by defendant in error that plaintiff’s husband was guilty of su'ch contributory negligence in disregarding this barrier and going un der it as to preclude recovery. This, of course, is but another presentation of the same question, which is one of fact for the jury.
A. claim is also made that there was no evidence from which the jury might conclude that the place where the deceased fell was in Kansas City, Kan., rather than Kansas City, Mo. Upon this matter we disagree with defendant in error and find sufficient evidence in the record to justify the conclusion, had the jury reached it, that the place where he fell was in Kansas City, Kan.
We think the court was in error in sustaining the demurrer to the evidence, and the case will be reversed, and remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Gheene, J. :
The plaintiff brought this action to recover damages for injuries to his wife, resulting from the explosion of kerosene oil, while being used in a kerosene lamp for illuminating purposes. The peti tion contained two canses of action. The first was under the statute to recover damages for selling illuminating oil without having it tested ; the second was a common-law action, charging the defendant with having manufactured for illuminating purposes oil which was unsuitable for such purpose because of its liability to give off inflammable vapors. ' In both causes it was alleged that the oil was sold by the defendant to one Jehu, a retail grocer, and by Jehu sold to the plaintiff; that while plaintiff’s wife was using the oil for illuminating purposes in an ordinary kerosene lamp the oil exploded, from which injury resulted to her. The defendant demurred to the plaintiff’s evidence in support of the second cause of action, and the demurrer was overruled. This is the first material error of which complaint is made.
The demurrer should have been sustained. Before the plaintiff could recover on this cause of action, he would be compelled to establish the fact that the defendant had manufactured the oil sold to Jehu and by Jehu to the plaintiff. There is not only an entire absence of any evidence tending to sustain this fact, but all the evidence offered by either party is to the effect that the defendant was a dealer in oil, and purchased from manufacturers and refiners and sold to the retail trade. The general rule of the common law is that where a dealer sells goods on the.market for retail, if there is no express warranty of the quality of. the goods and no fraud or deceit, the rule of caveat emptor applies. ( Winsor v. Lombard, 18 Pick. 57 ; Mixer and another v. Coburn, 11 Metc. 559, 45 Am. Dec. 230; French v. Vining, 102 Mass. 132, 3 Am. Rep. 440.) There were no allegations of an express warranty that the oil was suitable for illuminating purposes, that the defendant was guilty of any fraud or deceit in selling the oil to Jehu, or that the defendant knew the oil was dangerous.
It is contended that the instructions given were inapplicable, erroneous, misleading, and prejudicial. This depends upon what questions should have been submitted to the jury. If the court had ruled correctly on the demurrer to plaintiff’s evidence, the instructions should have been confined to the injury to plaintiff’s wife, the sale of the oil by defendant, and whether or not the oil had been sold without being inspected and tested as required by chapter 72a of the General Statutes of 1901. The instructions given embraced many questions other than those pertaining to the first cause of action, and were given with the view of covering the law applicable to the allegations of the second cause of action. Some of the instructions authorized a recovery if the oil sold by the defendant emitted inflammable and combustible vapors at a temperature of 110 deg; F., or.less, when being used as described by plaintiff, whether it had been tested in good faith or not.
Our statute, unlike the statutes of many states, does not give a right of action against the seller of oil for damages sustained by an explosion except where the oil was sold without having been tested. It gives that right, however, if the oil has not been tested, regardless of what its actual test may be. The purpose of the act is to require all oils to be tested before being put on the market; in all its provisions that one idea predominates. The violation of many of its provisions constitutes a misdemeanor ; as, for instance, the selling of oil that has been tested and rejected. Notwithstanding it is a misdemeanor to sell such oils, the statute gives no right of action to recover damages caused by their explosion. The only civil remedy given by the statute is for damages occasioned by the explosion of oil that ' was not tested. It does not appear in the act that the legislature had in mind the protection of the citizens, either in person or property, from the sale of oils which are liable to give off inflammable and combustible vapors when in ordinary use, since no civil remedy is given except in the one instance.
The first cause of action was under the statute, and was drawn for the purpose of recovering damages resulting to plaintiff’s wife from the explosion of kerosene oil sold by the defendant without having been tested. The instructions should have been confined to the issues raised thereon and the evidence applicable to such issues. In going beyond this, and giving instructions upon questions not involved, and misleading the jury in the particulars herein indicated, the court committed prejudicial error.
There are some objections urged to the admission of evidence, and especially that of the witnesses who testified as experts, some of which objections appear to be well founded ; but, as such questions will probably not arise on a retrial of this cause, we have not thought it necessary to discuss or decide them.
The .judgment of the court below 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. :
A rehearing of this cause was allowed mainly for the purpose of a further consideration of the application of the statute of limitations to the causes of action stated in the petition. Counsel' for the parties have presented.the question again with marked ability and a full citation of authorities. In the former opinion the averments of the petition were set out at length, and a repetition at this time is unnecessary. (A. T. & S. F. Rly. Co. v. Atchison Grain Co., 70 Pac. 933.) They disclose the fact that the causes of action set up were founded on the violation of an oral contract, and cannot be classed as an action for relief on the ground of fraud. It is true there is an allegation that the railway company covertly and fraudulently entered into arrangements with other shippers whereby it gave them rates of transportation so much lower than those given to plaintiffs as abso-. lutely to bar them from handling grain. This, however, was only a statement that an express contract between the parties was broken, the breach of which was relied upon for á cause of action. Since the gist of the action was the violation of a contract, it is manifest that it does not fall within the third subdivision of section 18 of the civil code (Gen. Sta't. 1901, § 4446), viz., “action for relief on the ground of fraud,” wherein is added the express exception that “the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud.” On our first consideration, the conclusion was reached and stated that “concealment and fraud constitute an implied exception to the statute of limitations, and a party who wrongfully conceals material facts, and thereby prevents a discovery of his wrong, or the fact that a cause of action has accrued against him, is not allowed to take advantage of his own wrong.”
Counsel for plaintiff in error press upon our attention the question whether, where the legislature, having confined the exception to “action for relief on the ground of fraud,” there is any reason or warrant for applying it to other causes of action. It is insisted that the court cannot imply or create exceptions additional to those specifically provided in the statute. The legislature declared that “civil actions, other than for the recovery of real property, can only be brought within the following periods after the cause of action shall have accrued, and not afterwards.” Among others enumerated is the one involved here— “Within three years : An action upon a contract not in writing, express or implied.” The legislature then declares certain exceptions in addition to the one appended to the cause of action for relief on the ground of fraud. In section 19 of the code (Gen. Stat. 1901, §4447) an exception is made in favor of a person under a legal disability at the time a cause of action accrues. Another exception is made in section 21 of the code (Gen. Stat. 1901, §4448), where the defendant is out of the state or has absconded and concealed himself. Another is created in section 22, where the ■cause of action arose in another state or country. In section 23 an exception is made in case of a reversal or failure of an action otherwise than upon the merits. In section 24 provision is made for starting the statute anew by a payment or acknowledgment of indebtedness. These exceptions., and we do not know that all have been stated, show that the attention of the legislation was directed to exceptions to the general rule, and the question is whether the court can add to those provided by the legislature and in effect amend the code.
The effect of making an exception to an act of limitation was considered in Swickard v. Bailey, 3 Kan. 507. It was there said :
“This action shows conclusively that the legislative mind was directed to the subject we are considering. The provision is not as broad as in the judgment of many it should be, but the fact that any exception at all was made is strong evidence that no other or greater one was intended. At all events, according to the most familiar of the canons of interpretation, the court is bound to say, that having mentioned one exception, all others were intended by the legislature to be excluded.”
See, also, Perry v. Wade, 31 Kan. 428, 2 Pac. 787, and Stinson v. Aultman, 54 id. 537, 38 Pac. 788.
In Bank of the State of Alabama v. Dalton, 9 How. 522, 529, 13 L. Ed. 242, in the matter of engrafting on a statute of limitation exceptions not found therein, the court said :
“The legislature having made no exception, the courts of justice can make none, as this would be legislating. In the language of this court in the case of McIver v. Ragan, 2 Wheat. 29 [4 L. Ed. 175] : ‘ Wherever the situation of the party was such as, in the opinion of the legislature, to furnish a motive for excepting him from the operation of the law, the legislature has made the exception, and it would be going far for this court to add to those exceptions.’ The rule is established beyond controversy.”
The supreme court of Tennessee, in discussing the matter of exceptions to a statute of limitations where the legislature had made none, remarked that it was “well convinced that this court has no such power; that it is our duty to administer the law regardless of particular cases of hardship, and that it belongs exclusively to the legislature to alter the law if it is oppressive or inconvenient. It is believed that such has been the course of decision, with slight aberrations in reference to the act of limitations for centuries.” (Cocke and Jack v. McGinnis, Mart. & Yerg. 361, 17 Am. Dec. 809.)
The same question was before the supreme court Of "Wisconsin in Woodbury v. Collins, Shackleford, and another, 19 Wis. 65, and it was said :
“In the construction of statutes of limitation, general words are to have a general operation ;• and where thefe cannot be found in the statute itself some ground for restraining it, it cannot be restrained by arbitrary addition or retrenchment. No exceptions can be claimed in favor of particular persons or cases, unless they are expressly mentioned.”
There may be strong reasons for making an exception where there is concealment of a cause of action or where the element of fraud enters somewhat into the breach of the contract upon which an action is brought. The legislature, however, after considering' the subject, did not deem it wise to make such exception, but on the other hand positively declared that concealed fraud should operate to toll the statute in the single action brought for relief on the ground of fraud. While concealment is alleged and wrongs akin to fraud are charged by the grain company, it does not ask that the contract be set aside because of the fraud, but, relying oh that contract, asks to recover the loss sustained by its breach.
The fraudulent concealment that a right of action for the breach of a contract exists does not change the nature of the action nor shift it into the class named in subdivision 8 of section 18 of the civil code. In fact, the petition in this case did not allege a fraudulent concealment of the cause of action, but only went so far as to say that “defendant succeeded in concealing the fact of such discrimination from plaintiff until less than eighteen months prior to the filing of this petition.” How it succeeded in concealing the fact is not stated. Whether it was by silence, misrepresentation, or some affirmative action, is not pleaded, nor is there any averment as-to what diligence was used by the grain company in uncovering the discrimination, or that the means of discovery-were not within its reach all of the time. As soon as-the grain company found itself unable to ship grain or compete with others engaged in the same business, it suggested an inquiry, and if inquiry had developed the discrimination, it cannot assert a want of knowledge. Ordinarily, a means of knowledge is equivalent to knowledge. Even if the facts constituting-fraudulent concealment had been specifically set out, it could not have affected this action for the reason that it is not founded on fraud, and, therefore, not. subject to the statutory exception. In Perry v. Wade, supra, it was said :
“Of course the mere concealment of a cause of action, or the concealment that a cause of action had ever accrued or ever had any existence, does not of’, itself bring the case within the above-quoted provisions of subdivision 3, § 18, of the civil code, nor does-it prevent the statute of limitations from running.”
In Stinson v. Aultman, supra, it was held that the-provision with reference to the accrual of a cause of' action upon the discovery of the fraud of the defendant, has no application to an action based on a contract. In discussing the claim that the fraudulent conduct of the defendant prevented the plaintiffs from enforcing their contract, it was said :
“What they do claim is that his fraudulent conduct prevented them from knowing that they had a claim which they might enforce against him — prevented them from collecting the amount of the Newman note from Stinson himself. The concealment by Stinson of the fact that they at one time had a cause-of action which they might have enforced against him does not alone, and of itself, constitute a legal fraud. As the plaintiff’s cause of action is founded solely on a written instrument on which an action might have been brought more than five years before the commencement of this action, it is barred by the statute of limitations.”
In some of the states fraudulent concealment of a cause of action is made to extend the time of bringing the action for the period of limitation after the discovery that a cause of action exists; but the code of this state makes no such provision, except as to actions for relief on the ground of fraud. So far as actions founded upon agreements or contracts are concerned, the operation of the statute depends upon the nature of the cause of action and not upon the time that a plaintiff discovers that he has a right of action. The action accrues when the contract is violated and not at the time when the plaintiff learns* that it has been violated. In the absence of a statute making concealment an exception to the statute of limitations, the courts cannot create one, however harsh and inequitable the enforcement of the statute may be. (Fee’s Administrator v. Fee, 10 Ohio, 469, 36 Am. Dec. 103 ; Lathrop and wife v. Snellbaker, 6 Ohio St. 276; Howk v. Minnick, 19 id. 462, 2 Am. Rep. 413 ; The State, ex rel., v. Standard Oil Company, 49 id. 137, 30 N. E. 279, 15 L. R. A. 145, 34 Am. St. Rep. 541; Smith v. Bishop, 9 Vt. 110, 31 Am. Dec. 607; Jas. Peak v. Lafayette Buck and wife, 3 Baxt. 71; Troup v. Smith, 20 Johns. 32; Allen v. Mille, 17 Wend. 202; Exkorn v. Exkorn, 1 Hun, App. Div. 124, 37 N. Y. Supp. 68; Miller v. Wood et al., 116 N. Y. 351, 22 N. E. 553 ; Freeholders of Somerset v. Veghte, 44 N. J. L. 509 ; P. P. Mast & Co. v. Easton, 33 Minn. 161, 22 N. W. 253 ; Jacobs v. Frederick, 81 Wis. 254, 51 N. W. 320; Blount v. Parker, 78 N. C. 128; Wood, Lim., 3d ed., § 274.)
The action abcrued when the alleged wrongs were committed and the contract was violated. The fact that the contract relations between the parties were to continue for a year did not operate to extend the starting of the statute. When the wrongs were consummated which made it impossible for the grain company to continue business under the contract, the contractual relations were practically broken off and the statute of limitations then began to run.
Attention is called to McMullen v. Loan Association, 64 Kan. 298, 67 Pac. 892, 56 L. R. A. 924, 91 Am. St. Rep. 236, as an authority in favor of an implied exception. In that case a fiduciary relation existed between the parties, McMullen being in fact an agent. He had control of the business and funds of the association and his position made it easy for him to cover 'up the fraudulent conversion of the funds. It was his duty to speak and disclose the actual condition, but because of his fraudulent acts and concealment the association did not learn of the breach of trust and the wrongs done for a considerable time. The relation of trust and confidence placed that case in another class, wherein the general rule of equity applies, that the statute of limitations does not begin to run until the breach of trust or default in performance of duties is brought to the knowledge of the principal.
It follows from what has been said that the district court was in error in sustaining the petition of .the grain company.
Smith, Cunningham, Greene, Burch, Atkinson, JJ., concurring. | [
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The opinion of the court was delivered by
Mason, J.:
John H. Elward and William A. R. Elward, on September 25,1894, executed to George T. Gilliam a negotiable note due in five years, and William A. R. Elward executed as security for the note a mortgage on real estate in Reno county. On June 24, 1901, John Charles Birket sued the Elwards on the note and mortgage, claiming to have acquired them by indorsement and under such circumstances as to make him an innocent purchaser. The defendants answered with a general denial which put in issue the question whether plaintiff was a bona fide holder, and an allegation that the note had been fully paid to Gilliam by the makers without knowledge or notice of any transfer to plaintiff. A reply was filed, consisting of a general denial.
Upon the trial plaintiff testified that he acquired the note April 28, 1896, as collateral security for a loan of $2000 made to Gilliam at that time. The evidence of defendants showed that on May 25, 1896, the Elwards executed a new note and mortgage to Gilliam in consideration of the satisfaction of the old debt and an additional loan of $500 ; that the old papers were surrendered to John H. Elward, who placed them in a box, which he left in the custody of Gilliam ; that on June 25, 1896, a release of the first mortgage, executed and acknowledged by Gilliam, was filed for record with the register of deeds. The amount due plaintiff from Gilliam was shown to be $814. The court instructed the jury that the only question for their determination was the date at which plaintiff acquired the note; that if he acquired it before June 25, 1896 (the date of the record of the satisfaction of the mortgage), he should recover ; that otherwise the verdict should be for defendants. The jury found specially that plaintiff acquired the note after that date, and judgment followed for the defendants, which plaintiff now seeks to reverse.
The theory upon which the trial court held the date of the recording of the mortgage release to be important is not discussed in the briefs, and is not material, since the instruction and judgment are now defended on the ground that if plaintiff took the note as collateral security for Grilliam’s debt at any time after such debt was created (namely, April 28, 1896), he took it subject to any defense that could be made against the original payee. It is obvious that plaintiff could only recover on the theory that he was an innocent purchaser, and the sole question here involved, therefore, is whether one who takes-com'mercial paper as collateral security for an existing debt, without an agreement for an extension of time or other new consideration, is ever entitled to protection as a bona fide holder. If so, the judgment must be reversed ; otherwise it must be affirmed.
The rule in the federal courts as well as in those of England and Canada is that the holder of a negotiable note taken as collateral security for a preexisting debt is a holder for value in due course of business, and as such is protected against all latent equities of third parties. The state courts that have passed upon the question are in irreconcilable conflict. The cases are collected in volume 4 of the American and English Encyclopedia of Law, second edition, pages 290 to 293, and in volume 7 of the Cyclopedia of Law and Procedure, pages 932 to 935. The lists there given indicate with substantial, but not absolute, correctness the line of cleavage. It is to be noted that in each of them Kansas is wrongly placed among the states that are committed to the rule stated, upon the strength, respectively, of the cases of National Bank v. Dakin, 54 Kan. 656, 39 Pac. 180, 45 Am. St. Rep. 299, and Best v. Crall, 23 id. 482, 33 Am. Rep. 185. While these cases have a tendency in that direction they do not go the full length indicated. In Bank v. Dakin the note involved was transferred as collateral security for a debt created at the time of, and in reliance upon, such transfer, which was therefore supported by a new consideration sufficient upon any theory of the law. In the opinion a number of cases are cited as supporting the proposition that even a preexisting debt would afford a sufficient consideration for the purpose, and among them was included Best v. Crall. In that case the collateral note was in fact transferred as security for a debt that already existed, but this was done pursuant to a promise made when such original debt was created, so that the effect was the same as though the transfer had actually been made at that time.
A careful examination of the cases cited in the lists referred to discloses that in the following states the rule of the federal courts has been adopted, although in California and Nevada the matter is affected by statutory provisions that the acceptance of the security forfeits a right to attach : California. Colorado, Connecticut, Georgia, Illinois, Indiana, Louisiana, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, Rhode Island, South Carolina, Texas, Vermont, and West Virginia. Nebraska also is now committed to this doctrine. (Lashmett v. Prall, 2 Neb. [unofficial] 284, 96 N. W. 152.) Such citations further show that in the following states the rule has been denied : Alabama, Arkansas, Iowa, Kentucky, Maine, Michigan, Mississippi, Missouri, New Hampshire, New York, North Dakota, Ohio, Pennsylvania, Tennessee, Virginia, and Wisconsin, North Carolina also should now be placed in this list, but there, as well as in Tennessee and in Virginia, the recent adoption by the legislature of a complete code relating to negotiable instruments is held to have changed the rule. (Brooks v. Sullivan, 129 N. ' C. 190, 39 S. E. 822 ; Bank v. Johnston, 105 Tenn. 521; 59 S. W. 131; Payne v. Zell, 98 Va. 294, 36 S.E. 379,) The same code was adopted in New York in 1897. Upon the strength of its provisions that “value is any consideration sufficient to support a simple contract,” and that “an antecedent or preexisting debt constitutes value,” it was held in Breivster v. Shrader, 57 N. Y. Supp. 606, that the law in this respect, as formerly administered in that state, had been changed, and that now “an indorsee of a note taken as collateral to a preexisting indebtedness is a holder for value, unaffected by equities between the oi-iginal parties.” But in Sutherland v. Mead, 80 Hun, App. Div. 103, 80 N. Y. Supp. 504, this was denied, and it was said that this part of the new statute is purely declaratory. We do not discover that the New York court of appeals has passed on the effect of this legislation on the matter under consideration.
What may fairly be called the minority doctrine originated in New York in Bay v. Coddington, 5 Johns. Ch. 54, 9 Am. Dec. 268, the opinion being written by Chancellor Kent. The leading case in this country on the majority side is Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865, the opinion being.written by Justice Story. It was there declared that one who took negotiable paper in payment of, or as security for, a preexisting debt, was a holder for value and in due course of busi ness, and the argument was made in support of that express proposition. But the reference to paper taken as security was not required by the facts of the case, and Justice Catron dissented oh this ground. In Railroad Co. v. National Bank, 102 U. S. 14, 26 L. Ed. 61, the same reasoning was adopted and applied in a case where the transfer was made merely to secure an antecedent debt. The note there involved had several indorsers and the obligation assumed by the last holder to give them notice of non-payment was treated as a part of the consideration of the transfer, but the decision did not turn upon this treatment. And in American File Company v. Garrett, 110 U. S. 288, 4 Sup. Ct. 90, 28 L. Ed. 149, the principle was applied where there were no prior indorsers. In the opinion in Railroad Co. v. National Bank, it was noted ( citing 3 Kent, 81, note b) that Chancellor Kent, after the decision in Swift v. Tyson, indicated that he was inclined to concur in it as the plainer and better doctrine.
The cases of Bay v. Coddington and Swift v. Tyson are cited in almost every opinion in which the merits of the question under consideration are discussed, and the state courts have ordinarily taken sides upon the matter as the arguments of the one decision or the other have appealed to them with the greater force. In the former case it was said :
“It is the credit given to the paper, and the consideration bona fide paid on receiving it, that entitles the holder, on grounds of commercial policy, to such extraordinary protection, even in cases of the most palpable fraud. It is an exception to the general rule of law, and ought not to be carried beyond the necessity that created it.”
In the latter case it was said :
“Receiving it (a negotiable instrument) in payment of, or as security for a preexisting debt, is according to the known usual course of trade and business. And why upon principle should not a preexisting debt be deemed such a valuable consideration ? It is for the benefit and convenience of the commercial world to give as wide an extent as practicable to the credit and circulation of negotiable paper, that it may pass not only as security for new purchases and advances, made upon the transfer thereof, but also in payment of and as security for preexisting debts. The creditor is thereby enabled to realize or to secure his debt, and thus may safely give a prolonged credit, or forbear from taking any legal steps to enforce his rights. The debtor also has the advantage of making his negotiable securities of equivalent value to cash. But establish the opposite conclusion, that negotiable paper cannot be applied in payment of or as security for preexisting debts, without letting in all the equities between the original and antecedent parties, and the value and circulation of such securities must be essentially diminished, and the debtor driven to the embarrassment of making a sale thereof, often at a ruinous discount, to some third person, and then by circuity to apply the proceeds to the payment of his debts.” (Page 19.)
Among other arguments advanced in behalf of the majority view are these, that the question is really one of the law merchant- — the custom of merchants, and that a ‘ ‘ transfer by a debtor to his creditor of a negotiable instrument, to payoronlyto secureaprior debt, makes the creditor a holder for value by the custom” (Big. Bills, N. & C., 2d ed., 247) ; that the creditor in accepting a negotiable note, whether or not there are parties to be charged by notice, does undertake to exercise some degree of diligence (2 Rand. Com. Paper, 2d ed., § 804), thereby affording a new consideration ; or at all events that he “is naturally lulled into security and inactivity by crediting the face of the note ; and he should not be made to suffer by the maker for confi dence which his own promise created” (1 Dan. Neg, Inst.,' 5th ed., § 831a) ; that the true consideration for the transfer is the debt due from the indorser to-the indorsee and the obligation to pay or secure said debt; that such transfer is a sufficient consideration, because “security for the payment of a debt actually owing is a good consideration, and sufficient to support a transfer of property.” (Railroad Co. v. National Bank, supra.) That the policy of the law is to-facilitate the transfer of negotiable paper free of equities is illustrated by the fact that it is almost universally held that one who acquires it in payment of an antecedent debt is a bona fide holder (Draper v. Cowles, 27 Kan. 484; 4 A. & E. Encycl. of L., 2d ed.,285); whereas the ordinary rule in reference to protection under recording acts is that one who accepts property in satisfaction of an existing debt is not an innocent-purchaser. (23 A. & E. Encycl. of L., 2d ed., 490; Dolan, Sheriff, v. Van Demark, 35 Kan. 304, 10 Pac. 848; Henderson v. Gibbs, 3d id. 679, 18 Pac. 926.) Even where-the New York doctrine is accepted an exception is-made against the plea of lack of consideration when made by an accommodation party to the paper transferred as .security. (Grocers’ Bank v. Penfield et al., 69 N. Y. 502, 25 Am. Rep. 231; Maitland v. The Citizens’ Natl. Bank of Balto., 40 Md. 540, 17 Am. Rep. 620; Smith v. Hine, Appellant, 179 Pa. St. 260, 36 Atl. 221.)
If the question were a new one, to be determined, upon the consideration of equitable principles, there-would be strong reasons for holding that he who takes-a note merely as security for an existing debt acquires no greater right than his debtor had. The-reasons given in Mann v. National Bank, 30 Kan. 412, 1 Pac. 579, for applying this rule to a bank that receives a note from a depositor and adds the amount to- his account, which is not overdrawn, would seem to apply to the case of one who receives the paper as collateral for an indebtedness already existing. He parts with nothing, and is in no worse situation than he was before. It requires no variation of usual procedure to save him from loss. But on the other hand, the same arguments would reach the case of him who takes commercial paper in payment of an existing unsecured debt. He likewise is in no way placed in any worse situation than he was before, since while the original debt may be regarded as technically canceled, he at all events has his remedy upon the collateral against the person from whom he received it, whatever defense might be available to the maker. He still has a valid claim against his original debtor, and that is all he had in the first place. ( 1 Rand. Com. Pap. §§ 461-465.) Yet, as has just been said, one acquiring commercial paper under such circumstances is held to be protected as an innocent purchaser.
But the question before us is peculiarly one in which great weight should be given to the authorities, and especially to the decision of the courts of the national government, which do not recognize any local law in such matters. (Oates v. National Bank, 100 U. S. 239, 25 L. Ed. 580.) The question is one likely to arise frequently in transactions between inhabitants of different states. It is important that the law be uniform in the different jurisdictions. The recognition of this consideration prompted the effort at codification of the law of negotiable instruments which resulted, as already noted, in a reversal of policy in North Carolina, Tennessee, and Virginia, and perhaps in New York. Of this effort it is said, in a book review in 38 American Law Review, pages 150,151:
“In December, 1895, a draft of an act was prepared by Mr. John J. Crawford, of the bar of New York city, and was reported to the meeting of the New York board of commissioners for promoting uniformity of legislation, which sat at Saratoga in 1896. Then, after consultation with the state board, with the committee of the American Bar Association on commercial law, and after consideration by that association, it was revised and finally adopted. . . . It has been adopted by the legislatures of twenty-two states of the Union, if we include the District of Columbia, the legislature of which is the Congress of the United States.”
We prefer to hold in accordance with the weight of authority that an indorsee of negotiable paper taken as security for a preexisting debt is a holder for value- and in due course of business, and therefore, in the absence of any circumstances charging him with notice, is protected against a claim of payment made to the original payee.
It is to be noted that the petition in this case alleges that the note in question was indorsed by Gilliam to plaintiff. This statement was not denied under oath and was therefore not put in issue. The record shows that the note with all indorsements was offered in evidence as a part of plaintiff’s deposition, but the purported copy does not show any indorsement. In the state of the pleadings this is not material, but of course, if the note was not' actually indorsed by Gilliam, plaintiff was not in fact a bona fide holder.
The judgment is 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
Burch, J.:
The plaintiff sued the defendant for the value of wheat which he had stored in the defendant’s elevator, and which the defendant sold. He alleged an express contract covering the terms of the transaction. The defendant admitted the storage of the wheat and its sale, and claimed the relations of the parties were fixed by an express agreement, but the contract he proposed differed in certain material respects from that for which the plaintiff contended. At the trial'the defendant offered^ evidence of a custom among elevator men of the locality relating to the disputed items of the contract. The court rejected the evidence, and its ruling upon' that subject is assigned as error.
The defendant claims that the custom was identical with his version of the contract; that evidence of it would have corroborated his testimony as to what the agreement was, and that it would have furnished a basis for the adjustment of the differences between the parties in case the jury found that their minds had not met. The claim of error is predicated upon the refusal of the court to permit certain questions to be answered. Favorable answers to all the questions propounded would not have shown that the plaintiff knew of the claimed custom, or that it was so notorious as to furnish a presumption of knowledge. No offer to make this showing is disclosed. Without that the testimony was insufficient, and the ruling of the district court was correct. (Law, Us. & Oust. §§ 18, 19.) But beyond this, usage or custom cannot make a contract when the parties themselves have made none. (National Bank v. Burkhardt, 100 U. S. 686, 692, 25 L. Ed. 766; Thompson v. Riggs, 5 Wall. 668, 679, 18 L. Ed. 704; Tilley v. County of Cook, 103 U. S. 155, 26 L. Ed. 374.) And the defendant did not claim that technical or trade terms had been used to which a peculiar meaning requiring explanation attached. (Seymour v. Armstrong, 62 Kan. 720, 64 Pac. 612; Cosper v. Nesbit, 45 id. 457, 25 Pac. 866.) Or that the contract was ambiguous or indefinite or silent upon any matter (Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444), or that the intention of the parties could not be ascertained from the language they employed. (McCulsky v. Klosterman, 20 Ore. 108, 10 L. R. A. 785, 25 Pac. 366.) This is the only proper function of usage or custom. (Barnard v. Kellogg, 10 Wall. 383, 390, 19 L. Ed. 987.) Therefore the evidence sought to be introduced was irrelevant and immaterial.
At the trial the defendant admitted that he did not keep on hand at the place of storage in Abbyville, in Reno county, a quantity of wheat like in kind and quality to that of the plaintiff's sufficient to meet the plaintiff's demands, and, for the purpose of enabling him to collect storage charges, offered to show that he had wheat in a Topeka elevator with which to satisfy his contract with the plaintiff. This offer the court rejected, and its ruling is assigned as error.
The contract of the parties had reference solely to the place of storage selected by the owner of the wheat. The character of the warehouse structure, its location, the method of handling grain in use there, and many other circumstances may control the depositor’s choice of a place. The right of the owner of stored grain to protect himself from fire, and his protection against the creditors of the warehouseman, all relate to that place alone. The warehouseman may refuse a demand to deliver at any other place, and the owner may refuse to receive at any other place. Hence, without a new contract, the obligation of the warehouseman to keep on hand the depositor’s wheat, or other wheat of like kind and quality, sufficient to satisfy the depositor’s demands can only be discharged at that place. It is for this alone that storage charges are paid, and if this duty be not performed such charges cannot be recovered. Therefore, the evidence offered was properly rejected.
Pending the litigation the parties made an effort to compose their difficulties, and did agree upon a basis of settlement which they embodied in two written instruments. In a supplemental answer the defendant pleaded a balance due him, ascertained and agreed to, under the instruments referred to, while the plaintiff, in a supplemental reply, repudiated the settlement altogether. Upon these pleadings and the evidence several theories of the case were tenable. The court instructed the jury upon all phases of the controversy and many of these instructions are assailed as erroneous. It is not necessary to discuss at length the questions raised. Both the evidence and the instructions have been carefully examined and the instructions appear tp be unimpeachable. The chief argument of the defendant against them seems to overlook the fact that the witness he called to prove the computation made upon the written basis of settlement, and to prove the balance ascertained by such computation, testified that the plaintiff repudiated the result of the calculation altogether. The plaintiff could only be bound by a true balance. In order, therefore, for the jury to find for the defendant upon his theory of the case, it was necessary for it to determine whether or not, in making his calculation, the defendant’s witness had actually employed lawful methods in dealing with proper items, and had, therefore, reached a correct conclusion. The jury could not do this without the aid of instructions, and those given were correct.
None of the assignments of error is well grounded,, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J. :
In March, 1899, Henry B. Blackman owned a quarter-section of land in Phillips county, upon which there was a mortgage securing a note for $1000, which had been due for more than five years, and was apparently barred by the statute of limita tions. J. Q. Lowe bought the land from Blackman for $325. In January, 1900, Lowe asserted that he had been induced to buy the land upon the representation of Blackman that the mortgage was outlawed, whereas, in fact, its validity had been preserved by a written acknowledgment. Upon the strength of this assertion he demanded that Blackman restore to him the purchase-price. On January 12, 1900, Blackman and his wife executed to Lowe’s wife, E. J. Lowe, a mortgage upon a quarter-section of land in Graham county, which Blackman had purchased with the money obtained by the sale to Lowe, securing a note for $825, due in two years. On January 20, 1900, Blackman brought an action against Mrs. Lowe, asking the cancelation of such mortgage, alleging that he signed it only by reason of duress induced by the threat that unless he' did so Lowe would send him to the penitentiary for his conduct in connection with the sale of the Phillips county land. In May, 1900, the plaintiff, upon a showing that the mortgage had been transferred by Mrs. Lowe to C. E. Nelson, and by him to George James, caused these assignees to be made parties defendant. On September 14, 1900, James filed an answer, in which he claimed the rights of an innocent purchaser of the note and mortgage, and alleged that he had acquired them by indorsement on January 16, 1900. A reply, duly verified, was filed, which included a general denial. A trial was had without a jury, resulting in a judgment for plaintiff, which defendant James now seeks to reverse.
The only contentions made are that there was not sufficient evidence to sustain a finding of duress, and 'that, in any'view of the facts presented, the defendant was protected as an innocent purchaser of negotiable paper.
The plaintiff testified that Lowe threatened him with a criminal prosecution, and that he would not have signed the mortgage but for this threat. It was not admitted that he had been guilty of any criminal offense, and if it can be said that there was evidence tending in that direction, it was certainly far from ■conclusive. Within the doctrine of Heaton v. Bank, 59 Kan. 281, 52 Pac. 876, and cases there cited, the evidence warranted the cancelation of the mortgage as against the original holder.
It is argued in behalf of plaintiff in error that there was a presumption that he was an innocent purchaser, and that this presumption was not overcome. He pleaded that he acquired the note four days before the filing of the suit, but testified that he thought he had bought it two months later. He therefore bought with constructive notice of the plaintiff’s claim, unless the negotiable character of the note exempted the purchaser of the mortgage from the ordinary effect of a pending suit relating to real estate. This question need not be determined. The allegation that the note was indorsed by the original payee and by the intermediate holder was denied under oath, and before defendant could claim that either he or Nelson, from whom he acquired it, was an innocent purchaser, it was incumbent upon him to prove at least the in-dorsement by Mrs. Lowe. This he wholly failed tb do. Without such indorsement the note could not be transferred freed from equities.
The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
Plaintiff’s action was one to recover damages for the publication of an alleged libel. The libelous matter was contained in a letter written by the defendant’s cashier, which closed with the following sentence : “I hope that you will give this matter due consideration, and trust that you will treat it as strictly confidential.”
The action was begun more than one year after the writing of the letter, and is barred, unless saved by the allegation which the petition contained, that its publication was not discovered, by reason of fraudulent concealment, until within one year prior to the commencement of the action. Admitting that the matter contained in the letter was libelous, and admitting that the sentence above quoted amounts to a fraudulent concealment, upon neither ■of which we express an opinion, the question falls within the principle discussed and decided by this court in the case of Railway Co. v. Grain Co., ante, page 585, 75 Pac. 1051, and will be governed by the ruling in that case.
It follows that the judgment of the district court in sustaining the demurrer of the defendant to the petition, and rendering judgment against the plaintiff for costs, is correct and must be affirmed. | [
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The opinion of the court was delivered by
Cunningham, J.:
This was an action by the plaintiff in error against Emma Overton individually and as administratrix of the estate of Thompson Overton, deceased, and Earlie Overton, her son. The petition stated that Thompson Overton, a resident of Hamilton county, Kansas, died intestate, leaving personal and real property in that county subject to adminis tration; that Emma Overton was his widow and Earlie Overton his son ; that letters of administration were issued out of the probate court of that county to the widow, who gave bond and filed an inventory of the estate which had come to her hands, showing property in excess of $8000 ; that the administratrix had sold a portion of this property and discharged a mortgage which Thompson Overton had placed thereon. The petition alleged further :
“That said defendants, Emma Overton and Earlie Overton, have unlawfully, wilfully and fraudulently assumed the ownership of and converted to their own use the balance of said mortgaged property, which was the property of the estate of said Thompson Over-ton, deceased, and have converted to their own use other personal property of said estate, and are selling the said personal property for the purpose of defrauding the creditors of the estate of Thompson Overton ; that said personal property is now in the immediate possession of the said Emma Overton and Earlie Overton, defendants herein; that said defendants have fraudulently caused said cattle, or a part thereof, to be rebranded in the brand of the said Earlie Over-ton.”
Plaintiff further alleged that he had recovered a judgment against the estate of Thompson Overton, by the consideration of the probate court of Hamilton county, Kansas, which remained due and unpaid. It appears from the entire petition that administration of the estate of Thompson Overton was begun and was duly progressing, there being no allegations that the same had been closed up or any effort so to do made by the administratrix, the time for final settlement not having elapsed. The petition concluded with the following prayer : “Wherefore, the plaintiff prays judgment against the defendants, Emma Over-ton, administratrix of the estate of Thompson Over- tó'nyíEmíma-'Overton;.',and .Earlie Overton,-in the sum of' |921', and'for costs'.” - An attachment was issued property belonging-to. the; estate was; seized:-The-'' answer was but little more than a. gen'eraL denial. L
'Subsequently: the'plaintiff-dismissed his action as-’ agáihst Earlie Overton and1 Emma Overton in her in -.; dividual capacity. Upon-tlie ■ statement of Emma.. Overton, as.administratrix, that the claim sued on. was not resisted, judgment was,rendered' against her as. such administratrix- for' the amount of the plaintiff's claim, sustaining the. attachment against the-property of the estate Which had be'en taken there-' under, finding the plaintiff had a first lien theréoñ,.1 ordering the sale of this property and the application’ 'of the proceeds-to the payment.of the judgment rendered and the costs of the action. Afterward, at an. adjourned day of the same term, a motion was filed1 by the administratrix of the estate to vacate this-judgment because it-was void. She had, however,, prior to the filing of this motion,.filed- a petition in error in this .court .seeking to reverse the judgment. This petition in error was pending at the time of the-hearing of the motion to vacate the judgment. ■ The-motion to set aside the, judgment was sustained by-the court, to reverse which ruling the plaintiff -in ’ error brings this proceeding.
We are of the opinion that the judgment against-Emma Overton- as administratrix was void for three ( reasons: (1) No cause of action was stated in the.. petition against her in her official capacity, the wrongs-. complained of haying been committed entirely by Emma Overton and Earlie Overton as individuals ; (2) . if Emma Overton as administratrix had been charged, with a conversion or concealment of the.property the.-. plaintiff would have had.no right to. proceed against h'eiW by attachment'to obtain-A preferential'payment' of Mb’claim‘.out-of‘ the assets 'of the estate ; (3) -the district1 court had ho'jurisdiction-to render the judgment it : did in such an action as: this1, even'had thé adminiá-' tratrix' been engaged 'in' converting-' the property Of ' the estate to her Own-use or otherwise. ■ It could not-,j on account of the maladministration of her office, di- - rect the application of the assets of the estate to the payment of -a claim due to one creditor without re- ' gard to its classification- and to the exclusion of the ' claims of other ’ creditors. No authority of law is found for the granting of such preference. An orderly procedure is provided in the executors and administrators’ act for the ascertainment and classification of the liabilities of an estate, the assembling and reduction into cash of its assets, and the payment of its debts without preference. This property had come to the hands of the administratrix and as such was still in her hands. The probate court had, juris- : diction of the administratrix and of the property of the estate in her hands, and was, so far as the petition shows, proceeding by due course to apply it to the payment of all the debts of the estate in their due and legal order and proportion. This being so, the district court was not authorized to oust the probate court of its jurisdiction, take over the administration of the estate, or give the preference it did, and this jurisdiction could not be conferred by the consent of the administratrix.
It is urged, however, that, because pi’oceedings in error were pending in this court at the time the motion was héard,.the entire matter had: been removed from the jurisdiction of the court below, and therefore, that court could not consider the motion to vacate. The filing of a petition ifi. error, in tMs court does; n’o.t - serve to remove the casé here for all purposes. In this it is unlike an appeal from a justice of the peace to the district court. The judgment may be executed unless a stay bond is filed. The judgment continues a lien. In short, the judgment remains a judgment in the district court, and being there it is subject to the attack of a motion under section 5061, General Statutes of 1901, which provides that “avoid judgment may be vacated at any time, on motion of a party or any person affected thereby.”
The district court was right in setting aside this judgment and its action is affirmed.
All the Justices concurring.
Mason, J., not sitting, having been of counsel. | [
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.The opinion of the court was delivered by
Johkston, 0. J. :
This was an action of forcible entry and detainer, involving the possession of a part of what was an island in the Missouri river, which, by accretions, became connected with the Kansas shore-. 5. K. Howe claims to have taken possession of the land in 1889 and to have held it until December, 1895; when the Armour Packing Company and George W. Tourtellot unlawfully and forcibly put him off the place and entered into the possession of the same. Howe brought this proceeding in one of the city courts of Kansas City, Kan., having the jurisdiction formerly vested in justices of the peace. After a futile attempt by the defendants to remove the cause to the federal court, they filed a bill of particulars, alleging that the title and boundaries of real estate were in dispute, and in that way procured an order of the city court, certifying and transmitting the case and papers to the district court. That court went through the forms of a trial, and, from the decision rendered, proceedings in error were instituted in this court. It was here determined that the statutory provision authorizing the certification of cases from a justice of the peace to a district court where title and boundaries of land are in dispute has no application to cases of forcible entry and detainer, and therefore the district court never acquired jurisdiction of the case ; and, further, that there was no jurisdiction in this court to review the rulings of the district court. The proceeding Was therefore dismissed. (Armour v. Howe, 62 Kan. 587, 64 Pac. 42.) When the mandate of dismissal was returned to the district court, that tribunal, in turn, sent the papers in the case to the city court and adjudged the costs incurred by the invalid removal of the cause to the defendants. There is complaint as to the adjudging of costs against defendants, but no proceeding in error was prosecuted from the order. The city court resumed the exercise of jurisdiction, and on change of venue the cause finally reached a justice of the peace of Wyandotte county, where judgment was given in favor of the defendants. Howe took an appeal to the district court, and, on a trial there to a jury, verdict and judgment wére given in bis favor, and many of the rulings there made are assigned as error.
Jt is contended that the jurisdiction of the case was surrendered and lost at the time of the attempted certification of it to the district court. About three years elapsed from the invalid certification of the case before it was decided that the district court was without jurisdiction and before that court transmitted the papers back to the city court. No new process was issued or served when the papers were returned, and the parties came in upon notice that the proceedings in the case would be resumed. The defendants objected to the jurisdiction of the lower court.over them at every step until the case reached the district court, and there also the same objection was urged. Jurisdiction of the case was never, in fact, lost by the city court. There was no power in that court to certify the case up, nor in the district court to acquire jurisdiction of it. Jurisdiction, once acquired, remains until a final disposition is made of the case in a manner recognized by law. Not having power ,to transfer the case, the pretended order of transfer was a nullity and the original jurisdiction of the city court was never disturbed. It was somewhat like an attempted removal of a case not removable from a state court to the federal court. In such a case the state court retains jurisdiction of the cause, notwithstanding the proceedings for removal may have taken the papers in the case to the federal court. (Fife v. Whittell, 102 Fed. [C. C.] 537; Dillon on Removal of Causes, 5th ed., §143.)
The illegal order procured by defendants suspended the exercise of jurisdiction, but it was competent for the court at any time to renew the proceedings and the exercise'of the jurisdiction which had always remained. The fact that the papers were illegally transmitted and were out of the possession of the city •court for a time, and that the cause was not on .the docket for about three years, did not divest the court of jurisdiction. (College v. Cary, 35 Ohio St. 648.)
■ . The next point presented is that the complaint failed ■to state a cause of action because it did not sufficiently •allege that Howe'was in possession when the unlawful and forcible entry was made. The complaint is brief and somewhat informal. It alleges that the defendants ‘ ‘ did unlawfully and forcibly enter into the following-described lands,” describing them, and háve ever since held possession of them by force ; and, further, that plaintiff gave defendants such a notice as is required by law to leave the premises, and “that the said S. K. Howe was then, and has ever since been, and still is, entitled to the possession of said premises.” The fact that he was in possession when the unlawful entxy was made is not as fully stated as good pleading would require. The proceeding, however, is a summary one for the speedy adjustment of controversies about possession, and, as it is cognizable before justices of the peace not familiar with pleading, it would indicate that it was never intended that the strict and technical rules of pleading should be applied to complaints in these actions. The aver-'ments in the complaint are substantially in the language of the statute. It provides that “the summons shall not issue herein until the plaintiff shall have filed his complaint in writing under oath with the justice, which shall particularly describe the premises so entered, upon or detained, and shall set forth either an unlawful and forcible entry and detention, or an unlawful and forcible detention after a peaceful or law ful entry of the described premises.” (Gen. Stat. 1901, § 5398.)
If this were a criminal proceeding, as it is in some jurisdictions, a complaint in the'language of the statute would suffice, and it would seem that it should be enough in a civil summary proceeding before a justice of the peace, whose judgment is no bar to another action between the same parties on the same issue. Under a statute like ours, the supreme court of Oklahoma has held that a complaint in the language of the statute was sufficient. (Richardson et al. v. Penny, 6 Okla. 328, 50 Pac. 231.) Apart from this consideration, the objection to the sufficiency of the pleading was late. There had been several trials of the case on the complaint as it stood, and in the trial before the justice of the peace from which the. appeal was taken to the district court, where the last trial was had, the defendants below joined in a stipulation that the cause should be submitted to the justice for his decision upon the evidence introduced and transcribed by the stenographer in the first trial of the case in the district court, and the evidence included that of the. plaintiff as to possession. In this stipulation the defendants in effect treated the complaint as sufficient to present the question of possession, and submitted that issue to the court. Under the circumstances, we think the demurrer to the complaint, and the objection to the admission of evidence under it, were properly overruled by the court. The court subsequently allowed the amendment of the complaint, but as it was originally sufficient the questions sought to be raised under the amendment are immaterial.
Exceptions were taken to rulings made as to the admission of testimony, but they are not deemed to be important. It is strongly urged that the evidence in behalf of Howe did not establish a prima facie case in his favor, and that a demurrer thereto should have been sustained. There was testimony that Howe took possession of the island-in 1889, and that he has continued to occupy it and assert possession of it ever since that time. He built houses and fences, drove stakes to mark boundaries and promote accretions, and drove pilings to prevent the washing away of the land. Soon after he located on the island, others came upon it and made claims to all or parts of it. He purchased the rights of some, compromised with others, and contested in the courts over the claims of still others. The struggle to hold the land was not confined to these claimants, for sometimes the rise in the river greatly changed the boundaries of the land and washed away his improvements. In the efforts to hold the land as against the encroachments of the river and the claims of o.thers, Howe appears to have led a somewhat strenuous life, but it cannot be successfully asserted that there was no evidence to sustain his claim of possession. The other side claimed, and offered testimony tending to show, that he was little better than an intruder and trespasser ; that his possession was of a fitful and scrambling kind, and that it was not such a peaceful and actual possession as would support an action of this character. The evidence on most of the points in controversy was contradictory and conflicting, but the jury settled these conflicts in favor of Howe. We cannot say that error was committed in overruling the demurrer to the evidence. The case appears fairly to have been submitted to the jury and no material error was committed in any of the rulings on the instructions.
Complaint is made that the special findings were not sustained by the evidence, and that they are con- dieting with each other and with the general verdict. Some of the questions submitted appear to be of little materiality. . The twelfth finding is said to be out of line with others, and such as should defeat the judgment. To the- question, “Was the plaintiff, S. K. Howe, in the peaceful possession or occupancy of the land described in the complaint on the 23d day of December, 1895?" the jury answered “No." It is ■said that a mistake was made in copying this answer into the record; but assuming it to be correct, we think it is not irreconcilable with the other findings or with the verdict, when viewed in the light of the testimony and other proceedings. The eleventh finding is that Howe was in possession of the land on the 22d day of December, 1895; the thirteenth is that he had held peaceful and exclusive possession of the land west of the state line; and the fourteenth is that he had held peaceful and exclusive possession of the-land from 1889 until December 23, 1895. The unlawful forcible entry was alleged to have been made on the 23d day of December, 1.895, and it was shown that defendants put Howe off the land on that day and held possession themselves. From all the findings, it would appear’that the jury meant that Howe was in the possession of the land on December 22, 1895, and in fact from 1,889 until December 23, 1895, when he was forcibly ejected from the land, and that on that day the defendants took and held the possession. Viewed in this light, there is no inconsistency with the other findings or with the general verdict, and we discover nothing substantial in the other objections to the findings.
The judgment will be affirmed.
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The opinion of the court was delivered by
Bukch, J.:
The facts of this controversy were found by the trial court to be as follows :
“1. That on the 23d day of July, 1886, the defendant William Stout executed a six-hundred- ($600) dollar note payable to William F. Leonard, a copy of which is attached to plaintiff’s petition, marked ‘ Exhibit A.’
“2. And that at the same time and for the purpose of securing said note said Stout executed a mortgage upon the southwest quarter of section twenty (20), in township twenty-six (26) south, of range nine (9) west, in Reno county, Kansas, a copy of which mortgage is attached to plaintiff’s petition, marked ‘Exhibit B.’
“3. That thereafter and for valuable consideration and before maturity said note and mortgage were duly assigned and transferred to the plaintiff, J. Campbell Lorimer, trustee, a copy of which assignment is attached to plaintiff’s petition, marked ‘Exhibit C.’
‘ ‘ 4. That said mortgage was duly filed in the office of the register of deeds of Reno county, Kansas, on the 27th day of August, 1886, and recorded in book 34, at page 277.
“5. That on or about the 25th day of October, 1886, the defendant William Stout sold and conveyed the land in question, by warranty deed, to the defendants Frank M.. McKee and Charles Bloom, and that in said deed said defendants McKee and Bloom assumed and agreed to pay said six-hundred- ($600) dollar mortgage as a part of the consideration price for said land.
“6. That thereafter, and on, to wit, the 17th day of October, 1891, and after the said six-hundred- ($600) dollar note and mortgage had by their terms become due and payable, the defendants Frank M. McKee and Charles Bloom entered into a certain extension agreement with the plaintiff, J. Campbell Lorimer, trustee, extending the time of payment of said note for a period of five years from maturity thereof; a copy of said extension agreement is attached to plaintiff’s petition, marked ‘Exhibit D.’
“7. That attached to said extension agreement were ten interest coupons of even date therewith, payable semiannually thereafter, each representing six months’ interest on said sum of six hundred ($600) dollars at the rate of six per cent, per annum, each being for the sum of eighteen ($18*) dollars, and at the same time the said defendants Frank M. McKee and Charles Bloom executed a certain other agreement with the plaintiff, J. Campbell Lorimer, trustee, which was a part and parcel of the same transaction as the extension agreement above referred to, said other agreement being dated October 17, 1891, and a copy of which is attached to plaintiff’s petition, marked ‘Exhibit E.’
1 ‘ 8. That after the execution of said extension agreement and the interest coupons, on the 17th day of October, 1891, the defendants Frank M. McKee and Charles Bloom conveyed, the land in question to the defendant N. G. Hollister, as cashier, and that said Hollister was then cashier of the defendant the National Bank of Commerce of Hutchinson, Kansas, and took said deed in fact as -a mortgage to secure an indebtedness of said Frank M. McKee and Charles Bloom to said bank in the sum of eleven hundred ($1100) dollars, and that afterward, and during the pendency of this suit, said N. G. Hollister, for a valu able consideration, conveyed said land to the defendant J. E. Conklin.
“9. That at no time after the execution of the extension agreement, dated October 17, 1891, did the defendants, Frank M. McKee, Charles Bloom, N. G. Hollister, cashier, the National Bank of Commerce, and J. E. Conklin, or either or any of them-, pay any of the interest coupons attached to said extension agreement of October 17,1891, but that the defendant W. G. Fairchild, anticipating becoming the owner of the land in question, remitted the money and took up four of the interest coupons, being numbers 6, 7, 8, and 9, intending to have the same assigned to him, and that coupons numbers 6 and 7 were so assigned, but that by inadvertence coupons 8 and 9 were stamped ‘Paid.’
"10. That the amount due the plaintiff on said note and the one unpaid coupon number 10 amounts with interest at this time to $819.50, and that no part thereof has ever been paid to the plaintiff by. the defendants or any of them or any one of them.
‘‘11. That the defendant Frank M. McKee has been duly and regularly discharged in bankruptcy by the United States district court at Wichita, Kan., so that no judgment can be taken against him.”
Exhibits “A,” “D,” and “E,” referred'to in these findings, are as follows :
Exhibit “A.”
‘‘MORTGAGE! NOTE.
‘‘$600.00. St. Louis, Mo., July 23, 1886.
‘‘On the first day of July, 1891, value received for money loaned, I promise to pay to the order of William F. Leonard, six hundred dollars, with interest on the same at the rate of 12 per cent, per annum, after due, until paid. And I hereby agree that if default is made in the payment of any of the coupons hereto attached, or any part thereof, and the same shall remain due and unpaid for the period of ten days, in such case this note, with the interest accrued thereon, shall, at the option of the legal holder hereof, become due and payable, and may be demanded and collected immediately, anything herein contained to the con- ■ trary notwithstanding, according to the tenor of a certain mortgage bearing even date herewith, given by William W. Stout, single, to William F. Leonard.
“Payable at the office of Wilson & Toms, St. Louis, Mo. William W. Stout.”
Indorsed-: “Pay to the order of J. Campbell LorL mer, without recourse. William F. Leonard.”
Exhibit “L.”
“extension agreement and coupons.
St. Louis, Mo., October 17, 1891.
“Whereas, J. Campbell Lorimer, trustee, has agreed to extend the time for payment of a loan of $600, secured by a mortgage made and executed by William W. Stout, dated July 23, 1886, and by the terms thereof due July 1, 1891, for a term of five years :
“Now, in consideration of such extension, we hereby agree to keep said loan for a term of five years from July 1, 1891, and further agree to pay interest on the principal of said debt, according to .the tenor and effect of certain extension coupon notes signed by us, of even date herewith ; and in case of any default in payment of interest, or in case of non-payment of taxes assessed on the mortgaged premises, or of a breach of any of the covenants in said mortgage contained, it shall be'optional with said mortgagee to declare the principal sum of said debt immediately due and payable, and the same may be collected according to the terms and conditions of the said mortgage and principal note, time being the essence of this contract for extension.
“We.hereby certify that we are the present owners of the land mortgaged to secure payment of the above-mentioned loan, and we hereby agree to pay said loan as part of the purchase-price. Frank: M. McKee.
C. Bloom.”
Exhibit “E.”
“extension agreement.
“St. Louis, Mo., October 17, 1891.
“Whereas, J. Campbell Lorimer, trustee, bas agreed to extend the time for the payment of a loan for $600, secured by a mortgage on the following described real estate : The southwest quarter of section twenty (20), in township twenty-six (26) south, in range nine (9) west of the sixth (6th) principal meridian, containing 160 acres, more or less,- made and executed by William W. Stout, dated July 23, 1886, recorded in the recorder’s office of Reno county, Kansas, in book No. 34, page 276, and by the terms thereof due July 1, 1891, for the term of five years :
‘‘ Now, in consideration of such extension, we hereby agree to keep said loan for the term of five years from July 1, 1891, and further agree to pay interest on the principal of said debt at the rate of six per cent, per annum, payable semiannually, according to the tenor and effect of certain extension coupon notes, signed by us, of even date herewith; and in case of any default in payment of interest, or in case of nonpayment of taxes assessed on the mortgaged premises, or of a breach of any of , the covenants in said mortgage contained, it shall be optional with said mortgagee to declare the principal of said debt immediately due and payable, and the same may be collected according to the terms and conditions of the said mortgage and principal note, time being the essence of this contract for extension. Frank M. McKee.
C. Bloom.”
The trial court’s conclusion of law from these facts was in the following language :
“As a conclusion of law, based upon the above and foregoing facts, the court holds that it is bound by the opinion of the Kansas court of appeals, southern department, central division, rendered in this case when in that court on proceedings in error, and that under the opinion filed by said court in this case the plaintiff is not entitled to recover ; that there was no considera tion for the extension agreement executed October 17, 1891, and that therefore this action was barred, at the time this suit was commenced, by the statute of limitations.”
The opinion referred to is that of Conklin v. Lorimer, 10 Kan. App. 550, 63 Pac. 23, the syllabus of which is as follows :
“L., the mortgagee, entered into an agreement with M. and B., grantees of the mortgagor, to extend the time of payment of a past-due note and mortgage for five years. It does not appear that M. and B. agreed to pay a greater rate of interest than was provided for by the terms of the original agreement, or that any advance payment of interest was made, or any act done which would constitute a sufficient consideration, or that M. and B. or either of them paid any interest on the debt after the making of the extension agreement. More than six years after the note and mortgage became due by their terms, this action was brought. Held, that the extension agreement, being without consideration, Avas ineffectual to prevent the running of the statute of limitations, and that the cause was barred.”
A careful analysis of the transaction will show the fallacy of this syllabus to lie in the words, “or any’ act done which would constitute a sufficient consideration” — construing the word “act” to include in its legal signification the making of a promise. By virtue of the extension agreement the holder of the note gave up his right to enforce immediate payment, gave up his right to collect twelve per cent, interest upon the note while it remained unpaid, and bound himself to take a less rate of interest, and to make no demand for the payment of the principal at all for the fixed period of five years. The landowners gave up their right to pay the principal at once, to stop interest, and to free their land from the lien of the mort gage, and bound themselves to keep the money and to pay interest upon it at a given rate for the fixed period of five years. The holder of the note acquired the valuable right of keeping his money at interest, at a satisfactory rate, for a fixed period, and the landowners acquired the valuable right of the undisturbed use of a sum of money for a fixed period at a satisfactory • rate of interest. A new right, interest, profit and benefit accrued to each party, and a new forbearance, detriment, loss and responsibility were suffered and undertaken by each party. Every element of the most subtly discriminative definition of value consideration appears, and there can be no doubt that the parties were legally bound.
In the opinion in Conklin v. Lorimer, it was said:
‘ * There'is no evidence to show that they assumed any new obligation, made advance payments of interest, or did any other acts that would constitute a sufficient consideration for the agreement to extend the time of payment. McKee and Bloom were bound already to pay the note with a rate of interest at least as high' as six per cent., and this promise to do what they were, already bound for w^as invalid as a new promise. (Schuler v. Myton, 48 Kan. 282, 29 Pac. 163.)” (Page 553.)
It is apparent, however, that McKee and Bloom were not obliged to keep the money and pay interest upon it for any specified length of time. In promising to do so for the period of five years they undertook to do something they were not previously bound to do. The freedom — the legal right to pay, and avoid interest — was renounced, and the burden — the legal duty to keep the money and pay the extension interest coupons for five years — was assumed. That was a new obligation which McKee and Bloom took upon themselves as an inducement for the extension, and the principle announced in Schuler v. Myton was not infringed.
The case of Eaton v. Whitmore, 3 Kan. App. (northern dept.) 760, 45 Pac. 450, is quite in point. In the opinion Judge G-arver says :
“It is familiar law that a promise to extend the time of payment of a note, to be binding, must be based upon a sufficient consideration, and that such consideration must be something other than the mere doing or promising to do by the opposite party that to which he was obligated by the original contract. (Dudley v. Reynolds, 1 Kan. 285; Jenness v. Cutler, 12 id. 500; Prather v. Gammon, 25 id. 379; Ingels v. Sutliff, 36 id. 444, 13 Pac. 828.) Although in this case the consideration for the claimed agreement for an extension may have been merely the promise of Whitmore to pay interest at a less rate than that which, by the terms of the note, he had already promised to pay, yet we are of the opinion, if it was a promise to pay such interest for a definite future time, it furnished a valid and sufficient consideration to support an- agreement to extend the time of payment for such period. It is true the amount agi’eed to be paid is no more, and in this particular case was less, than could be demanded under the original contract, provided payment was delayed for a like period of time as a mere matter of indulgence; but, by the new agreement, there was engrafted on the original contract a new and additional feature, that the maker of the note waived his right to stop interest by paying the debt at any time after maturity, and bound himself to pay interest for a further and definite time. He thereby assumed an obligation which was not before imposed upon him, and the holder of the note acquired an additional substantial right, that of refusing payment and exacting interest for the full period of the extension.”
In 1846 the supreme court of Ohio carefully distin guished the essential features of transactions of this character, as follows :
“If a lender of money, secured by a note, after the same becomes due, contracts with the borrower that the time of paying the same shall be extended for one year, or for any other period, upon consideration that the borrower shall pay the legal or less rate or interest, why is not that a binding contract ? The lender, by this contract, secures to himself the interest on his money for the year — and the borrower precludes himself from getting rid of the payment of the interest, by discharging the principal. It is a valuable right to have money placed at interest, and it is a valuable right to have the privilege, at any time, of getting rid of the payment of interest, by discharging the principal. By this contract, the right to interest is secured for a given period, and the right to pay off the principal, and get rid'of paying the interest, is also relinquished for such period. Here, then, are all the elements of a binding contract. But it is said there is no consideration for the extension of time, because the law gives six per cent, after the note is due. But the law does not secure the payment of this interest for any given period — or prevent the discharge of the principal at any moment. There is precisely the same consideration for the extension of the time as there was for the original loan.” (Robert McComb v. William F. Kittridge, 14 Ohio, 348.)
The reasons for this rule have been stated in various ways.
“This brief reference to the history of the law, showing its origin and growth, is made for the purpose of exhibiting it as it existed when our ancestors brought it with them to this continent, that it may distinctly appear that nothing of its ancient condition gives any support whatever to the doctrine of the anomalous cases mentioned, which, as we must think, without a very full consideration of the subject, substantially rule, that an agreement to pay interest for the for bearance of money for a definite time is not a sufficient consideration for a promise to forbear, when the original debt bears the same rate of interest. It is true that, if the time had been voluntarily given, the note would have drawn the same rate of interest promised to be paid. But if this be an argument, it assumes that the principal debtor and surety would, in any event, have failed to pay until the lapse of the period of indulgence given by the agreement. It assumes that men will never discharge an interest-bearing obligation to avoid the payment of interest, and that it is not to the debtor’s advantage to pay the debt for the purpose of stopping the interest; and, moreover, that it is not beneficial to the creditor to obtain a contract which will continue his investment for a definite period for the sake of the lawful interest. But when it is. borne in mind that in every commercial country men and moneyed corporations are constantly seeking to loan money for definite periods, for the profit derived from interest, and that they grow rich by the operation, and that debtors frequently seek the opportunity to pay their interest-bearing debts before maturity in order to save interest, it will not be very apparent that where the creditor bars the right of payment to him at the maturity of the obligation, by a new contract, and continues the investment at interest for an additional definite period, payable at the expiration of that period, he will derive no benefit from the performance of-the new contract. The benefit of such a contract to the creditor is, that he continues the loan for a specified time, when without the contract the debtor might lawfully pay at once, and thus stop interest. So that it might as well be contended that an original contract of loan for a given time at lawful interest shall not bind the lender to wait for his money until the lapse of the time stipulated. The consideration for the performance is in one case precisely as valuable as in the other.” (Pierce v. Goldsberry, 31 Ind. 52, 54.)
“The agreement of the principal to pay interest for a specified time, after the note became due, furnished a sufficient consideration for the promise to delay-Both agreements were valid, and binding upon the parties respectively, and enabled each to accomplish what he appears to have considered a desirable purpose — a further investment for a definite period for the creditor, and an extension of credit for the same time for the debtor. The legal effect of the agreements was to disable the former from enforcing collection, and the latter from making payment of the-note; until the expiration of the year stipulated ; and-to alter the contract, and change the responsibility of-the sureties, without their consent.” (Chute v. Pattee, 37 Me. 102, 105.)
“If the holder of a note which has become due agrees with the principal maker of said note that hé may retain the sum due for a definite period of time, upon his promise to pay usui’ious interest, and such maker agrees to keep said sum for such definite time, and to pay said interest, this agreement will discharge a surety on said note not consenting to such contract for forbearance. Although the usury camnot be collected, the legal rate can be; and the absolute right to get interest for a given time is a valuable considera-tion to uphold a promise to forbear, and to-tie the-hands of the creditor, so that he cannot sue until the -expiration of the time agreed on, as aforesaid’ (Chute v. Pattee, 37 Me. 102; McComb v. Kittridge, 14 Ohio, 348; 2 Am. Lead. Cas., 5th ed., 469.)” (Brown v. Prophit, 53 Miss. 649.)
“If the new agreement was that the debtor should-pay at the end of the period agreed upon for the extension precisely the same sum which was due at the time the agreement was entered into, the case might be different. But a promise to do what one is not bound to do, or to forbear what one is not bound to forbear, is a good consideration for a contract. In case of a debt which bears interest either by convention or by operation of law, when an extension for a definite period is agreed upon by the parties thereto, the contract is, that the creditor will forbear suit dur ing the time of the extension, and that the debtor foregoes his right to pay the debt before the end of that time. The latter secures the benefit of the forbearance ; the former secures an interest-bearing investment for a definite period of time. One gives up his right to sue for a period in consideration of a promise to pay interest during the whole of the time; the other relinquishes his right to pay during the same period, in consideration of the promise of forbearance. To the question, why this is not a contract, we think no satisfactory answer can be given. It seems to us it would be a binding contract, even if the agreement was that the debt should be extended at a reduced rate of interest.’’ (Benson v. Phipps, 87 Tex. 578, 580, 29 S. W. 1061, 47 Am. St. Rep. 128.)
“The agreement to keep the money another year and pay the interest thereon, was a sufficient consideration for the promise of the payee to extend the time of payment. It may have been, and doubtless was, of great benefit to Dodgson to secure a loan another year at ten per cent, interest. Had the money been paid in, a customer might not be, found ready to borrow at so large a rate of interest, and hence the money might lie idle in the owner’s hands a whole year.’’ (Dodson et al. v. Henderson, 113 Ill. 360, 364.)
“ The consideration flowing to the holder was the implied promise of the maker to pay interest during the full period of the extension at the rate expressed in the instrument; and the promise of the holder to forbear suit for a definite period constituted a good consideration for the agreement upon the part of the maker to pay interest for such full period. Here are all the elements of a valid contract, and upon principle we are unable to see why such an agreement should not be sustained by the courts. The reasoning so 'often advanced by courts holding a contrary doctrine, that the maker under such circumstances assumes no additional obligation, that the note by its terms binds him to pay interest until the note is paid, does not, in our opinion, meet the case. It overlooks the fact that by the new agreement the maker- is bound to pay interest for the full term, whereas, aside from such new agreement, it would be his privilege to make payment at any time.” (Nelson v. Flagg, 18 Wash. 39, 41, 50 Pac. 571.)
“The holder of the note in this case, by the contract of extension, secured to himself as he supposed the payment of interest on the principal of the note for three months longer, and the debtor precluded himself from getting rid of the payment of interest for that period by discharging the principal. The promise of each was a part of the consideration. It is a valuable right to have money drawing interest, and it is a valuable right to have the privilege at any time of getting rid of payment of interest by discharging the principal.” (Drescher v. Fulham, 11 Colo. App. 62, 68, 52 Pac. 685, 687.)
These authorities cite others in which the same conclusion is reached.
This court has not, heretofore, decided the precise question now under consideration in an authoritative way. In Royal v. Lindsay, 15 Kan. 591, 594, Mr. Justice Brewer said:
“That a promise to pay interest for a definite period of time, is a sufficient consideration for an agreement to extend for a like period the day of payment, is affirmed by these authorities: Wheat v. Kendall, 6 N. H. 504; Bailey v. Adams, 10 N. H. 162; Chute v. Pattee, 37 Me. 102; McComb v. Kittridge, 14 Ohio, 348; 2 Am. Leading Cases, 5th ed., 469. It is denied in Reynolds v. Ward, 5 Wend. 502; Kellogg v. Olmsted, 25 N. Y. 189; Parmalle v. Thompson, 45 N. Y. 58, 6 Am. Rep. 33; Gibson v. Irby, 17 Tex. 173; 2 Parsons on Notes and Bills, 528.
“It is perhaps not necessary that this question shall in this case be definitely decided, though we may say that the suggestions made in favor of the proposition by the court in the case from 14 Ohio seem to us of great force.”
The suggestions referred to have lost nothing of their force by lapse of time, and the doctrine they elucidate has the support of the most closely reasoned cases.
Therefore, the judgment of the court of appeals of the southern department and the judgment of the district court, in obedience to that of the court of appeals, were erroneous.
It is insisted, however, that the decision of the court of appeals has become the law of this cáse, and is, therefore, binding upon the parties, even though it be erroneous.
In Headley v. Challiss, 15 Kan. 602, the syllabus reads:
“Where a case is brought a second time on error to this court, the first decision will be deemed the settled law of the case, and will not be made a subject of reexamination.
“This rule extends, not merely to all questions actually presented by counsel, but to all questions existing in the record, and necessarily involved in the decision.' '
The opinion contains the following statement of the rule and citation of authorities supposed to sustain it:
£(This case has been once before to this court. (Challiss v. Headley, 9 Kan.684.) Uponabundantauthority, and well-settled principles, the decision at that time has become the established law of the case. Phelan v. City of San Francisco, 20 Cal. 40; Polack v. McGrath, 38 Cal. 666; Yates v. Smith, 40 Cal. 662; McKinlay v. Tuttle, 42 Cal. 570; Washington Br. Go.v. Stewart,3 How. 413, 11 L. Ed. 658; Booth v. Commissioners, 7 Metcalf, 286; Hosack’s Ex’rs v. Rogers, 25 Wend. 313; Mason v. Mason, 5 Bush (Ky.), 187. Whatever, therefore, was at that time decided, is not now a matter for reexamination. Nor is this limited to the mere questions noticed in the opinion, nor indeed to the actual matters presented by the respective counsel, and considered by the court. It extends to all matters actually existing in the record, and necessarily involved in the decision. Thus, in the case from 3 Howard, cited above, a question was raised as to the jurisdiction of the court; but as the case had once before been taken to the court, and a decision rendered upon the merits, the question of the jurisdiction was held to be also settled, although, as a matter of fact, it had not been considered ; and this, because jurisdiction is involved and assumed in an inquiry into and a decision upon the merits. See, also, the cases above cited from 7 Metcalf, 25 Wend., 5 Bush, and 38 Cal.”
In C. B. U. P. Rld. Co. v. Shoup, 28 Kan. 394, 42 Am. Rep. 163, the syllabus reads :
“Where a case is brought a second time on error to this court, the first decision will be deemed the settled law of the case, and will not be made the subject of reexamination.
“While this rule may not be a cast-iron rule, incapable of relaxation under any circumstances, yet it must be adhered to where the question is one of great doubt, has been thoroughly considered, and is one whose decision involves no serious injury to general rights. ’ ’
In the opinion it was said :
“Nearly all the questions in the case were considered and determined when it was here before. The decision of those questions has become the established law of the case. (Headley v. Challiss, 15 Kan. 602.) Nevertheless, counsel for plaintiff in error seriously challenge the decision then made, and earnestly contend that this court erred and should reexamine the questions ; and they refer to the opinion in Long v. Wolf, 25 Kan. 522, in which we stated that we had gone to the extreme verge in this case in upholding defective notices of redemption, and that the case deserved to be limited rather than extended. We do not understand that the rule that a decision once made becomes the established law of the case is a cast-iron rule, and incapable of relaxation in any event. Cases may arise in which it will be very clear that the first decision was erroneous, that not only in the case at bar will wrong result from adhering to the decision, but also other interests through the state will be imperiled ; hence we do not doubt the power of the court to reconsider and reverse a prior decision in the same case. Still, in all ordinary cases the rule is as above stated. After a decision has once been announced by this court, the further steps in continuation of the controversy are based upon and regulated by that decision, and unless it is plain that a serious error has been committed, such decision should be adhered to. Now it is not clear to us that the prior decision was wrong. On the contrary, the question still seems one of great doubt. Much can be said on either side, but after all the arguments pro and con have been considered, we can only say that we hesitated at the time the prior decision was made ; we hesitate still, and that very doubt compels us to adhere to that decision.”
In Crockett v. Gray, 31 Kan. 346, 2 Pac. 809, the syllabus is practically the same as that of Headley v. Challiss, supra. The opinion contains the following discussion of the rule :
“Viewed as .an original question, we think .there is force in this claim, but the defendants are too late in presenting it. It was a question necessarily involved' in the case as it came to us before. If, whether- the homestead included one acre, or the entire tract, the contract was void, then the judgment of the district court "was right, and no reversal should have been ordered. Counsel failed to present it then, and it is too late now. A case cannot be tried by piecemeal. Every defense that exists must be presented, and when a case is reversed, the defeated party will not be heard to say that there were other reasons for affirmance which he might have presented. A decision once made becomes law of the case, and this rule embraces not merely 411 questions presented, but also all questions necessarily involved in the decision. (Headley v. Challiss, 15 Kan. 602; Rld. Co. v. Shoup, 28 id. 394, 42 Am. Rep. 163.)
“Counsel, not questioning the general rule, claim that it is not an inflexible one, but must yield when justice and equity imperatively require it. But even with this limitation, we think the rule must control in the present case ; for there is no equity in releasing a party from a fair and reasonable contract into which he freely entered.”
In Norton v. Huntoon, 43 Kan. 275, 22 Pac. 565, the syllabus is as follows :
“Where a cause has once been reviewed in the supreme court on error, the judgment of the lower court modified, and the cause remanded, held, that in the subsequent proceedings in said cause the former decision of this court will not be reviewed, but .it is final and conclusive.”
The commissioner who wrote the opinion did not discuss the subject.
In Wheelock v. Myers, 64 Kan. 47, 52, 67 Pac. 632, 633, referring to the position taken by one of the counsel in the case, the court said: .
“He invokes the doctrine that the first decision of a court is the law of the case on all questions presented by the record and on all questions necessarily involved in the decision. We agree with him on this last proposition. It was so decided in Headley v. Challiss, 15 Kan. 602.”
These quotations embody the principal utterances of this court upon the subject prior to Railway Co. v. Merrill, infra. The foundation of the rule and the reasons for its limitations have not been elaborated. In the case of City of Hastings v. Foxworthy, 45 Neb. 676, 63 N. W. 955, 34 L. R. A. 321, this was done. The cases cited in Headley v. Challiss and many others have there been given a most searching examination, and the law upon the subject was shown to be involved in considerable confusion. The conclusion reached was stated as follows :
“An appellate court, on a second appeal of a case, will not ordinarily reexamine questions of law presented by the first appeal, but where the case was on the first appeal remanded generally for. a new trial and the same questions are presented on the second trial, the appellate court is not bound to follow opinions on questions of law presented on the first appeal and may reexamine and reverse its rulings on such, questions, and should do so when the opinion first expressed is manifestly incorrect.”
This is substantially the doctrine of Central Branch U. P. Rld. Co. v. Shoup, supra, and the practice of this , court has been to reverse its former decision in the same case and follow “the law of the land,” rather than “the law of the case,” whenever an imperative legal necessity demanded. The cases of Warner v. Broquet, 54 Kan. 649, 39 Pac. 228, and Railway Co. v. Merrill, 65 Kan. 436, 70 Pac. 358, 59 L. R. A. 711, 93 Am. St. Rep. 287, are instances.
In the latter case Mr. Justice Smith said :
“Counsel for defendant in error have invoked the rule stare decisis, and insist that the former decision must govern on the second appeal. • This would come to us with more force if we w.ere not now considering the same case with the same parties before the court. If an erroneous decision has been made, it ought to be corrected speedily, especially when it can be done before the litigation in which the error has been committed has terminated finally. We are fully satisfied that the rule of the former case is shattered by the pressing weight of opposing authority, and that reason is against it.” (Page 451.)
In the present case the decision claimed to be bind ing was rendered by an intermediate court. The cause was remanded for a new trial and not mei’ely for some special proceeding supplemental to the mandate. The same parties now appear in this court with a record presenting the same questions as before. The former decision was clearly erroneous. It was in direct conflict with a decision of a court of equal authority having jurisdiction over another portion of the state, and was in opposition to an expression of opinion given by this court in 1875. The question is of great public importance, touching as it does the very essence of a comprehensive classof every-day contracts of the people of this state. It ought, to be finally determined by this court, and no injustice can result in this particular case from a reversal of the judgment rendered.
In the ancient Celtic law-book, the Senchus Mor, it is said there are three periods at which the world is of little worth : the time of a plague, of a general war, and of the breaking of express agreements. The fair and reasonable agreement of the parties in this case extending the time within which a loan of money made in good faith might be repaid, ought not to be broken.
The judgment of the district court is reversed, with direction to enter judgment upon the findings of fact for the plaintiff, according to the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J.:
The plaintiff, as the trustee in bankruptcy of Harry P. Farrar, brought this action to set aside certain conveyances of real estate alleged to have been made by the bankrupt with the intent to defraud his creditors. The .defendants demurred to the petition because it did not state any cause of action and because several causes of action were improperly joined. The demurrer was sustained. The plaintiff electing to stand on his petition, judgment was rendered against him, to reverse which he prosecutes this proceeding.
While they are not separately stated and numbered, the petition contains ten causes of action. In each, facts are alleged charging the insolvent with having transferred the real estate therein described with the intent to hinder, delay and defraud his creditors. None of these transfers is alleged to have been made to all of the defendants; each transfer was made to some one or more of the defendants at different times ; none of the defendants in any one of such transactions had any interest in any of the others.
Section 83 of the code (Gen. Stat. 1901, §4517), provides:
“The plaintiff may unite several causes of action in the same petition, whether they be such as have heretofore been denominated legal or equitable, or both, where they all'arise out of either one of,the following classes:
“First, the same transaction, or transactions, connected with the same subject of action.
“But the causes of action so united must all belong to one of these classes, and must affect all the parties to the action, except in actions to enforce mortgages or other liens.”
The several conveyances set out in the petition did not constitute one or the same transaction. Each conveyance was a separate, distinct and independent transaction from every other conveyance, made at different times during a period of more than ten years; no two of them are connected with' the same subject of the action. The subject of the action in each is the particular tract or tracts of land described in that cause of action ; and the subject described in each of the several causes differs from the subject of action in every other cause. Such causes of action cannot be joined. Under this provision of the code, ■causes of action which may be joined must all arise out of the same transaction or transactions, be connected with the same subject of action, and affect all of the parties to the action, except in actions to foreclose mortgages or other'liens; (Rizer v. Comm’rs of Davis Co., 48 Kan. 389, 29 Pac. 595 ; Hurd v. Simpson, 47 id. 372, 27 Pac. 961; L. N. & S. Rly. Co. v. Wilkins, 45 id. 674, 26 Pac. 16.)
Each defendant must in some way be affected by the judgment rendered on each cause of action. From the petition it appears that none of the defendants, with the exception of Farrar, could in any way be affected by the judgment upon any cause of action except the person or persons who held the title to the particular tract of land described in that cause. If A. should make a fraudulent conveyance of a particular tract of real estate to B., and at some future'time A. should fraudulently convey other real estate to C., the creditor of A. might maintain separate actions against both B. and C. to set aside such conveyance, but he could not join both in one action, because his two different causes of action do not arise out of the same transaction or transactions and are not connected with the same subject of action, and the causes thus united do not affect all of the parties to the action. Neither would have any interest in, or be in any way affected by, the judgment against the other. (A. T. & S. F. Rld. Co. v. Comm’rs of Sumner Co., 51 Kan. 617, 33 Pac. 312; Haskell County Bank v. Bank of Santa Fe, 51 id. 39, 32 Pac. 624; Insley v. Shire, 54 id. 793, 39 Pac. 713, 45 Am. St. Rep. 308.)
The trustee in bankruptcy represents all the creditors of the bankrupt and may maintain actions to set aside any fraudulent conveyance made by the bankrupt, but he has no greater right than the creditors would have. He must bring his separate action for such purpose against each separate fraudulent grantee. It follows, therefore, that the judgment of the court sustaining the demurrer upon this ground must be sustained.
As to the second ground of the demurrer, that the petition did not state a cause of action in favor of plaintiff and against any of the defendants, we think the, demurrer was properly sustained. All of the transactions set up in the petition as fraudulent took place more than five years, and some ten, before the proceeding in bankruptcy. This was an action for relief on the ground of fraud and our statute (Gen. Stát. 1901, §4446, subd. 3) provides that such actions must be brought within two years. There are no allegations in the petition which take any of. the causes out of the two years’ statute of limitation.
It was said, in In re Donavant, 96 Fed. (D. C.) 542 :
“Where, in proceedings in bankruptcy, creditors impeach a deed of land made to a son of the bankrupt, alleging that it was procured by the bankrupt as a means of defrauding his creditors, but an action to set aside such deed would have been barred by the statute of limitations in the courts of the state, before the adjudication in bankruptcy, the bankrupt may plead the statute in bar of the petition of such creditors.”
On page 549 it was said : “If the bill alleged no matters to avoid the bar apparent on its face, it would be considered as stating no cause of action.”
The judgment of the court below is therefore affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
John B. Wells was the owner of 160 acres of land. In September, 1887, he borrowed from William P. Leonard $850 and gave his note for the amount, payable October 1, 1892. At the same time he executed a mortgage to Leonard, in which his wife joined, to secure the debt. None of the principal of the note was paid. Wells and wife resided on the land until the spring of 1894, when they removed therefrom and left one Goodin, a tenant, in possession, whose term expired in March, 1895. • Wells then leased the land to the plaintiff in error, Morford, for the term of one year. The latter took possession and has resided thereon continuously ever since. The land was sold for the taxes of 1892 and bid in by the county. Mor-ford obtained an assignment from the county of the tax certificate and in September, 1896, a tax deed was issued to him, which was recorded October 19 of that year. Morford paid rent to Wells for the year 1895 but none afterward, refusing to do so on the ground that he had procured a tax deed on the land. While occupying the property, on November 3, 1899, in order to protect his right to possession of the premises, he bought the Leonard note and mortgage and the same were assigned to him. Soon after he informed Wells of such purchase.
On April 18, 1901, this action of ejectment was brought by Wells against Morford. The latter in his answer, in addition to a general denial, set up the Leonard mortgage owned by him as an equitable defense, and also that he had paid taxes to the amount of $250. In his reply plaintiff below alleged that the five years’ statute of limitations had run against a •cause of action on the Leonard note and mortgage before Morford bought them. The court made findings of which the above facts are the substance. The tax deed on the land was conceded to convey no title. There was judgment entered in favor of Wells, the plaintiff below, for the recovery of the land and for $515 rents and profits. Morford complains.
. The principal contention of cpunsel for plaintiff in-error is that'their client was a mortgagee in possession and entitled to hold the laud against the mortgagor, plaintiff below, until the mortgage debt was paid.The case of Kelso v. Norton, 65 Kan. 778, 70 Pac. 896, is relied on. The facts in the present controversy-are materially different from those on which the decision in Kelso v. Norton was based. Here the defendant below repudiated his tenancy, refused to pay rent, and informed his landlord (Wells) that he did so because he had a tax title to the land. He-testified that he bought the Leonard note and mortgage for the purpose of fortifying and protecting his right to possession under the tax deed on which he relied. His right to hold the land- against Wellá was primarily based on the tax deed, and the mortgage which he bought was a mere incident thereto. He did not go into, possession pursuant to any rights derived under the mortgage, nor did he hold the land under the same after he denied his landlord’s title, but asserted, when rent was demanded, that he held adversely to Wells under the tax deed.
Again, the purchase by Morford of the Leonard note and mortgage was made more .than two years after an action on the note or suit to foreclose the mortgage had been barred by the statute of limitations. In Kelso v. Norton, supra, the right of the mortgagee in possession to foreclose was barred at the time the ejectment action to recover the land was begun by the mortgagors, but not at the time the mortgagee went into possession. There - are strong equitable reasons for protecting a mortgagee in his occupancy of land until the mortgage debt is paid when he has gone into possession of it peaceably, after condition broken, while the mortgage is a lien. (Stouffer v. Harlan, post, 74 Pac. 610.)
The rights of one who has bought a mortgage after the time to foreclose it has gone by,' and who asserts a claim to the encumbered land thereunder, based’ on possession derived through such mortgage, do not merit much equitable consideration. The exact question involved was decided in Banning v. Sabin, 45 Minn. 431, 436, 48 N. W. 8. The court said :
“The appellant’s third point is that the court erred in the conclusion that the defendant is not entitled to the rights of a mortgagee in possession. This conclusion was predicated upon the fact that the defendant did not go into possession until May, 1879, prior to which time the land was unoccupied. This was long after the right to foreclose the mortgage had become barred by lapse of time, the effect of which was to extinguish the mortgage as to Washburn, if his rights had not been foreclosed or otherwise extinguished. Archambau v. Green, 21 Minn. 520; Benton v. Nicoll, 24 Minn. 221. The mere fact of the subsequent entry into possession and occupancy by the defendant, with the knowledge of the plaintiff and her grantors, was not effectual to revive the extinguished mortgage so as to entitle the defendant to-the rights of a mortgagee in possession.”
In Benton v. Nicoll, cited in the above quotation, the last paragraph of the syllabus reads :
“When right of entry has never been asserted, or exercised, it is too late to assert it, for the first time, after the right of foreclosure has become barred by the statute.”
When Morford purchased the note and mortgage their vitality had gone ; the mortgage was no lien on the land. In Schmucker v. Sibert, 18 Kan. 104, 111, 26 Am. Rep. 76, Mr. Justice Brewer, speaking for the court, said :
“When the note is barred, the mortgage is also barred, and no subsequent payment, promise or acknowledgment can revive the mortgage as to property which the mortgagor has prior thereto conveyed to a third party. Whenever the mortgage is barred, the property is free from the lien. It is, as respects the mortgage, as though the latter had never existed.”
The amount of the judgment for rents and profits seems to have been calculated from the value of the crops testified to by defendant below. The admission of incompetent testimony given by other witnesses in respect to such rents and profits is therefore immaterial.
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, C. J. :
The title to the office of mayor of the city of Concordia is involved in this proceeding. An election was held on April 7, 1903, when William W. Caldwell and S. C. Wheeler were candidates for mayor, and the result, as found by the canvassing board, was that Wheeler received 809 votes, while Caldwell received 808 votes. A certificate of election was issued to Wheeler, and on April 12 he qualified and entered upon the discharge of the duties of the office. Caldwell brought this proceeding, alleging that he had received the greater number of legal votes and was entitled to the possession of the office. Upon a trial, the district court.found that 1597 legal ballots had been cast by qualified voters for mayor, of which Caldwell received 799 and Wheeler 798, and therefore gave judgment in favor of Caldwell.
A jury was demanded by Wheeler to try the facts, but the court refused the demand, and of this ruling complaint is made. Whether a jury is n , , . ,, „ . , , . demandable as a matter of right m a ° case of quo warranto is still an open question in this state. In several cases the question has been suggested and left unanswered, but in some of them a jury was granted ex gratia. (The State, ex rel., v. Allen, 5 Kan. 213 ; The State, ex rel., v. Foster, 32 id. 14, 3 Pac. 534.) In this state there has been substituted for the writ of quo warranto and the information in the nature of quo warranto a civil action, and under this act the remedies formerly obtainable in quo war-ranto may be had. (Civil Code, §652; Gen. Stat. 1901, § 5148.) So far as our code is concerned, it provides that a party is entitled to a jury to try issues of fact in civil actions brought for the recovery of money or of specific real or personal property, and that all' other issues of fact shall be tried by the court, unless it chooses to submit them to a jury or referee. (Civil Code, §§266, 267; Gen. Stat. 1901, §§4713, 4714.)
It is contended, however, that at common law a party was entitled to a jury trial in quo warranto proceedings, and that the common-law right was preserved and continued by virtue of section 5 of the bill of rights, which provides that “the right of trial by jury shall be inviolate.” This provision means that the right of trial by jury shall be and remain as ample and complete as it was at the time when the constitution was adopted. (The State, ex rel., v. City of Topeka, 30 Kan. 653, 2 Pac. 587.) What; then, was the status of the law as to the right to a jury in quo warranto cases at that time ? If the common-law rule is to control, the question arises, as to what common-law rule was in effect in this respect when the constitution was adopted. The first act adopting the common law as a rule of action in Kánsas was passed by the first legislature held in Kansas, and so much of it as is pertinent reads as follows:
‘ ‘ Section 1. The common law of England and all statutes and acts of parliament made prior to the fourth year of James the First, and which are of a general nature, not local to that kingdom, and not repugnant to, or inconsistent with, the constitution of the United States, and the act entitled ‘An act to organize the territorj7 of Nebraska and Kansas,’ or any statute law which may from time to time be made or passed by this or any subsequent legislative assembly of the territory of Kansas, shall be the rule of action and decision in this territory; any law, custom or usage to the contrary notwithstanding.” (Ch. 96, Territorial Statutes 1855.)
This act was repealed, and then reenacted in substantially the same language, in 1859. (Laws 1859, ch. 121, § 1.) According to these acts of adoption, the common law as it existed in England in the fourth year of James the First, which was 1607, became the common law of Kansas, and remained such at least until the state constitution was adopted. (Kansas Pacific Rly. Co. v. Nichols, Kennedy & Co., 9 Kan. 235, 12 Am. Rep. 494.) At the date fixed in the act of adoption, the common law did not award a jury trial as a matter of right in quo warranto proceedings, nor was such right given until the passage of the act of parliament in 1730, known as 3 Geo. II, ch. 25. In Taliaferro v. Lee, 97 Ala. 92, 13 South. 125, the supreme court of Alabama had under consideration the right to a jury in a quo warranto proceeding, and it was said:
“At no period in the history of the information in England, so far as we are aware, was the relator or respondent ever regarded as entitled to trial by jury until that right was expressly conferred by act of parliament. (3 Geo. II, ch. 25.)”
See, also, State v. Johnson, 26 Ark. 281; State, ex rel. Att’y Gen., v. Vail, 53 Mo. 97 ; State, ex rel. Norton, v. Lupton, 64 id. 415, 27 Am. Rep. 253 ; State, ex rel. Mullen, v. Doherty, 16 Wash. 382, 47 Pac. 958, 58 Am. St. Rep. 39 ; State v. Moores, 56 Neb. 1, 76 N. W. 530.
Then, again, the statutory law, as it existed when the constitution was adopted, did not give the suitor a right to trial by jury in cases of this kind. Even if the common law had accorded this right, it was competent for the legislature to modify it and to make such cases triable by the court. In 1859 the legislature passed an act specifically providing what cases and issues should be tried by a jury and what should be triable by the court. (Laws 1859, ch. 25, §§274, 275.) Whether the question is determinable by the common law as adopted in. Kansas, or’by the statute as it existed when the constitution was framed, a jury cannot be required, as a matter of right, in this proceeding. ■ If the rule of the present code is applied the same result will be obtained,’ and hence we conclude that no error was committed in denying the application for a jury.
The controversy as to the result of the election arose over qualifications of persons who voted, ballots in excess of the number shown by the poll-books, ballots on which it was claimed there were identifying marks, and ballots imperfectly marked by the ' , r™ ,. ~ ' . * •, „ voters. The qualifications of several of those who voted for Wheeler were challenged by Caldwell. One of them, Bagwell, made a trip to Iowa, and, though he soon returned to Concor-dia, there was testimony tending to show that he went to Iowa with the intention of establishing a resi dence there. Another was McCullough, who had been living with his mother in Concordia! but who, it was claimed, had changed his residence to the neighboring town of Clyde, and was therefore not entitled to vote. Another was Mrs. Webb, who, it was claimed, lost her right to vote by moving from one ward of the city to another; and still another was Cora Garder, who, it was claimed, was not a resident of Concordia at the time of the election. All of these had voted for Wheeler, and the court held them.to be disqualified, and consequently took four votes from the count for Wheeler. The testimony as to the residence of these persons is not satisfactory, but it cannot be said that there is no testimony to sustain the findings of the trial court.
Looking at the testimony as it is brought to us in the record, we strongly incline to the opinion that McCullough and Garder were legal voters, and that their votes should have been counted, but we are aware that the trial court had superior opportunities to measure the testimony, and since it cannot be said that its findings are without support, we are bound by them.
One Creaghor, who voted in the third ward, was found not to be a qualified voter, and the court concluded that he had voted for Wheeler, and deducted a vote from the number credited to Wheeler. This was error, as the testimony shows that Creaghor voted for Caldwell, and if not qualified, the vote should have been taken from Caldwell instead of Wheeler. When his vote was challenged, he was sworn to answer as to his qualifications, after which his ballot was received. The word “sworn’’ was written on the ballot, and the number opposite to his name on the poll-book should have corresponded with the number on the ballot. There was no such conformity, and because of this discrepancy it was impossible, from the numbers alone, to identify the ballot cast by Creaghor. It was otherwise identified. It appeared beyond dispute that his was a challenged vote ; that his ballot was so marked; that there were only four challenged votes cast in the ward, and that each one of them showed on its face that it was in favor of Caldwell. Under this showing, mainly record proof, there is no escape from the conclusion that Creaghor voted for Caldwell. The lack' of agreement between the numbers on the poll-book and the ballot is accounted for on the theory that the ballot was given to him and numbered by the election officers when he approached the polls, instead of after the challenge. Then he was challenged, and some time was occupied by the challenge and the swearing in of his vote. In the intervening time others approached and voted, and one of their names was written on the poll-books opposite the number placed on Creaghor’s ballot. In that case the number on the ballot was the number reached when the ballot was handed to him, while the number opposite his name on the poll-bpok was the number reached when the challenge had been decided and the ballot received. The four challenged votes, one of which was cast by Creaghor, were sufficiently identified; the ballots themselves were indubitable proof that all of them were for Caldwell; and such proof is not overcome or affected by the mere circumstances that Creaghor was •accompanied to the polls by a friend of Wheeler and was challenged by a friend of Caldwell. The illegal vote should have been taken from the Caldwell count, and not from that of Wheeler.
In the second ward a ballot which was marked 809 and was cast for Wheeler was rejected by the court.
This was done because of the claim that there was one more ballot in the box than there voters, as shown by the poll-books. The court found that 312 ballots had been put into the box, while the poll-books showed that only 311 persons had voted. It appears that 309 of the ballots had been strung upon a wire, and that three blank and defective ballots had been returned in an envelope. The court decided that there was an excess ballot in the box that should not have been counted ; that one must be rejected ; that it must be one of the good ballots, and that it must be the last one taken from the ballot box. The one on the wire farthest from the needle was treated as the first ballot taken out, and the one nearest the needle as the last one taken from the box. That proved to be ballot 309, which had been cast for Wheeler, and it was rejected and deducted from Wheeler’s vote. This was error.
Nothing in the statute, nor in reason, warranted the rejection of the last ballot that the election officers chanced to take from the box. Besides, the testimony to which we are referred does, not warrant the conclusion that ballot numbered 309 was the last one taken from the box. Here, then, was a properly marked ballot which was apparently legal in every respect, and in the absence of a statute declaring such a rule of eliminating an excess ballot, or of proof that it was illegal, we know of no reason' for disfranchising the one who cast it, or for deducting it from the count of the candidate for whom it was cast. In the absence of proof, there is as much reason to assume that the clerks erred in registering the names of voters as that an extra ballot was wrongfully thrust into the box, and there appears to have been some discussion among the officers as to whether the names were correctly enrolled. It appears that one of the three ballots returned' in the envelope was blank ; that it had never been numbered, and that the corner had never been clipped from it. The judge in charge of the numbering said that no ballot was .given out to voters that was not numbered, and there is reason to think that this blank ballot, which had not been numbered, marked, or clipped, had never, in fact, been voted. If voted, two of the judges must have failed in the performance of their duties, the one who numbered and the one who clipped the ballots; but this cannot be presumed. So it is claimed that the blank ballot was probably picked up from the .table and accidentally placed in the envelope which was returned. But whether accounted for in that way or not, there was nothing in the circumstances of the case, nor in the testimony, which justified the court in discarding ballot numbered 309, or in deducting that vote from the count for Wheeler.
The legality of a large number of defectively marked ballots was challenged. In the counting of such ballots> the court adopted what may be called a very liberal rule. It said : “Upon the trial, when the various numbered votes (those numbered by the stenographer) were taken from the wires and examined, many of them for the plaintiff, Caldwell, had crosses in the proper places, but the crosses were not always made with two single lines, and in many instances there would be one or more additional lines, but they appeared to be so made simply for a desire on the voter’s part and in the effort on his part to make a cross with lines so distinct and plain that his vote should not be overlooked from lack of plainness ; and in many instances one or more arms of the cross would extend somewhat over the circle — that is, outside, or outside the squares, whichever form of voting was used, and this was apparently due either to haste or carelessness on the part of the voter; in some instances the marks were ill made, due to nervousness, or to the fact that the hand making them trembled with age or was unused to a pencil. What has been said in this finding with reference to ballots voted for Caldwell is equally true as to many ballots voted for Wheeler, and the number of ballots so marked was probably about equal in number and in the character of their markings on both sides, and the court in counting such ballots has intended to and did count for the person for whom they were marked all such as showed the intention of the voter and were marked with a cross mark in the proper place, and the marks were not such as to be in character a distinguishing mark, and where they were clearly not made by the voter with an evident purpose to identify his ballot.”
Of this rule, in the abstract, there is no good reason for complaint; but we are unable to agree with the court in its application. For instance, there was a bállot numbered 100, cast in the fourth ward and counted for Caldwell, on which there was a cross in the circle composed of three lines. One of the arms of the cross was substantially paralleled by a third distinct line. There is nothing to indicate that the extra line was an attempt to retrace an indistinct line, or that it was made by one who was nervous or unused to a pencil. The departure from the prescribed form is patent, easily described, and it would be difficult to invent a better distinguishing mark. There was a like defect on ballot numbered 344, cast for Caldwell in the fourth ward, where parallel lines were used in making the cross. Neither of these ballots should have been counted.
Wheeler complains that ballots numbered 4 and 359, which were cast for him and thrown out by the court, should have been counted in his favor. On each bal lot one of the arms of the cross was constituted of two distinct parallel lines, and because they ... ... . .. ,. .... were easily described and distinguishable they were illegal and properly excluded by the court.
Wheeler has good reason to complain of the exclusion of ballot numbered 427, cast for him in the fourth ward. It was excluded because the marks opposite the names of Bowman and Blair, who were candidates on the same ticket with Wheeler, were not proper cross-marks. One of the lines of each of the cross-marks was shorter than the other, and the court stated that the mark was the shape of an inverted Y. The shorter line, however, actually crossed the longer one, and, the ballot being otherwise unobjectionable, we think it was legal and should have been counted.
Other rulings adverse to Wheeler are complained of, but the conclusions we have already reached settles it that Wheeler had a clear majority over Caldwell for the office in contest, and a further consideration of Wheeler's claims of error is unnecessary.
A ci’oss-petition in error has been filed by Caldwell, in which he complains of rulings made by the court against his contentions. ■ He did not file a motion for a new trial, and thus give the trial court an opportunity to review, and if necessary correct, its rulings. The motion filed by Wheeler, complaining of rulings against himself, affords Caldwell no basis to obtain a reconsideration of rulings favorable to Wheeler. A cross-petition in error is treated as an independent proceeding, and the party complaining must take the preliminary steps which give him a right to assign error. Errors occurring during the trial cannot be made the basis of a review unless they have been presented to the court for reconsideration on a motion for a new trial. (Cog- shall v. Spurry, 47 Kan. 448, 28 Pac. 154. See, also, Fowler v. Krutz, 54 id. 622, 38 Pac. 808.)
The case of McPherson v. The State ex rel., 56 Kan. 139, 42 Pac. 374, is a sufficient answer to the contention that this court is without jurisdiction to review the rulings in this proceeding.
It follows from what has been said that the judgment of the district court will be reversed, and the cause remanded, with directions to enter judgment in favor of plaintiff in error.
All the Justices concurring. | [
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|
The opinion of the court was delivered by
Cunningham, J. :
Plaintiff’s action was for the recovery of damages occasioned by the publication of an alleged libel. The question of greatest moment involved is the constitutional validity of chapter 249, Laws of 1901 (Gen. Stat. 1901', ch. 576), which reads as follows:
“Section 1. That before any civil action shall be brought for the publication or circulation of a libel in any newspaper in this state, the plaintiff shall, at least three days before filing the petition in such action, serve notice on the publisher or publishers of such newspaper, at the principal office of publication, specifying the statement in said article which is alleged to be false or defamatory. If it shall appear on the trial of such action that said article was published in good faith, that its falsity was due to mistake or misapprehension of the facts, and that a full and fair retraction of any statement therein contained alleged to be erroneous was published in the next regular issue of said newspaper, if a weekly or monthly, or, in case of a daily paper, within three days after such mistake or misapprehension was brought to the knowledge of such publisher or publishers, in as conspicuous a place and type in' such newspaper as was the article complained of as libelous, then the plaintiff in such case shall recover only actual damages ; provided, that the provisions of this act shall not apply to the case. of any libel, against any candidate for a public office in this state unless the retraction is made editorially, in a conspicuous manner, at least ten days before election, in case such libelous article was published in a daily paper, and in case such libelous article was published in a weekly or monthly paper, at least fifteen days before the election; provided further, that nothing in this act shall be held to apply to any libel published of or concerning any female person.
“ Sec. 2. The words' actual dam ages ’in .the foregoing section shall be construed to include all damages which the plaintiff shall show he has suffered in respect to his property, business, trade, profession, or occupation, and no other damages whatever.”
This is assailed as being violative of section 18 of the bill of rights, which reads :
■ ‘‘All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.” .
It will be noted that the statute questioned limits the right of recovery in cases of libel to actual damages where, after service of the notice provided in the first section, the publisher of the newspaper in which the libelous matter has appeared makes a full and fair retraction, coupled with a showing upon the trial that it was published in good faith, under a misapprehension of the facts. This statute also declares that class of damages to be such as the plaintiff has suffered in respect to his property, business, trade, profession, or occupation. So that, in such cases, the libeled party may not recover all his damage, but is confined t© the narrow class defined and designated in the act as actual damages.
The common law recognizes two classes of damages in libel cases — general and special. General damages are those which the law presumes must naturally, proximately and necessarily result from the publication of the libelous matter. They arise by inference of law and are not required to be proved by evidence. They are allowable whenever the immediate tendency of the words is to impair the plaintiff’s reputation, although no actual pecuniary loss has, in fact, resulted, and are designed to compensate for that large and substantial class of injuries arising from injured feelings, mental suffering and anguish, and personal and public humiliation, consequent upon the malicious publication of false and libelous matter. The injuries for which this class of damages is allowed are something more than merely speculative. While not susceptible of being accurately measured in dollars and cents, they are real injuries, and often more substantial and real than those designated as actual, and measured accurately by the dollar standard. In short, they are such injuries to the reputation as were contemplated in the bill of rights. The law presumes that this class of injuries results necessarily from the publication of the libelous matter, and the damages, therefore, are recoverable without special assignment. Special damages, also recoverable when properly pleaded and shown, are such damages as are computable in money, and may be said fairly to be embraced in the list of actual damage's, as given in the statute referred to. This is the present condition of the law, as it was also at the time of the adoption of our constitution’ and these are the injuries to reputation, for which it provided that there should be “remedy by due course of law.”
It requires no argument to demonstrate that the act in question denies a remedy for some of these injuries. Unless the one libeled has suffered in the particular manner pointed out in the statute, he is without remedy. For that large class of persons and still larger class of injuries not falling within the provisions of this statute, no remedy is found. From the writings of the world’s wisest man we have the assurance that 1 ‘ a good name is rather to be chosen than great riches;” yet the possessor of this thing of greatest value, being despoiled of it, is left by the statute in question entirely without remedy for its loss, except in such rare cases where he may be able to show some exact financial injury in the particulars named. We could not excuse ourselves for holding that reputation is less valuable that property, or that by the quoted provision of the bill of rights it is less protected from spoliation.
It is suggested that the retraction required by the act to be published is a fair compensation for the injury done, and a reinvestment of the libeled one with his good name ; that, this being done, nothing more could be accomplished by a verdict of a jury, and, hence, that the retraction required by the legislative enactment, if not “due course of law,” is an ample substitute for it.
It is not an easy matter to deduce, either from reason or the authorities, a satisfactory definition of “law of the land” or “due course of law.” However, from either standpoint, we feel safe in saying that these terms do not mean any act that the legislature may have passed, if such act does not give to one an opportunity to be heard before being deprived of property, liberty, or reputation, or, having been deprived of either, does not afford a like opportunity to show the extent of his injury and gives no adequate remedy to recover therefor. Whatever more than this these terms may mean, they do mean due and orderly procedure of courts in the ascertainment of damages for injury, to the end that the injured one “shall have remedy;” that is, proper and adequate remedy, thus to be ascertained. To refuse hearing and remedy for injury after its infliction is a principle little removed from that of the infliction of penalty before and without hearing. In Hoke v. Henderson, 4 Dev. (N. C.) 1, 15, 25 Am. Dec. 688, Chief Justice Ruffin, in speaking of this point, said :
“Those terms ‘law of the land’ (or due course of law) do not mean merely an act of the general as sembly. If they did, every restriction upon the legislative authority would be at once abrogated.. Por what more can the citizen suffer, than to be ‘taken, imprisoned, disseized of his freehold, liberties, and privileges ; be outlawed, exiled, and destroyed; and be deprived of his property, his liberty, and his life,’ without crime? Yet all these he may suffer, if an act of assembly simply denouncing those penalties on particular persons, or a particular class of persons be in itself, a law of the land within the sense of the constitution. ’ ’
Mr. Webster, in the Dartmouth College case, gives this definition:
“By the law of the land is most clearly intended the general law; a law which hears before it condemns ; which, proceeds upon inquiry and renders judgment only after trial. . . . Everything which may pass under the form of an enactment is not, therefore, considered to be the law of the land.” (Dartmouth v. Woodward, 4 Wheat. 519, 581, 4 L. Ed. 629.)
For other definitions, see People, ex rel. Witherbee, v. Supervisors, 70 N. Y. 228; Stuart v. Palmer, 74 id. 183, 30 Am. Rep. 289 ; State v. Billings, 55 Minn. 467, 57 N. W. 206, 794, 43 Am. St. Rep. 525; Burdick v. The People, 149 Ill. 600, 36 N. E. 948, 24 L. R. A. 152, 41 Am. St. Rep. 329; Chicago, B. & Q. R. Co. v. State, 47 Neb. 549, 66 N. W. 624, 41 L. R. A. 481, 53 Am. St. Rep. 557.
The retraction required by the act in question may or may not be full reparation for the injury suffered. It might rather aggravate the injury already inflicted than mollify it. It is sufficient to say, however, that these are all questions for the courts, upon proper notice to all parties, and may not be determined arbitrarily by an act of the legislature. We find that courts of last resort in two states have passed upon the constitutionality of acts like the one here discussed. In Park v. Free Press Co., 72 Mich. 560, 565, 40 N. W. 731, 16 Am. St. Rep. 544, 1 L. R. A. 599, the supreme court of Michigan, holding against the constitutionality, said:
“We do not think the statute controls the action, or is within the power of constitutional legislation. This will, in our judgment, appear from a statement of its effect if carried out. It purports to confine recovery in certain cases against newspapers to what it calls ‘actual damages/ and then defines actual damages to 'cover only direct pecuniary loss in certain specified ways, and none other. In some of these defined cases the proof of any damages in this sense would be impracticable, and'in' all it would be very difficult. They are confined to damages in respect to property, business, trade, profession or occupation. If is sáfe to say that such losses cannot be the true damage in' a very large share of the worst cases of libel. A woman who is slandered in her chastity is” under this law usually without any redress whatever. A man whose income is from fixed investment or salary or official emolument, or business not depending upon his repute, could lose no money directly unless removed from the title' to receive his income by reason of the libel, which could seldom happen. If contradicted'so'on, there could be practically no risk of this. And the same is true concerning most business losses. The cases must be very rare in which a libel will destroy business profits in such a way that the loss can be directly traced to the mischief. There could never bé any loss when employers or customers know or believe the charges unfounded. The statute does not reach cases where a libel has operated to cut off chances of office or employment in the ’future, or broken up or prevented' relationships not capable of an exact money standard, or produced that intangible but fatal influence which suspicion, helped by ill will, spreads beyond recall or reach by apology or retraction. Exploded lies are continually reproduced with out the antidote, and no one can measure with any accurate standard the precise amount of evil done or probable.
“There is no room for holding, in a constitutional system, that private reputation is any more subject to be removed by statute from full legal protection than life, liberty, or property. It is one of those rights necessary to human society that underlie the whole social scheme of civilization. It is a thing which is more easily injured than restored, and where injury is capable of infinite mischief.”
This case was subsequently specifically approved by the same court in McGee v. Baumgartner, 121 Mich. 287, 80 N. W. 21, where the court said :
“The right to recover in an action of libel for damages to reputation cannot be abridged by statute.”
A contrary view was adopted by a divided court in Allen v. Pioneer Press Co., 40 Minn. 117, 41 N. W. 936, 12 Am. St. Rep. 707, 3 L. R. A. 532. The conclusion of the court in this case is based largely upon the reasoning that the retraction, being required to be published as widely and to substantially the same readers as .the original, is usually a more complete., redress for .the injury inflicted than a judgment for damages would be. This, however, is merely an' assumption,, and may or may not be true; but even if true, it would not be a “remedy by due course of law,” as contemplated in the constitution, as we have already determined. We are well persuaded that the act criticized takes from the libeled person the right of remedy by due course of law for an injury suffered in his reputation, and, hence, is invalid, under the^ constitutional provision quoted.
The questions in this case arise upon the sustaining of defendant's'general demurrer to plaintiff's petition. The petition contained no statement of the- service'of the notice as provided in the criticized act, and it is now claimed that, admitting the constitutional invalidity of this act, because it denies remedy by due' course of law, still the legislature would have a right to require the service of this notice as a step in the procedure in prosecuting an action for the recovery of damages occasioned by libel, in order to give the publisher the opportunity of retraction for the purpose of mitigating general damages and relieving himself from punitive damages. We do not deny that the legislature might do this. It seems to us, however, that such was not its purpose and object, but rather that the service of this notice was merely a step in the procedure to relieve publishers from all general damages. That object having been found unconstitutional, the ancillary matters must go with it.
It is further suggested that the subject-matter of the alleged libel was not libelous per se, and, hence, that the demurrer was properly sustained, the petition containing no allegation of special damages. The libelous matter set out was in the following language :
“A second case was called late this afternoon, in which John F. Hanson, of Marquette, is accued of assault on M. A. Fosberg and Louise Fosberg. It is claimed that in attempting to collect a bill he threatened violence with a pistol. The latter parties are the complaining witnesses. The decision of the case will be announced later.”
A libel, in order to be actionable per se, and to permit a recovery without allegation and proof of special damages, must contain imputations which tend to subject the libeled one to disgrace, ridicule, or contempt. We are of the opinion that the words here complained of are such. To threaten violence with a pistol might fairly be held to be a sufficient charge, at least, of an assault, and possibly of a crime of greater gravity.
We find that the court was in error in sustaining defendant’s demurrer, and therefore direct that such ruling be reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, 0. J.:
The Royal Loan Association was a corporation organized under the laws of the state of Missouri, with' its principal office located in the city of St. Joseph. It organized a local board with a local secretary' and treasurer at Marysville, Kan. About August 14, 1895, Samuel Forter applied to John H. Cole, the local secretary and collector at Marysville, Kan., for a loan of $400. On his application he obtained the sum of $382.75, and he and his wife executed a bond and a mortgage on real estate at Marysville, Kan., to secure the payment of the indebtedness. The application for the money was transmitted to the association at St. Joseph, Mo., where the loan was allowed. The papers were there prepared for execution and sent to Cole, the agent at Marysville, where they were executed by Forter and his wife, the money paid, and the transaction closed. On the part of the association, it is claimed that Forter. became a member of the association, and that he was required to make payments on his shares according to the laws of Missouri and the by-laws of the association. The Forters claim that Mr. Forter never became a member; that no application for membership wras made and no certificate of stock was issued and given to him ; that the books of the association do not show that a certificate of stock was issued, and that no mena-bership fee, as required by the by-laws, was paid or re? fused.
After the money was received by Forter, he subsequently made sixty payments of eight dollars per month, or $480. Having paid the amount received with the highest rate of interest permitted under the laws of Kansas, the Forters regarded the mortgage as paid and demanded that the Royal Loan Association release the same. This demand was refused and the present action was brought under sections 4224, 4225, and 4226, General Statutes of 1901, to procure a can-celation of the mortgage, and to recover damages for the refusal to enter satisfaction, as well as for a rear sonable attorney’s fee in prosecuting the action. A ■trial resulted in. a decree in favor of the Forters for ■the cancelation of the mortgage, quieting their title as against it, and also for $100 damages ■ and $200 as attorney’s fees.
The principal issue in the case was whether the ¡transaction between the parties should be treated as ;a building and loan contract, one where the dues, rpremiums and other charges provided for may exceed :the legal rate of interest on money borrowed, or ■whether it should be treated as a mere loan, wherein the parties stood toward each other in the relation of •creditor and debtor alone. If it be treated as a loan, it seems to be conceded that the Forters have paid •the amount borrowed with the full legal rate of interest chargeable for money in Kansas. If he became a •member and liable to pay the dues, premiums and •other charges imposed by the association, there is yet •due the sum of $142.79.
The conclusion of the trial court, that the contracts were usurious, the debt fully paid, and that the mortgage should be canceled and discharged, must be sustained. There was no competitive bidding for preference at a meeting of the directors when the loan was obtained, and they had fixed an arbitrary minimum rate, both of which, it is argued, were in violation of law. If this contention be correct, the case is in the situation of Savings Association v. Worz, 67 Kan. 506, 73 Pac. 117, and the transaction is no more than 'an ordinary loan. It is argued that the law of Missouri was amended on June 21, 1895, dispensing with •competitive bidding, and that, in pursuance of the amended law, the association, on June 22, 1895, amended its by-laws, making them conform to the new statutory provisions. This argument is met by the claim that the reorganization and enactment of by laws under the amended law of Missouri was not valid, for the reason that under that law it was necessary to call a meeting of the stockholders upon a notice as provided by the by-laws for special or annual meetings. Such meetings required ten days’ notice. It appears that the law went into effect on June 21, 1895, and that the association amended its by-laws pursuant to the new law on June 22, 1895, only one day after the law went into effect. The notice was, therefore, not given for ten days, as the by-laws required, and it is argued, with much plausibility, that the attempted enactment of by-laws was without force or effect.
Another point is made that when the loan was made to Forter in August, 1895, the code of by-laws furnished him was the one first adopted, which showed that a loan to a member could only be made on a bid for the preference of the loan in an open meeting. This was not done. Even if he were to be treated as a member, he had a right to rely on the by-laws furnished him as being the governing .rules of the association, and the association would be bound in its dealings with him by those by-laws. (McKenney v. Diamond State Loan Asso., 9 Hous. (Del.) 557, 18 Atl. 905; Sawyer v. Loan & Building Association, 103 Mich. 228, 61 N. W. 521; Peterson v. Building & Loan Ass’n, 124 id. 573, 83 N. W. 606.) Non-compliance with these rules tended to establish that the transaction was a loan, and subject to the usury laws of Kansas.
Did the relation of association and member exist between the parties ? Nothing in the case shows that Sarah E. Forter, one of the parties to the bond and mortgage, was in any sense a member of the association. As to Samuel Forter, he applied for a loan of money of Cole, the agent of the association which was offering money to loan. He did not apply for membership in the association; nothing in the correspondence as to the loan indicated that he must become a member, and the by-laws provided that money might be loaned to persons not members. No certificate was issued and delivered to him, and the books of the association did not show that he became a member. It is true the writings were on blanks used by the association which referred to stock issued to Forter as well as to the by-laws of the association, and a copy of the by-laws was handed to him during the negotiation. When Forter inquired of Cole, the agent of the association, whether by the execution of these papers he would become a member, the agent informed him that he did not know. But even the by-laws which were handed to him indicated that the association could make loans to persons not members, and also that in making loans to members there must be competitive bidding for the loan and no minimum limits could be fixed for the premium. As neither of these provisions had been complied with, there was reason for Forter to assume that he was not in the-membership class. Under all the circumstances there-was warrant for the court to hold that Forter was not a member and that the transaction was only a loan.
Considering the plan and the way in which the negotiations were carried on, the transaction has all the symptoms of a scheme to avoid the usury law. In addition to these considerations, and more important, perhaps, the transaction appears to be a Kansas contract, and is necessarily governed by the laws of Kansas. It was a Missouri corporation, it is true, but its plan and its by-laws were quite unlike the provisions of the Kansas law with respect to building and loan associations. Even if the amended law of Missouri, by which the association might dispense with bidding for loans and might provide for a level rate of interest and premiums payable in gross instalments, be applicable, this transaction would be nothing more than a loan, and the usury laws would apply. The bond and mortgage were executed in this state, where the lands lie; the mortgagors live in this state; the borrowed money was paid to the parties in this state ; and of necessity a. portion of the contract was enforceable in Kansas, and- could under no circumstances be enforced in Missouri. The mortgage must be ore-closed in this state, and from the language of the mortgage itself it appears that the parties contemplated that it was a Kansas contract, to be interpreted in accordance with the Kansas law, for they provided in the mortgage that the first party released to the second all right, title, interest and estate in the premises, resulting from, or incident to, the homestead laws of the state of Kansas.
As the transaction is in the nature of a loan, and the relation between the parties is that of creditor and debtor, and as it was a Kansas contract, enforceable in Kansas, it is governed by the laws of Kansas in relation to usury. As tending to support these views we cite : Building Association v. Thompson, 19 Kan. 321; Savings Association v. Kidder, 9 Kan. App. 385, 58 Pac. 798; Savings Association v. Worz, supra; Investment Association v. Stanley, 88 Ore. 319, 63 Pac. 489, 58 L. R. A. 816, 84 Am. St. Rep. 793; Meroney v. Loan Association, 116 N. C. 882, 21 S. E. 924, 47 Am. St. Rep. 841; Rhodes v. Missouri Savings Co., 173 Ill. 621, 50 N. E. 998, 42 L. R. A. 93; Building & Loan Ass’n v. Burch, 124 Mich. 57, 82 N. W. 837, 83 Am. St. Rep. 311; Hoskins v. Rochester Savings & Loan Ass’n, 95 N. W. (Mich.) 566; Building & Loan Ass’n v. Griffin et al., 90 Tex. 480, 39 S. W. 656; United States Savings & Loan Company v. Scott, 98 Ky. 695, 34 S. W. 235; Fidelity Savings Assn. v. Shea, 6 Idaho, 405, 55 Pac. 1022; P. B. & L. Association v. Fowble, 18 Utah, 206, 55 Pac. 57.
We cannot say that the attorney’s fee nor the damages allowed are excessive and, no error being found in the record, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
.CünNIngham, J.:
The parties to this action were engaged in the business of handling cattle on commission. Defendants in error were plaintiffs below, and. were given judgment. Their cause of action was based upon an alleged oral .contract between them and the defendants “whereby (quoting the petition) they were to cooperate with each other in their said business of buying, selling and handling cattle, and whereby said defendants were to furnish buyers for cattle that said plaintiffs had in their hands for sale, and whereby plaintiffs were to' locate and furnish cattle for said buyers so furnished and for the selling of cattle SO' furnished, sold or handled a commission was to be charged, and divided equally. It was claimed that on a certain deal the plaintiffs had sold certain bunches of cattle to customers furnished by defendants, the commissions on which sales were collected by defendants who refused to divide the same in accordance with the contract.
It appears from the evidence that the plaintiffs did not have the cattle in controversy in their possession for sale, nor were they authorized to sell them; that the only thing they did in accomplishing the sale was to furnish some information to the defendants regarding the location and character of the cattle which plaintiffs claim led to, or at least aided in, the making of the sale. The principal claim here is that this was not sufficient, under the terms of the alleged contract, to entitle the plaintiffs to share in the commissions collected by the defendants; or, putting the matter in the language of plaintiffs in error, 1 ‘ they were liable to the Greenleafs for a share of the commission only in those cases where the Greenleafs had a contract, with the owner for the sale of the cattle, or had authority from the owners to sell the cattle.” We do not think the contract counted on should receive so narrow a construction. As stated, it was that the parties were to cooperate in the business of buying, selling and handling cattle. Such cooperation was to be along certain general lines — the one party to furnish buyers for such cattle as the other had in their possession for sale, and also for such as- they might locate and thus furnish. There was no little controversy over the question whether plaintiffs located the cattle sold by defendants, but this question was resolved by the jury in favor of the plaintiffs, and we think the transaction was thus brought within the terms of the contract pleaded. This view disposes of most of the questions raised.
A claim is made that there was error in admitting evidence concerning the contents of certain letters shown to have been destroyed. We doubt if proper objections were made to raise the questions now presented, but, if there were, we are of the opinion that no error was committed.
There were two bunches of cattle involved. As to one there was no question but that plaintiffs were entitled to a portion of the commission in dispute. Prior to the bringing of the action defendants had sent a check for the amount which they claimed was due to plaintiffs, accompanying the same with a letter in which they denied their liability for a greater amount upon the entire deal. It is now claimed that this, in effect, was an accord and satisfaction, the plaintiffs having neither returned the check nor made objection to its amount. It is doubtful if there was anything in the letter amounting to a declaration that the check was tendered as full satisfaction of all claims which plaintiffs had upon defendants growing out of these transactions, but, if there was, there was nothing whatever looking to a declaration that if this amount was accepted by the plaintiffs it must be in full satisfaction of these claims, its acceptance therefore did not amount to an accord and satisfaction.. (Harrison v. Henderson, 67 Kan. 194, 72 Pac. 875.)
Finding no error, we affirm the judgment.
All the Justices concurring. | [
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Per Curiam:
Plaintiff brought her action in replevin to recover possession of goods which she claimed to own, but which had been levied upon as the property of her husband. The issuable fact tried by the court, sitting as a. jury, was one of ownership. This was decided upon contradictory evidence in favor of the defendant. We may not disturb that finding.
It is strenuously insisted that an error was made in the assessment of the value of certain stacks of barley involved. The court found the value in gross, without indicating the number of bushels or the price per bushel used in the calculation. There was evidence tending to show its value to be as low as thirty-five cents, and as high as forty-five cents per bushel. At the latter figure, the total value was placed too low, at the former, too high. Not being able to state what view the court took upon this contradictory evidence, we are unable to say that the value, as fixed, was too great.
The judgment will be affirmed. | [
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Per Cxiriam:
This action was brought for the ' of damages occasioned by the destruction of a brick building by an explosion of gas. The facts are identical with those set forth in Gas Co. v. Carter, 65 Kan. 565, 70 Pac. 635. The assignments of error relating to defendant’s right to a judgment on account of the statute of limitations and on account of plaintiff’s opening statement depend upon the same circumstances as did similar assignments in the Carter case, and the decision in that case is conclusive upon them.
Both in his opening statement to the jury and at a point in the course of the trial, the attorney for the gas company expressly admitted that the building was totally destroyed. Under these admissions, the plaintiff established his damages when he proved the value of the building. The defendant introduced no evidence on this subject, and, with • the case standing, in that condition, the instruction of the court relating to damages was correct.
While the evidence of the witness Jordan Crouch was somewhat remote, it was admissible for what it was worth, and the evidence of Mrs. Smith was doubtless admitted under the allegation relating to the failure properly to case the well. Upon the whole evidence, the examination of the witness Sadler could not have been prejudicial. A careful analysis of the court’s instructions shows that no higher cluty was imposed upon the gas company than it admits it owed, under the circumstances, and, while somewhat involved, they are not misleading.
The answers to the special questions were sufficiently . definite and, when carefully scrutinized, are not so contradictory as to require another trial of the case. The verdict is supported by the evidence, and the judgment of the district court is affirmed. | [
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Per Ouriam:
This case was once decided adversely to plaintiff in error. (64 Kan. 735, 68 Pac. 608.) A judgment in his favor was reversed and a new trial granted, for the reason that the negligence alleged and proved was not the proximate cause of the injury. After the case was remanded, plaintiff below filed a third amended petition, His counsel says in his brief:
“The third amended petition of the plaintiff merely enlarged the cause of action already stated in the second amended petition by inserting other allegations material to the case. . . . The cause of action in both petitions is the same.”
Counsel further states that the third amended petition “is a new version of an old story.” A general demurrer was sustained to this pleading, of which plaintiff below complains.
The proceeding in error impresses us as an attempt to obtain a rehearing in the original case. Counsel for plaintiff in error says:
“The third amended petition, like the second, merely charged common negligence, and the negligence in both cases was charged to be the crossing of its uninsulated electric-light wires with uninsulated telephone wires of Radford.”
The judgment of the court below will be affirmed. | [
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The opinion of the court was delivered by
Cunningham, J. :
The defendant in error was engaged in rebuilding its bridge across the Missouri river at Atchison, and in so doing was removing and replacing the ironwork composing it. For thatpurpose it had erected a false work upon piles considerably wider than the bridge on either side. A huge crane or “traveler,” spanning the entire structure from side to side, movable lengthwise of the bridge upon rails on either side, was erected for the purpose' of attaching a block and tackle with which to lift and adjust the iron beams as they were removed from their places. The plaintiff was employed in and about this work, under a foreman. The hoisting was done by a machine denominated a “nigger-head,” run by an engine at a uniform rate of speed. The custom in moving beams was. for a workman to connect the tackle to them by making -a hitch about the middle ■ of the beam and then upon signal to start the ‘‘nigger-head,” so as to wind up the cable and thus hoist the beam.
On the occasion in question, the workman whose duty it was to fasten the chain around a beam then being lifted left the place too soon, so that the chain became unfastened. The foreman, with some vigor and profanity, called upon the plaintiff to readjust the hitch, telling him not to be in so great a hurry to get away, but to stay until he was certain that the hitch would remain fastened ; that he, the foreman, would tell plaintiff when to get away. The plaintiff made the hitch, and gave the signal to the foreman when he was ready to have the load hoisted, and the foreman directed the starting of the engine for that purpose. The ropes from the top of the traveler, which was about fifty feet above, were not perpendicular, so that as the beam started it was swung to one side. The plaintiff, having remained too long at the place of hitching, was unable to get to a place of safety in time to avoid the swinging motion of the beam ; there being no snub-line attached by means of which other workmen might control its motion. The beam, thus left to itself, swung against the loose plank on which the plaintiff was endeavoring to reach a place of safety, knocked it from under him, and he was precipitated to the ice on the river below and badly injured.
It was for the recovery of injuries thus sustained that plaintiff brought this .action. The jury returned a general verdict in his favor, accompanied by many special findings. The defendant filed its motion for judgment upon the special findings, notwithstanding the general verdict, and also its motion for a new trial. The motion for judgment on the special findings was overruled, and the hearing upon the motion for a new trial was continued until some subsequent date, to be determined by the court. At the next term of court the defendant filed its motion to vacate the judgment and for leave to renew its motion for judgment upon the special findings. This motion was sustained, the judgment on the general verdict set aside, the second' motion for judgment upon the special findings granted, and judgment rendered in favor of the defendant for its costs.
It is complained that the court was in error (1) in' setting aside the judgment rendered upon the general verdict after the expiration of the term at which it was rendered, it having no jurisdiction so to do ; and (2) if the court had jurisdiction to make such order at the time it did, that the special findings were not so inconsistent with the general verdict as to require this to be done. If the special findings were so inconsistent with the general verdict that both could not stand together, then the court erred in overruling the motion in the first instance, and the judgment entered at that time was certainly irregular and as such might be vacated at or after the term at which it was' rendered, under section 5054, General Statutes of 1901. A judgment must follow the verdict. Any other course would be irregular. The controlling verdict is the one indicated by the special findings. It would be the court’s duty to enter judgment upon the verdict, and to this end he might change the judgment at á subsequent term if incorrectly entered at first.. (Tobie v. Comm’rs of Brown Co., 20 Kan. 14.) We are required, therefore, to make inquiry as to whether the special findings were such as to control the general verdict and compel a judgment to be entered for the defendant, notwithstanding the general verdict.
The negligence of the defendant, as found by the jury, consisted in not using a snub-line to control the swinging motion of the load as it was raised, and in raising the load too fast. The jury further specially found that the plaintiff was in a position to see that there was no snub-line being used, and also in a position to see that the lifting line was out of perpendicular, and therefore that the beam was liable to swing as it was lifted from its position; that had the load gone straight up, instead of being dragged by reason of the fact that the lifting line was not perpendicular, the accident would not have happened, and that the plaintiff expected the load to be drawn straight up. It was further found that the gear which ran the “nigger-head” was such as to run it at a uniform rate of speed determined by the speed of the engine, from which fact it is claimed that the finding of negligence in that the load was raised too fast could not be true, or, in any event, that the plaintiff was aware of the rate of speed at which the load would be lifted.
From these facts the defendant deduces the conclu- • sion that, as the plaintiff was in a position to know from the slant of the lifting-tackle that the beam would likely be drawn to one side, and was in a position, had he looked, to have known that there was no snub-line with which to control the motion of the beam «which was being lifted, and because he knew the speed at which the “nigger-head” was being run, and consequently the rate at which the beam would be lifted after he gave the signal to start, he assumed all of the risks in the lifting of the beam in that particular manner, and that therefore he was not entitled to recover.
We think that one important element is omitted from the defendant’s chain of reasoning. It is not only necessary that an employee should know of the facts which go to make up the negligence of the em ployer, or have opportunity to know the same, but in addition to those facts he must have known or understood, or by the use of ordinary observation ought to have known or understood, the danger to which he was exposing himself; that is, not only must he have known or had reasonable opportunity to know the dangerous conditions existing, but he must have known or had reasonable opportunity to know the danger to which he was exposing himself by reason of those conditions. (Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253.)
The last element of the equation is as much a matter of fact for the jury as is the former, and in determining it the jury must take into consideration all of the circumstances and surroundings. It might here be claimed that plainly the plaintiff should have grasped these details of danger and correctly deduced therefrom the proper estimate of the risks incident thereto. We must, however, remember that this would depend not a little upon the capacity, age and condition of the plaintiff, concerning which there is no special finding. We must further remember that he had just been hurried to the work, had been violently chided for too great haste in getting away from this place of danger, had been told to remain there until sure that the fastening was secure, and had been informed by the foreman that he would tell the plaintiff when to get away. All this would have a strong tendency to make the plaintiff less observant of the dangerous surroundings, less critical as to unsafe conditions, and less competent to judge of the danger to which he was exposing himself, growing out of these surroundings and conditions.
Now, while some of the elements of the problem involved were determined in favor of the defendant, by the special findings, not all of them were so determined. The others, by the general verdict, were resolved in favor of the plaintiff, and hence there is not enough in the special findings to require the overthrow of the general verdict. The court, therefore, was in error in setting it-aside. Its judgment in so doing and in rendering judgment for the defendant for its costs must be reversed, and the case remanded for further proceedings.
All the Justices concurring. | [
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Per Curiam:
Nicholas Shockman, five years of age, lost his left arm by being run over by a locomotive of the Missouri, Kansas & Texas Railway Company at or near the intersection of two streets in Coffeyville, Kan., while attempting to cross the track. He sued the company and recovered judgment for $7000. This judgment was reversed (59 Kan. 774, 52 Pac. 446), for the reason that there was a variance between the pleadings and the proof, the petition alleging negligence only in the employment of an incompetent engineer, and the evidence showing negligence only in failing to furnish him with an assistant to maintain the necessary lookout to avoid accidents. In the per curiam opinion filed, it was said that, while other errors were alleged, the case would be affirmed except for this fatal variance. The petition was amended and the case retried, with the same result. The company again brings proceedings in error.
There is no substantial difference between the questions passed-upon in the former review, other than that of variance, and those now presented. It is claimed that even if the engineer had been provided with an assistant he could not have prevented the injury; but the evidence is to the contrary. One keeping a lookout ahead on the side of the engine opposite the engineer must have seen the boy approaching the track, and, as the train was going at the rate of only four or five miles an hour, it could have been stopped in time to prevent the'injury. Against this it is argued that the boy was running alongside and parallel with the train, and that such a watcher could not have anticipated that he would try to cross in front of it. The evidence, however, was that he approached the train diagonally, and in such a way that the jury were warranted in believing that it would have been plain to one observing him that it was his intention to, cross the track in front of the engine.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J. :
In this case the only question necessary to be determined arises upon a motion of defendant in error to dismiss the proceedings on the ground that the case-made is a nullity because settled by the trial judge after he had lost jurisdiction. .The judgment complained of was rendered November 29, 1902, when defendant (the losing party) was given until February 1, 1903, to make and serve a case, plaintiff being allowed ten days thereafter to suggest amendments. It was also ordered that the case was to be settled on five days’ notice, but further than this no time was fixed within which the case was to be signed and settled. The term of the trial judge expired January 12, 1903. The case was served January 22, and settled and signed by the ex-judge February 16, after five days’ notice had been given.
Under substantially similar circumstances dismissals have been ordered in Insurance Co. v. Nichols, 6 Kan. App. 923, 50 Pac. 940 (affirmed, 60 Kan. 856, 55 Pac. 1101), and in Mowery v. Banh, 67 Kan. 128, 72 Pac. 539, and perhaps in other cases not reported, upon the assumption that they were within the rule declared in K. & C. P. Rly. Co. v. Wright, 53 Kan. 272, 36 Pac. 331. There is this difference, however, between that case and this — in each, the term of office of the trial judge expired while no time was fixed for settling the case, but there it expired after the time fixed for serving 'the case and suggesting amendments, while here it expired before the time fixed for serving the case. The statute reads :
“In all causes heretofore or hereafter tried, when the term of office of the trial judge shall have expired, or may hereafter expire before the time fixed for making or settling and signing a case, it shall be his duty to certify, sign or settle the case in all respects as if his. term had not expired.” (Civil Code, § 549 ; Gen. Stat. 1901, §5035.)
In Railway Co. v. Wright, supra, it was said :
“The only contingency which warrants an ex-judge in settling and signing a case is, that at the expiration of his term the time was actually fixed for making or settling and signing the case.”
The making of a case is an act entirely distinct from the settlement and signing. “The making and serving of a case are the acts of the plaintiff in error:” (M. K. & T. Rly. Co. v. City of Fort Scott, 15 Kan. 435, 477.)
“While in one sense the making and serving of a case may be more than a single act, yet in practice the preparation and delivery of a case to the opposite party is frequently spoken of by both lawyers and judges as the making of a case. In section 549 of the code (Gen. Stat. 1897, ch. 95, § 590 j Gen. Stat. 1899, § 4843), after providing for the making and service of the case, and the suggestion of amendments, it is provided that the case, ‘ when so made/ shall be settled, certified and signed by the judge, making no mention of the service of the case. The words 'so made ’ evidently include all the preliminary steps to the presentation of the case to the judge for settlement.” (Railroad Co. v. Guild, 61 Kan. 213, 59 Pac. 283.)
Having in view this distinction between the making and the settling of the case, the supreme court of Oklahoma has held, in Barnes et al. v. Lynch et al., 9 Okla. 11, 59 Pac. 995, that when the term of office of the trial judge expires before the time fixed for making a case, no time having been designated for its settlement, he may sign and settle it after the time limited for service and suggestion of amendments. In the opinion it was said :
“As we construe the provisions of section 567 of the code (§549, Kansas Code), that section means that if the term of the trial judge shall expire before the expiration of the time fixed for making a case, he may settle and sign such case ; or, if his term of office shall expire during the time fixed for settling and signing the case, he may settle and sign the same thereafter. In other words, there are two contingencies under which he may have authority to complete the work of perfecting the case for appeal, viz. : If his term of office expires during the time fixed for making and serving the case, or if his term shall expire thereafter during the time fixed for its settling and signing ; but if his term of office does not expire during the time fixed for making and serving the case, and no time has been fixed for settling and signing before his term expires, then he cannot settle and sign the case.”
So far as the language quoted is concerned, we think the interpretation of the statute is correct. The jurisdiction of the trial judge to settle the case is preserved in either of two contingencies, namely : First, when his term of office expires before the time fixed •for making a case ; second, when his term of office expires before the time fixed for settling and signing a case. But the Oklahoma court further holds tha,t in the first of these contingencies the case may be settled at any time within a year after the date of the judgment or order sought to be reviewed. This construction may seem to follow naturally from a literal reading of the words authorizing the trial judge to settle the case under such circumstances “in all- respects as if his term had not expired,” but does not accord with the spirit and purpose of the statute.
The object of the provision in question is to preserve the jurisdiction of the trial judge, after his term has expired, not for an indefinite time, but only during a fixed and certain period. If, when his term expires, a time has been fixed within which the case is to be settled, and as in this case there has been no extension of time, that is the limit of his jurisdiction ; he may settle the case within that time, but not later. And if, when his term expires, no provision has been made as to the time of settlement, but a;time has been fixed within which the case is to be made, that time, including that given for suggesting amendments, is the limit of his jurisdiction ; he may settle.the case within that time, but not later. “If no time is fixed by, the order of the court for settling and signing the case, the time fixed for making the case must control.” (St. L. & S. F. Rly. Co. v. Corser, 31 Kan. 705, 3 Pac. 569.)
‘‘Where there is no order fixing the time for presenting the case for settlement, and only the simple order giving an extension of time for making and serving a case, the case is duly settled and signed, if settled and signed within three days after the time fixed for making and serving a case.” (M. K. & T. Rly. Co. v. City of Fort Scott, 15 Kan. 435, 478. See Thurber v. Ryan, 12 id. 453.)
If this case had been settled within the time limited for the suggestion of amendments it would have been valid, but having been settled later than that, it is void. This conclusion is in harmony with the rulings heretofore made. It has perhaps been said that jurisdiction was lost whenever the term of office of the trial judge expired and no time had been fixed for settling the case ; whereas a complete statement of the rule should cover the contingency of the term expiring before the time fixed for making the case. But these expressions are not misleading if considered in connection with the facts to which they are applied. In cases tried before a judge pro tem. it is obvious that the contingency referred to cannot arise. The term of office of a judge pro tem., where no time is fixed for settling a case, is held to be coextensive with the time allowed for suggesting amendments, and therefore cannot expire before the time fixed for making the case. So that the rule as stated applies in such cases without qualification. (See Railway Co. v. Preston, 63 Kan. 819, 66 Pac. 1050.)
It may be added that an examination of the record discloses no error, and if the matter were properly before us the judgment would be affirmed.
The proceedings in the case are dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, 0. J.:
H. K. Goodrich and Porter Mitchell are each'claiming the office of superintendent of the electric-light plant of Topeka. The term of this office is two years, and there is a provision that all officers of the city shall hold their offices until their successors are elected and qualified. Goodrich was duly chosen as superintendent and continued to act in that capacity until April, 1908, which was the end of the term, as fixed by ordinance. He then applied to the mayor and council of the city for appointment to the next regular term, and Mitchell made a like application. These were the only applicants for the place, and it is agreed that both are men of good reputations, are equally competent to perform the duties of the office, and equally eligible for appointment, unless Goodrich has a right to be preferred because of services and honorable discharge from the army of the war of the rebellion. Goodrich was a soldier in that war and received an honorable discharge, while Mitchell never served in the army or navy at any time. With a knowledge of. these facts, the mayor and council appointed Mitchell to this office, but the refusal to appoint Goodrich was not because he was lacking in qualifications, fitness, or eligibility, nor because Mitchell possessed any superior qualifications for .the office. After Mitchell was appointed and had qualified, he demanded the possession of the office, and, when Goodrich declined to surrender it, Mitchell took forcible possession and ousted Goodrich therefrom.
It is conceded that the result of this proceeding and the right to the office in this contest depend upon the constitutionality of an act spoken of as the “veterans’ preference law.’’ It provides :
“That section 1 of chapter 160 of the Laws of 1886 be and is hereby amended so as to read as follows : In grateful recognition of the service, 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 employed 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 oUequaLauali-fications, and the person thus. preferred shall not be disqualified from holding any position in said service on account of his age or by reason of any physical disability, provided such age or disability does not render him incompetent to perform the duties of the position applied for ; 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 or sailor to such position, place, or employment.” (Laws 1901, ch. 186, §1; Gen. Stat. 1901, §6509.)
Other provisions are that a like preference shall be given if it becomes necessary to reduce the force in any of the departments, cities or towns of the state, and penalties are also declared against those who wil-fully refuse or neglect to obey the provisions of the act.
The f undamental infirmity in the act is not specifically pointed out. It is said to be unequal and arbitrary in its operations ; that the preference given to veterans necessarily restricts the privileges of others, and that it is given as reward for past services, without regard to the public service or the general'welfare of the people. It is not contended that the act conflicts with any express provision of the state or federal constitutions, but, rather, that it is contrary to the implications and spirit of our constitution.
The general doctrine is that', in the absence of constitutional limitations, the legislature may prescribe how and by whom offices shall be filled. There is no contract right or property interest in an office, and hence some of the constitutional principles invoked have no application. An office is a public agency, and an officer is a mere agent of the public, entitled to exercise the functions and perform the duties of the office for the public benefit and not for his own. The main consideration in the selection of officers and agents is the public welfare, and the state, like any other principal, may select its agents ; may determine for itself who can best accomplish its purpose and whose appointment will best subserve the public good. When the constitution prescribes a method or imposes a limitation, the legislature is to that extent guided and controlled in choosing its officers ; but no provision' has been called to our attention which prohibits the giving ,of a preference to veterans of the civil war. Constitutional limitations are prescribed with respect to eligibility and the holding of office, and among them is the provision that a member of congress, or officer of the state or of the United States, cannot hold the office of governor. (Art. 1, § 10.) Neither is a United States officer eligible to a seat in the legislature. (Art. 2, § 5.) Justices of the supreme court and judges of the district court cannot hold any other office during the terms for which they are elected. (Art.,3, §18.) Persons who are under guardianship, have been convicted of a felony, have defrauded the government, have given or received a bribe or offered to do so, have voluntarily borne arms against the government, with some exceptions, cannot hold office. Any one who gives or accepts a challenge to fight a duel, or who carries a challenge to another, or who goes out of the state to fight a duel, is ineligible for office, and every one who has given or offered a bribe to secure his own election is disqualified from holding office during the term for which he has been elected. (Art. 5, §§ 2, 5, and 6.) In the main, these are the provisions affecting the holding of office, and aside from these restrictions the whole matter is committed to the legislature by section 1 of article 15, wherein it is provided that “All officers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law.”
It is conceded that the matter of holding office is a political privilege, but it is argued that it becomes a special privilege ' when a class of citizens are given a preference over all others. Our constitution differs materially from those of many of the states with respect to the granting of privileges. The only provi-' sion we have touching the subject is found in section 2 of the bill of rights, which is :
“All political power is inherent in the people, and all free governments are founded on their authority, and are instituted for their equal protection and benefit. No special privileges or immunities shall ever be granted by the legislature, which may not be altered, revoked or repealed by the same body ; and this power shall be exercised by no other tribunal or agency.”
In most of the states the granting of special privileges or immunities is expressly prohibited; but, as will be observed, ours seemingly contemplates that such privileges may be granted, as it provides that none shall be granted that may not be altered, revoked, or repealed. The legislature may, then, exercise its judgment and discretion in the selection of officers, unhampered by restrictions, unless some are to be implied from those expi'essed or from the theory of our government. As an office is a public trust, to be held and exercised for the public benefit, it is always implied, perhaps, that officers shall be chosen with a view to carrying out that'purpose. So it is said that a law permitting the selection of persons unfit for the office and unable to perform its duties is defective. In Brown v. Russell, 166 Mass. 14, 43 N. E. 1005, 32 L. R. A. 253, 55 Am. St. Rep. 357, it was, in effect,' held that, in the absence of constitutional restrictions, the legislature had power to select officers at will, or to confer power of appointment on boards or officers ; but that the. appointment of a person or a class in preference to all others, Without inquiry or determination whether the person appointed is actually qualified to perform the duties of the office, is inconsistent with the nature of our government. It was, therefore, held that a statute, making the appointment of veterans compulsory, when the appointing power should think the applicants not qualified to perform the duties of the office sought, was invalid. If that should be accepted as the correct view, our statute is not obnoxious to such a limitation, as it only gives a preference to ex-soldiers and sailors upon the theory of equality of qualifications.
Nor is there any novelty in our legislation on the subject, as like preferences have been given by the legislatures of a great many states and by the congress of the United States, and, except where the acts have been drawn so as to conflict with express constitutional provisions, they have been generally upheld. The supreme court of Massachusetts, in response to questions by the governor and council, held that the provisions of a civil-service statute giving to veterans the preference for appointment to offices that they were found competent to fill, were constitutional. And the same view was expressed with reference to a provision giving a preference in public employments. It was said :
“We doubt whether a statute, which purports to compel the commonwealth and its cities and towns to employ in the labor service persons who are not able to perform the labor, and to pay them wages as laborers, could be held to be either wholesome or reasonable. But if the section means that the civil-service commissioners shall establish rules to secure the employment of veterans in the labor service of the commonwealth and its cities and towns in preference to all other persons except women, if the veterans are found competent to perform the labor, we think the enactment is within the constitutional power of the general court.” (In re Opinion, 166 Mass. 589, 596, 44 N. E. 625, 34 L. R. A. 58.)
See, also, In re Opinion, 145 Mass. 587, 13 N. E. 15 ; Commonwealth v. Plaisted, 148 id. 375, 19 N. E. 224, 2 L. R. A. 142, 12 Am. St. Rep. 566; In re Sweeley, 33 N. Y. Supp. 369 ; Matter of Stutzbach v. Coler, 168 N. Y. 416, 6 N. E. 697; In re Wortman, 2 N. Y. Supp. 324; Matter of McGuire, 57 N. Y. Sup. Ct. 203, 2 N. Y. Supp. 760 ; State, ex rel. Cowden, v. Miller, 66 Minn. 90, 68 N. W. 732 ; Townsend v. Baughner, 55 N. J. L. 381, 26 Atl. 808; Throop on Public Officers, §§95-98; 6 A. & E. Encycl. of L., 2d ed.’, 93.
State of Iowa v. Garbroski, 111 Iowa, 496, 82 N. W. 959, 56 L. R. A. 570, 82 Am. St. Rep. 524, is cited as an authority against the validity of a preference to veterans. That was a case where there was an attempted exemption of persons who had served in the army and navy from the payment of a license-tax. That act, which affected liabilities and imposed burdens, gave rise to a very different question than the one presented here. It was held to be a discrimination in violation of the fourteenth amendment to the federal constitution, and a denial of the equal protection of the laws. Even in that case it was remarked that “possibly a veteran soldier or sailor would be preferred, everything else being equal, for civil office, because of superior fitness, resulting from discipline of service in war ; for ‘it is distinctly a public purpose to promote patriotism, and to make conspicuous and honorable any exhibition of courage, constancy, and devotion to the welfare of the state.’ But the work of a pedler calls for no qualities such as a soldier or sailor acquires in the service.’’ State v. Shedroi, 75 Vt. 277, 54 Atl. 1081, involved the same question and was decided in the same way.
Office-holding is a political privilege, and the matter of appointment to office is not affected by the fourteenth amendment or other provision of the federal constitution, and, as has been said, the power of the legislature is supreme in respect to appointments, save as the constitution has limited it. Already statutes have been enacted which limit the number from whom officers may be chosen, and necessarily put others who might desire these offices at a .disadvantage. There are boards upon which only physicians $an be appointed; others to which only dentists are eligible ; others where architects or skilled mechanics have the preference ; others where a woman is arbitra rily appointed ; and still others where political opinions enter into the qualifications of members — that is, enactments that members of' boards shall be taken in certain proportions from different political parties. These acts are generally field to be within the legislative power, and the preferences and the exclusions so made to be reasonable and valid. Where the limitation from which officers shall be chosen is manifestly for the public good, and where the purposes sought and the ends attained in legislation in regard to the qualifications for office are the safety and welfare of the public, it cannot be said that the rights of any others are unduly affected or prejudiced.
If we should lay aside the gratitude, mentioned in the first part of the section in question, for those who sacrificed and suffered in defense of the nation, there are reasonable and substantial considerations for making a preference in favor of the veterans. The love of country that induced them to fight for its existence and defend its institutions is some assurance, at least, of loyalty and fidelity in the civil service. In the nature of things, the discipline of the army and navy tended to promote promptness, respect for authority and obedience to law, courage to meet difficulties and overcome sélfish and sinister influences, steadiness of purpose, perseverance, and devotion to duty. These considerations may very well have appealed to the discretion and judgment of the legislature in determining who could render the best service to the public, and we see no reason why they are not reasonable and sufficient. In the civil-service laws of the country, conceded to be beneficial and valid, a preference is given because of the former experience in the public' service, and why should not the public service of those who imperiled their lives in the defense of their country receive like-recognition and preference? As counsel for the plaintiff has well said, “A grateful recognition of the service, sufferings and sacrifices of persons who have served the state in war has always been recognized by all nations as the exercise of the highest public policy, as the surest guaranty of the future safety, honor and welfare of the state.”
In Keim v. United States, 177 U. S. 290, 20 Sup. Ct. 574, 44 L. Ed. 774, the preference law enacted by congress was considered and interpreted, but its constitutionality seems to have been conceded, as- no attack was made upon its validity. Judge Brewer, in deciding it, remarked that “No thoughtful person questions the obligations which the nation is under to those who have done faithful service in its army or navy.” That such service afforded reasonable grounds for preference in public offices and employments was recognized in Brown v. Russell, supra, where it was remarked:
“It may be said that, other qualifications being equal, there are reasons to believe that a veteran soldier or sailor often will make a better civil officer than a person who never has been subjected to the discipline of service in war, and it is distinctly a public purpose to promote patriotism and to make conspicuous and honorable any exhibition of courage, constancy, and devotion to the welfare of the state shown in the public service. These things we assume the legislature may take into account in providing for appointments to office where the qualifications are not prescribed by the constitution.”
The' court, in In re Opinion, supra, in speaking of the belief' that faithful service in and honorable discharge from the war of the rebellion developed such qualifications of character in men that it was to the interest of the commonwealth to appoint them to office in preference to others, said :
“The general court may have so thought, on the ground either that such a person would ■ be likely to possess courage, constancy,, habits of obedience, and fidelity, which are valuable qualifications for any public office or employment, or that the recognition of the services of veterans in the way provided for' by the statute would promote that love of country and devotion to the welfare of the state, which it concerns the commonwealth to foster. If such was the opinion of the general court, we cannot say that it was beyond its constitutional power to enact this section. Of the wisdom of such legislation we are notmade the judges.”
Faithful service and devotion to duty in the past have always been regarded as good consideration for preference or promotion in every department in life, public and private, and it belonged to the legislature to determine what qualifications and experience give the best assurance of faithful, honest and efficient public service. The case is quite unlike the one supposed, of a right to office by those affiliated with a particular church or a particular party, or because of some private achievement. The preference that is made here has its basis on services to the public and experience and fidelity in the public service, and we think it was within the constitutional power of the legislature to make such a preference.
It is conceded that the plaintiff possessed every qualification, and was entitled to reappointment as against the defendant, who was the only other applicant for the position. The mayor and council were, therefore, required to give the plaintiff the preference, and under the circumstances had no power or authority to appoint the defendant. The plaintiff, being in the office, was entitled to continue until some one was legally ap pointed, and, therefore, had a right to bring a proceeding in quo warranto to obtain the possession of the office.
Judgment will therefore be given in favor of the plaintiff.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Mike Gendusa appeals from a conviction on a charge of having intoxicating liquor in his possession. The case went to •the jury upon the count on which this conviction was had and also upon a count charging the maintenance of a liquor nuisance, on which there was an acquittal.
There was evidence tending to show these facts: Five deputy constables raided the defendant’s home. They found a half barrel of wine covered with hay in the barn, one bottle partly filled with whisky lying between the house and a bench, and another in a tool shed some 50 or 75 feet from the house. The defendant’s wife was seen to pour some whisky out of a bottle as the raiders entered.
The defendant and his wife insisted there was no whisky on the place, but explained the contents of the barrel by saying it contained what was called “sour,” produced from grapes and used for making cheese. They presented the theory that the deputy constables had planted the whisky bottles.
1. Two of the deputy constables were permitted over objection to testify that complaints had been made to them of the defendant’s home with reference to the violation of the prohibitory law. Error is assigned because of this ruling. In a prosecution under the nuisance clause, where evidence has been given that the place in question was in fact one where the prohibitory law was violated, testimony may be properly admitted showing it was generally reputed to be such, as tending to show the owner must have known of the fact. (State v. Brooks, 74 Kan. 175, 85 Pac. 1013.) But the fact of complaints having been made to officers does not establish general reputation, and is not equivalent to it, and is not admissible in evidence. (See State v. Adler, 119 Kan. 757, 241 Pac. 119.) As in the case just cited, the evidence doubtless was intended to apply to the nuisance count, but the jury not having been so advised, may have based the conviction on the possession count partly upon it. There, however, similar evidence had already gone in without objection and the fact that some one- was keeping intoxicating liquor at the place in question for sale, and that sixty-five gallons of whisky was found there, were definitely established, the controversy being whether it was in the possession of the defendants or of some one else. Here the defendant contended that the liquid in the barrel was not intoxicating and that the whisky was brought in by the officers. It is not clear that no prejudice resulted from the incompetent evidence.
2. Counsel for the defendant, on cross-examination of each of the five deputy constables, evidently in the hope of eliciting answers tending to impeach their veracity by showing a financial motive for giving false testimony, asked a number of questions such as the following, to all of which objections were sustained:
“Have you received any fees for raids on these liquor cases other than the regular fees allowed to the deputy constable?”
“Have you been paid any money from any other source other than through the court for making these raids?”
“I will ask you if it isn’t' a fact that you and those four men who were with you have made a practice of charging illegal fees on the returns of these warrants?”
“Did you get any money outside of your commission you got on this Gendusa raid?”
“I wish you would fell the jury how you figure you are entitled to $16.85 for making that raid.” [That being the amount entered in a notebook produced by the witness.]
"What is your motive, or purpose, or reason, for being a deputy constable and making these raids?”
“I will ask you whether or not you expect to get any money for making this raid?”
A full opportunity for cross-examination of these witnesses was permitted with respect to the details of what took place during the raid, but the defendant was practically deniéd all right of cross-examination having for its purpose the developing of an ulterior and sinister purpose on their part. That was a field which the defendant’s counsel were entitled to canvass to a reasonable extent and it was not within the discretion of the court to exclude it entirely. The situation was not one in which it was essential for the defendant to show what answers would have, been made to the questions ruled out. (See Leavens v. Hoover, 93 Kan. 661, 145 Pac. 877.)
3. Complaint is made of the giving of the following instruction, the word “preponderance” having a line run through it:
“You are instructed that' in order to secure a conviction under count one of the information filed herein, the state would only be required to prove that intoxicating liquors were found on. defendant’s premises on or about March 15, 1925, or that defendant had or kept in his possession intoxicating liquors on or about the 15th of March, 1925. And you are instructed that if you find intoxicating liquor was found on his premises by the officers' who made the search on or about the 15th day of March, 1925, and further find that the defendant knew such liquor was there and that such liquor was had or kept there by defendant, then you should find the defendant guilty under count one of the information filed herein. But' if you do not so find and are not so satisfied from a [preponderance] of the evidence herein, then you should acquit the defendant under count one.”
The explicit statement that “in order to secure a conviction under count one of the information . . . the state would only be required to prove that intoxicating liquors were found on defendant’s premises on or abount March 15, 1925,” is manifestly erroneous. In the second sentence this is repeated in effect, with the qualification that to convict there must also be a further finding that the defendant knew of the liquor and that it was had or kept there by him. But the second sentence does not in terms purport to limit the application of the first, and it is far from clear that the jury did not rely upon the original statement. The charge of course is to be read as a whole and a mere inaccuracy of expression in one part may be cured by a correct statement elsewhere, “where it appears from the whole of the instruction that the jury could not have been misled” (State v. Killion, 95 Kan. 371, syl. ¶ 6, 148 Pac. 643), or where “the instructions as a whole clearly present to the jury the issues on trial.” (State v. Ollman, 114 Kan. 697, 219 Pac. 963.) Where a materially erroneous instruction is given it is not cured merely by a statement elsewhere made to the contrary. (State v. Singleton, 67 Kan. 803, 74 Pac. 243; 16 C. J. 1054.)
' Apparently the word “preponderance” was crossed out with a purpose — inadvertently not carried out — to change the language so as to require the state’s case to be proved beyond a reasonable doubt.
4. Complaint is made of the court’s having fined the defendant for contempt for language used in answering a question while on the stand. The trial judge was-in a better position than we are to determine whether the situation called for such action. The court also refused a requested instruction that “the juice from grapes is not presumed to be wine.” The refusal was not a sufficient basis for reversal.
The judgment is reversed and a new trial directed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves the question whether execution may issue on an arbitrator’s award in a workmen’s compensation case. It is presented in a proceeding in mandamus to compel the clerk of the district court'to issue an execution on the award of an arbitrator filed in the office of the clerk of the district court. The writ was refused, and plaintiff appeals.
The facts are substantially these:
Plaintiff was employed by the Jennings Quarry and Crusher Corn pany. While so engaged he sustained personal injuries by accident and in due time filed an application in the district court for the appointment of an arbitrator. The application was docketed, cost bond filed and other preliminaries had similar to the beginning of an action. The application alleged inability to agree upon an arbitrator and requested appointment of one to determine the character and quality of plaintiff’s disability, the amount of compensation and the period for which it should continue. An arbitrator was appointed, and after full and complete hearing, filed an award in the office of the clerk of the district court. The employer ignored the award, under which several hundred dollars was due. Efforts to get the employer to pay being unavailing, plaintiff filed prsecipe, requesting the clerk to issue execution for the amount due. The clerk refused on the theory that he was not so authorized by statute. The present proceeding was then instituted to compel issuance of the execution.
Consideration of various provisions of the workmen’s compensation act is necessary. (Italics ours.) Section 44-501 of the Revised Statutes provides:
“If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with this act.” ...
From which it appears the legislature contemplated payment, and not merely the creation of causes of action. Another section provides:
"That this act shall apply only to employment in the course of the employer’s trade or business on, in or about, .... each of which emploj'ments are hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workmen engaged therein are inherent, necessary or substantially unavoidable, and as to each of which employment, it is deemed necessary to establish a new system of compensation for injuries to workmen.” . . . (R. S. 44-505.)
From which it appears the workmen’s compensation act is a new system added to the already existing methods of obtaining relief and should be construed as amendatory to, and cumulative of the ordinary rules of procedure in civil actions. Another section relating to computation of earnings reads:
“(e) If arbitration or litigation is necessary to establish the amount of com pensation, credit shall be given to the employer by the arbitrator, arbitration committee or court for any amounts paid under this act prior to the date of the award or prior to the trial and judgment.” (R. S. 44-511.)
From which it appears that arbitration and litigation are coordinate means employed to accomplish the same result — ascertain amount of compensation. Section 44-522 deals with arbitration and award. Another section dealing with the award reads:
“The committee or arbitrator shall not be bound by technical rules of procedure or evidence but shall give the parties reasonable opportunity to be heard and to present evidence, and shall act reasonably and without partiality, and_ shall make and file an award, with the consent to arbitration or the order of the court appointing the arbitrator attached, in the office of the clerk of the proper district court within sixty days after the committee meets to consider the claim or after the selection of the arbitrator, and shall give notice of such filing to the parties by mail. The parties may agree in writing to extend the time for filing the award, and if so, the award shall be filed within such extended time as is so agreed upon. If any committee or arbitrator to whom a claim for compensation shall have been submitted shall fail or neglect to file its or his award within the time fixed by this section, the court shall, upon the application of either party, order such committee or arbitrator to file such award within such time as the court shall by such order fix, which time shall in no case be greater than ten days from the date of such order.” (R. S. 44-523.)
Various sections of the act set out the procedure in compensation cases: 44-524 has to do with fees of the arbitrator; 44-525 with form of the award; 44-526 prescribes the provisions for modification of the award; 44-527 deals with the final receipt for compensation and records by the court; 44-528 pertains to review of the award; 44-529 with judgment on the award; 44-531 contains provisions applicable when there is a lump sum payment of the award.
The question presented is whether plaintiff was entitled to an execution as in the case of an ordinary judgment. “A judgment is the final determination of the rights of the parties in an action.” (R. S. 60-3101.) “Every direction of a court or judge made or entered in writing and not included in a judgment is an order.” (R. S. 60-3103.) “Executions shall be deemed process of the court and shall be issued by the clerk and directed to the sheriff of the county. They may be directed to different counties at the same time.” (R. S. 60-3401.)
“Executions are of four kinds: First, against the property of the judgment debtor; second, against his person; third, for the delivery of the possession of real or personal property, with damages for withholding the same, and costs; fourth, executions in special cases.” (R. S. 60-3402.)
“Lands, tenements, goods and chattels, not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution and sold, as hereinafter provided.” (R. S. 60-3403.)
“The writ of execution against the property of the judgment debtor, issuing from any court of record in this state, shall command the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ; and for want of goods and chattels, he cause the same to be made of the lands and tenements of the debtor; and the amount of the debt, damages and costs, for which the judgment is entered, shall be indorsed on the execution.” (R. S. 60-3406.)
“In special cases not hereinbefore provided for the execution shall conform to the judgment or order of the court. When a judgment for any specified amount, and also for the sale of specific real or personal property, shall have been rendered, and an amount sufficient to satisfy the amount of the debt or damages and costs be not made from the sale of property specified, an execution may issue for the balance as in other cases.” (R. S. 60-3469.)
It has been held that:
“The remedy by arbitration provided by the workmen’s compensation act is distinct from the arbitration provided for by the general arbitration statute, is complete in itself, and is to be liberally interpreted and flexibly applied, to accomplish its peculiar purpose. (Roper v. Hammer, 106 Kan. 374, syl., 187 Pac., 858.)
In the opinion in the Roper case it was said:
“In the Goodwin case, the question was whether or not omission of the workman to apply for appointment of an arbitrator barred resort to the remedy by action. The opinion carefully limited the discussion to that particular question. It seems, however, that the following paragraph of the opinion has been interpreted to indicate that arbitration may be defeated by the wrongful conduct of the employer in refusing to consent to arbitration:
“ ‘The establishment committee having been set aside, and no agreement on an arbitrator having been reached, the workman must perfect the machinery of arbitration by applying for appointment of an arbitrator, or he will be precluded from enforcing compensation by action. If, however, at any stage of the proceedings, the employer definitely refuse to consent to arbitration, the workman who, in default of agreement on compensation, has consented to arbitration, need not go further with arbitration. The statute does not require him to do futile things. He cannot be at fault for not procuring appointment of an arbitrator when such appointment would be useless on account of the declared attitude of the employer.’ (Goodwin v. Packing Co., 104 Kan. 747, 750, 180 Pac. 809.) The futility and uselessness spoken of referred, of course, to the needlessness on the workman’s part, in order to avoid fault, of striving to utilize provisions of the statute by which the employer has refused to be bound at all. In the Goodwin case the numerous varieties of conduct which may be displayed by employer and workman in the settlement of compensation were noted. In some regrettable instances the em ployer, or the insurance carrier who takes charge of his case, plays the part of the dog in the manger. While consent to arbitration is not definitely refused, it is not definitely given, by promptly signing an agreement, as the statute requires, and the matter is kept hanging in the air. After a workman has made a fair effort to secure consent expressed in writing, and the writing is not executed, the employer may be regarded as having refused to consent. In this instance the court did not find that the employer refused to consent. Therefore, the condition precedent to action did not exist, and the workman was obliged to pursue the remedy by arbitration. However this may be, a workman may compel arbitration, whether the employer consent or not.” (p. 376.)
If the conduct of the employer is such as to make an attempt to arbitrate futile and useless, because the employer refuses to be bound before arbitration, certainly if.he consents to arbitrate and then refuses to be bound, the act gives effect to the arbitration in which he has participated by compelling payment. In our opinion such was the legislative intent.
“It has been repeatedly held that the decision of the arbitrator upon issues properly before him, is final except for the limited review provided by the statute.” (Kinzer v. Gas Company, 114 Kan. 440, 219 Pac. 278.)
“The result is, while the judge acts, the orders are court orders; and appointment of an arbitrator, . . . is a workmen’s remedy in a court of justice to obtain compensation, and so is a special proceeding, within the meaning of sections 3 and 5 of the. civil code. [Gen. Stat. 1915, [[116893, 6895.] An arbitrator appointed by the court determines the sum of money the employer shall pay to the workman. Other questions may be referred to him, and his determination is conclusive, unless the result of fraud or the substantial equivalent of fraud. [§ 16, Kinzer v. Gas Co., 110 Kan. 574, 204 Pac. 999, and cases cited in the opinion.] This is judicial power,'exercised by the arbitrator by virtue of being in a sense an arm of the court and subject to its supervision.” (Tidwell v. Schaff, 114 Kan. 255, 257, 217 Pac. 702.)
“The appellee contends that the order for the payment of suit money, being interlocutory, is not such a judgment as will sustain an action; that not having been embodied in the final judgment it ceased to be effective. To this we cannot agree. The order to pay was a positive one. It was of course subject to any modification the court might later see fit to make [as indeed any judgment is during the same term], but as no change was in fact made and it remained in force until the litigation was ended, it has the effect of an unsatisfied judgment. In an action for divorce allowances of alimony are enforcible in such manner as the court may choose. [Scott v. Scott, 80 Kan. 489, 103 Pac. 1005.] It is not vitally important in such a situation as that here presented what terms are used to describe the court’s decision upon an application for temporary alimony, whether it is called an order or a judgment, interlocutory or final. . . . The obligation thus created had the effect of a judgment. The litigation having ended without its being set aside it retained its vitality. Its force was not impaired merely because the debtor had ignored it, and execution had not been issued.” (Paul v. Paul, 121 Kan. 88. See, also, Wilson & Co. v. Ward, 110 Kan. 177, 202 Pac. 862; Crawn v. Packing Co., 111 Kan. 573, 207 Pac. 793.)
Being final, if the decision of the arbitrator is against the employee, he is concluded. If it is against the employer, he likewise is concluded and there remains only the necessity of putting the decision into effect. The trial court in the instant case held in effect that the arbitrator’s award was merely a cause of action; that compliance could be had therewith by action before a justice of the peace. In our opinion the legislature contemplated no such procedure. The workmen’s compensation act is complete in itself. One of its manifest objects was to speed the settlement of claims and avoid the delay as well as the expense of litigation. (Duncan v. Packing Box Co., 110 Kan. 494; 204 Pac. 543.) No necessity existed for bringing an action upon the award, no authority existed for submitting the question to another court. The issues already had been determined. The filing of the award was in' effect the entry of an order in a judicial proceeding. It was a final decision, equivalent to a judgment because it had the essential attributes of a judgment. It was an enforcible finality awaiting only for the court to put it into effect. Orders, decisions and judgments are made effective by execution and issuance of an execution in compliance with the praecipe would have been proper in the instant case.
, The judgment is reversed and the cause remanded with instructions to allow the writ. | [
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The opinion of the court was delivered by
Mason, J.:
The plaintiff brought this action to enjoin the collection of a tax with reference to an electric-light plant. A demurrer to its petition was sustained, and it appeals.
The petition alleges substantially these facts: The electric-light plant originally belonged to the city of Lebanon, a city of the third class. On September 10, 1923, a contract was entered into, the terms of which were afterwards embodied in an ordinance, concerning the sale of the plant to a partnership whose rights and obligations in relation thereto have since been transferred to the plaintiff, the Kansas Power Company. The contract and ordinance contemplated a sale of the plant for $22,000, the city agreeing to sell and the partnership agreeing to buy upon the terms and conditions stated therein. Possession of the plant was to be given at once. The first year the partnership was to pay $8,000, by turning in that amount of city warrants. Beginning with 1924 it was to pay off a thousand-dollar bond of the city each year. It was to pay off three other bonds of the same denomination in 1933. It was to give a surety-company bond for the payments due in 1924. It was to connect the plant with a system owned by the plaintiff, and was to keep the equipment in good order.
The plaintiff as the successor in interest of the partnership is in possession of the plant and had paid $9,000 up to March 1, 1924, being the full amount then due. The assessing officers valued the plant as the property of the plaintiff on March 1, 1924, at $20,000, and a tax of $908.15 was on that account charged against the plaintiff for that year. This is the tax the action was brought to enjoin, the plaintiff, however, admitting that it was liable for taxation to the extent of what it had paid — $9,000—and tendering a payment of $390.10 on that basis, making a deposit in court of that amount.
The plaintiff’s contention is that because of the special provisions of the contract, which are hereinafter set forth, it acquired no title, legal or equitable, to the plant, and is not liable for taxation to the extent of its value. The defendants-’ theory is that the plaintiff is the owner of the property subject to a lien for the unpaid purchase price, and should pay taxes accordingly. The provisions of the contract just referred to are contained within the following paragraph:
“It is agreed by the parties hereto that time is of the essence of this contract, and the city of Lebanon shall hold and retain the title in and to all of the property above described until all of the payments provided for in this contract shall have been made, and in case of default in the payments hereunder, first party shall have the right and privilege to take possession of all of said property and operate the same as its own, but in the event that said payments are promptly made at the times herein specified then this agreement shall operate as a transfer of all of said property to the second party without any further agreement or enactment of any new or additional ordinance, and said bond [that already mentioned] referred to in paragraph three (3) above shall be canceled and held for naught.”
If the arrangement is to be considered as an ordinary executory contract of sale the plaintiff should be regarded as the owner for the purposes of taxation (Note, 24 L. R. A., n. s., 1300), the city merely having a lien on the property securing its claim for the payment of the purchase price, a right which itself would be subject to taxation if held by an individual. This court has held, however, that “where an agreement is executed to sell real estate upon conditions precedent, and no notes are given for the purchase money, and it is stipulated that time is of the essence of the agreement, and neither the legal nor the equitable title to the land is transferred thereby, . . . the agreement is not subject to taxation.” (Brown v. Thomas, Sheriff, 37 Kan. 282, syl., 15 Pac. 211.) The contract there involved, so far as bears upon the question here at issue, was essentially similar to that now under consideration. The owner agreed to sell and the prospective buyer agreed to make the payments of purchase price provided for, and also the taxes on the land. If the latter failed to perform any of the agreements at the time designated, which was made of the essence of the contract, the agreement was to be forfeited at the option of the owner, who was to retain all payments and improvements as rent up to the time of forfeiture. An attempt was made to require the owner to pay taxes on the contract, but their collection was enjoined, the court saying:
“Davison [the prospective buyer] has the option to purchase. Under the agreement he has the possession of the land, and pays therefor the taxes and certain interest; but the legal title has not passed to him, because no deed or other conveyance has yet been made; and the equitable title has not passed, because the land has not been paid for, and because — on account of the provisions for forfeiture — it is clearly the intention of the parties, as indicated in the contract, that such title shall not pass until the land is paid for. Davison has a contingent or conditional equity in the land, but he is in danger of forfeiting the same, and if forfeiture occurs, his contingent or conditional equity ceases. If we could consider the agreement a mortgage merely, then as personal property it would be taxable. As the agreement cannot be construed into a mort gage, nor as creating a debt, but being a conditional sale only, we must hold that it is not subject to taxation.” (p. 286.)
The doctrine of the Brown-Thomas case has been confirmed by later decisions. Upon the strength of it the court has held that under a similar contract the interest of the original owner with respect to the realty involved continues to be real estate, and upon his death passes as such and not as personalty. (Pickens v. Campbell, 104 Kan. 425, 179 Pac. 343.) The vital point is that by virtue of the provisions so carefully made to prevent the prospective purchaser from acquiring any title except by full compliance with all the terms of the contract, neither the legal nor the equitable title passes until payment has been fully made. By virtue of this rule the plaintiff here is not the owner of the electric plant — has neither the legal nor the equitable title — and cannot be required to pay taxes upon it. A private corporation which owned the plant and made a similar contract would have to bear the burden of the tax in the absence of an agreement to the contrary, by virtue of its ownership. The title being in the city the plant as such is not taxable because of the statutory exemption. (R. S. 15-1101, 79-201.)
The defendants cite Williams v. Osage County, 84 Kan. 508, 114 Pac. 858, and McGregor v. Ireland, 86 Kan. 426, 121 Pac. 358, as supporting a different theory. In the first of these cases, however, of the two contracts involved one merely made time of the essence of the contract, and gave a right of forfeiture, with respect to the earliest of a series of deferred payments, which was due before the litigation arose; and the other made no provision for a forfeiture, but provided that in case of nonpayment the balance should become at once due and the seller might take such legal steps to enforce the contract as he thought best. In the' second case time was not made of the essence of the contract, a feature to which attention was called in the opinion.
The circumstance that the ordinance was to operate as a conveyance upon the fulfillment of the terms of the contract does not impress us as affecting the general rule. Neither do several other matters of detail in which difference exists between the present contract and that involved in Brown v. Thomas.
The plaintiff also relies upon the principle by which it is held that lands to be granted by the federal government are not taxable until the grantee has done everything required to entitle him to a patent. In view of what has already been said it is not necessary to consider that aspect of the case.
The plaintiff, having done equity by tendering taxes based on the payments already made, is entitled to the relief asked.
The judgment is reversed, with directions to overrule the demurrer. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to foreclose two real estate mortgages. The trial court sustained plaintiff’s motion for judgment in his favor upon the pleadings. The defendant has appealed. The facts giving rise to the controversy are substantially as follows:
On April 1, 1920, defendant executed a note to the Central Trust Company for $3,500, with interest coupons attached, and a mortgage securing the same, on certain real property in Shawnee county. On April 2, 1920, she executed a note for $2,500 to the Central Trust Company, secured by a second mortgage, upon the same property. On May 3, 1920, the Central Trust Company assigned both mortgages to J. E. Fields and indorsed both notes and the interest coupons attached without recourse. On May 4, 1920, J. E. Fields assigned both mortgages and transferred them, together with the notes and coupons, to the plaintiff, E. D. Berridge, who resides at Leola, S. D. In March, 1924, he filed an action to foreclose the mortgages. The original mortgages, notes and coupons, and assignments were attached as exhibits to the petition.
The verified answer denied that plaintiff owned the notes and mortgages, and specifically denied that J. E. Fields made and executed to plaintiff an assignment in writing. Plaintiff moved for judgment on the pleadings. Pending the hearing of that motion defendant moved that F. G. Berridge be made a party defendant, and that she be given leave to file an amended answer setting up the ownership of the notes and mortgages in F. G. Berridge, and her grounds of defense as against him. The court did not order F. G. Berridge made a party defendant, but he appeared voluntarily and filed a disclaimer of any title or interest in the notes or mortgages sued upon. Defendant filed, by leave of court, a second amended answer in which she denies plaintiff’s ownership of the notes, and specifically that J. E. Fields ever assigned them to plaintiff in writing, but alleges the facts to be, first, that J. E. Fields sold the notes and mortgages to F. G. Berridge, a brother to plaintiff, the assignment of the mortgages, being executed by Fields in blank as to the assignee; second, that F. G. Berridge had been sued by his wife for a divorce; that to keep property out of his name, for the purpose of defrauding his wife, F. G. Berridge filled in the name of plaintiff in the assignment from Fields; that in fact F. G. Berridge was the real owner of the notes. Third, that the notes and mortgages were executed because of the fraud of J. E. Fields, who in exchange of lands with defendant had falsely represented that the land conveyed to defendant in such trade was worth $200 an acre when in fact it was worth only $100 per acre, and alleged that F. G. Berridge at the time he purchased the notes and mortgages knew this defendant had been defrauded in the execution of such notes, “or in the exercise of reasonable diligence by way of inquiry into said matter would have known,” and that F. G. Berridge purchased the notes from Fields for several hundred dollars less than their face. The court considered this amended answer in passing upon the motion for judgment for plaintiff on the pleadings.
The sole question before us is whether this answer states a defense. It seems clear that it does not, for several reasons: First, there is no denial that plaintiff executed the notes and mortgages, nor that she received the amount of money represented by them from the Central Trust Company. There is no allegation of fraud on the part of the Central Trust Company or by any one in its behalf or representing it. Second, the allegations of the fraud of J. E. Fields are insufficient as a defense, for the reasons, (a) there is no allegation that Fields represented the Central Trust Company or had anything to do with the execution of the notes .and mortgages, and (b) statements as to the value of real estate by agents endeavoring to sell or exchange the same are ordinarily regarded as expressions of opinion, and not representations of fact which will justify an action either for rescission or for deceit. (Subke v. Gonder, 97 Kan. 414, 155 Pac. 793; Else v. Freeman, 72 Kan. 666, 83 Pac. 409; 23 C. J. 199; 26 C. J. 1215.) There are circumstances in which an expression of opinion is a representation of fact (Williams v. State, 77 Ohio St. 468; Shriver v. National Bank et al., 117 Kan. 638, 232 Pac. 1062), but the facts alleged in the answer in this case are not sufficient to justify the application of these authorities. Third, if there were actionable fraud, there is no sufficient allegation of F. G. Berridge’s knowledge thereof, or the lack of good faith of his purchase, to justify characterizing him as not being a holder in due course; and, fourth, there is no attempted rescission, nor reasons alleged which would make rescission unnecessary.
The real contention of defendant is that she was damaged in a land trade by the fraud of a person who had nothing to do with the execution of the notes and mortgages sued upon and who is not a party to this action. Obviously such a contention is not a defense.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment on a fire insurance policy, and the defendant appeals.
The plaintiff signed an application for fire insurance on his household goods, and the policy was issued. Shortly thereafter, the goods and the house in which they were situated were destroyed by fire. The plaintiff made proof of loss, and the defendant refused to pay. It pleaded that the policy had been procured upon false answers to questions contained in the application and that the proof of loss was false and fraudulent.
1. The defendant urges that “the district court erred in the admission of evidence offered by the plaintiff and objected to by the defendant.” During the examination of the plaintiff, he had in his hands a memorandum which appears to have been an inventory of the burned articles and of their value. The brief of the defendant recites: "The plaintiff testified as a witness in his own behalf.”
His counsel handed him some sheets of paper, and said:
“Q. I hand you these sheets of paper and ask you if you made that out together, you and your wife?
“The defendant objected to the question on the ground that it was irrelevant, immaterial and incompetent to prove any issue in the case. The court overruled the objection and the witness answered: ‘It is.’
“Q. You may give your best judgment, after examining that, as to whether or not you had in the house at the time it was burned the goods mentioned there?
“The defendant objécted to the question on the ground that the testimony called for was irrelevant and incompetent. The court overruled the objection and the witness answered: ‘I did.’
“The plaintiff then proceeded to testify from the list to a large number of items and the value of them, and then said: T was looking wrong here — ’
“Mr. Allen : We submit that the witness is just simply reading these items and these values from this paper that is before him.
“The objection overruled. Of course you shouldn’t do that, however. You should fix the values from your personal knowledge of the specific articles about which you are being questioned and not substitute what somebody else told you it was worth.
“Q. Did you have, then, personal knowledge of those things? A. We did, yes.
“Q. Did you? A. I did.”
The evidence disclosed that there was a large number of small items which had been burned. It was permissible for the plaintiff to use a written memorandum of those items for the purpose of refreshing his memory concerning the articles that had been destroyed by fire and concerning their value. (State v. Baldwin, 36 Kan. 1, 12 Pac. 318; Sanders v. Wakefield, 41 Kan. 11, 20 Pac. 518; Garden City v. Heller, 61 Kan. 767, 60 Pac. 1060; Wilkes v. Coal Co., 95 Kan. 493, 148 Pac. 768; Supply Co. v. Case, 116 Kan. 520, 227 Pac. 257; 40 Cyc. 2452-2458.)
2. It is argued that “the defendant’s demurrer to the evidence should have been sustained.” The defendant in its brief says:
“Summing up the evidence introduced by the plaintiff, it shows that he made an application for insurance; that he can read; that he signed the application; that most of the essential statements contained in it were false and that it was presented to the defendant in that form.
“The evidence fails to show what property was described in the policy, and fails to show that any property was insured by it.
“The evidence of the plaintiff himself shows that he did not sign the by-laws indorsed on the policy and that nobody signed them for him.
“The plaintiff’s own testimony shows that he perpetrated a fraud on the defendant by furnishing as his proof of loss a paper purporting to have been duly sworn to, which was not sworn to at all.
“The plaintiff failed to prove the cause of action set up in his petition. He affirmatively proved that his own fraud avoided and defeated any claim he might have had. The demurrer to the plaintiff’s evidence should have been sustained and judgment rendered for the defendant.”
We will notice these matters in the order in which they are presented in the brief of the defendant. The policy contained the following provision:
“The policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning the insurance or the subject thereof; or if the interest of the insured in the property be not truly and correctly stated in the application; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”
The application for insurance stated that the plaintiff owned the real property on which was situated the building in which the property was burned. He testified that he told the agent when the application was made that he did not own the real property. The plaintiff also testified that he did not authorize the agent to state that he did own that property. In Blades v. Insurance Co., 116 Kan. 120, 225 Pac. 1082, the rule was declared to be that:
“In an action on an insurance policy where it is contended that the representations purported to have been made by the insured in an application for insurance prepared by a representative of the insurance company did not correctly state the questions asked and answers made by the applicant, oral evidence is admissible to show the questions actually asked and the answers given.”
There, a number of cases are cited adhering to that rule.
The evidence to show what property was insured was contained in the application for the policy, and not in the policy issued. The policy itself was not in evidence; but a blank form of the policy issued was in evidence. The policy issued must have contained a description of the property which must have been the same as the description set out in the application. There was evidence sufficient to identify the property insured.
A blank form of the policy was introduced in evidence and contained the following:
“I hereby accept the foregoing by-laws, rules and regulations as a part of my contract with the Farmers Alliance Insurance Company.”
It did not appear that the plaintiff signed the by-laws and regulations attached to the policy.
The statute concerning mutual fire insurance companies, section 40-441 of the Revised Statutes, in part, reads:
“Every policy issued shall have attached thereto a printed copy of the note and application, also a printed copy of the by-laws and regulations of the company, which shall be signed by the president and secretary of the company and the insured, and shall become a part of the contract between the insurer and the insured.”
The written application which the plaintiff signed for insurance contained a power of attorney authorizing the secretary of the insurance company to sign the plaintiff’s name to the by-laws. That part of the application read:
“And I hereby appoint the secretary of the Farmers’ Alliance Insurance Company as my attorney in fact for the purpose of signing my name to the printed copy of the by-laws of said company, which shall appear upon the policy issued to me under this application, and I hereby bind myself by said by-laws so signed as fully as if personally signed by me as required by section 3500, General Statutes of 1901, and. waive all irregularities as to the manner of making the said signature.”
The foregoing provision of the application, found in the brief of the appellee, is not challenged by the defendant. There was a sufficient compliance with the statute and with the terms of the policy to enable the plaintiff to recover.
The complaint concerning the fraud perpetrated by the defendant in furnishing his proof of loss is based on the following evidence:
“Q. That is the only proof of loss you have furnished in this case?
“Mr. Oyler: We will admit it is, your honor, so far as we know.
“Q. Mr. Higdon, was this proof of loss filled out when you signed it? A. The proof of the loss there?
“Q. Yes? A. It was not. Not that paper.
“Q. It wasn’t filled out? A. When I signed it?
“Q. Do you mean to tell the jury that you signed and swore to a blank paper as proof of loss and then left it to be filled out? A. I left the list which I have in my hand at the present time for that to be copied on. Mr. Bond says: ‘Just sign this affidavit, and I will take care of the rest.’
“Q. You signed it when it was blank? A. With this on the desk by it.
“Q. You have never compared that list with this to know whether they are the same? A. They have been compared.
“Q. Have you ever compared them? A. Not with the paper you have in your hand. (The original proof of loss.) I have compared them with copies of that.
“Q. Are they the same? A, Practically.
“Q. Does that list that you have there contain an item of a trunk packed with hand crochet work of the value of $500? A. It does.
“Q. It does contain that? A. Yes, sir.
“Q. That item does not appear to have been included in the list attached to your petition in this case. Do you know why it was not included in the list? A. I do not know why.” •
That evidence did not show that any fraud was being practiced by the plaintiff in making proof of loss.
The demurrer to the evidence was properly overruled.
3. It is argued that “the district court erred in refusing to give the instructions asked by the defendant.” The first instruction referred to directed the jury to return a verdict in favor of the defendant. The second one was as follows:
“That it was incumbent in this case on the plaintiff to prove the contents of the policy sued on. The plaintiff has failed to prove by any evidence what provisions were contained in the policy, and your verdict must therefore be for the defendant.”
We quote from the brief of the defendant:
“No proof whatever of the contents of the policy was offered by the plaintiff in his evidence in chief. None was offered by the defendant. The application was not introduced. . . . After the conclusion of the testimony and after both parties had rested, the following proceedings were had:
“The Covet: Do I understand that the application is not in evidence?
“Me. Oylbr: I want the application in evidence, your Honor. I offer that part of the application that I called Mr. Klotz’ attention to where he made his report to the company.
“Me. Allen: We certainly object to the acceptance of a part of the application and insist that it be put in as a whole or not at all.
“The Covet: It is considered that the application and the report on the back made by Mr. Klotz is all in evidence.”
There was evidence which tended to prove that an application for insurance on the household goods had been made by the plaintiff to the defendant, and that in response to that application the defendant issued to the plaintiff a policy of insurance. The blank form of policy introduced in evidence contained all the provisions of the policy except a description of the property insured and some other matters not here material. The instructions requested were properly refused.
4. The defendant argues that “the district court erred in its instructions given to the jury.” We quote from the brief of the defendant as follows:
“The eighth instruction given by the court to the jury begins with the sentence :
“ ‘8. It has been shown by the evidence that after the fire .the plaintiff pre pared and submitted to the defendant certain proofs of loss, which have been offered in evidence.’ '
“The court then proceeds to state the claim of the defendant set up in the answer that the proofs were false and fraudulent, and to. state the law on the subject of such false statements. The instruction ignores the statement of the defendant showing that he did not swear to the proof at all, that' he merely signed a blank to be thereafter filled up, and that the paper filled out by some person other than himself was afterward sent to the defendant as his proof of loss.” . .
This matter has been noticed in .discussing the proof of loss. On its face, it appeared to' have been’ sufficient. The irregularity, if any there was, in making out that proof of loss is not sufficient to excuse the defendant from paying under the policy.
It is urged that the court érred in overruling the defendant’s motion for a new trial. This matter depends on the conclusions that have been reached concerning the other matters complained of and need not be further discussed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff sued defendant for breach of an alleged contract to pay a third party’s debt out of the proceeds of a wheat crop turned over to defendant for that and other purposes.
The salient facts were these: During the years 1921 to 1924, inclusive, one G. A. Gordon was the tenant of a large farm owned by defendant Ruffhead. Early in 1921 Gordon was indebted to the International Harvester Company as evidenced by two notes for $1,295.65 and $113.72, due August 1, 1921, bearing 10 per cent interest, secured by a chattel mortgage on fifty acres of wheat growing on Ruffhead’s farm, and also covering a header, tractor and a four-bottom plow.
The payee indorsed and transferred the notes to the plaintiff, Schroyer, a lumber dealer in Néss City. They were not'paid, and were reduced to judgment in favor of plaintiff on July 27, 1922.
On or prior to January 17, 1924, this judgment had passed into the ownership of .the International Harvester Company, and on that date it agreed with Gordon to settle that judgment indebtedness for $1,000 in cash to be paid out of Gordon’s 1924 wheat crop. This agreement also provided that Gordon’s wheat crop should be turned over to Ruffhead, who was himself a creditor of Gordon as well as Gordon’s landlord. This bargain was explained to Ruffhead by Gordon in the presence of plaintiff and a representative of the harvester company; and Ruffhead assented to the bargain and agreed to market the wheat, retain his own share as landlord, satisfy his own claim as creditor, and pay plaintiff $1,000 in full satisfaction of the judgment indebtedness against Gordon.
The record does not show how the judgment was assigned by plaintiff to the harvester company, nor how it was retransferred to plaintiff, but the fact of such transfers is not questioned.
Gordon raised a large crop of wheat during that season of 1924. but neither he nor Ruffhead kept faith with plaintiff. In July, when the wheat was in stack and shock, Gordon attempted to transfer it to his son, Hugh Gordon, but Ruffhead and the son made an agreement in writing that the tenant’s interest in the wheat should be transferred to Ruffhead, less 600 bushels for seed, and Ruffhead was to pay the son $3,800 out of the proceeds of the wheat, and the balance of the proceeds to be—
.“Applied on the indebtedness that one G. A. Gordon owes the party of the first part and on indebtedness that the party of the first part [Ruffhead] has indorsed or guaranteed for said G. A. Gordon.
[Dated July 28, 1924.] “(Signed) E. J. Ruffhead.
Hugh Gordon.”
Accordingly defendant received and marketed most of Gordon’s wheat crop, but refused to pay the $1,000 to plaintiff according to his repeated agreements. Hence this lawsuit. Defendant’s answer included a general denial and invoked the statute of frauds.
On these issues (and others no longer pertinent) the cause was tried. The evidence tended to show that defendant had realized enough money out of Gordon’s share of the wheat to satisfy defendant’s own claim as creditor and some $365.60 or more in addition . thereto. Two special questions were submitted to the jury. These with the jury’s answers read:
“1. Did the plaintiff and defendant and G. A. Gordon agree that the defendant should handle the 1924 wheat crop of G. A. Gordon, and, after paying his rent and chattel mortgage, pay the plaintiff one thousand dollars in satisfaction of the judgment against G. A. Gordon? A. Yes.
“2. Did Hugh Gordon direct the defendant to pay the surplus from the sale of the wheat to the pláintiff? A. Yes.
Defendant’s motion for judgment non obstante was overruled, and judgment was entered for plaintiff in the sum of $365.60 with interest and costs.
Defendant appeals, urging various errors which will be noted:
1. It is first urged that plaintiff’s second amended petition should have been stricken from the files. Defendant’s motion to that effect was overruled on January 31, 1925. Notice of this appeal was given and the appeal filed April 27,1926, more than six months after the ruling complained of, and as that ruling involved the merits of the action — the very gist of it — it cannot now be reviewed. (R. S. 60-3302, 60-3309; Whitlaw v. Insurance Co., 86 Kan. 826, syl. ¶ 2, 122 Pac. 1039; Van Deren v. Heineke & Co., ante, p. 215, syl. ¶ 2.
2. The next complaint is directed to the trial court’s ruling on defendant’s motion to make plaintiff’s petition more definite and certain. It is argued that it is impossible to determine “whether defendant was to. pay the $1,000 out of his own money or out of wheat to be thereafter furnished by Gordon.” This contention lacks merit. Moreover the pretended obscurity in the petition vanished when the final judgment was entered and which did not require defendant to pay any money on Gordon’s account out of his own pocket. (Brooks v. Weik, 114 Kan. 402, 408, 219 Pac. 528.)
3. Another error assigned on the overruling of defendant’s demurrer to plaintiff’s second amended petition is brought here too late for review. (R. S. 60-3309; Smith v. Griffith, 105 Kan. 357, 358, 184 Pac. 725; Cramer v. Overfield, 115 Kan. 197, 198, 222 Pac. 85.)
4. Defendant next complains of the admission of oral testimony given in support of plaintiff’s cause of action, the objection being that the allegations of the petition implied an oral promise of defendant “to answer for the debt, default or miscarriage of G. A. Gordon.” That is not a fair interpretation of the petition nor of the contract to which Ruffhead twice bound himself, once in January, 1924, as narrated above, and again in July when he bound himself in writing to apply the proceeds of the sale of G. A. Gordon’s share of the wheat crop “on indebtedness that the party of the first part [defendant] had indorsed and guaranteed for said G. A. Gordon.” The indebtedness thereby became defendant’s own primary liability and was no longer merely the debt of another. (Gestenslager v. Rixon, 107 Kan. 623, 193 Pac. 184; Smith v. Investment Co., 112 Kan. 201, 210 Pac. 477.) And certainly oral testimony was competent to show what that guaranteed indebtedness was, since the written contract itself did not disclose it. (Shepard v. Haas, 14 Kan. 443; St. L. L. & W. Rly. Co. v. Maddox, 18 Kan. 546; Wichita University v. Schweiter, 50 Kan. 672, syl. ¶ 1, 32 Pac. 352; Nichols v. Maxson, 76 Kan. 607, 92 Pac. 545; Haul v. Telephone Co., 95 Kan. 1, 3, 147 Pac. 1130; Thurston v. Lubrite Refining Co., 120 Kan. 137, 242 Pac. 126.)
Moreover, appellee’s brief suggests a shorter answer to this particular assignment of error. One ironclad rule of appellate procedure is that error cannot be based upon the admission or exclusion of evidence unless the party aggrieved thereby has first directed the trial court’s attention thereto in a motion for a new trial. Here there was no motion filed. (Bennett Grain Co. v. Davis, Director-general, 114 Kan. 800, 803, 220 Pac. 1031; Brick v. Fire Insurance Co., 117 Kan. 44, 45, 46, 230 Pac. 309.)
5. It is finally urged that the demurrer to plaintiff’s evidence should have been sustained. This contention has no more merit than the other assigned errors we have already considered. The contract was well established. Defendant got Gordon’s share of the wheat, sold it, and after applying a large part of the proceeds rightfully or otherwise to the payment of various other claims, still retains $365.60, which sum with interest he is required to pay to plaintiff by this judgment. Defendant says plaintiff did not prove that the judgment against Gordon had been released. Very true. Why ■should he release it? When defendant hands over the amount he is required to pay by this judgment, plaintiff will still lack several hundred dollars of the sum he agreed to accept in full satisfaction ■of his judgment against Gordon.
Neither error of law nor miscarriage of justice of which plaintiff ■can complain is disclosed by the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On May 9, 1925, William Van Valkenburg, having pleaded guilty to a charge of having violated the prohibitory law after a previous conviction thereunder, was sentenced to confinement in the penitentiary for one year. He was delivered by the sheriff to the warden on March 16, 1926. He applies to this court for discharge upon habeas corpus on the ground that a year had been permitted to elapse since the sentence, under such circumstances as to constitute a satisfaction of the judgment and a bar to its further execution.
1. The following is the petitioner’s version of the facts, supported by his own testimony and corroborated in part by that of the sheriff: At the time of the sentence the court ordered a stay of its execution until May 16. On that day the sheriff took him into custody and then voluntarily released him by direction of the county attorney, upon his signing an agreement to leave the county for a year.
The respondent’s version is this: The order.made at the time of the sentence was that its execution was, upon the defendant’s application, stayed until five o’clock on May 16, to enable him to close up his affairs. The sheriff undertook to assume custody of the defendant on the morning of the 16th. The county attorney at the time understood the stay had expired, but upon looking up the journal entry it was found it did not expire until five o’clock. After five o’clock the defendant was not in custody nor was opportunity afforded for his arrest.
The journal entry referred to was a paper reciting the proceedings in relation'to the sentence, and bearing the signatures of counsel for both sides and of the judge. It was marked, “Filed May 21, 1925,” from which the petitioner undertakes to draw the inference that it was not signed until that day. The testimony of the county attorney indicates it was available for inspection as a record on the 16th. That, however, is quite immaterial. The journal entry, no matter when it was made, is conclusive evidence of what took place in connection with the proceedings to which it relates, and establishes the fact that the stay of sentence did not expire until five o’clock of the 16th. The petitioner relies upon the circumstance that the memorandum made by the judge on the trial docket did not mention the hour at which the stay of execution was to expire, but this omission could not in any degree impair the force of the official record of the action of the court. (Pennock v. Monroe, 5 Kan. 578; Gilmore v. Salt Co., 92 Kan. 18, 20, 189 Pac. 1168.)
2. There was no corroboration whatever of the petitioner’s story of his having signed an agreement to leave the county for a year. But if it were true it could avail him nothing. No agreement or action of either the sheriff or county attorney, or of both of them, made without authority from the court, could relieve the defendant from the effect of the sentence. In re Jennings, 118 Fed. 479, is cited as indicating the contrary, but that case is readily distinguishable from the present, for there the United States marshal whose duty was to convey a defendant to the penitentiary in execution of a sen tence, surrendered him to the marshal of another district, where he was tried, convicted and sentenced for a different offense, for which he was imprisoned. It was held that the time for which he was first sentenced ran during the proceedings in the second case. There the defendant was held in custody from the time he was placed in the hands of the marshal on the first sentence. Here the defendant was at liberty — free from all restraint — until he was found and taken into custody in March, 1926.
3. In re Strickler, Petitioner, 51 Kan. 700, 33 Pac. 620, with more or less similar cases, is also cited in behalf of the petitioner. There an attempt to stay the execution of a sentence indefinitely and upon condition, in order that a threat of punishment might be held over the defendant as a disciplinary measure, was held to be ineffective. The stay granted here was for a short, definite time upon application of the defendant and for his benefit. In any event it 'could have reduced the time of his service in the penitentiary no more than a week — the period for which it was granted. (In re Murphy, 78 Kan. 840, 842, 98 Pac. 214.) But the brief stay of the execution of the sentence, made at the time it was pronounced, was not open to the objections made in the Strickler and like cases. It was within the class thus referred to:
“Delay in beginning the term of imprisonment for any good reason, such as an appeal and stay of proceedings, the death or resignation of the magistrate or of the officer charged with the execution of the commitment, the breach of a recognizance and escape or hiding of the person convicted or his resistance and defiance of the court’s processes — or other delays which might be suggested — would not defeat the state nor give immunity to a person convicted under a penal statute.” (State, ex rel., v. Piper, 103 Kan. 794, 799, 176 Pac. 626.)
The case has been heard, in accordance with the practice in cases where the points in controversy can as. readily be determined in that manner, upon application for the issuance of the writ and objections thereto.
The writ is refused. | [
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The opinion of the court was delivered by
Mason, J.:
M. Reeser began this action against J. M. Hammond to recover damages for fraud in making false representations by which he was induced to buy twenty acres of an oil and gas lease in Dickinson county from a man named Laughters for $2,000. Reeser having died, his executrix was substituted as plaintiff. Judgment was rendered against the defendant and he appeals.
1. One John Breitenbach testified that a little after the buying of the lease by Reeser the witness had bought a like acreage a few miles away for the same amount from Laughters upon the strength of false representations made by the defendant almost identical with those made to Reeser, and under similar circumstances, the two having called upon him. This testimony was introduced on the principle which in a criminal case permits the prosecution to show the commission by the defendant of other crimes involving the same system or plan as the one he is charged with. The defendant offered to prove that Breitenbach had likewise sued Hammond for damages on this account and a trial had resulted in a verdict and judgment for the defendant. Complaint is made of the sustaining of an objection to this evidence. We think the ruling was proper. So many elements may have entered into the reasons for the verdict against Breitenbach aside from the question whether he had told the truth that the fact of its rendition cannot be regarded as having a tendency to impeach his veracity or disprove his testimony.
2. Reeser bought his lease in August, 1920. Two sons of the landowner, who in January of the same year had executed the lease out of which the acreage sold to Reeser was carved, testified that at that time the price being paid for oil and gas leases upon land in that vicinity was from $1 to $10 an acre, and that their father was paid $600 for this lease, which covered 159 acres. Objection is made to the admission of this testimony because it did not relate to the time of the sale to Reeser and because the sum paid by the original lessee had no tendency to show what its value was.
There was, it is true, a very considerable interval between the time the lease was made and the time of the sale of a part of it to Reeser, and great changes of market value may have taken place in the meanwhile. But we do.not think the evidence was rendered inadmissible on this account. Its probative force with respect to values in August may not have been strong. But there is no presumption that the value increased later, and if it did increase opportunity was open to the defendant to show it.
The price paid for the lease originally was competent evidence of its value at that time. (Graves v. Negy, 114 Kan. 373, 219 Pac. 286; 2 Jones Commentaries on Evidence, § 699, p. 1310, § 704, p. 1320.)
3. A witness for the defendant, who had testified to his good reputation and to matters tending to contradict the allegations of fraud, said on cross-examination he had purchased the note given to Breitenbach for the lease sold to him. He was asked how much he discounted it. An objection was made to the question, on the ground that it was not proper cross-examination, and was incompetent, irrelevant and immaterial. The objection was overruled, the court saying, however, that it was not cross-examination and the plaintiff would be bound by the answer. The witness answered that the discount was 15 per cent. The admission of the answer is complained of. We think it was admissible as cross-examination, having some tendency to show the witness’ relations with the defendant and Laughters as bearing upon a possible bias in their favor. That the ruling was placed upon another ground is not important. Moreover the amount of the discount may have had a bearing upon the question of fraud.
4. The charge of the court included the following instruction, which the defendant objects to on the ground that there Was no evidence on which an instruction concerning circumstantial evidence could be based, and its effect was therefore misleading:
“You are further instructed that while fraud is not presumed, but must be established by a preponderance of the evidence, yet fraud, like any other fact, may be proved by proving circumstances from which the inference of fraud is natural and irresistible; and, if such circumstances are proven, and they are of such a character as to produce in the minds of the jury a conviction of the fact of fraud, then it must be considered that fraud is proven.”
The case rested chiefly on direct evidence, but we do not think the absence of circumstantial evidence was so complete as to render this instruction prejudicially erroneous. The making of representations was shown by direct evidence of a grandson of Reeser, who heard the conversation leading up to the sale. Their falsity was testified to by Breitenbach as the result of his observations on a visit to Dickinson county. But the effect of the testimony of Breitenbach concerning his experience with the defendant and Laughters depended upon the drawing of inferences. This is true also of such selling talk as “We have just got a few leases”; “We are selling them to our personal friends and nobody else”; “Before the note comes due your profits off of this well [one then being drilled] will more than pay for the note — pay your note off”; “There is so much oil on the water wells and in the streams and in the wells that it is not fit for domestic use.” “He said they had men out there with a doodle bug and he said this instrument never failed to show where the oil was.”
5. An instruction was given to the effect that the measure of damages in case the plaintiff recovered was the difference between the actual value of the lease and what it would have been worth if the representations had been true. The defendant accepts this rule and maintains that the plaintiff’s case failed because there was no evidence of what the lease would have been worth if it had been as represented. The rule as stated “is for the benefit of the injured party and the wrongdoer cannot complain because of his being satisfied with the mere return of his money, which is one of the remedies open to him. . . . Moreover the price paid for an article is some evidence of its value for the purpose of assessing damages.” (Trapp v. Refining Co., 114 Kan. 618, 619, 220 Pac. 249.) “The fact of a certain sum having been paid for property the sale of which is brought about by false representations is at least some evidence that it would have been worth that amount if the represen-, tations had been true. . . . This departure from the usual method of proving value is not one of which a person found to have effected a sale of the property by false representations concerning it can with good grace complain in an action for the redress of the fraud.” (Cramer v. Overfield, 115 Kan. 580, 582, 223 Pac. 1100.)
6. The sale of the stock having been made in August, 1920, the action, which was begun in January, 1923, was barred by the two-year statute of limitations unless Reeser first learned of the fraud, as alleged in the petition, in March, 1922. The defendant claims that there was no evidence to that effect. We think otherwise. Breitenbach, who like Reeser lived in Stafford county, testified that about the first of March, 1922, he went to Dickinson county to see about the oil wells; that he went for himself, but had talked with Reeser about it, too, having discussed with him the representations made concerning the lease sold to him; that he ascertained there were no producing oil wells in Dickinson county, no oil on running water and no oil in the wells; that he went to the location of the Reeser lease; and that upon his return he told Reeser what he had discovered. We think this evidence justified an inference that Reeser did not discover the fraud until March, 1922.
The judgment is affirmed. | [
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Memorandum decision announced by
Hopkins, J.:
These cases are similar to and the decisions therein ■controlled by the decision in Ramsey v. Adams et al., ante, p. 675, just decided.
Following the decision in that case, the judgments in favor of C. L. Harris as executor of the estate of T. A. Kramer, deceased, are reversed and the cases remanded, with instructions to render judgment for plaintiffs. Otherwise they are affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a minor to recover damages from the Standard Oil Company and one of its employees, occasioned by negligent operation of a motor vehicle by the employee. Plaintiff recovered, and defendants appeal.
Defendant Hull solicited and filled orders for the company’s pe troleum products, under an arrangement which created the relation of employer and employee. In making deliveries, he used a tank belonging to the company, mounted on an auto truck which he owned. On the day of the accident he delivered coal oil at the Eastlock farm near Valley Falls. The dwelling house was 300 yards from the highway. Plaintiff, who was six years old, was visiting at the farm. When Hull was about to depart, plaintiff asked Mrs. Eastlock if he could ride on the truck, and she told him not to do so. Plaintiff then asked Hull if he could ride down to the gate and shut it. Hull told him he did not want him to do so, he might fall off and get hurt. Hull then started the truck toward the highway. When he had gone 50 or 75 yards, he noticed that plaintiff was standing on the running hoard of the truck. Hull testified he then told plaintiff to be sure and hang on, and not fall off. Plaintiff testified he did not hear this admonition, but saw Hull look out. There were little ditches in the road which caused the truck to tilt. Hull drove carefully and as slowly as he could, at a rate of five or six miles per hour, and after he had gone 150 feet, he missed plaintiff. Plaintiff testified the truck “hit a bump,” and he fell off. Just at the time he fell off, he was endeavoring to sit down on the running board. He had been holding to the top of the truck door with one hand. In trying to sit down, he released his hold for an instant, and at that instant the truck struck the bump, and he fell off. The rear wheel of the truck passed over his right leg, and caused a green-stick fracture. When Hull observed plaintiff was no longer on the running board, he stopped the truck, went back, picked plaintiff up, and carried him to the house. The jury found Hull was negligent in not stopping the truck immediately when he discovered plaintiff was on the running board, and the principal question is whether the company must respond in damages for the consequences of Hull’s negligence.
Before the truck was put in motion, plaintiff was denied permission to ride, and when he climbed on the running board his legal status, notwithstanding his lack of discretion, was that of a trespasser. Hull’s discovery'that plaintiff was on the running board was discovery of the fact by the company. When the discovery was made, the company’s liability was limited to consequences of intentional, malicious, or wanton injury.
There is no evidence that Hull had authority to permit children or other passengers to ride on the truck. Filling Mrs. Eastlock’s order for oil, including driving away from the Eastlock premises, did not by implication embrace such authority, and Hull’s assent to plaintiff’s riding on the truck, after finding plaintiff was on the running board, was outside the scope of Ms authority. He had no more authority from the company to permit plaintiff to continue to ride on the running board than he had to invite plaintiff to ride there in the first instance. His acquiescence, whether or not plaintiff heard what he said, was equivalent to permission on his part, and constituted plaintiff a licensee, but not of the company. Plaintiff was Hull’s licensee only — the licensee of an employee not authorized to license for the company, and not' acting in furtherance of his employer’s business in granting the license.
“If he were in the car with the consent of the chauffeur, then as to him he was a licensee, but not as to the defendant. The chauffeur, in permitting him to ride, was not acting within the scope of his employment or doing anything to further the defendant’s interests.” (Rolfe v. Hewitt, 227 N. Y. 486, 490.)
“The plaintiff was not being carried in the automobile at the time he was injured by reason of any invitation of the defendant or of any one in his employ who was authorized by him to extend such an invitation. It is plain therefore that he was a trespasser and cannot recover.” (Walker v. Fuller, 223 Mass. 566, 568.)
The result is that, as to the company, plaintiff continued to be in the situation of a trespasser after Hull discovered his presence on the running board, and the company’s liability, if any, was limited to consequences of intentional, malicious, or wanton injury.
When plaintiff undertook to change his position on the running board and was jarred off, Hull was returning from a place where he had delivered coal oil, and to. that extent was driving the truck for the' company in the course of his employment. But to the extent that he was knowingly carrying a child in a position' of danger, he had deviated from the course of his employment, and could not bind the company by his conduct.
“The defendants were contractors and excavators, and owned many teams. There was nothing to show that it was any part of their business, or that it was their habit or custom, to furnish horses or colts to ride, or to allow boys' to ride upon them, or that they in any way ever authorized or permitted Frank to do this. Under this state of things, we are unable to see how the invitation by Frank to the plaintiff to ride upon the colt, although given while Frank was engaged in his employment, can be considered to be an act done in the course of such employment, or for the purpose of doing the business of his masters. . . .
“An act done by a servant while engaged in his master’s work, but not done as a means or for the purpose of performing that work, is not to be deemed the act of the master.” (Bowler v. O’Connell, 162 Mass. 319, 320.)
Disregarding refusal of permission to do so, plaintiff boarded the truck. Hull then permitted him to remain on the truck and, instead of stopping at once, drove on. Thé consequence was, plaintiff fell off, and was injured. So far as the company is concerned, at the moment plaintiff fell in front of the wheel of the truck, Hull might just as well have been on a detour for the child’s or his own personal pleasure. After Hull told plaintiff he should not ride on the truck, Hull received no increment of power from any source, to subject the company to liability. Neither he, nor the child, nor both acting in concert, could generate such power, and the consequence of the intrusion by plaintiff and the constructive detour by Hull — fracture of plaintiff’s leg — cannot be dissociated from the intrusion and detour themselves. The principle involved was perceived and enunciated by Justice Holmes when a member of the Massachusetts court, in the opinion in the case of Driscoll v. Scanlon, 165 Mass. 348:
“It was argued that we might look only to the later moment when the plaintiff was under the wheels, that it did not matter how he got there, and that the defendant was liable for running over the plaintiff, if he would have been in ease his cart had run over a third person when his driver was asleep. But it does make all the difference in the world how the plaintiff got under the wheels. The defendant was not bound to expect or look for people falling from his cart, where they had no business to be, and persons who got into it took the risk of what might happen, as against him. The driver’s slumber was so intimately connected with the unauthorized act that it is impossible to separate the two.” (p. 349.)
In an article by Frank W. Rogers in 12 Virginia Law Review ’ (November, 1925), entitled “Liability of the Master for Injuries Received by Children on or about Moving Vehicles at the Unauthorized Invitation of the Servant in Charge,” appears the following:
“The first essential is a proper conception of the doctrine of respondeat superior. . . .
“The second essential to a correct solution of these cases is recognition of a corollary of the first proposition: the exemption of the master from liability for the act of the servant without the scope of his employment extends also to the proximate and direct consequences of the act. It is obvious that if the master is not responsible for the act of a servant in striking the plaintiff, neither can he be held for the effects of the blow. . . .
“The third essential principle is also an obvious corollary of the first propo sition: the liability of the master is not affected by the infancy of the servant’s invitee. 'His youth might excuse contributory negligence — but cannot create rights or duties which have no other foundation.’ For, as has been seen, the responsibility of the master depends on the relationship between him and the person purporting to act as his servant.” (pp. 34, 35.)
The article from which the quotation is taken is an example of the critical and constructive legal studies which have become a feature of the magazines published by the leading law schools. The article systematizes the law on the subject indicated by its title, and renders it unnecessary for the court to review the authorities.
The action was predicated on negligence. Intentional, malicious or wanton conduct on the part of Hull was not pleaded or submitted to the jury. The facts have been fully stated. The child’s impulse to ride down to the gate was so strong, he could not accept as final refusals of permission to do so, and when Hull discovered him on the running board, Hull yielded, and suffered him to remain. Hull did not push him off, or speed up the truck to jolt him off, or do any other act indicating reckless indifference to the child’s safety. He was merely imprudent in not stopping the truck. On principle, the company would not be liable if Hull had been guilty of wantonness; but that subject is not now before the court for adjudication.
The entire record considered, error which prejudicially affected the substantial rights of Hull does not appear.
The judgment of the district court against the Standard Oil Company is reversed, and the cause is remanded, with direction to enter judgment in favor of that company. The judgment against Hull is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.':
This was an action for compensation for an injury to a finger sustained by plaintiff while employed in defendant’s factory.
Defendant pleaded a settlement and release, to which plaintiff replied that he could neither read nor write, that he was over sixty years of age and had no education, and that defendant’s officers had led him to believe he was merely making his mark on a voucher for two weeks’ compensation. He further replied that he was not advised that he was signing a release, nor had he any intention to do so, and that any such release was procured from him by fraud. Plaintiff also alleged that defendant’s physician assured him—
“That his injuries were slight and his finger would soon be well, . . . and be as good as it ever was, and the plaintiff was ignorant . . . and believed the doctor knew what he was talking about, and that his finger would recover and the plaintiff was mistaken, because said finger has never recovered, and said doctor was mistaken because said finger has never recovered.”
The accident occurred on February 3,1923. Plaintiff’s finger was caught and mashed in some machinery. Defendant’s physician dressed the finger. The so-called settlement and release was executed February 19, 1923, and the consideration therefor was $20.52. Shortly thereafter plaintiff returned to work and continued in defendant’s employment for about a year, at which time he was discharged, and this action soon followed.
The trial court called an advisory jury of five persons who answered certain special questions and returned a verdict in favor of plaintiff for $2,469.49. Judgment was entered thereon, and defendant appeals, assigning various errors, but especially urging error in the attitude of the trial court towards the settlement and release. The trial court excluded it as evidence and instructed the jury to disregard it for the reason that it was not executed and verified by the plaintiff and filed with the clerk of the district court in compliance with the statute, R. S. 44-527. That statute reads;
“At the time of making any final payment of compensation, the employer shall be entitled to- a final receipt for compensation, executed and acknowledged or verified by the workman, which final receipt may be in form a release of liability under this act, and every such final receipt for compensation or release of liability or a duly verified copy thereof shall be filed by the employer in the office of the clerk of the district court wherein the accident occurred, within sixty days after the date of execution of such final receipt or release of liability, and if the employer shall fail or neglect to so file such final receipt or release of liability, same shall be void as against the workman. The said clerk of the district court shall accept, receipt for, and file every award, agreement modifying an award, final receipt for compensation, or release of liability or verified copy thereof, without fee, and record and index same in a book kept for that purpose.”
It is argued that this statute does not require the release or final receipt to be acknowledged or verified, that it merely says the employer shall be entitled to such a final receipt or release. But where such settlement and release is afterwards called in question in a lawsuit, it is to be regarded as a nullity unless verified by the workman arid filed with the clerk of the court within 60 days after its execution. So reads the statute.
In the closely analogous case of Rodarmel v. Salt Company, 101 Kan. 141, 165 Pac. 668, a written instrument showing a settlement and release was relied upon by an employer as a defense to a claim for compensation by an injured workman. The statute there considered (Gen. Stat. 1915, § 5922) provided:
“It shall be the duty of the employer to file or cause to be filed every release of liability hereunder, every agreement for or award of compensation, or modifying an agreement for or award of compensation, under this act, if not filed by the committee or arbitrator, to which he is a party, or a sworn copy thereof, in the office of the district court in the county in which the accident occurred within sixty days after it is made, otherwise it shall be void as against the workman. The said clerk shall accept, receipt for, and file any such release, agreement or award, without fee, and record and index it in the book kept for that purpose. Nothing herein shall be construed to prevent the workman from filing such agreement or award.”
In construing that statute this court said:
“As will be seen, the provision covers every release of liability and every agreement for or award of compensation, and provides that if it is not filed in the office of the district court within sixty days after it is made it shall be void as against the workman. Whether the purpose was publicity for the protection of the employee or security for employers or to serve some beneficial public purpose, it was competent for the legislature to provide that such releases and agreements should be made a matter of record. In case it is not filed the agreement and release is ineffectual and the parties are set back where they were before a settlement was negotiated. No rights are therefore sacrificed, and the requirement that it shall be filed of record is not a burdensome one.” (p. 143.)
It seems imperative that the rule there announced be applied here; and this conclusion necessarily disposes of certain dependent and related propositions argued by defendant. The final receipt for compensation and release of liability which we have here to consider, being “void as-against the workman” as the statute declares, it becomes obvious that a valid, oral settlement of an injured workman's claim and his employer's liability therefor which would be binding on the workman cannot be effected if the workman chooses to repudiate it. The statute also defines the employer’s right and prescribes his precautionary duty — the right to a verified receipt in the form of a release of liability under the compensation act, but to render such receipt and release effective it must be filed with the clerk of the court within sixty days. It thus becomes needless to discuss the academic question whether a mutual mistake of fact of sufficient gravity to vitiate a contract of settlement of a claim for compensation can arise from the mere opinion of a physician concerning the future condition of an injury. But see Tucker v. Atch ison, T. & S. F. Rly. Co., 120 Kan. 244, 243 Pac. 269. Nor need we now consider whether an action can be maintained for compensation without a second demand after one demand has been made and a valid settlement is effected in consequence, and where pursuant thereto the workman returns to his employment for the space of a year.
It is finally urged that there was error in an instruction which declared that if plaintiff had sustained a permanent partial disability as a direct and natural result of the accident in his employer’s service, he would be entitled to a minimum allowance of $6 per week for eight years (416 weeks) less the $20.52 admittedly received. The exact sum awarded by the verdict and judgment was determined in accordance with that instruction. But defendant argues that it failed to take into account the fact that plaintiff earned regular wages in his master’s service for about a year following his injury, and it contends that some deduction should be made from its statutory liability on that account. Not necessarily. Substantially the same point was pressed in Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431, where it was held:
“An employee partially ineapaeitated by an injury from performing his labor does not lose his right to compensation under the workman’s compensation act by remaining in the employment of his master at his former wages.” (Syl. 112.)
To the same effect were: Dennis v. Cafferty, 99 Kan. 810, 163 Pac. 461; Sauvain v. Battelle, 100 Kan. 468, 164 Pac. 1086; Hood v. Transit Co., 106 Kan. 76, 186 Pac. 977; Chance v. Coal & Mining Co., 108 Kan. 121, 193 Pac. 889; Milling Co. v. Ellis, 115 Kan. 431, 223 Pac. 274; id. 116 Kan. 1, 225 Pac. 123.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Mason, J.:
William A. Fish died testate May 7, 1919, leaving to his wife substantially all his property, which included 560 acres of Brown county land. Besides his wifé, he was survived by two daughters, two sons (Robert S. and Pearl) and two grandchildren — children of his deceased son. His wife was named executrix and qualified and acted. On January 23, 1924, the probate court found Mrs. Fish to be incompetent and incapable of managing her affairs, and appointed R. L. Funk her guardian. On October 18,1924, the guardian brought this action against Robert S. Fish to set aside a deed (reserving a life interest) covering the home place, a quarter section, executed by her to her son on May 13, 1920, because of want of capacity and undue influence. The district court found in favor of the plaintiff on both grounds and a judgment was rendered accordingly, from which the defendant appeals, relying chiefly upon the contention that there was no substantial competent evidence to support either finding.
1. Objection is made to the competency of the testimony of two witnesses. One was a banker, the other a doctor.
The questions asked of the banker, and his answers, were:
“I think this is probably repetition, but you may state what is your opinion as to her mental condition as being able to transact her business gathered from your conversations with her, the transaction of her business for her and your communications1 with her as to whether she was competent or incompetent.
“In my opinion, well, she could not have possibly taken care of it without help. I do not think she was in any condition to discharge the duties properly.
“From what you saw and observed during the time she was transacting business at your banks, as you testified to, what did you observe as to her capacity to transact business?
“I would say she could not have transacted the business. She was utterly incompetent to transact business.”
In the case of the doctor the question and answer objected to were:
“From your acquaintance with Mrs. Fish at the time and before her husband’s death, and from your observation made of her at that time and since, and from the information you have obtained relative to the transaction of her business, and from the state of her business and accounts, what would be your opinion as to her capacity to transact her business and know and understand fully her business transaction?
“I think she is incompetent.”
The competency of the testimony is challenged on these grounds:
(a) The rule that nonexpert witnesses may give their opinions as to whether a person is sane or insane does not extend to a question of capacity to transact business.
(b) A witness should not be allowed to give his opinion as to a person’s capacity to make a deed or to transact business, because it involves his passing upon the question of law as to how much capacity is required for those acts.
(c) The witnesses should not have been permitted to give their opinions without stating the observed facts on which they were based.
(d) In the case of the doctor, his testimony related to Mrs. Fish’s condition at the time of the trial and not when the deed was executed.
We think none of these objections is well founded. In support of the first proposition the defendant cites this text:
“Opinion as to sanity and opinion as to general testamentary or criminal capacity are entirely distinct. The latter sort of opinion is inadmissible (when it is) because a question of law may be involved, and witnesses’ conclusions are not needed on such points. Rulings excluding such opinions (post, § 1958) may well coexist with rulings receiving opinions as to sanity.” (4 Wigmore on Evidence, § 1937.)
This quotation obviously does not deal with a distinction between expert and nonexpert witnesses, but with that between on the one hand insanity, which is treated as a somewhat definite state of mind, and on the other capacity to do a particular act, which depends upon the degree of intelligence the law declares necessary for that purpose. This is clearly shown by the following paragraph from the same work:
“The peculiar practical difference, it may be noted, between, the present-application of the opinion rule [i. e., to capacity to transact business or do other specific acts] and its- applications to the topic of sanity (ante, § 1938) is of course that here even an expert, medical or legal, may not speak so as to employ a legal definition, while there it is conceded that a medical expert may always give an opinion on sanity.” (4 Wigmore on Evidence, § 1958, p. 178.)
The admissibility of opinions of laymen concerning capacity to do business is governed by the same considerations as where sanity is the issue, and is given like treatment. See 22 C. J. 599-600, especially note 42 citing indiscriminately cases of both character. The real problem in this connection is not whether a layman may testify to a person’s capacity to make a deed or transact business, but whether even a medical expert may do so. The solution of this problem involves the question of the soundness of the second objection. The writer already quoted says:
“It is easy to see that on principle the opinion of no witness whatever is needed to tell the court whether testamentary capacity existed, because that is a matter of applying a legal definition to the data of the testator’s mental condition, and the judge (in theory) needs no assistance on that point, even from a legal witness. The data of the mental condition are to be presented, and the jury, under the judge’s instructions, are to apply the definition to them. . . . But a difficulty arises. It is desirable to obtain from witness a compact statement of the general mental condition of the testator. It is, for instance, a better index of the witness’ results of observation to say, ‘I would or would not trust him to buy property intelligently,' than merely to say, ‘He once did this or that wise or foolish act.’ The general statement often conveys a more accurate understanding of his condition than a rehearsal of many single acts— acts which indeed are in detail largely forgotten, cannot be reproduced in statement, and have left only the general impression. Such a general statement is perfectly legitimate; but the difficulty lies in distinguishing it from a statement involving the use of some legal definition of testamentary capacity. The ordinary witness, though using a compendious statement, may really have no desire to attempt a legal definition and may be thinking only of the deceased’s general capacity to take care of himself and his property. Nevertheless, in distinguishing between the proper and improper forms of statement, an easy opportunity is offered for judicial quibbling. In the dilemma thus presented, the solution seems often to depend merely on whether the court is disposed to stick at trifles and the forms of things, or to follow practical good sense. . . . By all courts a mere abstract statement that the person was or was not ‘capable’ of making a will or a contract or a deed seems to be held improper; but there is great contrariety of ruling upon other forms of statement.” (4 Wig-more on Evidence, § 1958, pp. 174-175.)
In the note to the last text quoted are cited many instances in which the question whether the witness thought the person in question to have capacity to transact ordinary business (or that in effect) has been held admissible, and some where a contrary ruling was made, the author often making brief memoranda by way of comment upon the decisions. For illustration, in one instance the question and its decision are thus indicated: “whether the grantor was capable of making a deed of real estate; the former held clearly allowable, and the latter also on the facts, good opinion.” In another: “excluding ‘capacity to dispose by will or deed,’ but admitting ‘capacity to transact business.’ ” In another (In re Betts’ Estate, 113 Ia. 111): “whether the testator was ‘capable of transacting business intelligently,’ excluded; such a ruling seems to render witnesses incapable of giving testimony intelligently.” In another: “whether the testator was capable of making the will, excluded; whether he was ‘capable of transacting ordinary business and of intelligently disposing of property’ allowed; In re Betts’ Estate, supra, said to have been ‘practically overruled.’ ” In another: “opinion as to being ‘in a condition to transact business or make a contract,’ excluded; unsound.” The witnesses in most of the cases cited in this note were nonexperts. In several instances it is indicated that the witness was a doctor, and the inference would seem to be that in all the other cases a layman was testifying. See, also, 22 C. J. p. 601, note 67, and p. 602, note 74.
With respect to the third objection there is apparently no greater reason for making a distinction as to the requirement for a witness stating the facts on which he founds his opinion where the question is one of capacity to do a particular act than where it is one of insanity. There is some want of harmony in the decisions, but this court has said:
“The incidents detailed by the witnesses may not in themselves have justified a conclusion that the defendant was insane. But that was not necessary in order to render the evidence admissible. One of the cogent reasons for allowing a witness to give his opinion as to the sanity of the person the condition of whose mind is under investigation is that he cannot possibly place before the jury every circumstance that has influenced his judgment in the matter.” (State v. Rumble, 81 Kan. 16, 18, 105 Pac. 1.)
Of the general state of the law on the subject Dean Wigmore says:
“It has been already noticed (ante, § § 1917, 1922) that the general rule, in a few courts, requires that a statement of the facts (or observed data) must precede the witness’ statement of his opinion or conclusion; and that this on principle is an unsound limitation. Now the chief field for the application of this misconceived requirement has been the present topic [opinion evidence as to sanity]; and in a number of jurisdictions the courts are found requiring that ‘the facts,’ i. e., observed data, ‘must accompany (or precede) the opinion.’ This requirement in some of the remaining jurisdictions has been expressly negatived; in the others it does not exist in practice, but has not been expressly passed upon.” (4 Wigmore on Evidence, § 1935.)
Another text reads:
“The inference of an ordinary observer as to the mental condition of a designated person may be received, for the reason that it is usually impossible, as a practical matter, to present to the jury a detailed statement of the constituent facts or matters of appearance on which the inference is based, with such degree of completeness or accuracy as to enable them to draw a proper inference.” (22 C. J. 599.)
Regarding the fourth objection — the answer of the witness in his examination in chief was given in words already quoted, but a previous inquiry tended to show he meant it to apply to the date the deed was executed. Moreover, on cross-examination he was asked, “You say in your opinion she was incapable of doing business on the 13th of May, 1920?” and answered, “I would think so.”
The doctor had practiced medicine twenty-three years and had known Mrs. Fish for that time. The banker had known her from three or four years before her husband’s death. Full opportunity for cross-examination was given.
In speaking of evidence being admissible as bearing on the issue 'of capacity to make the deed we mean that it was competent for the court to admit it in the exercise of his discretion, or to speak more accurately, of his sound judgment. The trial judge is often in a better position than an appellate court to determine whether a sufficient foundation has been laid and whether the testimony offered has substantial probative force. (22 C. J. 609.)
2. The holding that the testimony already discussed was competent goes far to determine also that the evidence was sufficient to support the judgment. There was other evidence of a like character. The evidence therefore warranted a finding that at the time the deed was executed Mrs. Fish had not capacity to transact ordinary business. And regarding that fact as established there was room for the court to conclude also that she was not capable of making an effective deed. There was further evidence to this effect:
Mrs. Fish said to the tenant of the quarter conveyed “I cannot let you have it any longer. I have to let Bob have it to keep peace.” She was worried after her husband’s death. “She was forgetful and would tell things several times. She would be talking about one thing and before she would get through with it, would tell the same thing over again.” In February, 1920, her son Robert, who had been living in Coffey- county, came to live with her, staying until March, 1921. She told a daughter-in-law that she was giving each of her sons a quarter section and expected to give the children all the same, saying there was plenty to give them all the same — “They will all share and share alike.” The daughter-in-law said: “ ‘Why, Grandma, how can you? When you have given away the two best quarters’ and she said she had bonds, other land, two houses and lots to divide.” The quarter deeded to Robert was worth $45,000. Two hundred and forty acres deeded to the other son which he later re-conveyed was worth $46,000 to $52,000. A quarter still held by Mrs. Fish was worth $18,000 to $20,000. Other realty named by the guardian was estimated by him at $5,500. When the deeds referred to had been made there was not enough land left to give each an equal share. She told a daughter there would be just the same for each of them; that Robert wanted the land deeded to him and she would have to give it to him; that she had given it to him; that she would have to let him have it to keep the peace. She told Pearl that Bob had asked her to deed him the quarter. After the deed was executed Mrs. Fish told people she still owned the land.
Mrs. Fish was a witness and her testimony included the following,:
“What was the first thing that was said by you or by Robert to you relative to your making a deed to this quarter section?
“He came in there, I think it was early in the morning. I was sweeping the kitchen. He came and spoke and said, ‘Mother, will you make me a deed to that home place.’ He said, ‘Pa gave it to me.’ I said, ‘if he gave it to you I reckon I can.’ That is the words I said to him.
“How long was that before you did make the deed?
“I do not know how long it was. It was not very long until we made the deed. I do not remember just how long it was.
“What if anything did he say to you about going up and making a deed?
“I think he said we would go up in a short time. I think he did say something about going up.”
The concluding findings made by the court, to which the defendant objected as not supported by the evidence, read:
“Margaret A. Fish, when discussing her said alleged conveyances to her sons, Pearl and Robert, repeatedly, said that she was going to treat all the children alike in the division of her property. When Mr. Moser, the township assessor called upon her to give a statement of her property for taxation she told him there was some property, but she did not know what it was and he would have to see Pearl. Mrs. Fish was greatly grieved over the loss of her husband. She frequently talked and cried about it. It preyed upon her mind. One of her weaknesses was a desire to manage her affairs as she thought her husband would do if living. The defendant took advantage of this when he requested her to make a deed for the home place and told her that ‘pa had given it to him.’
“Mr. Schmitt, her son-in-law, was farming the home place and had been for some time. After the death of her husband Mrs. Fish informed her son-in-law that he could have the place for three years, but after the defendant moved in with his mother, as above stated, Mrs. Fish informed Schmitt that he would have to move off and said that she had to let Bob have the farm to keep peace. From the time of her husband’s death up to the time of the appointment of the guardian Mrs. Fish did very little, if anything, in the actual management and care of her property.
“At the time of the alleged conveyance said Robert S. Fish was 57 years of age and resided with her. A few days before the execution of the alleged deed he went to the kitchen where his mother was sweeping and said to his mother, ‘Will you make me a deed to that home place? Pa gave it to me.’ She replied ‘If he gave it to you, I reckon I can.’ A few days after this conversation took place and while still residing with her he took her to the register of deeds office in Hiawatha; Pearl went along. Miss Ham, a notary public, was in the office and drew the deed. When she inquired about the numbers of the land, Robert, the defendant, gave her the numbers from memory. Miss Ham verified the numbers from a map in the office. The alleged deed was executed under such circumstances without the knowledge or consent of Mrs. Hinkle or Mrs. Schmitt, daughters of Mi’s. Fish, or her said grandchildren.
“Mrs. Fish at the time of the execution of the deed in question, was 73 years old, infirm, enfeebled in mind and memory, inexperienced in business affairs, could not write a check, had little knowledge of farm values, or the value of personal property, or of the extent and value of her own property. She was dependent upon others for the management of her affairs, was an incompetent and distracted person, incapable of managing her affairs.
“The defendant procured the execution of the deed in question through undue influence exercised by him over his- mother and by reason of her incapacity and incompetency as stated.”
There was testimony contradicting much of the evidence already summarized, and tending to show Mrs. Fish to have had capacity to make the deed. The issue, however, was one of fact, and the finding of the district court in that respect must stand. Want of capacity being established, a less degree of proof was required upon the issue of undue influence than would otherwise have been necessary, and we regard the finding in that respect as also supported. Of the effect of the one finding upon the other it has been said:
“It was shown that while Conrad Schuster was in a weak and unsound mental condition he made these deeds conveying all of his property to his two sons-in-law, without any consideration whatever therefor. This was sufficient evidence to be considered by the court upon the issue presented by the petition. In the nature of things it would be a rare case where the details of conversation or conduct could be shown indicating undue persuasion and influence. Such arts would be exercised only in the absence of witnesses, or, at most, in the presence of those whose interest and inclination would impel to their denial. We may as well judge of the cause from an effect as of the effect from a cause. The fact that one mentally infirm does these things might of itself lead to the fair and just conclusion that he was impelled thereto by undue persuasion and influence, and this fact, being proved, is sufficient to sustain the allegation of the petition.” (Howard v. Carter, 71 Kan. 85, 92, 80 Pac. 61.)
3. Two of the defendant’s witnesses who were shown to have known Mrs. Fish for some years were asked to state their opinions as to whether she was sane or insane. Objections to the questions were sustained, and of this complaint is made. No reason for rejecting the evidence is apparent, but as no verified showing was made of what answers would have been returned the ruling is not open to review. (R. S. 60-3004.) One of the witnesses had already testified that he had never observed anything about Mrs. Fish’s mental condition that he knew of — that she always seemed natural, clear through her life. This might warrant the presumption that if permitted he would have answered that he thought her sane, but the very fact of his having given this testimony shows that no prejudice could have resulted from excluding his answer. There is nothing to indicate what the answer of the other witness would have been. Moreover, while his acquaintance with Mrs. Fish was extensive enough to qualify him to testify as to her mental condition, it was not sufficiently intimate to make the exclusion of his testimony of much importance.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The state invokes the original jurisdiction of this court by a motion for an alternative writ of mandamus directing the board of county commissioners of Thomas county to pay a bounty of five cents on each jack rabbit killed in that county.
The defendant board endeavors to meet the issue by an answer in which it admits that since January 30, 1926, it has not paid such bounty, pursuant to a resolution of the board to that effect. The reasons for this attitude of the board are that the general fund of the county is overdrawn, and that it is unlawful for the defendant board to draw a warrant on the county treasurer when there are no funds on hand or in sight to pay it. Another reason is that the jackrabbit bounty is not properly chargeable to the general fund; that in Thomas county such bounty claims have recently grown to be an extraordinary expense, and that the legislature has not authorized a levy to meet it as required by section 4 of article 11 of the state constitution which provides:
“No tax shall be levied except in pursuance of a law, which shall distinctly state the object of the same; to which object only such tax shall be applied.”
The state and the defendant board have submitted this cause upon an agreed statement of facts, the most significant of which is that the general fund of the county is overdrawn and that the maximum levy for the general revenue purposes in Thomas county for the year 1927 will raise no more than $29,000. It was also stated in the oral argument, without dispute, that the current expenses of primary importance in conducting the government of the county, viz.: the administration of justice, salaries of county ’ officials, county printing, heat, fuel, light, stationery, postage, and the like, aggregate $25,000 to $26,000 per annum. It was also shown how the jack-rabbit bounty expense has grown since the enactment of R. S. 19-2307 (Laws 1923, ch. 109) thus:
Jack-Rabbit Bounty, Paid by Thomas County.
“For the year 1924................................... $3,304.95
For the year 1925................................... 6,134.40
For January, 1926.................................. 963.60”
For whatever informative value it may have, the parties also show the court the rapidly developing financial drain which the ■statute (R. S. 19-2307) has cast upon other nearby counties similarly concerned:
Sherman County.
“For the year 1924................................... $3,690.85
For the year 1925................................... 8,208.80
January 1, to 16, 1926 .............................. 691.15”
Logan County.
“For the year 1924................................... $1,191.00
•For the year 1925................................... 2,077.00
For the year 1926 ................................... 6,700.00”
Books County.
“For the year 1924...........................................
For the year 1925................................... $4,116.90
January and February, 1926.......................... 1,286.05”
Sheridan County,
“For the year' 1924................................... $2,540.75
For the year 1925 (11 months)...................... 5,362.65
The year 1925 the bounty was paid until approximately November.”
The statute which has precipitated this situation was enacted in 1923, but before quoting from i’ts provisions it may be instructive to trace this jack-rabbit bounty legislation briefly:
In 1877 it was enacted that the county commissioners shall issue county warrants for the extermination of wild animals, viz.: one dollar for each wolf, coyote, wildcat or fox, “and five cents for each rabbit” killed in the county. (Laws 1877, ch. 76.)
In 1885, the bounty was changed to three dollars for the wolf, coyote, wildcat or fox, and continued at five cents for the rabbits; but the payment of all such bounties was made optional with the board of county commissioners. (Laws 1885, ch. 73.)
In 1889, the bounty statute was rewritten. It provided, among other bounties, that the county commissioners may pay five cents for each rabbit killed in the county; but it also provided that this act should not apply to counties having a total property valuation of less than $500,000. The express grant of discretionary power vested in the county boards by the statute of 1885 was incorporated without reference, and chapter 73 of the Laws of 1873 [irrelevant] was repealed. (Laws 1889, ch. 90.)
In 1899, a statute was enacted that the county commissioners shall pay bounties on coyotes and wolves, but did not specifically repeal other statutes except in general terms. (Laws 1899, ch. 59.)
In 1905, the statute of 1899 was amended to read that the county board may pay bounties on coyotes and wolves, (ch. 73.)
In 1907, a statute which did not refer specifically to any prior enactment provided that the county commissioners shall pay bounties on coyotes and wolves, “and gophers, ten cents each.” (Laws 1907, ch. 67.)
In 1908, it was enacted that boards of county commissioners may pay ten cents for each pocket gopher scalp, and each ground mole scalp, of such animals killed in the county. (Laws 1908, ch. 60.)
In 1909, it was enacted:
“Section 1. That the county commissioners in each county in the state of Kansas shall, at the April, 1909, meeting of said board, place and thereafter pay a bounty of five cents on each pocket gopher, crow, or crow’s head, and a bounty of one cent on each crow’s egg, if said pocket gopher, crow or crow’s egg be caught, killed or taken in said county.
“Sec. 4. All acts or parts of acts in conflict with the provisions of this act are hereby repealed: Provided, That this act shall not be so construed as to prevent any county from paying the voluntary bounty of ten cents per gopher as provided in chapter 60 of the Session Laws of 1908.” (Laws 1909, eh. 150.)
In 1923, the present statute (R. S. 19-2307 et seq?) was enacted:
“Section 1. That the county commissioners in every county in the state of Kansas shall at the April, 1923, meeting of said board, place and thereafter pay a bounty of five cents on each jack rabbit and ten cents on each pocket gopher, crow or crow’s head, and a bounty of one cent on each crow’s egg, if said pocket gopher, jack rabbit, crow or crow’s egg be caught, killed or taken in said county.
“Sec. 4. That sections 2868, 2869, 2870, and 2871 of the General Statutes of Kansas for 1915, and all other acts and parts of acts in conflict with the provisions of this act, are repealed: Provided, That this act shall not be so construed as to prevent any county from paying the voluntary bounty of ten cents per jack rabbit as provided in chapter 60 of the Session Laws of 1908.” (Laws 1923, ch. 109.)
The sections of the General Statutes repealed by section 4 just quoted refer to the act of 1909 cited above. The proviso in section 4 touching the voluntary bounty of ten cents per jack rabbit is abortive because chapter 60 of the Session Laws of 1908 did not authorize such a bounty on jack rabbits but on pocket gophers and ground moles.
In this examination of the changing moods of the legislature during the past half century, no special tax to pay any of these bounties was authorized. We are bound to take judicial notice of the fact that at the times when the statute was mandatory and again when it was intermittently permissive the bounties, were paid out of the general revenue funds of the several counties. And when the expense was relatively small or negligible compared with the aggregate sum requisite to defray the current expenses of the county —when the expense was but a minor incident — there was no grave harm done, even if such bounties, in strict deference to section 4 of article 11 of the constitution, should not have been paid out of the general fund. The principal purposes of the county general fund are well understood. It is the fund out of which the ordinary current expenses of conducting the county government are met. (Railway Co. v. City of Topeka, 95 Kan. 747, 749, 149 Pac. 697, and citations.) Incidental expenses pertaining thereto are likewise properly paid out of this fund, subject of course to statutory mandates and inhibitions. Of necessity, some discretion touching what are incidental expenses is vested in the county commissioners, since they are the financial and business manágers of the county.
In Smith v. Haney, 73 Kan. 506, 509, 85 Pac. 550, it was said:
“The phrase ‘general fund,’ as applied to the fiscal management of a Kansas county, has a definite and well-recognized meaning. It covers the proceeds of a tax levied to provide for the usual current expenses.”
The rule just quoted has not been so rigorously applied as to forbid the use of a surplus in the general revenue fund of the county to defray certain unusual expenses which might properly have been met by a special tax if the general fund could not well afford it. (State v. Butler County, 77 Kan. 527, 94 Pac. 1004; State, ex rel., v. Raub, 106 Kan. 196, 203, 186 Pac. 989; Trust Co. v. Grant County, 111 Kan. 104, 205 Pac. 1031.)
And so hei-e. So long as the expense of jack-rabbit bounties called for no more than a relatively small portion of the general fund, and could be readily met therefrom, there was nothing essentially irregular about such bounties being paid from that fund.
But an altogether different situation arises when the bounty on jack rabbits becomes one of the heaviest financial burdens of the county, when it can no longer be denominated a mere incident of the business of the county government, and where the general fund —the fund for defraying the ordinary current expenses of the county government — will not cover such an extraordinary burden. Probably the bounty paid by the defendant board in January, 1926, $963.60, would be above the average for the entire year, but it seems certain that it would run to $10,000 per annum, or more than one-third of the entire general revenue fund of the county.
Obviously the legislature did not anticipate that the jack-rabbit bounty would create such a heavy demand upon the county, otherwise it would have authorized a special tax levy to meet it, as the constitution commands. (Art. 11, sec. 4.)
Vide the interesting case that arose in construing a coyote-bounty statute in California, Ingram v. Coigan, 106 Cal. 113.
Following the destructive floods of 1903, which created extraordinary expenses which the general revenue funds of the counties affected could not meet, the special session of the legislature, called to deal with such problems, enacted Laws of 1903 (special session), ch. 43, authorizing the county board of any county to issue warrants to pay for burying the dead, rendering temporary aid to the distressed, preventing disease and pestilence and to clean up debris, but the same act also authorized the levy of a tax to pay such warrants. (R. S. 19-236.) So, too, the board of county commissioners of any county, on the initiative of electors, is authorized and directed to incur expense for the purchase and distribution of poison for grasshoppers, and to pay the cost of such service and materials out of the general fund, but this statute also provides for the replenishment of that fund by a special tax not exceeding one mill on each dollar of the assessed valuation of the county. (R. S. 19-2404; Laws of 1925, ch. 136.)
Another feature of this case which must not be overlooked is that there is no money in the county treasury to meet this extraordinary expense, and no levy imposed which can be expected to meet it. It is a very serious offense for a board of county commissioners to issue warrants in any one fiscal year in excess of the amount which the tax levied to meet such warrants will produce revenue enough to pay. (R. S. 19-241, 19-242, 19-243; Bank v. Reilly, 97 Kan. 817, 156 Pac. 747.) Moreover, the action here is mandamus. Notwithstanding the general-revenue fund of the county is exhausted and overdrawn, and the ordinary current expenses of the county absorb its entire general revenue so as to leave little or no surplus, and the jack-rabbit bounty is no longer a minor incidental expense but has become one of the heaviest financial burdens of the county and essentially requiring a special tax to meet it as provided under article 11, section 4 of the constitution, and the legislature has not authorized such special tax, the state insists that we issue a writ of mandamus to compel the defendant board to issue its warrants to meet this extraordinary expense. In such a condition of affairs we do well to be reminded that mandamus is a discretionary writ.
In State, ex rel., v. Comm’rs of Phillips County, 26 Kan. 419, it was said:
“The writ of mandamus is not wholly a writ of right, but lies to a considerable extent within the sound discretion of the court where the application is made, and no court should allow a writ of mandamus to compel a technical compliance with the letter of the law where such compliance will violate the spirit of the law.” (Syl. fl 2.)
. In Kolster v. Gas Co., 106 Kan. 84, 86, 186 Pac. 738, it was said:
“An action in mandamus is a very different thing from an action on a debt or for damages or the like, where judgment as prayed for goes as a matter of course to the prevailing party, and where the court is absolutely bound to give such judgment. Mandamus is a discretionary writ, and before granting it the court may and should look to the larger, public interest which may be concerned — an interest which the private litigants are apt to overlook when striving for their private ends.”
The demands upon our time will not permit us to pursue this subject at greater length, but enough has been indicated to show that the writ of mandamus should not issue in the circumstances.
■ - Writ denied. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action by plaintiff, out of possession, claiming to own certain real property in fee simple, pleading fully the instruments and facts upon which it bases such claim, asking that defendant be required to set forth all claims he has to the title or possession of such real property, that such claims of defendant be adjudged to be void, that plaintiff be adjudged the absolute owner in fee simple of the real property and entitled to the immediate possession of the same, and that defendant, and all persons claiming by, through, or under him, be barred of any right, title or interest in or to the real property. There was a second cause of action in which plaintiff alleged that defendant had unlawfully deprived plaintiff of possession, to its damage in a sum named, for which sum judgment was prayed. The defense was that there was an indebtedness from plaintiff to defendant, and that the instrument relied upon by plaintiff evidenced such indebtedness. The trial proceeded before a jury. At .the close of all the evidence the plaintiff demurred to defendant’s evidence pertaining to the first cause of action and moved the court to render judgment in its favor upon the first cause of action. The demurrer and motion were sustained. Plaintiff dismissed its second cause of action. The court adjudged plaintiff to oe the owner in fee simple of the real property, and that.it have immediate possession thereof, barred defendant from any and all rights therein, and directed the sheriff to put plaintiff in possession. Defendant’s motion for a new trial was overruled, and he has appealed.
The real question to be determined is whether a deed by defendant to plaintiff was a conveyance of the property, or evidenced an indebtedness. The facts disclosed by the evidence are not seriously in dispute, and are substantially as follows:
Defendant, a single man, owned a farm' of 160 acres in Lincoln county, which was encumbered by a mortgage of $10,000. He owed the plaintiff bank two notes. In November, 1922, these notes were past due and the bank’s officials asked defendant for security and suggested taking a second mortgage on his farm. Defendant refused to give security. The bank sued on the notes, and in March, 1923, obtained a personal judgment against defendant for $1,842, and costs, the judgment to bear eight per cent interest. Early in June, 1923, defendant wanted to get the judgment off the record. He had a talk with the president of plaintiff bank, who told him that the bank would release the judgment on one condition only — that defendant give the bank a warranty deed to the land, the bank to pay back interest and taxes and figure in the costs in the way of accrued interest and expenses that might enter into it, and give him a year’s option to repurchase the land. After some discussion, and on June 6, 1923, defendant executed to plaintiff a general warranty deed for the land subject to the mortgage of $10,000. The deed recited a consideration of $2,608.36. This was made up of the judgment, interest and costs, attorney’s fee, taxes for 1922, and interest on the first loan. On the same date plaintiff executed to defendant an instrument giving him the option to repurchase the land at any time within one year upon the payment by defendant to plaintiff of $2,608.36, with eight per cent interest thereon from date, “and the further sum to cover any and all taxes paid by said Lincoln State Bank after this date and also for all interest that may be paid by said bank to the holder of the first mortgage . . .” In the event the option was exercised the conveyance was to be made by plaintiff to defendant free of encumbrance except the $10,000 first mortgage. On the same date plaintiff executed a written lease of the real property to defendant providing the defendant should occupy and cultivate the farm for one year and should pay as rental to first party one-third of the crops which might mature on the land before June 6, 1924, to be delivered without expense to first party, and in which it was “agreed that whatever money is received by first party for rentals shall be credited on the general indebtedness of second party to first party.” Before defendant’s notes were reduced to judgment the bank carried them on its books as bills receivable. When reduced to judgment the bills-receivable account was credited, and the account of judgments owned was debited. When the deed was received, the judgment account was credited and the item was then carried as “other real estate owned,” and the judgment was released as having been fully paid, on the judgment docket in the office of the clerk of the district court. On October 23, 1923, defendant paid plaintiff $110 on rentals. In December, 1923, de fendant thought he might sell the land to advantage at a public sale, and got permission of plaintiff to offer it at public sale. This sale was advertised, about ninety people were present, and the highest competitive bid was $81 per acre. Plaintiff bid $82.25 per acre. After the sale defendant contended there was some misunderstanding in the bidding, and plaintiff waived its right to take the land at that bid and reestablished the option with the defendant by a writing which recited, by way of preamble, the deed executed by defendant to plaintiff June 6, 1923, the lease and the repurchase agreement of that date, the attempted public sale of the property in December, and the misunderstanding of defendant with relation thereto, and proceeds:
“Now, therefore, this agreement is made as a final agreement and on the following conditions: First party agrees that the repurchase option mentioned be returned to second party (here follow provisions as to crops, method of farming, one-third of the crop to be delivered to plaintiff, some spring crop might be put in, and in effect continuing the lease until August 1, 1924). It is further agreed that second party will give possession of all land and buildings on said quarter section ... on August 1, 1924, and that he may go on said land after that date to care for growing crops of which he has a share, but for no other purpose.”
This instrument contained an additional stipulation, as follows:
“It is further agreed by both parties hereto that up to and including June 6, 1924, either party hereto may sell said land for fourteen thousand and five hundred dollars ($14,500), any amount in excess of the amount then owing first party to go to second party and that the $110 paid by second party on October 23, 1923, and any further amounts paid by second party at any later date shall be credited on the general indebtedness of second party and the interest on any amounts so paid shall cease on the date of payment.”
In April, 1924, the $10,000 indebtedness on the land having come due an agreement was made between the parties that the first party should pay the indebtedness and make a new loan not exceeding $10,000 in two loans, the first to be $8,000 and the second to be $2,000, without affecting defendant’s option to purchase. Defendant did not exercise his option to purchase, and in July, 1924, plaintiff gave him notice to quit, and another notice in August, and filed a suit for forcible detainer before a justice of the peace. Defendant answered and contended that the deed was given to the bank to secure his indebtedness. The justice thought the title to the real estate was involved and certified the case to the district court. Plaintiff dismissed that case, then brought this action.
Appellant contends that this is, in effect, an action for the possession of real property, and therefore that he had a right to a trial by jury, under the statute (R. S. 60-2903). That is true, of course, if there were issues of fact. Here all the material evidence was in writing, which it was the duty of the court to construe. If a proper construction of the written instruments requires a judgment for plaintiff, the fact that the court sustained plaintiff’s motion for judgment instead of instructing the jury to return a verdict for plaintiff and rendering judgment on such verdict, is of no importance. The real question in either event is whether the court correctly construed the writings between the parties. In determining the question we need consider only the written instruments of June 6, 1923, for the later ones are modifications only of those, for reasons desired by one party or the other, without changing their primary purpose or effect. The test, repeatedly applied by this court, as to whether an instrument in the form of a deed is a conveyance or is intended as a security for a debt, hence to be treated as a mortgage, is to be determined by whether there continues to be any debitor the instrument to secure. (M’Namara v. Culver, 22 Kan. 661; Fabrique v. Mining Co., 69 Kan. 733, 77 Pac. 584; Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127.) Here there was no debt which continued to exist. The bank released its judgment of record against defendant as having been paid — the very thing defendant wanted done. Plaintiff carried the land as “other real estate owned.” There was no indebtedness existing from defendant to plaintiff.
The three instruments executed on June 6, 1923, were (a) a general warranty deed from defendant to plaintiff (subject to a mortgage of $10,000), (6) an instrument by which plaintiff gave defendant an option to purchase the land at any time within one year from date at a named, or determinable, price, and (c) an instrument by which the land was leased by plaintiff to defendant for one year —the defendant to farm the land and to pay, or deliver, to plaintiff a certain share of the crop as rent. This had a stipulation indorsed thereon, in substance, if defendant exercised his option to purchase, the rentals he had paid, if any, should be credited on his “general indebtedness.” Piad it not been for these words “general indebtedness” used in this stipulation there could have been no question but what the deed was a conveyance of title and not a security for a debt. (Yost v. Bank, 66 Kan. 605, 72 Pac. 209; Frankovich v. Weigant, 104 Kan. 84, 181 Pac. 945; Lamborn v. State Bank, 115 Kan. 415, 223 Pac. 293.) The words are used so that they apply only in the event defendant exercised his option to purchase, an event which never occurred, and had it occurred it may well be said there would have been an indebtedness, since the written instruments do not specify the terms or manner of payment by defendant in the event he exercised his option to purchase. The expression was an inapt one because of the possible uncertainty of its meaning. Had the stipulation provided that in the event defendant exercised his option to purchase, any rent paid should apply upon the purchase price — not an uncommon provision in leases where the lessee is given an option to purchase the property within a given time at a fixed price — there would have been no room to question the meaning of the writing; no one would have considered it as evidencing an indebtedness. But the words used can have no other meaning here, in view of the fact there was no indebtedness between the parties which continued after the instruments ■ of June 6, 1923, were executed, and would be none unless defendant exercised his option to repurchase, which he never did, and since the words used applied only to the circumstances of the parties in the event defendant exercised his option to purchase.
Otlier questions argued are so related to those we have previously discussed that there is no necessity of taking them up separately. The judgment of the court below is affirmed.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a passenger on a street car to recover from the carrier damages resulting from repeated battery inflicted by a fellow passenger. A demurrer was sustained to plaintiff’s evidence, and she appeals.
After plaintiff entered the car she remained standing until a passenger who was leaving the car vacated a place where she might sit next to the aisle on a seat occupied by a man sitting next to the window. When she was about to sit down, the man told her she could not sit there. She sat down, and the man struck her, knocking her across the aisle. She got up, went bank, and sat down. The man struck her again with his fist. The blow knocked off her spectacles and hat, and drove her across the aisle. She got up, went back to sit down, and the man struck her the third time. The conductor stood facing plaintiff, only eight feet away, and no one was in the aisle between the conductor and plaintiff. On cross-examination, plaintiff was led to say the blows came pretty fast, just as quickly as she could get back and sit down. She testified, however, that after she had been knocked down the third time, the conductor came forward, took hold of her, and said he would call a policeman, but said nothing to the man who had been striking her. When the con ductor did this, a passenger who was apparently in sympathy with plaintiff, arose and said to the conductor that the conductor had seen what was going on all the time. The conductor took this passenger away from plaintiff, and the man who had objected to plaintiff’s presence in the seat soon left the car.
Whether a gentleman may beat a lady with his fists until she succumbs to what he conceives is her place on a street car, is regarded by some as a personal question touching the gentleman’s 'dignity and self-respect, and not subject to animadversion by others. Since it is not obliged to do so, the court refrains from discussing the question. The court is obliged, however, to censure the conduct of the street-car conductor. The law required him to exercise diligence to protect passengers from unprovoked assault and battery by fellow passengers. The jury would have been authorized to infer the conductor did know all the time just what was going on and what the cause of the trouble was, and if he knew, or should have known, that under the circumstances assertion or reassertion of plaintiff’s privilege to occupy a vacant seat would result in a passenger using force against her, it was the conductor’s duty to protect her.
The judgment of the district court is reversed, and the cause is remanded with direction to grant a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued the Shawnee Building and Loan Association to recover $2,000 on certificates of stock that had been issued by that association to Margaret J. McCoy, deceased, during her lifetime. On the application of the Shawnee Building and Loan Association, Mrs. Anna Irvine, Miss Eileen Irvine, and James Irvine were made parties to the action. Eileen Irvine and James Irvine filed disclaimers. Anna Irvine filed an answer and cross petition in which she claimed that the stock in question had been delivered by Margaret J. McCoy, the daughter of Anna Irvine, to Alice Shear, as a gift to Anna Irvine to be delivered to her after the death of Margaret J. McCoy, who was then ill and pregnant, and who believed that she would not survive her illness and the birth of her child. The plaintiff denied the allegations of the answer and cross petition. A jury was impaneled, and evidence was introduced on behalf of Anna Irvine to establish the allegations of her answer and cross petition. At the conclusion of that evidence, the court sustained the plaintiff’s demurrer thereto and rendered judgment for the plaintiff against the Shawnee Building and Loan Association for the sum of $2,000, which had been paid into court by that association to be paid over to whomsoever should prevail in the action. Anna Irvine appeals.
1. Did the court commit error in sustaining the demurrer to the' evidence of Anna Irvine? There was evidence which tended to prove that prior to her marriage to Ira J. McCoy, which took place in December, 1921, Margaret J. McCoy had been employed as a stenographer to the commandant at Fort Leavenworth; that at the time of her marriage she was tired and in a run-down condition, brought about by overwork; that after her marriage, she gradually grew worse, suffered from auto-intoxication, and became pregnant, after which she continued to fail in health and often expressed her opinion that she would not survive her illness and the birth of her child; that under these circumstances, she placed the certificates of stock in controversy in this action, together with some other personal property, in the hands of Alice Shear to be by her turned over to Anna Irvine after the death of Margaret J. McCoy; that she gave birth to her child on February 20, 1923; and that on March 2, 1923, .she died from an obstruction of the bowels caused by puerperal sepsis. We quote from the abstract evidence to show the terms under which the certificates of stock were placed in the hands of Alice Shear. Eileen Irvine, a daughter of Anna .Irvine and a sister of Margaret J. MxCoy, testified:
“I saw m.y sister in June, 1922; mother and I went out there together; I remained a couple of days, but mother stayed there a week or two; Margaret appeared to me then to be in a terrible run-down condition. Margaret said— my sister said, ‘I don’t know — I just feel terrible.’ She said, ‘I don’t feel like I am going to get better.’ She said, ‘Mother, I have taken care of you, Alice Shear — .’ Margaret’s general appearance to me was poorly. She said, ‘I don’t think I am going to get better, I feel terrible’; she says, T have taken care of you, mother.’ She says, ‘Mother, I have taken care of you. Alice Shear will give you my papers, the building and loan shares in Leavenworth and the Shawnee Building and Loan shares at Topeka, and that oil stock, if anything happens to me.’ After my sister died I went to Alice Shear and asked her for the papers and she said, ‘Yes, I have them — ’ . . . ‘Mother,. I want you to get what I have, and you go to Alice Shear and she will give you my papers,’ and she designated the building and loan stock at Leavenworth and at Topeka, and the oil stock. All of the papers that you (Mr. Endres) are handing me— the stock certificate that has been introduced in evidence, were handed to me by Alice Shear about a week after my sister’s death and I gave them to my mother; the book indorsed ‘Installment Stock Book Certificate number 1436— 6 shares’; in the Citizens’ Mutual Building and Loan Association in account with Margaret J. McCoy, was in the package of papers handed to me by Alice Shear after the death of my sister. ... I next saw my sister in October, 1922. ... At that time she said to mother and I that she wanted to have these shares, the building and loan shares, turned over to mother in her name; she didn’t feel like she was going to get better; she said she wanted to have the shares turned over in mother’s name, if anything happened to her; that she wanted mother to get what she had, and we said — it was— it seemed like if I tell the first part I almost — we kept her from doing it. That wasn’t all the conversation — and we said that — well, no, to leave it the way it was; then she said Alice Shear will give you those papers in case anything happens to me. She wanted us to take them into the building and loan. She said she wanted to take the building and loan stock down to the building and loan and have the name changed, and we said no, to leave it the way it was, and she said, then mother will get it from Alice Shear and we let it go at that in place of taking it to the building and loan association like she wanted it.”
John McFarland, an uncle o,f Margaret J. McCoy and a brother of Anna Irvine, testified:
“I am Margaret McCoy’s uncle. I attended her wedding and gave her away in marriage at' the Presbyterian church in Leavenworth. ... I did not see her again until she come home in October at her mother’s house. . . . I talked with my niece, Margaret J. McCoy, at her mother’s house then. I asked her how she was feeling, and she said, ‘I am feeling very bad, in fact haven’t felt well for some time. ... As far as the folks are concerned I have done the best I can by them, as I have given to Miss Shear some building and loan association stock,’ but I don’t think she told me in what company or where or the amounts, and also some oil stock which she said she had turned over to Miss Shear, with instructions to her that in case of her death or anything happening to her, that these instructions [papers] were to be given to my sister, who is her mother, Mrs. Irvine. In this conversation, she stated to me that she didn’t believe, I think is the word she used, I don’t remember of course the exact conversation, but she was not going to survive this ordeal, and that in case of her death that the papers in question were to be turned over to her mother as she had given this property to her.”
Other than as above outlined, there was no evidence to show the terms on which the certificates of stock were placed in the hands of Alice Shear. She did not testify.
In Calvin v. Free, 66 Kan. 466, 71 Pac. 823, the court said:
“To constitute a gift causa mortis, the gift must be made in contemplation of the near approach of death, to take effect absolutely only upon the death of the donor and before that of the donee. There must be a delivery of the property to the donee or some one for him. Subject to the right of recall in case he does not die, or in case the donee dies first, the donor must part with all dominion over the donated thing.
“To constitute a gift inter vivos, there must be a gift absolute and irrevocable, taking effect immediately, the donor delivering the property to the donee or some one for him, and parting with all future dominion over it.” (Syl. n 1, 2.)
In Ariett v. Osage County Bank, 120 Kan. 286, 291, 242 Pac. 1018, the following language was used:
“Gifts may be made to be enjoyed by the donee after the donor’s death. The gift itself must, however, be complete in the donor’s lifetime. Title m’ust pass from the donor to the donee. In the case of bonds, transfer of title may be effected by delivery of the bonds to the donee, or by executing and delivering to the donee an assignment of the bonds. In the latter case, delivery of the assignment takes place of delivery of the bonds. Delivery of the bonds or of the assignment may be to a third person for the donee, but dominion of the donor must be as effectually relinquished as if delivery had been directly to the donee. The requirement of delivery may also be satisfied by the donor creating himself trustee of the bonds for benefit of the donee. In that event, the creative manifestation, whether by word of mouth, by writing, or by other conduct, must be intentional, unequivocal, and unmistakable. In all of these cases, the donor must make the gift. No matter how clear his intention, or how strong his desire, if what he does falls short of divesting himself of present title, he has made no gift, and neither law nor equity can aid him or aid the donee.”
There was evidence which tended to prove a gift causa mortis, and that evidence should have been submitted to the jury. It was error to sustain the demurrer thereto.
2. The plaintiff argues that if there had been a gift causa mortis by Maragret J. McCoy, it was revoked by the birth of her child. He cites 28 C. J. 698, where the following language is found:
“Where by law a will, whether making a total or partial disposition, is revoked by the subsequent birth of a child, if no provision has been made in the instrument for that contingency, a gift causa mortis will likewise be revoked.”
To support that statement, Corpus Juris cites Bloomer v. Bloomer, 2 Bradf. Surr. (N. Y.) 339. The quoted statement contained in Corpus Juris appears to be based on that decision alone; no other case is cited to support it. This necessitates an examination of section 22-240 of the Revised Statutes, which reads:
“If the testator have no children at the time of excuting his will, but shall afterwards have a child living, or born alive after his death, such will shall be deemed revoked, unless such provision shall have been made for such child by some settlement, or unless such child shall have been provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; and no other evidence to rebut the presumption of revocation shall be received.”
That statute specifically concerns wills. Unless a gift causa mor tis can be said to be a will, the statute does not apply thereto. A gift causa mortis is not a will because it does not purport to be a will; because it is not executed as required by statute for the execution of wills; and because it takes effect at once subject to the conditions which the law imposes, one of which is that it can be revoked during the lifetime of the donor. The statute prescribes the manner in which a will may be revoked by the testator. When a will is once made, it continues to be the will of the testator until it is revoked in the manner prescribed by statute or by the conditions named in section 22-240. In 28 C. J. 697 it is said:
“A gift causa mortis has this distinguishing feature that it is revocable at any time during the life of the donor at his option and without regard to the state of his health.”
A large number of cases are cited to support that rule. The same rule is found in 12 R. C. L. 969.
A gift causa mortis need not be revoked by the donor in the manner prescribed by statute for the revocation of wills; such a gift may be revoked in other ways. Section 22-240 applies to wills, not to gifts causa mortis.
Before she placed it in the hands of Alice Shear, Margaret J. McCoy had absolute control over the property. She could have sold it or she could have given it away, and neither the law nor any other person could interfere with such sale or gift. After the disposition had been made, she knew that she was pregnant but allowed the gift to stand, and by so doing continually confirmed the gift until her death. After the birth of her child, Margaret J. McCoy could have revoked the gift, but she did not do so. If no disposition had been made of the property she could have made a gift thereof causa mortis which would have been good notwithstanding the claims of the .child.
If the property was a gift causa mortis by Margaret J. McCoy, it was not revoked by the birth of her child.
The judgment is reversed, and the cause is remanded to the trial court for further proceedings in accordance with this opinion.
Harvey, J., dissenting. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an appeal from an order setting aside a judgment in favor of the plaintiff and against the defendant George Carlton.
On November 26, 1921, the plaintiff commenced an action in replevin against George Carlton and Helen E. Carlton, the wife of the latter, to recover the possession of two automobiles on which the plaintiff claimed to have a chattel mortgage to secure the payment of a promissory note for $7,000. The property was taken under writs in replevin and was turned over to the plaintiff, who sold the automobiles and realized from the sale $1,700 which, after deducting the expenses of the sale, was indorsed on the note, leaving a balance due of $5,788.05. After the sale, a supplemental petition was filed by the plaintiff in which judgment against the defendants was asked for the unpaid amount on the note, together with interest thereon. Judgment was accordingly rendered against the defendants on May 17, 1924, for the sum of $6,907.86. Service of summons in the replevin action was made on Helen E. Carlton by delivering to her in Sedgwick county a copy of the summons, and was made on George Carlton by leaving a copy thereof at his usual place of residence in Wichita, in Sedgwick county, Kansas. George Carlton did not appear. On February 15, 1926, George Carlton, appearing specially, filed his motion to set aside the judgment rendered against him on May 17, 1924. He asked that the judgment be set aside on the ground, first, that the court was without jurisdiction of the person of George Carlton; second, that service of summons had not been made on him in Sedgwick county, Kansas, by leaving copy thereof at his usual place of residence, and that he never entered his appearance in that action; and third, that at the time of the execution of the note and of the service of summons, he was an incompetent person, having theretofore been so adjudged by a court of competent jurisdiction and was then under guardianship, and that his guardian was not made a party and was not served with summons.
On November 6, 1920, George Carlton, an Osage Indian, allottee No. 1063, filed an application in the county court of Osage county, Oklahoma, for the appointment of a guardian for himself, a copy of which application was at that time filed with the Osage Indian agent. Afterward, George Carlton was adjudged incompetent, and on November 12, 1920, Helen E. Carlton, the defendant, wife of George Carlton, was appointed his guardian. On April 27, 1921, George Carlton and Helen E. Carlton, his guardian, filed an application in the county court of Osage county, Oklahoma, stating that George Carlton was then a competent person and should be restored to competency, and asking that he be restored to competency and the guardianship be. closed. On January 30, 1922, an order was made by the county court of Osage county declaring that George Carlton was then a competent person, restoring him to competency, and directing Helen E. Carlton, the guardian, to make full settlement with him.
The court set aside the judgment against George Carlton.
1. The principal question for determination is the effect to be given to the judgment of the county court of Osage county, Oklahoma, declaring that George Carlton was an incompetent person and appointing a guardian of his estate.
Section 1 of article 4 of the constitution of the United States in part, reads:
“Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of eveiy other state.”
That constitutional provision covers all judicial proceedings; it therefore applies to proceedings to inquire into the mental competency of a person within the jurisdiction of the court and to appoint a guardian for a person found to be incompetent. The judgment of the court in Oklahoma established the status of George Carlton, and that status attached to him in this state, at least until a competent court, having jurisdiction of him, declared him to be compos mentis. Full faith and credit cannot be given to the judgment of the Oklahoma court unless that judgment is recognized as a valid and binding one in this state.
In 32 C. J. 648 this language is used:
“An inquisition of lunacy found in a sister state or a foreign country is entitled to the same faith and credit as it receives in the state or country where it was found,, as to the issues decided.”
In 12 C. J. 459 it is said:
“Under the general rule that the law of the domicile governs as to the status of a person and the disposition and management of his movable property, the domicile of an infant is regarded as the fittest place for the appointment of a guardian of his person and estate.
2. Did the district court of Sedgwick county acquire jurisdiction of George Carlton? His guardian, as such, is not a party to this action and no service of summons was made on her as such guardian.
Section 60-408 of the Revised Statutes, in part, reads:
“In any proper case service may be made on minors, insane and other incompetent persons by a summons personally served or by publication notice as provided in this code, the same as upon other persons defendants in action. If there be a natural or legally appointed guardian for such minor, insane or incompetent person, service shall also be made in the same manner upon such guardian.”
In Marquis v. Wiren, 74 Kan. 775, 87 Pac. 1135, the court declared that—
“A judgment rendered against an insane person upon personal service made after he had been adjudged insane, and before a guardian has been appointed, is void, and should be set aside upon application made in the original action by the guardian of his person and estate.”
In Weedman v. Fowler, 84 Kan. 75, 78, 113 Pac. 390, the following language is found:
“As was said in Marquis v. Wiren, 74 Kan. 775: ‘There is but one way for a coui’t to obtain jurisdiction of an insane pei'son, and that is by having the process served on his guardian.’ (p. 777.) To the same effect is Foran v. Mealy, 73 Kan. 633.”
It follows that the district court of Sedgwick county did not acquire jurisdiction to render any judgment against George Carlton.
3. The plaintiff contends that George Carlton should have proceeded under section 60-3011 of the Revised Statutes. That section, so far as applicable, reads:
“The proceedings to vacate or modify the judgment or order on the grounds mentioned in subdivisions four, five, six, seven, eight and nine of section 596 shall be by petition verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant.”
'The pertinent parts of section 60-3007 of the Revised Statutes, section 596 of the code of civil procedure, are subdivisions five and eight, which read:
“Fifth. For erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings.”
“Eighth. For errors in a judgment, shown by an infant in twelve months after arriving at full age.”
Sections 60-3007 and 60-3011 apply to voidable or erroneous judgments, not to void judgments. George Carlton proceeded under section 60-3009, which reads:
“A void judgment may be vacated at any time, on motion of a party or any person affected thereby.”
The judgment against George Carlton was void. He proceeded in the proper manner to set it aside. Citation of authorities, other than the statute, is unnecessary.
4. The plaintiff contends that “the proceedings for the appointment of a guardian being void should not have been considered, and being the only evidence of incompetency produced, the court should have found against the defendant on that issue.” The record discloses that the Oklahoma court had jurisdiction of the proceeding pending before it and of the person of George Carlton. The matters urged by the plaintiff go to the regularity of the proceeding in that court, not to its jurisdiction, although the plaintiff argues that they show the court had no jurisdiction. It is not necessary to discuss this matter to any greater extent.
5. Another matter presented by the plaintiff is that “the motion to set aside the judgment raised an issue which is nonjurisdictional in nature, constituting a general appearance and should have been overruled.” This is based on the following language contained in the motion of George Carlton:
“That at the time of the execution of the note and mortgage sued upon in said cause, and at the time of the alleged service of summons, this movant was an incompetent person, having been theretofore so adjudged by a court of competent jurisdiction. That at said time he was under guardianship.”
This matter was not set out in the motion for the purpose of stating a defense to the note; it was set out for the purpose of showing the length of time George Carlton was incompetent and under guardianship. In Shearer v. Insurance Co., 106 Kan. 574, 189 Pac. 648, the court said:
“A general appearance is not effected by the insertion, in a motion to set aside the service of summons, of allegations concerning some of the facts on which the plaintiff’s claim is founded, which are made because of their bearing upon the validity of the service, and which are material to that question.” (Syl. If2.)
The motion did not constitute a general appearance in the action. . The judgment is affirmed. | [
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The opinion of the court was delivered by
GRAVES, J.:
The controversy in this action arises between two mortgagees as to the possession of the same cattle. Walter Buck sold cattle to one Jackson, and took a chattel mortgage to secure the purchase-price. Jackson afterward mortgaged the cattle to the National Bank of Commerce at Garnett, Kan. The bank foreclosed its mortgage and sold the cattle to the defendant, Charles Judy. Jackson having defaulted in the payment of the first mortgage, Buck brought this action of replevin to recover the cattle from Judy, claiming that they were the cattle covered by his mortgage. Judy denied that they were the same cattle.
The question as to whether Jackson gave two mortgages on the same cattle was fully tried out in the district court, before the court and a jury, resulting in a verdict and judgment in favor of Buck. Judy brings the case here on a petition in error. The verdict of the jury having been approved by the court, the judgment thereon is final unless error was committed during the trial.
The plaintiff in error complains of the rejection of certain testimony of Mr. Fallís, who took the mortgage from Jackson for the bank. When a witness Fallís was asked the following question:
“Ques. I will ask you whether or not you made inquiry of Mr. Jackson in regard to liens upon the cattle? Ans. I did.”
Objection to the question was sustained, and the answer stricken out. Just what material fact this evidence was intended to establish, or why it was excluded, the record does not disclose. From the discussion by counsel, however, it may be inferred that it was deemed important because the description of the cattle in the plaintiff’s mortgage was claimed to be insufficient to impart notice, and the court instructed the jury substantially that the description was sufficient if it, together with such inquiries as the mortgage itself suggested to a person of ordinary prudence, would have led to a discovery of the cattle intended by the parties to be covered by such description, but not otherwise. This evidence may have been intended to show that the officer of the bank made such inquiries as good faith and proper diligence required, and that the information obtained indicated that these were not the cattle described in the bank mortgage; but this is all conjecture.
Before a trial court can be said to have committed error by the rejection of evidence it must affirmatively appear that such evidence was legal and proper under the rules of evidence and the issues of the case. (The State v. Barker, 43 Kan. 262, 23 Pac. 575; Dodge City v. Wright, 48 Kan. 667, 29 Pac. 1086; Eagon v. Eagon, 60 Kan. 697, 57 Pac. 942.) In the case last cited the trial court refused to receive an offer of proof, and required counsel to indicate by questions as best he could the nature of the evidence he desired to present. In that case Mr. Justice William R. Smith used the following language:
“This requirement has left the record of the testimony sought to be elicited in an unsatisfactory condition. It is difficult in most cases to present to the court explicitly in the form of questions the exact . proof offered. Where the questions do not clearly show the nature of the testimony an offer of proof ought to be received. In fact, the precise question involved can thus be more clearly presented to the trial court and preserved in the record for review. We approve the practice of making the tender.” (Page 701.)
In Elliott on Appellate Procedure, section .743, it is said:
“In the examination in chief the exclusion of testimony is not available as error unless the party makes an offer to prove the facts which he assumes that his question will elicit. Where an objection is properly interposed more must be done, in cases where the objection is sustained, than to ask the question; the party producing the witness and insisting upon the question must state what he proposes to prove by the witness. This is necessary in order to enable the court to determine whether the testimony is competent and material. The record must show the offer and show also the presence of the witness. The court will not rule upon mere abstract questions and hence it must appear that there was an actual offer and a present ability to adduce the proffered testimony. The facts proposed to be proved must be specifically stated. . . . In short, there should be satisfactory indications of willingness, readiness, good faith and present ability.”
This question was again before this court and quite fully discussed by Mr. Justice Mason in the case of Marshall v. Marshall, 71 Kan. 313, 80 Pac. 629. It is only fair to the trial court that it should know just what counsel expect to prove, for without this knowledge the court will at times be compelled to decide when more or less in doubt.
A reviewing court cannot determine whether rejected evidence was proper when offered unless it can ascertain from the record the nature and purpose of the evidence intended to be given. This court, therefore, cannot consider objections to the exclusion of evidence unless, by an offer of proof or otherwise, the record shows the nature of the evidence excluded.
Objection has been made to the practice of offering proof, on the ground that it is liable to be abused by “sham offers,” which could not be made good if permission to do so were given, and that these offers will be made in the presence of the jury for the purpose of securing an advantage thereby. The trial court can protect itself from such imposition, however, by a little judicial discipline properly administered, as will be suggested in each case as it arises. These difficulties might be avoided.by requiring offers of proof to be made in writing, or when the jury are absent. All things considered, we think the advantages of this practice greatly exceed its disadvantages, and commend it to courts and counsel. What rule should apply in this court in cases where the trial court has refused to receive an offer of proof does not arise in this case, and need not be considered.
Complaint is made of an instruction of the court to the effect that the plaintiff was not bound by the recitals and statements in the mortgage under which the defendant claims. We see no error in this instruction.
Lastly, the court is criticized for not instructing more fully upon the facts of the case, but as no further instructions were requested this omission was not error. (The State v. Rock, 42 Kan. 419, 22 Pac. 626; The State v. Walke, 69 Kan. 183, 76 Pac. 408; O’Brien v. Foulke, 69 Kan. 475, 77 Pac. 103.) The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
On consideration of the motion for a rehearing it was determined that, as the plaintiffs below had not acquired the land in question under the act known as the alien land law — that is, they had not acquired title by the foreclosure of any lien or mortgage which they owned and which existed against the land prior to the passage of the act, the ground upon which the former decision of this court was based was not involved in the case. A rehearing was therefore allowed.
We pause in sad regret to note that death has deprived the court and their respective clients of able and conscientious counsel, whose briefs upon the former hearing bespeak the great learning and skill of their lamented authors. ' Jay F. Close, assistant attorney-general, and Judge Redden have passed to that bar where the Great Advocate forever appears to palliate the shortcomings of His redeemed subjects from earth, and to urge a reward for every worthy thought and effort. Happily, however, as in all worthy human effort, when one drops exhausted from his post of duty another steps into his place and the work ceases not. The former associates and the added counselors, availing themselves of the work already done, with great zeal and ample research have well-nigh exhausted the store of legal learning on the important proposition involved in this case.
The question is, Can resident citizen half-sisters of a resident citizen who died intestate, leaving neither widow nor children, and whose parents both died before him while non-resident aliens, inherit immediately and 'directly the lands of the deceased in this state? The plaintiff in error says, “No; the land is escheat to the state.” The defendants in error say, “Yes.” The court below, in sustaining the demurrer to the answer of the state, said, “Yes.” Affirming that ruling, this court says, “Yes.”
It will, of course, be conceded that sister inherits from brother under the same conditions as brother from brother, and sisters of the half-blood as sisters of the full-blood; also that, if any of the defendants in error is a legal heir to the deceased, no part of the estate can be escheated. It is also conceded by the plaintiff in error that for about 200 years — ever since the decision by Lord Hale in Collingwood v. Pace, 1 Keb. 65, 1 Vent. 413—the rule there announced that brother inherits immediately and directly from brother, and not mediate through the father, has been uniformly recognized as the common-law rule.
It is also the well-recognized rule of the common law that an alien cannot inherit the lands of a deceased citizen. In Collingwood v. Pace, supra, the father and one brother of the deceased were aliens and one brother was a citizen. It was held that the alien brother could not inherit, and that the inheritance passed immediately to the citizen brother, notwithstanding the alienage of the father.
The provision of our statute as to the descent from one who dies intestate, leaving neither widow nor children, is as follows:
“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.)
At the time the statute was enacted, and for many years thereafter, the constitution of Kansas provided that no distinction should ever be made between citizens and aliens in reference to the descent of property. By permitting aliens to inherit the same as citizens, this constitutional provision in that respect abrogated the common-law rule. Then, since alien and citizen stood upon equal footing as to the right of inheritance in this state, is it to be supposed that in the enactment of the statute above cited it was the purpose of the lawmakers to abrogate the common-law rule as to inheritance from brother to brother? If not abrogated by the statute it will be conceded that this common-law rule is a part of the law of this state. If the .language of the statute unequivocally prescribes another and inconsistent rule, we must apply the statutory rule regardless of consequences, and leave it to the legislature, in its discretion, to make good any injustice that may result.
What, then, is the meaning of the portion of the statute of descents quoted above? Does it simply furnish a guide to determine who are the heirs of a deceased that dies intestate, leaving no widow or children? Or does his estate become immediately a part of the estate of his last surviving parent, or one-half go to the estate of each, regardless of which was the last survivor? Upon his death is his estate liable for the debts of either or both of his deceased parents, or may it pass to strangers under the will of one or both? If his father had children by a former wife and died before his mother, who had no other child, but who was again married and died before him, leaving only a widower, does his estate go to this widower in exclusion of his half-brothers and sisters by his father’s first marriage? These and many other questions arise under the construction we are asked by the state to adopt. We only mention these to show how indefinite is the suggested meaning in comparison with the remainder of the statute of descents, which is quite plain and specific. '
The first sentence of section 2522 of the General Statutes of 1901 provides that, “if one parent be dead, the whole .of the estate shall go to the surviving parent.” Then follows the portion of the section under consideration, which provides that, if both parents be dead, the estate “shall be disposed of in the same manner as if they, or either of them, had outlived the in testate and died in the possession” thereof. Since “the dead can neither inherit nor transmit anything,” this seems to have been adopted as the shortest and most definite manner of designating who, under the circumstances, would be the heirs of the deceased intestate. If the parents of the intestate had been living and had died in the possession of his estate, under the constitution as it was when the statute of descents was enacted the land would have gone to their surviving children and to the children of their deceased children —that is, to his brothers and sisters surviving, and to the children of those brothers and sisters who may have died before him, and, if there were none of these, then to his grandparents, if any were surviving, and, if not, to his aunts and uncles, if any were surviving. In short, almost the entire chapter of the statute would have had to be repeated to direct specifically what should be done with this estate, and the result would have been the same as follows from the few words which were used, and identically the same as would have resulted from the application of the rule promulgated in Collingwood v. Pace, 1 Keb. 65, 1 Vent. 413. “Things which are equal to the same thing are equal to each other.”
For twenty years or more the common-law rule and the provision of our statute were in effect the same. How, then, shall it be said that the amendment of section 17 of the bill of rights has changed the meaning of this statute and disinherited the defendants in error? There is no possible conflict between the amended section and the statute. The new section of the constitution authorizes the legislature to regulate, not to prohibit, the right of aliens to inherit lands. The language of itself seems to recognize a right in aliens to inherit lands. Shall this mild grant of power be construed to be self-executing and, ipso facto, to abolish the right of a certain class of citizens to inherit lands? We cannot so construe it.
It is believed that this is the first time this court has been called upon to decide whether the rule in Collingwood v. Pace, supra, obtains in this state. Inheritances have been affirmed where the rule would apply, but the question has not been specifically raised or discussed. The following are some of the cases: Smith v. Lynch, 61 Kan. 609, 60 Pac. 329; Sarver v. Beal, 36 Kan. 555, 17 Pac. 743. In the latter case it was said:
“It [the property] could not pass to any deceased person or through any deceased person. It could not pass to or through the mother, for she was dead. . . . She is mentioned only for the purpose of indicating or of fixing a rule for determining to whom the property of the son directly went when he died.” (Page 559.)
On the other hand this court has said that brothers do not inherit from brothers because they are brothers, but because the one who inherits is the heir of the father. (McKinney v. Stewart, 5 Kan. 384; Couch v. Wright, 20 Kan. 103; Head v. Spier, 66 Kan. 386, 71 Pac. 833.) Other expressions repugnant to the adoption of the rule have been used in cases where the question was not raised and was not involved. In Iowa, under a statute substantially like ours, the immediate descent of property from brother is held to obtain. (Wilcke v. Wilcke, 102 Iowa, 173, 71 N. W. 201; Meier v. Lee et al., 106 Iowa, 303, 76 N. W. 712.)
In the very able and interesting brief of Mr. Eugene Hagan, appearing as amicus curise, it is contended that if the intestate died without heirs the probate court had jurisdiction of the estate, as provided in sections 6382, 6383 and 6384 of the General Statutes of 1901; that the state in no event could acquire title to the land in question, and could only acquire title to the proceeds thereof after holding the same for twenty-one years, subject to the right of any person to appear and prove heirship; that the right of aliens to inherit lands is recognized by the amended section 17 of the bill of rights, and that the plaintiffs below, upon the death of Gainer, took at least a defeasible estate in his lands; that their rights could only be forfeited by the decree of a court of competent jurisdiction, and no such decree had been made after intestate’s death and prior to August 6, 1900, when a treaty between the United States and Great Britain was proclaimed, and became a part of the law of the land, which gave the defendants in error three years, and under some circumstances longer, to dispose of these lands. These defendants in error, however, are not subjects of Great Britain, but are citizens of the United States. This treaty therefore does not apply.
It might be interesting to discuss other questions' raised in this and other briefs, but it is regarded as unnecessary. With every section of the constitutional and statutory law of Kansas enacted since the birth of the state granting to aliens rights and privileges in the most generous spirit possible, we cannot separate a portion of one section of the statute from the mass of these beneficent provisions and so construe it as to disinherit citizens of the United States and of Kansas on the sole ground that their parents were aliens; especially when a construction which preserves their rights is equally.open to us.
The order and judgment of the district court are aifirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
E. W. Timma negotiated the purchase of a tract of land in Graham county, and not having the money with which to pay for it his brother, Frank Timma, advanced the purchase-price, $800, and a deed of the land was made to Frank. Whether that deed was an absolute conveyance to him, or only a mortgage to secure the money loaned by him to E. W. Timma, is the matter in dispute.
E. W. Timma claimed that his brother loaned him the $800, payable within five years from the time of the purchase, and that the instrument of conveyance then made was merely to secure the loan. On the other hand Frank claimed that he purchased the land outright for himself, and that, as E. W. Timma desired the land, he agreed to give him an option to purchase it on condition that certain payments should be made within one year, but that these payments were not made, whereupon the option was extended for a short time, and as the payments were not then made he insisted that the option was ended, and the right of E. W. Timma even to purchase the land was concluded. Within two years after the purchase E. W. Timma paid part of the indebtedness to his brother, and later tendered a sum sufficient to discharge the entire indebtedness, including the land loan, but Frank claimed that he had an absolute title to the land and that E. W. Timma had no interest in it.
This suit was then brought against Frank Timma and his wife to have the deed declared to be a mortgage, and for, an accounting between the parties as to the extent of the indebtedness secured by the mortgage, and asking that upon the payment of the debt, the amount of which had already been tendered, a deed be executed by Frank Timma to E. W. Timma, and that if this were not done the title of E. W. Timma to the land be quieted as against the claims of Frank Timma. The trial resulted in favor of E. W. Timma, and judgment was given in accordance with the prayer of his petition.
Frank Timma objected, and claimed that the suit was not brought in the proper county, and that, therefore, the trial court was without jurisdiction. He contended that the suit was one for specific performance and should have been brought in Smith county, where he resided, instead of in Graham county, where the land was situated. The contention is not sound.
The leading feature of the controversy was whether the deed, which upon its face was an absolute conveyance, was executed as a mortgage, and for security only. Of course, a suit must be conducted upon a definite theory, and from the averments of the amended petition this one appears to have been essentially one to have a deed adjudged -to be a mortgage, which when satisfied should be canceled and the title of E. W. Timma quieted as against the pretensions of Frank Timma.
However, if it were regarded as a suit for specific performance, the point made would not avail Frank. A suit to compel the specific performance of an agreement to convey land is an action in personam, which can be tried wherever jurisdiction of the person of the defendant can be obtained. (Close v. Wheaton, 65 Kan. 830, 70 Pac. 891.) Frank Timma came into court in this proceeding, whether in obedience to the personal service of a summons or voluntarily the record does not disclose; but he appeared generally and on two occasions asked the court to require the petition of the plaintiff to be made more definite and certain. It was after this general appearance that the question of jurisdiction was raised, and in no view could there have been any lack of jurisdiction.
It is strenuously argued that the finding of the court that the instrument was intended as security for a loan rather than as an absolute conveyance is without support in the evidence. A reading of the evidence satisfies us that there is abundant support for the finding and the judgment based upon it.
It is insisted that some of the evidence offered in support of the finding was given by witnesses who were animated by feelings of partiality and prejudice, and should not therefore receive consideration. An attack is made upon the testimony of the mother, who was about eighty years of age, and who it is said resided with E. W. Timma, and was therefore under his influence. This was not a disqualifying circumstance, and no reason is seen why her testimony should not receive consideration. The testimony of a sister who came from beyond the jurisdiction of the court and testified voluntarily is challenged. The fact that a person may come a great distance and voluntarily give his testimony in court does not impair the competency of the witness, nor necessarily deprive his testimony of probative force.
The result reached by the court appears to be just and conformable with the rules of law. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
MASON, J.:
J. F. Oswalt appeals from a conviction upon a charge of statutory rape, alleged to have been committed upon his daughter, seventeen years of age. A large number of assignments of error have been made and argued. It is not thought that any good purpose would be served by reviewing them in detail. All of them have been carefully examined, and the conclusion is reached that no material error is shown. Some of the objections now made to the evidence do not appear to have been properly brought to the attention of the trial court. Upon the whole record it does not appear that any substantial right of the defendant was invaded. But two of the questions presented will be separately discussed.
Complaint is made that the state was permitted to show that sexual intercourse took place between the defendant and the complaining witness after the date alleged as that of the act relied upon for a conviction. According to the greater number of authorities, while it is competent for the state to show other similar acts preceding the commission of the offense (The State v. Borchert, 68 Kan. 360, 74 Pac. 1108), it is not permissible to give evidence of any such act occurring afterward. The cases bearing on the question are collected in a note to People v. Molineux, 168 N. Y. 264, 61 N. E. 286, published in 62 L. R. A. 193, at pages 329 to 338.
Conceding this to be the proper rule, the present case affords no sufficient ground for its application. It is true that the complaining witness was permitted over the defendant’s objection to testify that she had had intercourse with him in some other bed since some certain time referred to, which appears to have been the time the offense is charged to have been committed. But this was upon redirect examination, after the witness had apparently been led upon cross-examination to say that she had never, at any time, had intercourse with her father in any other bed. The sole purpose of asking the question seems to have been to elicit a correction of an inaccurate statement upon a collateral and probably wholly immaterial matter which was brought out by the defendant, and which was not again referred to. It is obvious that there was no effort on the part of the prosecuting attorney to injure the defendant with the- jury by showing the commission of a separate offense. The entire episode was incidental, and it is manifest that no prejudice to the defendant could have resulted from it. Moreover, it is not entirely clear that the time referred to, to which the act of intercourse was said to be subsequent, was that of the offense charged. In the course of the examination different dates and different acts had been mentioned, so that the question objected to was somewhat ambiguous in this respect. The objections then made, while technically sufficient to raise the question now presented, in virtue of including incompetency, did not direct specific attention to it. We are constrained to hold that no material error is shown in this regard.
The evidence tended to show that the complaining witness failed to make any definite complaint of the outrage committed upon her, and the defendant asked the court to instruct the jury that this was a circumstance that might be considered by them in determining the weight to be given to her testimony. The refusal to give this instruction is assigned as error.
In prosecutions upon the charge of common-law rape the inquiry whether an early complaint was made by the injured person has always been deemed of much importance, but chiefly as bearing upon the question of consent. (The State v. Brown, 54 Kan. 71, 37 Pac. 996; 23 A. & E. Encycl. of L. 862.) But where want of consent is no element of the offense, and is not alleged, and the complainant is old enough to compre hend the nature of the act charged, it is at least doubtful whether evidence can be received that she did or did not make immediate complaint. (The State v. Daugherty, 63 Kan. 473, 65 Pac. 695; Loose v. The State, 120 Wis. 115, 97 N. W. 526; People v. Lee, 119 Cal. 84, 51 Pac. 22; Honselman v. The People, 168 Ill. 172, 48 N. E. 304; State v. Birchard, 35 Ore. 484, 59 Pac. 468; People v. Wilmot, 139 Cal. 103, 72 Pac. 838.) Assuming, however, that in such a case evidence upon that head is competent, the matter is not there such an important one as to make it imperative that the court shall single it out and instruct specifically upon it.
Under the facts of this case, we hold that there was no error in refusing to give the instruction asked. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The petition of Lillian Dickinson stated a cause of action against the city of Humboldt for injuries resulting from a defective sidewalk. There is nothing material in the objections to rulings of the court on the admission of testimony. The evidence sufficiently sustains the findings of the jury that the •city was negligent in the maintenance of the walk. The alleged negligence involved to some extent the defect in the board'walk, the declivity from that to the stone upon which the plaintiff stepped, and the instability of the stone. The findings show the extent to which each contributed to the injury, and also that it did not occur through the fault of Mrs. Dickinson. That the city had at least constructive notice of the defect in the walk is well shown, and no difficulty is found in harmonizing the findings of the jury with each other and with the general verdict. The case appears to have been fairly submitted to the jury and no material errors in the proceedings are discovered, and hence the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is a controversy over a tract of land which was formerly the bed of the Missouri river. In 1881 Christoff Steinweden acquired a fractional quarter of section 10, township 5, range 21, on the Kansas shore of the Missouri river, which is designated as lot 3. In 1855 there was a government survey of the Kansas land which fixed the boundaries of lot 3, and showed that it extended to the Kansas shore of the Missouri river. Southwest of lot 3, and on the opposite side of the river, was land that had been surveyed and designated as section 33, township 56, range 37, in Buchanan county, Missouri. It appears that since 1855 the channel of the Missouri river has moved in a southerly direction from lot 3, and the land formed against lot 3 by the shifting of the river is that which is in controversy. Steinweden, who showed a good paper title, at least, to lot 3, claimed the land as an accretion to lot 3, and Ella McBride claimed it as an accretion to a part of section 33 in Missouri, to which she asserted title under certain conveyances. John McBride, the husband of Ella, occupied the land as a tenant of Steinweden from about 1894 to 1899, when he denied his landlord’s title and refused to pay rental. Steinweden brought an action against him to recover the land and obtained a judgment that he was entitled to the land and its possession.
Immediately following that judgment (in October, 1899), McBride entered into a compromise agreement with Steinweden which, among other things, stipulated that McBride should yield immediate possession of the land and any claim of title or ownership in the buildings or the improvements upon it. Without any change of possession his wife, Ella McBride, set up a claim of title to the land under a deed from Anna Smith, executed in October, 1899, purporting to convey a strip of land in section 33 which was formerly on the Missouri shore of the river, and later she claimed under another deed executed to her by John Koch several months after the present action was brought.
Among the points of contention at the trial were the location of the main channel of the Missouri river in 1855, when the Kansas survey was made; the character of the changes in the channel of the river — whether sudden or gradual; and the manner in which accretions were formed as the channel of the river shifted. There was considerable contention, also, as to whether there was an island in the river near the Kansas shore and opposite the Steinweden land. From the testimony and the findings of the jury it appears that there was no island near lot 3, but that between 1855 and 1866 a sand-bar formed in the river opposite and near the land, and that for a time there was a channel of the river between the sand-bar and the Kansas shore called the “Indian chute,” through which boats and rafts passed in times of high water. The main channel of the river, however, was between the sand-bar and the Missouri shore. The sand-bar at times was partly covered with an undergrowth, but it did not rise to the level of the shore-lands, and it overflowed during ordinary high water. It was shown and found that the alluvial deposits added to lot 3 by. the shifting of the river were formed in such a way as to form accretions to that lot. The jury also found that Steinweden had erected fences on the accreted land, and, besides paying taxes levied against it, had exercised authority and control over it since 1884. This action was begun in January, 1900, and the verdict and judgment awarded the land in controversy to Steinweden. Shortly after the rendition of the judgment Steinweden died, and the action and judgment were revived in the names of his widow and children.
In their answers the McBrides objected to the jurisdiction of the court, and asserted that the land in controversy was in the state of Missouri. This was based on the theory that the “Indian chute” between lot 3 and the sand-bar was the main channel of the river; that the sand-bar was an island in the state of Missouri ; and that title to it was in that state. ■
If Steinweden established a right to the land paramount to that claimed by the McBrides they could not avail themselves of a title in the state of Missouri, or any other third party, although it might be superior to that of Steinweden. (Duffey v. Rafferty, 15 Kan. 9; Thomas v. Rauer, 62 Kan. 568, 64 Pac. 80; Christy v. Scott et al., 55 U. S. 282, 14 L. Ed. 422.)
The Missouri river is a navigable stream, and at the place in question is the boundary-line between the state of Kansas and the state of Missouri. In such a case the middle line of the main channel is the boundary-line between the states, and the bed, and also any island between that line and the shore-line, belongs to the state in which it is located. If the boundary river changes its course gradually by the accretive process the boundary-line follows the river and is in the center of the channel, but a sudden change of the channel by the process known as avulsion does not change or affect the boundary-line. The rule was well expressed by Mr. Justice Brewer in Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396, 36 L. Ed. 186, where he said:
“It is settled law that when grants of land border on running water, and the banks are changed by that gradual process known as accretion, the riparian owner’s boundary-line still remains the stream, although, during the years, by this accretion, the actual area of his possessions may vary. . . . It is equally well settled that where a stream which is a boundary from any cause suddenly abandons its old and seeks a new bed, such change of channel works no change of boundary; and that the boundary remains as it was, in the center of the old channel, although no water may be flowing therein. This sudden and rapid change of channel is termed, in the law, avulsion. In Gould on Waters, section 159, it is said: ‘But if the change is violent and visible, and arises from a known cause, such as a freshet, or a cut through which a new channel is formed, the original thread of the stream continues to mark the limits of the two estates.’ (2 Bl. Com. 262; Ang. Watercourses, § 60; Trustees of Hopkins Academy v. Dickinson, 9 Cush. 544; Buttenuth v. St. Louis Bridge Co., 123 Ill. 535, 17 N. E. 439, 5 Am. St. Rep. 545; Hagan v. Campbell, 8 Porter [Ala.] 9, 33 Am. Dec. 267; Murray v. Sermon, 1 Hawks [N. C.] 56.)
“These propositions, which are universally recognized as correct where the boundaries of private property touch on streams, are in like manner recognized where the boundaries between states or nations are, by prescription or treaty, found in running water. Accretion, no matter to which side it adds ground, leaves the boundary still the center of the channel. Avulsion has no effect on boundary, but leaves it in the 'center of the old channel.”
(See, also, Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224; Jefferis v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872; St. Louis v. Rutz, 138 U. S. 226, 11 Sup. Ct. 337, 34 L. Ed. 941; Water Power Co. v. Water Commissioners, 168 U. S. 349, 18 Sup. Ct. 157, 42 L. Ed. 497; Wood v. Fowler, 26 Kan. 682, 40 Am. Rep. 330; Peuker v. Canter, 62 Kan. 363, 63 Pac. 617; Perkins v. Adams, 132 Mo. 131, 33 S. W. 778.)
Now there was abundant testimony tending to show that the main channel was southwest of the sand-bar, and that the change in the course of the river was gradual and imperceptible. While the river shifted, and the Kansas shore-line was thereby extended for a distance of about two miles, during a period of fifty years, it was accomplished by the process of accretion, and hence the center of the main channel of the river, as it runs, continues to be the boundary of the state.
It has been questioned whether the accretive theory was applicable to the Missouri river, with its rapid current, crooked course, and unstable banks, but the supreme court of the United States has determined that, although the changes in the channel of that river are greater and more rapid than in some others, the differences are not such as to take it out of the general rule of accretion. (Jefferis v. East Omaha Land Co., 134 U. S. 178, 10 Sup. Ct. 518, 33 L. Ed. 872; Nebraska v. Iowa, 143 U. S. 359, 12 Sup. Ct. 396, 36 L. Ed. 186.)
The exclusion of evidence offered by the McBrides is a matter of complaint. A deed purporting to convey a strip of land in section 33, as designated by the Missouri survey, and accretions, executed by Anna Smith to Ella McBride, was offered, and rightly refused. Anna Smith was not shown to have had any title to, or connection with, the land described in the deed. There was no proof, or offer to prove, that her deed was a link in a chain of conveyances from any source of title, nor that she had ever been in possession of the land, with or without color of title. A deed from one not shown to have some interest in the land purported to be conveyed is inadmissible in an. action for the recovery of the land. (Bancroft v. Chambers, 10 Kan. 364; McKibben et al. v. Newell, 41 Ill. 461; Kennedy v. Bogert and others, 7. S. & R. [Pa.] 97; Schrack v. Zubler, 34 Pa. St. 38.) Another deed purporting to have, been made by Steinweden to Herman Koch was offered in evidence by the McBrides, and excluded. It had no application to the lands in controversy, as the description was so indefinite as to be meaningless, and the deed was therefore ineffectual. The. attempt at description was: “Beginning at the southwest corner of the. northwest quarter of section thirty-three (33), in township fifty-six (56), in range thirty-seven (37), thence north on section-line eighty (80) rods to the southwest corner of Allen D. Smith’s land; thence east to the Missouri river; thence up the river to the quarter-section line between the northwest and the southwest quarters of said section thirty-three (33); thence east on said quarter-section line-to place of beginning.” This deed was executed September 3, 1903, and, as will be observed, the call “east to the Missouri river” goes away from the land in question. Then “up the river” leads still farther from the land, and “east . . . to the place of beginning” is not in the direction of the starting-point, and encloses nothing. There is nothing else in the deed which affords means of identification of the land conveyed, and hence the instrument tendered is void. As the Koch deed followed and depended upon the void one made to him, no error was committed in excluding it.
There is complaint that the plaintiff below was permitted to offer testimony in rebuttal which was in fact evidence in chief. It appears that the evidence objected to which related to the sand-bar was mainly re buttal in character; but, in any event, the order of proof is a matter largely in the discretion of the trial court, and there is no reason to say that that discretion has been abused in this instance.
Other objections are made to the rulings on the admission of testimony, but they are not deemed to be material.
There is complaint of the instructions, and especially as to the one which defined an island. Among other things the court said: “It may be stated by way of definition that to constitute an island in a river the same must be of a permanent character — not merely surrounded by water when the river is high, but permanently surrounded by a channel of the river, and not a sand-bar subject to overflow by a rise of the river and connected with the mainland when the water is low.” In the same connection the jury were told that in considering whether an island in fact existed, or whether the land in controversy was accreted to plaintiff’s land, they might “consider the character and extent of the claimed accretion, the character of the timber growth, the relative size and permanency of the channels, if any, around the claimed island, as compared with the size of the stream, the topography of the land in controversy, the character of the soil, the growth, if any, of timber or trees, the testimony of the witnesses, and, in fact, all the circumstances as developed by the testimony.” Whether the formation in the river was a sand-bar or an island was a question of fact, and was fairly presented to the jury. It did depend upon the stability of the soil and the size and permanence of the channels around it. (Railroad Co. v. Schurmeir, 74 U. S. 286, 19 L. Ed. 74; Shoemaker v. Hatch, 18 Nev. 261; Gould, Waters, 3d ed., § 166.) As the court told the jury, account should be taken of the conditions named, and also of a variety of circumstances as to the physical features of the formation, the growth upon it, and whether the water supposed to separate it from the shore-land was there in times of high water only, or during the ordinary stage of water in the river. In other instructions the jury were advised as to the doctrine of accretion and the manner in which the formations may be made before the same could be regarded as a part of Steinweden’s land. There was also another instruction with reference to the volume of water in the so-called “Indian chute” which in effect would separate it from Steinweden’s land and preclude any claim to the formations on the west of the chute.
A number of instructions relating to accretions to an island were requested, and their refusal is a subject of complaint. But, since the jury have found as a fact that no island existed in the river opposite the Steinweden land, they are immaterial.
The findings of the jury as to whether the land was accretions to that of Steinweden are vigorously attacked on the ground of non-support in the evidence. While there is much conflict in the testimony, we find no difficulty in saying that there is sufficient testimony to uphold the findings. There is no real controversy between the parties as to the doctrine of accretion, or the rule of law applicable in cases like this. The points of difference are mainly on matters of fact, and these, we think, have been fairly and finally determined by the jury. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
In 1878 Thomas Harding owned the southeast quarter of a section of land, and Martha Carre owned the northeast quarter of the southwest quarter of the same section. A public highway followed the south line of the section. Harding and Mrs. Carre made an arrangement by which she was permitted to use a strip of ground twenty feet wide, lying just east of the half-section line, in going and coming between her place and this highway. She so used it untii she sold the property to her son, T. L. Carre, in 1899, after which he continued such use. In 1902 E. B. McKim bought the Harding land, and in 1903 he began a suit to enjoin the further use by Carre of the strip in question, and to quiet his own title to it. He was denied relief, and now prosecutes error.
There was testimqny that the arrangement between Harding and Mrs. Carre amounted to an agreement that she should have a right of way over this strip— which he would fence — to the highway, in consideration of her keeping up the whole of the line fence between her place and Harding’s. The plaintiff claims that whatever right was acquired under this contract was a license and not an easement, and was revocable at the pleasure of the grantor. It has been held in this state that even an oral license may be irrevocable, where it is given for a valuable consideration and is acted upon by the licensee. (Kastner v. Benz, 67 Kan. 486, 73 Pac. 67.) It is not necessary to determine whether the privilege granted to Mrs. Carre was revocable, if viewed- as a license, or to consider the nice distinctions between a license and an easement. There was some conflict in the testimqny as to what the original agreement was, and as to what was done under it. The plaintiff insists that the use of the way as. an outlet for the Carre land was permissive only, and could not ripen into an easement. There was sufficient evidence, however, to justify the trial court in finding, as it did, that the defendant and his predecessor traveled back and forth over the strip — which was fenced off by the plaintiff’s grantor, and is described by the witnesses as a lane — under a claim of right, and that their use of it was adverse, and, having been continued for more than fifteen years, resulted in a permanent right.
A further claim is made by the plaintiff that even if Carre at one time had a right to keep the lane open he had forfeited it. by his subsequent conduct. This is based upon the fact that when a dispute first arose concerning the matter MeKim offered to grant Carre a roadway for $75. Carre answered that he would rather pay this than to get into any trouble. He then prepared and presented a petition to the county board reciting that he had no outlet from his place and asking that a private road be established for his benefit .along the strip in controversy, under the provisions of sections 6053, 6054 and 6Q55 of the General Statutes of 1901. The petition was acted upon and viewers were appointed, who assessed McKim’s damages at $1000. This Carre refused to pay and the proceeding was dropped.
The contention is that these acts on his part precluded him from the further assertion of any right by prescription, or under the original contract, because they amounted to an election on his part to pursue one of two inconsistent remedies. The argument is made that when MeKim forbade his use of the lane two remedies were presented for his choice — he might rely upon the contract and adverse use and by injunction or other appropriate proceeding compel MeKim to recognize his' right thereby acquired, or he might by petitioning for a private road in effect ask the county commissioners to compel MeKim to grant him such a right for a compensation to be fixed by appraisers. If the argument is otherwise sound, it fails for this reason — the statute under which Carre invoked the aid of the commissioners is unconstitutional, and all the steps taken under it were wholly void. (Clark v. Mitchell County, 69 Kan. 542, 77 Pac. 284, 66 L. R. A. 965.) In order for a party to be concluded by an election between two inconsistent remedies both must in fact be open to him. The pursuit of a remedy which he supposes he possesses, but which in fact has no existence, is not an election between remedies but a mistake as to what remedy he has, and will not prevent his subsequent recourse to whatever remedial right was originally available. (15 Cyc. 262; 7 Encyc. Pl. & Pr. 366.)
McKim was in no way misled or injured by what was done under the invalid act, and there is no room for the application of any principle of estoppel. Carre’s statements made in his road petition were of course evidence against him, and strong evidence, but they were not absolutely conclusive. The trial court presumably gave them all the weight to which they were entitled and nevertheless found in his favor. No reason appears for overturning that decision. The judgment is affirmed.
All the Justices concurring. | [
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Per Curiam:
The plaintiffs sought by this action to recover damages from the defendants for entering upon, grading and building a line of railroad upon the lands occupied by the plaintiffs in mining coal. In the construction of the railroad the defendants filled up one of the mines, and stopped the ditches which carried the water from others, thereby causing the water to back up and run into such mines. The defendants justified their right to make the grades and excavations on the land under a condemnation proceeding, by which the right of way had been condemned to the use of the railroad company for building its line.
The question attempted to be presented to this court is the regularity and legality of such condemnation proceeding. After the issues had been made up the following stipulation was entered into by the parties:
“It is hereby stipulated and agreed that the issues in the above cause are to be tried in the following order:
“(1) The question of the validity of the condemnation proceeding of the defendants shall be tried by the court at the June, 1903, term; the defendants to present said condemnation proceeding and such evidence as they see fit in support thereof; the plaintiffs to submit any proof they may deem material in opposition thereto; the court to determine that question at that term.
“(2) The other issues in said case to be tried at the next term of said court by a jury.”
The journal states the further proceedings as follow:
“And on the 11th day of June, 1903, the same being one of the days of the regular June term of said district court of Labette county, Kansas, for the year 1903, the said case came on to be heard upon the validity of the condemnation proceeding set forth in the second defense of the answer of both of said defendants, and the same was taken under advisement by the court and decided on the 3d day of October, 1903, the same being one of the days of the adjourned June term of said court for the year 1903, as shown by the journal entry of said court, which is in words and figures as follow, to wit:
“On the 13th day of June, 1903, the same being one of the regular days of the June term of said district court of Labette county, Kansas, for the year 1903, the above cause came regularly on to be heard before the said court upon the validity of the condemnation proceeding as set forth in the second defense of the separate answer of the said defendant the Missouri, Kansas & Northwestern Railroad Company, and the second defense of the separate answer of the defendant the Missouri, Kansas & Texas Railway Company, as provided in the stipulation filed in this cause, said stipulation being in words and figures following: [Here follows the stipulation quoted above.]
“And Sapp & Wilson appearing, as attorneys for said plaintiffs, and T. N. Sedgwick and Blue & Hamilton appearing as attorneys for said defendants, the said defendants presented their condemnation proceeding, and the evidence in support of the validity thereof; and having closed their evidence in support of the va lidity of said condemnation proceeding, and rested, the said plaintiffs filed their demurrer to the evidence of said defendant the Missouri, Kansas & Northwestern Railroad Company, and also their demurrer to the evidence of said defendant the Missouri, Kansas & Texas Railway Company; the same, being argued by counsel for the respective parties, was submitted to the court, and the court took the matter of the ruling and decision of the questions raised by said demurrers to the evidence under advisement.
“And now, to wit, on this 3d day of October, 1903, the same being one of the days of the adjourned June term of said court for the year 1903, the said court having duly considered said questions raised by said demurrers, and being fully advised in the premises, does sustain both of said demurrers to the evidence in support of the validity of said condemnation proceeding, to which ruling of the court in sustaining said demurrers to said evidence both of said defendants duly excepted; and the court, having sustained said demurrers to said evidence, as aforesaid, does find that said condemnation proceeding as set forth, in the second defense of the respective answers of said defendants acquired no rights upon, in or to the premises described in plaintiffs’ petition by virtue thereof, to which finding and judgment both of said defendants duly excepted; and the said cause is continued until the next term of this court for final trial on the other issues therein, as provided by said stipulation.”-
At the next term of court it was agreed by the parties that the plaintiffs had sustained damages to the amount of $500, and thereupon judgment was rendered against the defendants for that amount.
Error is predicated upon the order of the court sustaining the plaintiffs’ demurrers to the evidence offered by the defendants .in support of the validity of the condemnation proceeding. The record does not purport to contain the evidence introduced by either party upon that question. Therefore, this court cannot say that such evidence supported the contention of the defendants, but must presume that they failed in their proof to establish a valid and legal condemnation proceeding. For this reason the ruling of the court is sustained and the judgment affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The suit in the district court from which this proceeding arose was brought by the administrator of an estate for the purpose of determining adverse claims to certain real estate forming a part of the assets in his hands for administration, made by heirs of the decedent who contended that his authority over it had terminated.
In February, 1898, the administrator presented to the court of his appointment a petition for the distribution of specified funds then on hand, so far as they were susceptible of distribution, and an order to that effect was duly made. At that time expenses of administration remained unpaid. Part of the assets of the estate consisted of certain uncollected judgments, and in April, 1898, the administrator obtained leave to accept real estate in satisfaction of them. An order to that effect was made containing the following provision:
“It further appearing to the court that it would be more convenient to make transfers if the real estate be transferred to said Bagby, as trustee rather than as administrator, it is ordered that he be allowed to take title to said real estate in his name as trustee.”
The compromise was effected and a deed to the land was taken in accordance with the order, at an appraised value. In closing up the transaction expenses were incurred which it was the duty of the estate to pay. Subsequently authority was given the administrator to sell the real estate at its appraised value. This he was unable to do, and in order to protect against accruing taxes he was obliged to borrow money. Under these circumstances he asked, and on July 19, 1901, was granted, authority to sell the real estate without regard to its appraisement. While attempting to act under this authority, the heirs of the deceased and their grantees and assigns opposed him in such a manner as to render necessary a vindication of his right. Having taken the conveyance to himself as “trustee,” he so designated himself in the petition which he filed in the district court.
The description of the administrator inserted in his deed for the purpose of facilitating a reduction of the property to cash did not change his duty or 'responsibility in respect to it, or limit his power over it. He was still the administrator of an estate, acting under the orders of a court of competent and exclusive jurisdiction. The land did not belong to the deceased, and hence it was impossible that it should descend to his heirs upon his death. Under the well-known rules of law, it stood in the place of the judgments which were exchanged for it. For all the purposes of administration it was personal property, and the administrator was accountable for it under his bond. (11 A. & E. Encycl. of L. 840, and cases there cited.)
So long as the court having jurisdiction of an estate continues in the active exercise of authority over specific personal property belonging to it, and does not terminate the functions of the administrator with respect to such property, heirs are not at liberty to dispossess him. They must defer until a special order of distribution is made final as to the property claimed, or until a general order of distribution is made in final settlement of the estate.
In this case the defendants’ claims were asserted pending the execution by the administrator of an order of court to sell. The order of distribution upon which they found their contention did not refer in any way to the judgments which belonged to the estate at the time it was made. That the court did not intend to devest the administrator of title to such judgments is indisputably shown by the subsequent order to exchange them for real estate. The real estate could not be affected by an order made prior to its acquisition, and it is not pretended that any final settlement of the estate has been made. Therefore the defendants had no right to interfere.
Some objection is made to the plaintiff’s petition. As finally amended it stated a cause of action. Besides this, the case was finally submitted under a stipulation which made no attack whatever upon the sufficiency of the amended document.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam,:
In a contest of a will made by James Lewis, in which he gave his property to a nephew and niece instead of to his wife and children, the court called a jury and submitted to it the single question, Was Lewis of sound mind and memory when he executed the will? The jury upon a mass of conflicting testimony made an affirmative finding. The court it self considered the testimony, and later found, as the judgment recites, “without regard to the verdict and answer of the jury,” that Lewis was of sound mind and memory and legally competent to make a will at the time the will in question was executed. Since the court did not adopt the advisory finding of the jury, but acted independently and for itself determined the facts, the instructions given to the jury, or any irregularities of the jury, became immaterial.
A few objections to rulings on testimony are mentioned, but there is nothing substantial in any of them.
The contention, so earnestly pressed here, that the finding of the court that Lewis was of sound and disposing mind when he executed the will was not supported by the evidence has led to a careful reading of all the testimony in the record. There is considerable testimony, it is true, tending to show that the testator was mentally unbalanced and incompetent, but there is also a great deal of testimony going to establish testamentary capacity. It is manifest that Lewis was irascible and eccentric, but there is an abundance of evidence which upholds the finding of the court that he was competent to make a will; and this appears to have been the opinion of the contesting parties when the will was made, for about that time they negotiated contracts with Lewis dividing the property, and they accepted conveyances which he then made.
The judgment is affirmed. | [
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Per Curiam,:
In this case the testimony of the attorney for the plaintiff was doubtless sufficient, even though it was very slight, to show that W. B. Spaulding was the general claim agent, and J. L. Gaston the assistant claim agent, of the defendant. The scope of the authority of the claim agent and assistant claim agent of a railway corporation is not, however, defined by the law, and if put in issue must be proved as a matter of fact. Here the authority of the officials named to make the settlement relied upon as the plaintiff’s cause of action was denied under oath, and there is no evidence of such authority in the record. It is true that the conduct of the officials named may appear to be inexplicable except upon the supposition that they had authority. Agency, however, cannot be proved by the acts or declaration of the agent except under special contingencies not here involved. The fact of authority must appear before the conduct of the agent can be shown to bind the principal. This being true, the judgment is reversed, and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Graves, J.:
On April 5, 1905, the defendant was convicted and sentenced by the district court of Edwards county to confinement in the penitentiary for not exceeding five years for taking Minnie Bishop, a female under the age of eighteen years, away from the county without the consent of her parent or guardian, for the purpose of concubinage, in violation of section 2020 of the General Statutes of 1901, which reads:
“Every person who shall take away any female, under the age of eighteen years, from her father, mother, guardian, or other person having legal charge of her person, without their consent, either for the purpose of prostitution or concubinage, shall upon conviction thereof be punished by confinement and hard labor for a term not exceeding five years.”
The information contained two counts. The first charged the taking away to have been for the purpose of concubinage, and the other for the purpose of prostitution. The information reads:
“First count: I, A. C. Dyer, the undersigned county attorney of said county, in the name, by the authority and on behalf of the state of Kansas, come now here and give the court to understand and be informed that on the 17th day of December, 1904, in said county of Edwards, in the state of Kansas, one Herbert Tucker did then and there feloniously one Minnie Bishop, a female under the age of eighteen years, to wit, of the age of thirteen years, take away from one J. J. Bishop, her father, and one Floy Lippoldt, they, the said J. J. Bishop and Floy Lippoldt, then and there having the legal charge of the person of the said Minnie Bishop, without the consent and against the will of the said J. J. Bishop and Floy Lippoldt, for the purpose of concubinage.
“Second count: I, A. C. Dyer, county attorney as aforesaid, in the name, by the authority and on behalf of the state of Kansas, as aforesaid, come now here and give the court to further understand and be informed that on the 17th day of December, 1904, in said county of Edwards and state of Kansas, said Herbert Tucker did then and there feloniously one Minnie Bishop, a female under the age of eighteen years, to wit, of the age of thirteen years, take away from one J. J. Bishop, her father, and one Floy Lippoldt, they, the said J. J. Bishop and Floy Lippoldt, then and there having the legal charge of the person of the said Minnie Bishop, without the consent and against the will of the said J. J. Bishop and Floy Lippoldt, for the purpose of prostitution.”
The defendant moved to quash the information for the reason that it did not state facts sufficient to constitute the crime sought to be charged, and that it was fatally indefinite and uncertain. The motion was denied, and this ruling is claimed to be erroneous.
The crime is stated substantially in the language of the statute, which, as a general rule, is conceded to be sufficient. Appellant insists, however, that this particular crime is an exception to this rule. We think that under the decisions of this court this information was sufficient as against the motion. (The State v. White, 14 Kan. 538; The State v. Foster, 30 Kan. 365, 2 Pac. 628; The State v. Beverlin, 30 Kan. 611, 612, 2 Pac. 630; The State v. Morrison, 46 Kan. 679, 27 Pac. 133; The State v. McGaffin, 36 Kan. 315, 13 Pac. 560; The State v. Jones, 16 Kan. 608; The State v. Bryan, 34 Kan. 63, 8 Pac. 260; The State v. Overstreet, 43 Kan. 299, 23 Pac. 572.)
After the denial of his motion to quash the informa tion the defendant moved to require the state to elect upon which count it would rely. This motion was allowed, the state elected to stand upon the first count, and upon this count the defendant was convicted. The most important complaint made by the defendant is that the court misdirected the jury in an instruction which reads:
. “You are further instructed that ‘for the purpose of concubinage,’ as used in the information and in these instructions, means for the purpose of living and cohabiting with her as his wife; but it is not necessary that permanent, or even long-continued, cohabitation shall have been contemplated.”
The definition given to the word “concubinage” in this instruction is objected to by the appellant, and the objection has been urged with great force and ability. The appellant insists that the idea of husband and wife, which is necessarily involved in the word “concubinage,” does not sufficiently appear in the facts shown; and that the conduct of the parties indicates with equal, if not greater, force that the intent of the defendant was mere temporary sexual gratification, rather than the cohabitation as husband and wife, which is essential to the crime charged. It is urged that this instruction left the jury free to infer from cohabitation, however brief in duration, even if limited to one act of sexual intercourse, that such act was done as husband and wife. Two other instructions were given that modify to some extent the one above quoted. They read:
“It is not necessary to proof of the purpose charged that an act of sexual intercourse shall have been actually proved. If all the facts and circumstances proved at the trial are such that they cannot in the nature of things be true and the defendant be innocent of the guilty intent — that is, the intent to live and cohabit with Minnie Bishop in carnal knowledge as his wife— then you would be justified in finding him guilty of that purpose.”
“You are further instructed that the important element of the offense is the taking away of the female from her father and Mrs. Lippoldt, without their consent, for the illicit purpose, and that this may have been accomplished by the persuasion, enticement, advice or other active influence of the defendant. And that if she was thereby removed beyond the control of her father, J. J. Bishop, and Floy Lippoldt for such purpose the offense is complete, and this without regard to whether or not she consented to go.”
To consider properly the proposition contended for it will be necessary to refer briefly to the facts presented at the trial. Prior to September, 1904, Minnie Bishop resided with her father on a farm. Her mother died twelve years before. She was thirteen .years of age — a mere child, wearing short skirts. The defendant was a married man about thirty-three years of age, and was engaged in the implement business as an employee for a firm in Kinsley. The father of Minnie arranged with the defendant and his wife for her to stay at their house and attend school in Kinsley until he could find her another place. About three weeks afterward he placed her in charge of Mrs. Lippoldt, who resided a few blocks from the defendant. About this time the defendant met John Hawk and T. W. Hinman, who were old acquaintances and friends of defendant’s wife. They were frequent visitors at the home of the defendant, and Minnie Bishop, upon the invitation of Mrs. Tucker, was also often there and became well acquainted with them. During the early winter they all talked of going “out west.” Minnie was very much infatuated with the promises made to her by the defendant. He told her it was a splendid country, much better than this; she could go along, and they would have good times. In preparing for the trip the defendant’s wife made some new waists and a long skirt for Minnie. The defendant instructed her to say nothing about the trip to any one, and advised her how to get her clothes away from Mrs. Lippoldt’s without exciting suspicion.
December 17, the time set for leaving, Minnie took her scant wardrobe to the defendant’s house. At the last moment it was decided that only the defendant and Minnie should go. She was completely under the influence of the defendant, and was elated over the prospect of the journey. The defendant packed his trunk, putting Minnie’s clothing in with his own-. At train time, late at night, the whole party went to the depot. Hinman gave Minnie a ticket to Pueblo, and ten dollars in cash, saying that the defendant gave him the money to buy the ticket, and that that amount was left. He put her in the chair-car. The defendant got on the smoker. Soon after the train started defendant found Minnie and remained with her. Minnie gave him the money received from Hinman. She had no money of her own. She understood that she was going to live with the defendant, but did not understand at the time she left that it was to be as husband and wife. While on the train the defendant told Minnie that it would be necessary for her to represent herself as his wife; that he would assume the name of Van Anten, and she must go under the same name.
They reached Albuquerque about ten o’clock at night, went to a hotel and occupied the same room, undressed and went to bed together. They remained there and occupied the same room and bed four nights. The defendant while there went under the name of Van Anten. The father of Minnie followed, rescued his daughter, and caused the defendant to be arrested and brought back for trial.
Concubinage, as used in the section quoted, had no settled common-law meaning. (The People v. Bristol, 23 Mich. 118, 127; The People v. Cummons, 56 Mich. 544, 23 N. W. 215.) It must be understood in its ordinary, or popular, sense. (Gen. Stat. 1901, § 7342.) According to Webster’s International Dictionary it is “the cohabiting of a man and a woman who are not legally married; the state of being a concubine.” And a concubine is defined to be “a woman who cohabits with a man without being his wife.” Bouvier’s Law Dictionary defines concubinage as “the act or practice of cohabiting, in sexual commerce, without the authority of law or a legal marriage.” Otherwise stated, it is living together as married people do without being legally married. Anciently, concubinage was a state of marriage not sanctioned by law.
Concubinage is not- the crime of which the defendant was convicted. He was accused of taking Minnie Bishop' away, without the consent of her parent or guardian, for the purpose of concubinage. The gist of this offense consists in the intent or purpose of the taking away. What the defendant actually did was more important as evidence of his purpose than as showing that a state of concubinage had already been established. Sexual intercourse is not essential to the commission of this offense — it is only evidence of the character of the cohabitation. (State v. Bobbst, 131 Mo. 328, 338, 32 S. W. 1149; Henderson et al. v. The People, 124 Ill. 607, 17 N. E. 68, 7 Am. St. Rep. 391.)
In case of actual marriage, if the man fall dead as he leads his bride away from the altar no question could arise as to his intent in contracting the marriage. So in this case the defendant might have been captured and Minnie rescued at Albuquerque, after she was undressed and before she was despoiled, and the circumstances then existing might have been sufficient to show that the purpose of defendant was to use her as his concubine. If so, such circumstances alone would have been sufficient to establish the crime.
This idea is clearly stated in these instructions. The jury were plainly told that before they could convict the defendant they must find that he took Minnie Bishop away with the intent, and for the purpose, of living and cohabiting with her as his wife. That was correct. It was also correct to tell them that such cohabitation need not have continued for any great time. (The State v. Overstreet, 43 Kan. 299, 23 Pac. 572; The State v. Bussey, 58 Kan. 679, 50 Pac. 891; Henderson et al. v. The People, 124 Ill. 607, 17 N. E. 68, 7 Am. St. Rep. 391.)
If the defendant intended, when he took Minnie Bishop away from her home and beyond the protection of her parents and relatives, to make use of her as a concubine, then whether their subsequent cohabitation was long or short, whether sexual intercourse occurred often, once only, or not at all, is unimportant. The defendant cannot be excused from the consequences of his crime because he was interrupted in its enjoyment before his brutal appetite was fully satisfied.
The jury by their verdict found substantially that the defendant left Edwards county with Minnie Bishop, intending to live and cohabit with her as if she were his wife so long as it might be convenient and desirable. The evidence fully justified this conclusion. The victim of the defendant’s lust was a mere child, too young and inexperienced to understand and appreciate the import of the circumstances that led up to and accomplished her ruin. She had never felt the restraining influence of a mother’s watchful care, nor received the protecting admonition and loving counsel which only mothers can impart to their daughters. In the company of experienced and designing people she was without protection and helpless. She was among strangers who appeared to her to be kind and generous. They offered her a home, clothes, and “a good time.” They proposed to take her to a better country, where she could travel about and live at ease. She believed in them. These promises presented to her young mind all that was desirable in life.
The defendant, after infatuating her with the idea of going away, instructed her how to deceive her friends and get away without exciting suspicion. He put her clothes in his trunk. He boarded the train as if a stranger to her, but immediately sought her company and remained with her. He told her he had taken another name, which she must assume, and that they must pass as husband and wife. When they stopped he took her to a hotel, and secured lodging as he would have done if she had been his lawful wife. He concealed their identity under an assumed name. He placed her in a room and kept her there for his own exclusive use. She was not there for hire, nor for the use of men .indiscriminately, and, therefore, prostitution was not the purpose for which she was taken from home. (The State v. Goodwin, 33 Kan. 538, 6 Pac. 899.) The jury reached the only reasonable conclusion as to the defendant’s purpose in this respect.
There was no direct evidence that sexual intercourse ever took place between the defendant and Minnie Bishop. It is suggested that they may have occupied the room and bed at the hotel together for economical. reasons. It is also urged that the jury might have found differently if they had been properly instructed upon the force and effect of circumstantial evidence. The defendant requested the court to give the jury the following instruction:
“The jury are instructed that the evidence of the intention of the defendant as to the taking of Minnie Bishop from Edwards county, Kansas, for the purpose of concubinage, the charge made against him in the information in this case, is circumstantial; and in this connection you are instructed that before you can convict the defendant upon circumstantial evidence the circumstances must all be consistent with each other, tending to prove guilt of the defendant, and must be inconsistent with the defendant’s innocence from any rational conclusion.”
This was refused, and the court gave one that reads:
“It is not necessary to proof of the purpose charged that an act of sexual intercourse shall have been actually proved. If all the facts and circumstances proved at the trial are such that they cannot in the nature of things be true and the defendant be innocent of the guilty intent — that is, the intent to live and cohabit with Minnie Bishop in carnal knowledge as his wife— then you would be justified in finding him guilty of that purpose.”
In form and phrase improvement might be made in either of these instructions, but in substance they both probably state the law correctly. The one requested by the defendant states substantially that the jury may infer from the evidence that defendant took Minnie Bishop from Edwards county for the purpose charged, if the facts proved are all consistent with such inference, consistent with each other, and inconsistent with any other rational conclusion. The instruction given tells the jury that such inference may be drawn if in the nature of things the facts established on the trial cannot otherwise be true. The instruction given is probably more favorable to the defendant than the one refused. This instruction of the court contains an additional element, to the effect that actual proof of sexual intercourse was unnecessary if the facts proved clearly indicated that the defendant had Minnie Bishop there for that purpose. The legal rule for the solution of questions of this kind has been the same for centuries, and is likely to continue unchanged until a decided improvement occurs in human nature.
An eminent writer upon the law of evidence used language many years ago which seems peculiarly pertinent to this case. He said that “it is physically possible for a man and woman in good health, not married to each other, to remain over night locked in a room together, and occupy the same bed, naked, and not have sexual intercourse; but the law does not proceed upon such a supposition.” It is safe to assume that human nature at the present time is very much the same as when that statement was written. The jury were evidently of the opinion that the same results followed from the situation at the hotel in Albuquerque that usually transpire under the same circumstances elsewhere. We cannot say that such conclusion is erroneous.
When this case was called for trial the defendant made application for a continuance on account of ab sent witnesses. He filed an affidavit showing that.he had been in jail continuously since his arrest, in January, 1905; that Hawk and Hinman, the men who made the acquaintance of Minnie Bishop at his house, and helped her on the train when she left, and who were old-time friends and schoolmates of the defendant’s wife, were material witnesses, but then absent and beyond the reach of a subpoena; that these witnesses had been subpoenaed by the state February 28, and had been present in the city until within a few days before this application was made, when they disappeared; that the wife of the defendant was a party to the disappearance of Minnie Bishop, and her trial was then pending; that she caused a subpoena to be issued for said witnesses in her own case, but it was returned “not found.” The defendant was unable to say why these witnesses left, or where they went, and nothing was shown to indicate that they would ever be found. No diligence whatever was shown.
The granting of a continuance rests largely in the discretion of the trial court, and the refusal to grant an application therefor cannot be declared erroneous unless the statutory requirements have been fully complied with. This showing was insufficient.
The record contains thirty assignments of error. They relate principally to ■ instructions given and refused. Those not specifically mentioned have all been carefully examined and considered, and we have been unable to find any material error. The judgment is „ affirmed.
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The opinion of the court was delivered by
Porter, J.:
William Wimmer was injured in alighting from a train of plaintiff in error at Athol, in Smith county. He brought this action for damages and re covered a judgment for $1999, from which the railway company brings this proceeding in error. Mr. Wimmer’s ticket was from Alta Vista to Athol, and the train upon which he was a passenger reached Athol at three o’clock on the morning of June 23, 1903. He was between seventy-nine and eighty years of age. He had no luggage except a valise, and was occupying a seat at the rear of the smoking-car. As the train approached the station it slowed up, and Mr. Wimmer inquired of the train porter and was told that it was his station. He testified that he waited until the train stopped, but no longer, and then got off as fast as he. could; that he had his grip in his right hand, and held to the railing with his left hand; and that while in the act of stepping from the lower step the train started, throwing him off, and he fell on his left hip and side upon the cinder walk. It was dark at the time and there were no lights. The fall fractured the left thighbone near the hip-joint, leaving the leg an inch short and the muscles of the leg somewhat shrunken. Mr. Wimmer’s son, who was at the station to meet him, reached the old gentleman just after the latter fell to the ground.
It is contended by plaintiff in error that the court should have sustained a demurrer to the evidence because no attempt was made to show that the train was started in a negligent manner, and because the proof showed that it started up slowly. This contention is based upon the claim that the petition contained two separate allegations of negligence: (1) That the train was not stopped a sufficient length of time; and (2) that it was started in a negligent manner. There was, however, but one act of negligence charged — the starting of the train without giving plaintiff sufficient time to get off safely. That the demurrer should have been overruled seems so clear as not to require the citation of authorities.
The claim that the court should have directed a verdict is based upon practically the same reasons — that is, that plaintiff admitted that the train started slowly, and the further fact, brought out in the testimony of the engineer, a witness for defendant, who said the train made a slow, gradual start, in the ordinary way. But none of this testimony precluded plaintiff from a recovery upon the negligence of which complaint is ■ made.
The jury, in answer to special questions submitted by the railway company, made the following findings:
“(1) Ques. What time of the day, June 23, 1903, did the accident occur? Ans. About three o’clock in the morning.
“ (2) Q. What was the distance from where plaintiff was sitting in said car to the lower step of said car? A. About seven or eight steps.
“ (3) Q. What part of the car was plaintiff sitting in with reference to the car door that he went out of the car to get off? A. Rear end.
“(4) Q. How long did the train stop, on which plaintiff was riding, at Athol, Kan., on. June 23, 1903 ? A. About a minute.
“(5) Q. Did the train start slowly and gradually? A. Yes.
“(6) Q. Was the plaintiff told before the train stopped that the next station was Athol? A. Yes.
“ (7) Q. Did the train make the usual and ordinary stop at said station of Athol? A. Yes.
“(8) Q. Was there any baggage unloaded from said train while it stopped at Athol? A. Yes.
“ (9) Q. How many passengers got off of said train at Athol on June 23, 1903? A. Three.
“(10) Q. How long does it take for passengers to leave a train ordinarily? A. About a minute.
“(11) Q. In what car was plaintiff riding? A. Smoker.
“(12) Q. In what part of car was he riding? A. Rear.
“(13) Q. From what platform of the car did he alight? Was it forward or rear? A. Rear.”
“(15) Q. Did the train start with a lurch or jerk? A. No.
“(16) Q. Did the plaintiff know the train was approaching Athol before it stopped? A. Yes.
“(17) Q. Did the porter or some one of the train-crew inform the plaintiff in answer to his question as the train was approaching the station of Athol that the next stop was Athol? A. Yes, by some one supposed to belong to the train-crew.
“(18) Q. Did the plaintiff sit in the last seat of the car next to the door by which he left the car? A. Yes.
“(19) Q. How many passengers did the conductor of the train on which plaintiff was riding have for Athol? A. Three.
“(20) Q. How many persons alighted from the train before the conductor signaled the engineer to proceed out of town ? A. Two or more.
“(21) Q. Were there three persons standing by the side of the train when the conductor signaled the engineer to go ahead? A. Three or more.”
It is urged that the court erred in refusing to render judgment in favor of defendant upon these findings. The main contention of plaintiff in error is that by proof that the train made the ordinary stop at this station the burden was placed upon the defendant in error to show that by reason of some peculiar or particular circumstances the ordinary stop was not sufficient. On the contrary, it is contended that where the passenger shows he was without fault, that he made no unnecessary delay but attempted to get off as quickly as he could, and was not given sufficient time to do so safely, and was injured by reason of the train starting without giving him enough time to alight, he is entitled to recover. Plaintiff in error cites Strauss v. The Kansas City, St. Joseph & Council Bluffs Railroad Company, 75 Mo. 185, as follows:
“If the train was stopped a sufficient length of time to enable plaintiff to conveniently alight, and without any fault of the company’s servants he failed to do so, and the conductor, not knowing and having no reason to suspect that plaintiff was in the act of alighting, caused the train to start while he was so alighting, then the company would not be liable.”
This is cited in support of the proposition that if the train stopped the ordinary length of time the railway company would not be liable. The authority does not bear out the contention of plaintiff in error. Whether the train stopped that night at Athol a sufficient length of time to enable defendant in error by the exercise of ordinary care and diligence to get off in safety was the very question to be determined by the jury. The case of C. B. & Q. R. Co. v. Landauer, 36 Neb. 642, 54 N. W. 976, cited by plaintiff in error, is an extreme one, and in our opinion the dissenting opinion by Chief Justice Maxwell states the law in accordance with the weight Of authorities. Some courts hold the law to be that the train must be stopped a reasonable length of time. In the case of Harris v. G. C. & S. F. Ry. Co., 36 Tex. Civ. App. 94, 80 S. W. 1023, it was held that when this is done, and the train started properly, the railway company is not liable even though the trainmen might have discovered the dangerous position of the passenger.
The evidence in this case upon the part of the train- ■ men was that the train stopped about a minute. The jury made a finding to that effect. In order to warrant the court in rendering judgment upon the findings it must have declared, as a matter of law, that to stop this train at the time and place and under the circumstances in evidence about a minute was a sufficient time. This no court would be justified in doing, nor could the court say that because the jury found that the train stopped the usual length of time to permit passengers to get off and on the train, and to load and unload baggage and express matter, the time was sufficient. Whether the stop was reasonably sufficient was for the jury to determine, and by their verdict they found that on this occasion it was not.
In Luse v. Railway Co., 57 Kan. 361, 364, 46 Pac. 768, the jury found that the train stopped the usual length of time to permit passengers to get off and on, and the court granted a motion for judgment in favor of the railway company non obstante veredicto. This court, in reversing the case, said:
“The findings show that the defendant was guilty of ordinary negligence in starting its train before the plaintiff had time to alight therefrom, and that she exercised due care in attempting to leave it and in stepping therefrom just as it was starting and before she had knowledge that it was in motion. The care of her babe and the entry and departure of other passengers retarded her egress, but the jury must have found that she was not at fault for the delays occasioned thereby.
“It is the duty of a railroad company to afford a sufficient time to passengers to alight in safety by the exercise of reasonable care and diligence on their part. . . . The mere fact that the train stopped the usual length of time is not sufficient to show negligence of the plaintiff nor due diligence of the defendant; for the circumstances may have required a longer stop on that day than usual, and it was a question for the jury to determine whether the stop was reasonably sufficient or not.”
In the above case the court quotes approvingly from Keller v. Sioux City & St. Paul R. Co., 27 Minn. 178, 6 N. W. 486, the rule laid down by Chief Justice Gilfillan, as follows:
“When the cars stop at a passenger’s place of destination, it is his duty to leave the car without unnecessary delay, and the company’s to give him a reasonable opportunity to do so with safety. The exact length of time to be given must depend very largely upon circumstances. ... It certainly would not be permissible for them to be so reckless of the lives and limbs of passengers as to start the trains when they know, or with reasonable care might know, that passengers are in the act of alighting.” (Pages 181, 182.)
In Washington & Georgetown R’d v. Harmon, 147 U. S. 571, 13 Sup. Ct. 557, 37 L. Ed. 284, it was said:
“A railway company being bound to deliver a passenger, its failure to stop long enough to enable him to alight with safety is a neglect of duty which involves liability for injuries resulting therefrom.”
(See, also, A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491, 498, 40 Pac. 919; Brooks v. Boston & Maine Railroad, 135 Mass. 21; Passenger Railway Co. v. Stutler, 54 Pa. St. 375, 93 Am. Dec. 714; McDonald v. Long Island R. R. Co., 116 N. Y. 546, 22 N. E. 1068, 15 Am. St. Rep. 437; Cullar v. M. K. & T. Ry. Co., 84 Mo. App. 340.) It is clear, therefore, that the court did not err in denying the motion for judgment upon the special findings.
Complaint is made that certain instructions requested by defendant were refused. These instructions were not signed by the party asking for them, as required by section 275 of the civil code (Gen. Stat. 1901, §4722), and the refusal is not a ground of error. (Douglass v. Geiler, 32 Kan. 499, 4 Pac. 1039; Tays v. Carr, 37 Kan. 141, 14 Pac. 456; Morisette v. Howard, 62 Kan. 463, 63 Pac. 756; Craig et al. v. Frazier et al., 127 Ind. 286, 26 N. E. 842.)
We have examined the instructions given and find no error in them. Instruction No. 7 is one which is complained of as especially erroneous. The particular part of the charge objected to is as follows:
“A railway company in the conduct and management of its train is required to employ competent agents who will faithfully perform their respective duties and use such means and foresight in providing for the safety of passengers as persons of the greatest care and prudence usually exercise in similar cases, and this duty continues until the passenger reaches his destination and has alighted from the train.”
This instruction states the law correctly. It cannot be that the duties which a carrier owes to a passenger cease before the passenger has left the train. In Texas & Pacific Ry. Co. v. Miller, 79 Tex. 78, 15 S. W. 264, 23 Am. St. Rep. 208, 11 L. R. A. 395, a similar instruction was held proper. The court in that case said: “We are of the opinion that in reference to the movement of a train at a station, as well as on the journey, the degree of care declared by the charge is required of all passenger carriers.” In Pennsylvania Co. v. McCaffrey, 173 Ill. 169, 50 N. E. 713, the syllabus reads: “A carrier must use the highest degree of care which is reasonably practicable to provide its passengers with a safe passage from the train.” (See, also, The Terre Haute and Indianapolis R. R. Co. v. Buck, Administratrix, 96 Ind. 346, 49 Am. Rep. 168; Leggett v. Railroad Co., 143 Pa. St. 39, 21 Atl. 996; North Chicago St. R. R. Co. v. Cook, 145 Ill. 551, 33 N. E. 958; 6 Cyc. 611, 612, and cases cited.) The time required to leave a train depends upon the circumstances.
“For instance, a longer time would be required when there are many passengers to alight than when there are but few; in a dark night, with the landing-place badly lighted, than when there is full light; at a difficult place to alight, than where it is easy. And as railroad companies usually carry not merely the vigorous and active, but also those who, from age or extreme youth, are slower in their movements than vigorous and active persons, the time of stopping is not to be measured by the time in which the latter may make their exit from the cars, but by the time in which the other class may, using diligence, but without hurry and confusion, alight.” (Keller v. Sioux City & St. Paul R. Co., 27 Minn. 178; 5 A. & E. Encycl. of L. 577.)
This instruction, of course, is to be considered in connection with the charge generally, in which the jury were instructed fully as to contributory negligence and that if plaintiff had sufficient time to get off in safety and did not do so, but negligently remained upon the train until it started, and then attempted to get off and was injured, he could not recover. One of the trainmen in this case testified that it takes from ten to fifteen seconds for a passenger to leave a car under ordinary circumstances. This might be true in broad daylight, as to some passengers. It frequently happens that passengers in their haste are out upon the platform before the train comes to a stop, and step off at once. In this case it was at three o’clock in the morning, in the dark, with no lights at the station, and the passenger was an old man, eighty years of age. To say that he could or should have gotten off in less than one minute seems, under the circumstances, hardly reasonable. Neither the conductor nor the porter of the train was near the place when he attempted to alight. The conductor was at the rear of the chair-car, next the smoking-car, and the porter was at the rear of the train. None of the trainmen was aware that a passenger had been injured until in-' formed of it next day.
Under the circumstances the jury seem to have been warranted in finding that plaintiff was not afforded sufficient time in which to leave the train safely, and that his injuries resulted therefrom. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
This was an action brought by J. A.. Hartshorn against W. C. Edwards to recover the balance alleged to be due for the grading of two miles of the Kansas City, Mexico & Orient railroad, in Oklahoma. Originally the Kaw Valley Construction Company, the Union Construction Company and the Kansas City, Mexico & Orient Railroad Company were made defendants, but on the motion of plaintiff a dismissal was entered as to these parties, and the case was tried out against Edwards alone.
The petition contained three counts, all based upon Hartshorn’s claim for work done for the defendant. The first was upon an account stating the charges for clearing, grubbing and excavating for the grade of the railroad, and also stating the credits, and asking for recovery of the balance due, $5439.16. The second count set up the contract between the parties, the work done in pursuance of it, the failure to measure and estimate the work as the contract specified, and otherwise to perform the contract; and the third count was like unto the second, except that express malice and intentional fraud were charged against some of the engineers in measuring the excavation and determining the amount due for the work. Hartshorn, however, elected to stand upon the second count of his petition, and the averments of the other counts became immaterial.
In the second count the contract between the parties was set forth, under which Hartshorn was to receive fifteen dollars per acre for clearing, twenty-five dollars per acre for grubbing, nine cents per cubic yard for earth excavation, twenty-seven and one-half cents per cubic yard for loose rock, and fifty-five cents per cubic yard for solid rock. The work was to be done to the satisfaction of the chief engineer of Edwards, who was to make measurements and estimates, and was to be paid for when he certified that the work was completely performed.
The petition alleged that the contract contained a provision “that the decision of the chief engineer of the defendant, W. C. Edwards, should be final and conclusive on any dispute which might arise between the parties to said agreement relative to or touching the same, and that each of said parties did thereby waive any right of action or other remedy, in law or otherwise, by virtue of this contract, so that the decision of the chief engineer should, in the nature of an award, be final and conclusive on the rights and claims of said parties, and no suit should be brought until the award of the said chief engineer should have been made and published, and then for the purpose only of enforcing said award.” It was further alleged that Edwards was the agent of the construction and railroad companies; that he chose as chief engineer M. P. Paret, who was the chief engineer of these companies, and who was interested in estimating the work done at a lower figure than the correct amount; that Paret, pretending to act as chief engineer for Edwards, made certificates of the work done, but failed and neglected personally to measure and estimate the work done; that, instead of making estimates or measurements of the work personally, he relied upon measurements and classifications made by E. B. Coulson, who was commonly known as a resident engineer; that Coulson was wholly incompetent for the work; that the estimates made by him were erroneous, incorrect, and incomplete; and that neither Paret nor Coulson had ever made any correct estimate, but made one which placed the value of the work done at the sum of $5489.16 less than the true amount and value under the terms of the contract.
It was further alleged that two final estimates were made on the work, one for each of the miles graded, but each time Hartshorn refused to receive the sum allowed on these pretended estimates, asserting that they were incorrect, and that a mistake had been made in the classification and measurement of the work; that it was then agreed between him and Edwards that the chief engineer should make a personal examination, and upon this agreement the amounts of the estimates were accepted; that the plaintiff refused to accept said sums, or either of them, until Edwards agreed to make full, correct and final estimates and classifications, and finally accepted the money only as part payment of the work under an agreement that correct estimates and classifications should be made, but that the defendant had since unreasonably and fraudulently refused and neglected to make further, final and correct estimates and classifications. It was further alleged that the work done had been accepted as being in full compliance with the contract, but the defendant, on account of the mistake of the chief engineer, and the fact that Coulson was careless, negligent, and incompetent, and failed correctly to measure, estimate and classify the work done under the contract, had failed to pay him the amount due under the terms of the contract, and that there was still due $5439.16, for which plaintiff asked judgment.
In his answer Edwards alleged that the chief engineer did make estimates and classifications of the work done, and that he had paid to Hartshorn the amount of the estimates which were received, by the plaintiff. The plaintiff in reply alleged that the estimates mentioned in the answer were those described in the petition as being incorrect, false, and fraudulent. The trial resulted in favor of the plaintiff, the jury awarding him the sum of $5439.16.
Error is assigned on the ruling of the court denying the motion of Edwards to require the plaintiff to elect on which count of his petition he would rely. The code requires that the petition shall contain a statement of the facts constituting the cause of action, in ordinary and concise language, and without repetition. (Code, § 87; Gen. Stat. 1901, § 4521.) A party may, however, have demands of a different nature founded on the same transaction, which he may state in separate counts, although only one recovery can be had. There are times when a party cannot well anticipate what the testimony will develop, and to meet any possible phase of the evidence he may state his cause of action in different counts. (Bliss, Code PL, 3d ed., § 120; 5 Encyc. Pl. & Pr. 321.) Whether such a practice was permissible in this instance is of little consequence. At the close of the testimony the plaintiff did elect to rely on the second count of his petition and the case was submitted to the jury as involving but a single cause of action, and hence the defendant did not suffer any prejudice.
It is contended that the facts stated in the second count do not constitute a cause of action. In part, this is based on the ground that the contract pleaded provided that the decision of the chief engineer should be final and conclusive upon the rights and claims of the parties, and that, as an award or decision had been made by him, a resort to an action in court was precluded. It may be conceded that it was competent for the parties to agree that final estimates should be made by the chief engineer of the defendant and that his decision should be taken as correct and binding. Such an award or decision is prima fade conclusive as to all matters submitted to, and fairly and honestly determined by, the chosen umpire. (Insurance Co. v. Payne, 57 Kan. 291, 300, 46 Pac. 315.) Of course, if there were fraud, gross mistake, or the failure to exercise an honest judgment by the umpire, his estimate or award would not be binding. (Martinsburg & Potomac R. R. Co. v. March, 114 U. S. 549, 5 Sup. Ct. 1035, 29 L. Ed. 255; Chicago & Santa Fe Railroad v. Price, 138 U. S. 185, 11 Sup. Ct. 290, 34 L. Ed. 917; McCoy v. Able et al., 131 Ind. 417, 30 N. E. 528, 31 N. E. 453; Baltimore, Ohio and Chicago Railway Company v. Scholes, 14 Ind. App. 524, 43 N. E. 156, 56 Am. St. Rep. 307; Norfolk, &c. R. Co. v. Mills & Fairfax, 91 Va. 613, 22 S. E. 556.)
Passing for the time being the question whether fraud, mistake, inefficiency or bad faith was sufficiently alleged to set aside the decision of the chief engineer, there were in the petition averments that by agreement of the parties the decision of the chief engineer as made was put aside and treated as not of binding force; that, when Hartshorn protested that the final estimates were incorrect and unfairly made, Edwards then agreed that further, full, final and correct estimates and classifications should be personally made by the chief engineer, but that he had unreasonably and fraudulently refused and neglected to make such estimates and classifications. Having in effect set aside the decision of the chief engineer and agreed that another and correct one should be made, a decree of the court to cancel it was certainly unnecessary. The reasons for ignoring the discredited, decision become immaterial, since the petition alleged that new' and correct estimates were to be made. The petition alleged that the work was performed by Hartshorn in conformity with the contract; that it was accepted by Edwards as complete and satisfactory; the amount due for the work when measured correctly as the contract specified was set up, and also the failure and refusal to measure and estimate the work in accordance with the agreement. This stated a cause of action at law for the recovery of money under the contract.
It is argued that the decision of the chief engineer was in the nature of an award, binding upon the parties, and that the plaintiff could not maintain an action to recover under the contract so long as the award stood. The contention is that it could only be set aside by an equitable proceeding. Against the objection of the defendant the court impaneled a jury, and .the case was tried as an action at law. Since the award or decision made by the chief engineer was taken out of the case by subsequent agreement there is little room to claim that it was an action for equitable cognizance. But, treating the case upon defendant’s theory, it was practically an action at law, and the court could not safely have denied the demand of either party for a jury.
By the averments of the petition, as well as the testimony offered in behalf of the plaintiff, the chief engineer did not personally classify or measure the material excavated by the plaintiff in grading the railroad. There was an attempt to do so by Coulson, the subordinate engineer. It was alleged that he was not only incompetent, but that he was careless and negligent, and therefore did not correctly measure and classify the work, so that Hartshorn was allowed but $12,691.58, when according to the contract he was entitled to $18,130.74 — a mistake or variance of $5439.16. The petition did not ekpressly charge intentional fraud or bad faith, but it did charge inefficiency, negligence and mistakes so great and palpable as to imply bad faith. It is true the pleading did not state in express terms that fraud was committed by the engineers, but facts as to inefficiency, negligence and gross mistake.were related which in themselves are sufficient to constitute bad faith and invalidate the estimates of the chief engineer. Little strength would have been given the pleading by adding a conclusion that the facts stated constituted bad faith. If the estimates had been fairly made they would have been binding; but when not fairly made, and there are mistakes so gross as to amount to fraud on the plaintiff’s rights, the estimates and decision of the chief engineer may be ignored and a recovery of the contract price had in an action at law. Although the equitable elements of mistake and fraud may be involved, the case is essentially one at law for the recovery of money under the contract, and hence a jury was properly allowed. (Louisville, &c., R. Co. v. Meyer [U. S., not reported], 30 L. Ed. 689; Williams v. The Chicago, S. F. & C. Ry. Co., 112 Mo. 463, 20 S. W. 631, 34 Am. St. Rep. 403; Norfolk, &c. R. Co. v. Mills & Fairfax, 91 Va. 613; Graham v. Woodall, 86 Ala. 313, 5 South. 687; Kistler v. The Indianapolis and St. Louis Railroad Company, 88 Ind. 460; Canal Trustees v. Lynch, 10 Ill. 521; Baltimore, Ohio and Chicago Railway Company v. Scholes, 14 Ind. App. 524.)
A somewhat general attack is made on the instructions which the court gave to the jury, but much of the complaint in this respect is answered in the determination already made. The respective theories of the parties were fairly presented to the jury. With respect to the estimates and award of the chief engineer, the court did not minimize the mistakes necessary to invalidate them. The jury were informed that the award of the chief engineer was final and conclusive in the absence of mistake or fraud, and that “while the final estimates of the chief engineer may be set aside on account of mistakes made by him in his final estimate and classifications of the work under the contract, yet I say to you that slight discrepancies in measurements should be disregarded, and even where there are discrepancies of some magnitude you should accept the estimates of the chief engineer, unless the proof clearly shows such gross mistakes as would imply bad faith, or a failure on the part of the chief engineer to exercise an honest judgment in making his final estimates and classifications.” This statement of the law was exceedingly liberal to the defendant, and he, at least, has no reason to complain of the rule applied.
Complaint is made that the court referred to the contention that the chief engineer did not personally do all of the work, but in the same connection the jury were instructed that he was not required personally to make the estimates and classifications, and could entrust the work, in part, to his subordinates and assistants. They were told, however, that “if the chief engineer entrusted the work of making up these final estimates and classifications to his subordinates and assistants, the mistakes and errors of the said subordinates and assistants became and were the mistakes and errors of the chief engineer, if he adopted them in making up his final estimates.” The terms of the contract under which the classifications were to be made were fairly stated by the court, and we find nothing in any part of the charge that can be regarded as prejudicial error.
While the sufficiency of the evidence is vigorously assailed, we are unable to say that the verdict and judgment are without support. It appears that Paret, the chief engineer, gave little personal attention to the work as it progressed, and relied almost entirely upon Coulson, the resident engineer. There is testimony that Coulson had only a passing acquaintance with the work. He did not give it the attention during its progress necessary to a correct and complete estimate. Changes were made by him which indicated carelessness and a lack of definite information, and, indeed, the testimony tends to show that' the classifications were not made with any care and that his measurements were incomplete and little more than approximations. After a protest had been made against his estimates, and Edwards had agreed that other estimates should be made, the chief engineer sent two of his subordinates, who went over the work and made reports differing materially from the estimates of Coulson. Notwithstanding this, the chief engineer refused to change the estimates that Coulson had originally given him. Two engineers went over the work at the instance of the plaintiff, and, after measuring it, one of them reported that there were 17,807 yards of solid rock excavated, while Coulson’s estimates only credited Hartshorn with 1392 yards. The other engineer who was a witness on behalf of plaintiff estimated that there were 16,704% yards of solid rock excavated.
Although these witnesses did not see the work during its progress, their testimony indicates that their measurements were made with considerable care, and the jury were warranted in accepting their estimates in preference to those made by Coulson. Enough appears in the testimony to warrant the inference that the so-called final estimates were not fairly and honestly made, and the discrepancies are such as to show palpable mistakes and utter disregard of the rights of Hartshorn. The fact that the chief engineer, who was to classify, measure and make final estimates, was an employee of the defendant does not of itself weaken the force of his decision, but the law does require of persons so situated the utmost diligence and good faith; and the testimony offered in behalf of the plaintiff tends rather to show inefficiency and negligence on his part instead of fair and honest performance of duty.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Porter, J.:
Counsel for plaintiff in error devote a considerable part of their brief to the contention that it was error to allow the amendment, because there was no evidence in support of it, and what there was, if any, was admitted over their objection; that the amendment was not made, in fact, until months after the trial, at the time fixed for the settling and signing of the case-made, and introduced a new cause of action, which was barred by the statute of limitations. The case-made shows that permission to make the amendment was asked and granted at the close of plaintiff’s testimony; that prior to the settling and signing of the case-made it was written out from the notes of the court reporter by order of the judge, attached to the original petition, and incorporated in the case-made; so that the question whether it was made at the time it purports to be is immaterial. We are bound by the recitals of the case-made.
It is urged that, there being no allegation in the original petition in reference to an established rule, it was error to permit evidence of such a rule. At the same time it is contended that the evidence introduced failed to prove the existence of any established rule. To the latter contention we agree. The most that can be said for the evidence is that it tended to prove that a sort of method prevailed in the operation of the killing beds, and that certain workmen had certain duties in connection with the operation of the friction hoist. So far as the evidence of which complaint is made tended to prove these things, it was not a departure from the general scope of the original petition. Plaintiff in error was not prejudiced by the attempt to prove the establishment of a fixed rule, since the attempt failed. The allegation in the amendment of the existence of a rule stands as though made in the original petition and not proved.
The whole contention about the amendment to the petition, however, becomes immaterial. It appears from an examination of the instructions that the trial court ignored the amendment entirely and instructed as if it had not been made. This practically takes the amendment out of the case, and with it goes one of the main contentions.
Plaintiff in error argues that the court should have sustained the demurrer to the evidence, and raises several points, the chief of which are: (1) That dé fendant was not guilty of any negligence; (2) that the injury was caused by the act of a fellow servant. We shall consider these points together.
The fellow-servant doctrine is not involved in the case, as we view it. The master owes certain duties to the servant, among them the duty to take reasonable precautions to prevent an injury to the servant while at work. In Brick Co. v. Shanks, 69 Kan. 306, 76 Pac. 856, it was held that whenever the negligent act violates a duty which the master himself owes to the servant, that becomes the controlling fact in determining the master’s liability, notwithstanding the negligence of the ' master was set in operation by one who otherwise might have been designated a fellow servant. In some of the controlling principles that case was similar to this, though the facts there were different, and there was involved the question of the duty of a pit-boss to warn the employees of certain dangers; but the duty of the master to conduct his business “in a manner affording reasonable safety to his employees” is recognized.
In Daniel’s Adm’r v. Ches. & O. R’y Co., 36 W. Va. 397, 412, 15 S. E. 162, 16 L. R. A. 383, 32 Am. St. Rep. 870, the court, in enumerating the personal non-assignable duties “which the master owes his servant, no matter by whom performed,” and quoting from 28 W. Va. 610, 617, 57 Am. Rep. 695, said:
“The duties of the master or employer may be summed up as follow: (1) To provide safe and suitable machinery and appliances for the business (including a safe place to work). This includes the -exercise of reasonable care in furnishing such appliances, and the exercise of like care in keeping the •same in repair and in making proper inspections and tests. (2) To exercise like care in providing and retaining sufficient and suitable servants for the business* (and instructing those who, from newness or age, evidently need it). (3) To establish proper rules and regulations for the service, and, having adopted such, to conform to them.”
In Bishop on Non-contract Law, section 691, the author says:
“The leading principle, around which the others cluster, is, that the master should exercise, in the carrying on of his business, all the watchfulness over his servants and employ all the safeguards which a reasonable and considerate prudence may dictate. For any violation of this duty, resulting in an injury to a servant, he [the master] is answerable to him.”
Upon the general proposition that the duty rests upon the master not to expose the servant, in the discharge of his duty, to perils and dangers against which the master may guard by the exercise of reasonable care, see Pullman Palace Car Co. v. Laack, 143 Ill. 242, 32 N. E. 285, 18 L. R. A. 215; Cayzer v. Taylor, 76 Mass. 274, 69 Am. Dec. 317; Gilman v. Eastern Railroad Corporation, 92 Mass. 233, 238, 87 Am. Dec. 635; Wood, Mast. & Serv., 2d ed., § 326; Beach, Cont. Neg., 3d ed., § 353; Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612.
In order that the master may claim exemption from liability for injuries to a servant on the ground that the negligent act was that of a fellow servant the master must have exercised reasonable care to prevent the injury. The risk that the master may neglect to do this is not one that the servant assumes. (Pullman Palace Car Co. v. Laack, 143 Ill. 242; Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 557, 25 N. E. 915, 19 Am. St. Rep. 523; Keast v. Santa Ysabel Gold Mining Co., 136 Cal. 256, 68 Pac. 771.)
The case at bar is analogous to that of the sudden and unexpected starting of dangerous machinery, where the starting is due to the negligence of the master or some one for whose negligence the master is responsible. In such cases the master is held liable. (5 Thomp. Com. L. of Neg. § 5422-; Blanton v. Dold, 109 Mo. 64, 18 S. W. 1149; Donahue v. Drown, 154 Mass. 21, 27 N. E. 675.)
A duty like that requiring the master to establish rules for the conduct of his business for the safety of his servants is the one which requires him, in “carrying on a dangerous or complicated business, to reduce it to such a system and to conduct it in such a manner as will best promote the safety of his servants; and he is consequently liable to a servant for an injury occasioned by a defective system of using his machinery or conducting his business, as well as for injuries occasioned by defects in such machinery.” (4 Thomp. Com. L. of Neg. § 4175. See, also, Hunn v. Railroad Co., 78 Mich. 513, 44 N. W. 502, 7 L. R. A. 500.)
Here was a dangerous appliance — not in the sense that the persons using it might be injured, but dangerous to others. Operated by a skilful and experienced person, there was danger to no one. Operated by an inexperienced and unskilled person, a heavy beef, with the added weight of the iron spreader, itself weighing hundreds of pounds, might fall upon and among other workmen, while their attention was required to be given to their own work, and their lives would become endangered. There is some evidence in the record which fairly tends to prove that there had been a method of procedure in the operation of the work on the killing beds, as set out in plaintiff’s petition; that there were among the workmen usually about ten common laborers, including the paunch-pullers, without any experience in the operation of the hoist; and witnesses testified that frequently these common laborers pulled the rope which operated the hoist, and did this in the presence of the foreman. Plaintiff testified that he had no knowledge of this, and the master offered no testimony to dispute it. All the- witnesses familiar with the operation of the hoist agree that it required experience and skill to operate it safely and properly. The rope had to be pulled just right — just far enough —or the beef would be dropped suddenly upon the workmen.
The workman Shortridge did what was natural, and what might have been expected of any of the common laborers on the beds, unless instructed to the contrary. There was a rope to be pulled; some one said “pull the rope,” and, wishing to be useful, he pulled it. He knew nothing about how to do it properly, and the result was the injury to the plaintiff. The duty of the master to use ordinary care to prevent injury to plaintiff by establishing and enforcing a rule, or by some other reasonable method, so far as the evidence shows, was ignored. The master did nothing to protect the servant. It is not claimed that Shortridge was negligent in the ordinary sense of a servant who knows how to do a thing properly and carelessly does it wrong. He acted ignorantly. He had no duty to perform except not to act, and he never had been instructed not to act. As previously stated, it was natural for him or any of the other common laborers, in the absence of any rule or instruction, to attempt to do what he did. His act became possible from the negligence of the master. The proximate cause of the injury was not the act of Shortridge but the neglect of the master to take reasonable precautions to see that such a thing did not occur.
It is held generally that negligence is the proximate cause of an injury when it appears that “the injury was the natural and probable consequence of the negli-. gence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” (Milwaukee, etc., Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256. See, also, Railway Co. v. Parry, 67 Kan. 515, 73 Pac. 105.)
The petition, it is true, does not allege that it was the duty of defendant to adopt rules or methods in the operation of the killing beds to provide for the safety of plaintiff. It recites the facts — the usual method employed, and the departure from the usual method. It is shown in evidence that no care was taken in fact to prevent these common laborers from doing- what it was clearly natural and probable that they might do, and which it appears one of them did do. The law defines the duty of the master, however, and while it is not necessary here to' decide what would have been reasonable precautions for the master to have taken to prevent injury to the servant, it is sufficient that, as the case stood at the close of plaintiff’s testimony, there was some evidence that no precautions of any kind had been taken and that the failure to take reasonable precautions was the proximate cause of the injury to plaintiff. There was no error in overruling the demurrer.
Error is also claimed in the instructions. The twelfth instruction, of which complaint is made, relates to the law of fellow servants; and, while it might be open to some criticism, plaintiff in error was not prejudiced, because the negligence of a fellow servant is not available as a defense in this action. Instruction No. 18 fairly states the law governing the facts in evidence. The words “were liable” are qualified by the phrase “under the method of operating defendant’s killing beds.” The complaint is that there was no evidence to warrant the instruction; but, as we have said, there is some evidence that common laborers, without experience, and in the presence of the foreman, frequently attempted to operate the hoist. “The employer is chargeable with knowledge of whatever it is his duty to find out and know.” (5 Thomp. Com. L. of Neg. § 5404.)
Error is specified in overruling defendant’s challenge for cause of a juror, and also on account of some remarks of counsel for plaintiff in his opening statement. These matters cannot be considered, for the reason that they do not appear in the record, except in the form of an affidavit, and the record shows that this affidavit was filed the day after the motion for a new trial was denied. The record does not disclose that the court’s attention to these alleged irregularities was challenged by the motion for a new trial.
We find no error in the instructions, and in our view of the law of the case there was sufficient evidence to submit to the jury upon the allegations in the petition, and to support the verdict. The judgment is affirmed.
All the Justices conciurring. | [
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The opinion of the court was delivered by
Burch, J. :
A laborer in a sand-pit was injured by the caving of a bank under which he was working. He sued his employer for the damages he sustained, alleging, among other things, that he was put under the direction and control of a foreman who told him there was no danger in working in the sand-pit if he, the foreman, kept watch of it and gave timely warning of the indications of a cave, and that he would do so; that the foreman did not keep watch, but went away, and that if he had kept watch he would have seen the indications of a cave in time to warn plaintiff, who would not then have been injured.
On the trial the plaintiff proved that the foreman promised he would keep watch of the bank and give the plaintiff timely warning of indications of a cave ; that the foreman did not keep watch and gave no warning ; and that if the foreman had kept watch he would have seen the indications of a cave soon enough to give plaintiff .warning, and an opportunity to get out of danger. The plaintiff failed to prove that the foreman said there was no danger if he kept watch, and failed to prove that the foreman went away. The defendant claims a departure between the pleadings and the proof.
The case is not one of departure. The plaintiff simply did not extend his proof to all the averments of his petition. The matters omitted from the proof need not have been alleged. The allegations which were proved were sufficient upon the branch of the case to which they referred, and under the facts the failure to go beyond them could not affect the plaintiff’s right to recover.
The defendant further claims that the foreman was not shown to be negligent in discovering indications of a cave, In this contention he overlooks the testimony of the plaintiff and one of his witnesses that a man occupying the place in the pit where the foreman worked could tell when a cave was about to occur by the cracking of the bank and its leaning toward him, and that the indications of a cave were discoverable in time to give warning so that a man in the pit could get out of harm’s way.
The defendant further claims that the evidence shows- that the plaintiff assumed the risk of a cave, and cannot, therefore, recover. On this subject the court instructed the jury in effect that the risk was not assumed if the foreman promised to protect plaintiff by warning or otherwise and. failed to carry out his promise to that effect. No exception was taken to this instruction,, and when applied to the evidence it warranted the .verdict returned. Under these circumstances the instruction to the jury is conclusive.
The judgment of the district court is affirmed'.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
This was an action to recover damages for personal injuries alleged to have been sustained through the negligent construction and operation of a street-railway system by the defendant in the city of Wichita. ,It appears from the petition and opening statement of counsel for plaintiff in error that the defendant came into possession of the property of the Wichita Electric-light Company, which had theretofore owned and operated a system of street-railway in said city. It had laid a double track in the center of North Main street in said city with- its trolley-poles between the tracks. When the property came into the possession of the defendant it replaced the .old cars with new ones, which were a foot wider, but did not relay the tracks or increase the distance between them. There was a space of only ten or twelve inches between the poles and the sides of the cars.
On the night of September 25, 1901, the defendant was running its summer cars on its double track on North Main street. These cars were so constructed that the seats were across the car, with posts on both sides at the end of the seats, and an aisle in the center. The seats at the ends of the cars were not reversible and this car was entered from the sides upon a running-board. About ten o’clock on the evening in question the plaintiff took passage on one of these open cars on North Main street, going south. He sat on the front seat, with his back to the front of the car, and on the side next the trolley poles, or on the left side going south. He did not know the distance the poles were from the cars. While thus riding one of the passengers two seats in front of him addressed him. The sound of her voice being obstructed by the passengers in the seats between them, he involuntarily and momentarily, without rising, leaned his head out ■of the car that he might hear her, and as he did so liis head came in contact with one of the company’s trolley-poles, which resulted in the injuries which are the basis of this action. The defendant pleaded a general denial and contributory negligence, to which the plaintiff replied by general denial.
After the opening statement of counsel for plaintiff, the defendant moved the court for judgment upon the pleadings and statement. The motion was sustained and such judgment entered. It appears that the motion was sustained upon the ground that the petition- and opening statement, showed that the plaintiff was guilty of such contributory negligence as would bar a recovery.
The only question is, Was the act of plaintiff in thus putting his head outside the car such contributory negligence, as a matter of law, as would bar a recovery? It is the well-settled law of this state that if the ordinary negligence of plaintiff directly or proximately contributed to his injury he cannot recover damages occasioned by the negligence of the defendant, unless the injury was wantonly or intentionally caused by defendant. (Tennis v. Rapid Transit Rly. Co., 45 Kan. 503, 25 Pac. 876; U. P. Rly. Co. v. Adams, 33 id. 427, 6 Pac. 529 ; Gibson v. City of Wyandotte, 20 id. 156 ; Williams v. A. T. & S. F. Rld. Co., 22 id. 117 ; Artman v. K. C. Rly. Co., 22 id. 296.)
The question whether a passenger who puts his arm out of a street-car window is guilty of imputable negligence ordinarily presents a question of fact for the jury. (Dahlberg v. Minneapolis Street Ry. Co., 32 Minn. 404, 21 N. W. 545, 50 Am. Rep. 585; Tucker v. Buffalo R. Co., 53 Hun, App. Div. 571, 65 N. Y. Supp. 989; Francis v. New York Steam Co., 114 N. Y. 380, 21 N. E. 988; Germantown Passenger R. R. Co. v. Brophy, 105 Pa. St. 38; Summers v. Crescent City Railroad Company, 34 La. Ann. 139, 44 Am. Rep. 419.)
Was the involuntary act of plaintiff in leaning his head outside a summer car, not knowing that the trolley-poles were so close to the side of the car, as a matter of law, such negligence ? Ordinary negligence is the omission to exercise ordinary care — that degree of care generally exercised by an ordinarily prudent person under like circumstances. In determining whether a plaintiff in an action for personal injuries has been guilty of such negligence as directly and proximately contributed to his injury, reference must necessarily be had to the particular transaction out of which the injury arose; the instrumentality causing it and its use ; the means and purpose of its opera tion ; the relation and duty of the parties one to the other and the knowledge possessed by the injured party. If from all these facts reasonable minds might. draw different inferences and reach different conclusions with respect to the danger of the situation and the proper course which the injured party should have taken, the question of negligence is one of fact for the jury and not one of law for the court.
In Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 518, 43 Pac. 1136, 1137, it was said :
“Before the case could be taken from the jury on the ground of contributory negligence, it should be established beyond cavil or dispute, leaving no room for differences of opinion upon the question.” (Davis v. City of Holton, 59 Kan. 707, 54 Pac. 1050; Railroad Co. v. Powers, 58 id. 544, 50 Pac. 452.)
In the present cáse the plaintiff was riding in what is commonly called a summer street-car, open from top to bottom on the sides, from which people entered and departed by stepping on what is called a running-board, which extends along and outside the car from one end to the other. While thus riding, and in response to a question by a fellow passenger, not knowing the proximity of the pole to the car, in order that he might hear he put his head out ten inches beyond the side of the car, when it came in contact with the pole. There were no screens on either side of the car upon which plaintiff was riding, and it was so constructed that passengers were invited to enter and depart from either side. In view of this, might not plaintiff have assumed that the company maintained no dangerous obstructions so close to the side of the car that passengers might not enter or depart, as invited by the company, without danger, of injury? Might he not have acted on this assumption and put his limbs or head out the distance of ten inches, and not, as a matter of .law, be said to be guilty of contributory negligence ? In doing so,-under such circumstances, could it be said, as expressed by this court in Beaver v. A. T. & S. F. Rld. Co., supra, that “before the case could be taken from the jury on the grpund of contributory negligence, it should be established beyond cavil or dispute, leaving no room for differences of opinion upon the question” ? '
But this is not the exact question. The plaintiff did not act upon deliberation and upon the apparent conditions indicated above. His act was casual, involuntary, and without the previous knowledge of the close proximity of the pole to the car. The question is, What would an ordinarily prudent man have done under like circumstances ? Can it be said that no-two reasonable minds might not give different answers to this question ? Should he have arisen and leaned forward over the passengers in front of him ?' Or should he have gone into the aisle and walked to the passenger addressing him ? Or should he have-done as he did? What is the exercise of ordinary care under such circumstances is a question of fact-for the jury and not a question of law to be determined by the court.
The case is therefore remanded, with instructions to-set aside the judgment and overrule the motion.
All the Justices concurring. | [
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Per Ouriam:
No error was committed in refusing the c'hange of venue. There was little in the testimony tending to prove local prejudice or that a fair and impartial trial could not be had in Hamilton county. At least, it cannot be said that the court abused its discretion in denying the application.
There is sufficient proof of the ownership of the cattle by Earlie Overton to sustain the findings and judgment.
There was no such confusion of theories in the case as to give any good reason for complaint, nor do we find anything, material in the objections to rulings on testimony. The case was fairly submitted on the instructions, and the judgment will be affirmed.
Mason, J., not sitting, having been of counsel. | [
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Per Curiam:
Plaintiff in' error complains that there was no evidence to support the verdict of the jury on which the judgment in favor of the bank was based. We think there was. The testimony in the case was conflicting. The fact that the preponderance was in favor of plaintiff below will not justify this court in setting aside the verdict.
The .judgment will be affirmed. | [
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Per Curiam:
This was an action upon a promissory note, the defense being the statute of limitations. The note included a contract retaining title to the machinery for which it was given, as security for its payment. Plaintiff testified that he had sold the machinery and applied the proceeds on the note. The only issue presented under the instructions, which were not excepted to, was whether the defendant had authorized such sale. The jury found for the plaintiff. The only matter presented for the consideration of this court is whether there was any evidence to support the finding. There was none, unless it is found in a portion of the cross-examination of plaintiff which is ,as follows:
“Ques. Had you a previous understanding withMr. Warren (the defendant) that he should surrender the machine to you, other than the stipulation in the( note here? Ans. I got the understanding from Mr. Hunt that ttíey wanted the binder removed from there at once.
“Q. Mr. Hunt informed you that Mr. Warren wanted you to go and get the binder away from there; is that the word you got? A. 1 got that word — something to that effect, amounting to about that thing.”
Had such testimony been offered by plaintiff in his examination in chief, it obviously would have been incompetent; but, having been elicited on cross-examination, the only question is whether it had any tendency to show authority. It is very vague and unsatisfactory, but we cannot say that it was entirely without effect.
The judgment is therefore affirmed. | [
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Per Curiam:
This action was brought by Cora Belle Abbott and L. Fern Abbott against Handsel A. Abbott to recover 400 bushels of wheat or $200, its value. Before the cause was finally submitted, Oora Belle Abbott dismissed the action as to herself, without prejudice, over the objection of the defendant. L. Fern Abbott recovered judgment, and defendant prosecutes this error.
This action was brought and prosecuted, up to the time Cora Belle Abbott dismissed, upon the theory that Cora Belle Abbott was the owner of the west half of the southwest quarter of section 18, township 21, range 1, in McPherson county, and that L. Fern Abbott was the owner of the east half of the southeast quarter of the' same section ; that this land had been rented in 1889 for a share of the crop, and the wheat in- question was the landowner’s share of this crop. Cora Belle Abbott failed to establish her ownership of the' land claimed by her, and before final submission dismissed her action.
The cause was tried, and the jury returned answers to the following questions:
“Ques. 1. How many bushels of wheat, if any, did the defendant Handsel A. Abbott, get off the east one-half of the southeast quarter of section 18, in question? Ans. 400 bushels.
“ Q. 2. Was there a con tract with the tenant on the east one-half of the southeast quarter of section 18, as to share of wheat landlord was to have of the wheat harvested in 1900 ? A. Yes.
“Q. 3. If you answer question 2 in the affirmative, then what was such share under said contract ? A. One-third.
“ Q. 4. How many bushels of wheat was the landlord entitled to under such contract ? A. 400 bushels.”
Judgment was rendered for plaintiff L. Fern Abbott.
The first error is predicated upon the order of the court dismissing the action as to Cora. Belle Abbott without prejudice. Such procedure is authorized by subdivision 1 of section 4846 of the Gfeneral Statutes of 1901, when done before final submission to the court or jury. (Ashmead v. Ashmead, 23 Kan. 262.)
Both parties claimed through Gr. B. Abbott — the plaintiff as the owner of the land through a conveyance from him; the defendant as a purchaser of the wheat from Gr. B. Abbott. There is no evidence in the record tending to show that defendant had made such purchase. The deed to L. Fern Abbott was signed and acknowedged March 14, 1887, and recorded October 6, 1899. The crop in question was harvested in 1890. There was some question as to the time of the delivery of the deed, but it appears to have been delivered before being recorded.
On the question as to whether growing crops pass with the title to the land, in the absence of a special reservation, the court instructed the jury as follows:
“Upon the question of ownership of growing wheat, while it is growing upon the land, I instruct you that a sale or transfer of the title to the land, without any reservation as to the growing crops, carries with it the ownership in the crops growing thereon at the time of the transfer of the title to the land.”
It is argued that this instruction is misleading and not applicable to this case, for the reason that the lands were occupied by a tenant when the deed was delivered •, therefore, that the rule stated does not apply. The only part of the crop in question was the landlord’s portion. This was understood by the litigants and the jury, and it could not have misled the jury as to that portion. The instruction correctly states the law.
There was no error in the admission or exclusion of evidence, and the jury found all of the disputed facts, on sufficient evidence, for the plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
AteinsoN, J. :
Robert Mood died testate at his.late residence in the city of Topeka on the .28th day, of December, 1897. The last will and testament of deceased, executed on the 20th day of May,, 1896,, was duly admitted to probate on the 15th day of January, 1898, and his widow, Jane S. Mood, was on said day duly appointed executrix; At the time-of his death Robert Mood left as his heirs at law his widow, Jane S. Mood, and three daughters, Ida M. Wehe, Jennie Wehe, and Lola Bennett. The widow, to whom he had been married for more than thirty years, is the stepmother of the daughters., and has no children of her own. By the terms of his will Robert Mood devised and bequeathed all his property, real and personal, shown to be of the value of about $25,000, to his widow absolutely, except real estate in the city of Topeka shown to be of the reasonable value of $6000, which was devised to the daughters, share and share alike, with a life-interest therein ,to the widow. On July 21,1899, the daughters of deceased filed their petition in the district court of Shawnee county against the widow, Jane S. Mood, and Jane S. Mood, as executrix, to contest the will, charging that its execution had been induced and procured by the fraud and undue influence of Jane S. Mood. The case was tried on March 28, 1902, to the court without a jury, and after plaintiffs had concluded their evidence the court sustained a demurrer to it and rendered judgment against the plaintiffs for costs. They allege error and bring the case to this court for review.
Upon the trial plaintiffs were not permitted to testify as to_ communications had personally with the testator, Robert Mood. The trial court held that plaintiffs were not competent to testify in their own behalf as to communications had personally with the deceased, under section 322 of the code (Gen. Stat. 1901, § 4770). So much of said section as is necessary to be considered reads as follows :
“No party shall be allowed to testify in his own behalf in respect to any transaction or communication had personally by such party with a deceased person when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person, where they have acquired title to the cause of action immediately from such deceased person.”
The contention of plaintiffs is that said section 322 does not apply to them ; that the widow only claims as devisee under the will; that plaintiffs repudiate the will and claim as heirs of the testator under the statute of descents and distributions ; that plaintiffs, as such heirs, do not acquire the title from the testator, but that the law casts it upon them without any regard to their wish or election ; that for the reasons stated they are not claiming title immediately from the deceased.
To this contention of plaintiffs we cannot agree. The heirs of a deceased person acquire title immediately from such deceased person, within the spirit and meaning of section 322 of the code, and plaintiffs were incompetent to testify in respect to communications had personally with the deceased. . (Rich v. Bowker, 25 Kan. 7; Caeman v. Van Harke, 33 id. 333, 6 Pac. 620.) The court committed no error in excluding this testimony.
Plaintiffs assign as error that the court sustained defendant's demurrer to the evidence. The practice of allowing demurrers to evidence in cases tried to the court the same as in jury cases has been recognized by this court. (Lumber Co. v. Savings Bank, 52 Kan. 410, 34 Pac. 1045.) We have carefully read the record in this case. Upon the question of whether or not the will of Robert Mood had been induced and procured by the fraud and undue influence of defendant, Jane S. Mood, plaintiffs offered the testimony of numerous witnesses. The evidence offered was conflicting. There was some evidence tending to establish the claim of plaintiffs. The trial.court could not, upon demurrer, review the evidence as though the merits of the case had been submitted on the evidence of plaintiffs. We, however, express no opinion as to the effect of the evidence, had the case been submitted on its merits .instead of upon demurrer.
In the case of Wolf v. Washer, 32 Kan. 533, 537, 4 Pac. 1036, Mr. Justice Valentine, upon the question of a demurrer to the evidence in a case tried to the court, said :
“In order to sustain a demurrer to■ the evidence, the court must be able to say, as a matter of law, that the party introducing the evidence has not proved his case ; and the court cannot, upon conflicting and contradictory evidence, say that, as a matter-, of fact, the preponderance of the evidence shows that the party introducing it has not proved his case. If, in the present case,.no demurrer to the evidence had -been interposed, and the case had been submitted to the court upon the evidence introduced, for a decision upon the merits and as- to what the conflicting' and contradictory evidence in fact proved, and the court had decided the case in favor of the defendants and against the plaintiff, the decision in all probability would be right; for in such, a case the court would have weighed the conflicting and contradictory evidence and would have decided the case upon the preponderance of the evidence ; but the court cannot do such a thing where a demurrer to the evidence is interposed, and where the court decides the case as a question of law upon the demurrer.”.
The court committed error in sustaining the demurrer.
On Januaiy 4, 1901, plaintiff Jennie Wehe moved the cpurt to dismiss the action as to her, without prejudice. The motion was overruled.
Section 7957, General Statutes of 1901, provides that an action to contest a will may be brought at any time within two years after the probating of the will by any person interested in the will or in the estate of the deceased. Section 397 of the code (Gen; Stat. 1901, § 4846) provides that an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of -the case to the jury, or to the court where the trial is by the court. The right of plaintiff Jennie Wehe in this case to dismiss without prejudice is fixed by statute, and does not rest in the discretion of the trial court, as suggested by counsel.
Section 36 of the code (Gen. Stat 1901, § 4464) provides a means of bringing into a case as defendants all parties necessary to a complete determination or settlement of the questions involved. There was error in not sustaining the motion of plaintiff to dismiss.
The j udgment below is reversed, with direction to sustain the motion of plaintiffs for a new trial and the motion of plaintiff Jennie Wehe to dismiss.
All the Justices concurring. | [
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The opinion of the court was delivered by
Greene, J. :
The plaintiff sued Wyandotte county on a contract of employment alleged to have been made with her by its board of county commissioners January 8, 1900, to perform services as a clerk in the office of the county clerk at a monthly salary of seventy dollars for one year. To her petition the county pleaded a general denial, and also that at the. time of the alleged employment there was no necessity for the services of plaintiff in said office; that the county clerk appeared before the board of county commissioners and protested against such employment, asserting that he had all the assistance necessary ; and that the commissioners had no authority, over the protest of the county clerk, to enter into the alleged contract of employment. Judgment was for defendant, to reverse which plaintiff prosecutes error.
The fact of employment was not disputed at the trial. It was practically conceded in the pleadings and in the opening statement of counsel, and the evidence on this question was uncontradicted. The litigated question was whether the commissioners had authority, in the absence of any showing that additional assistance was necessary, and over the protest of the county clerk, to enter into the alleged contract of employment and thus bind the county. The answer to this question depends upon whether the legislature, by chapter 117, Laws of 1899, gave them such authority. This chapter reads :
“That the county commissioners of Wyandotte county, Kansas, be and are hereby authorized to hire help and pay for the same in the various county offices of said county, namely, county attorney, county treasurer, clerk of the district court, clerk of the court of common pleas, probate judge, sheriff and county clerk of said county, when in their judgment they deem the same necessary.”
Language could hardly be more expressive of an intention to confer such power, and its exercise is not made to depend upon the request or objection of the occupant of the office. In determining the necessity and whether they will employ such help, the commissioners are not confined in their investigation to knowledge acquired from the holder of the office, but may act upon information derived from any source. In the absence of fraud or collusion their determination cannot be made the • subject of investigation by a court. (Comm’rs of Harper Co. v. The State, ex rel., 47 Kan. 283, 27 Pac. 997 ; Symns v. Graves, 65 id. 628, 70 Pac. 591.)
Plaintiff contends that the court erred in giving the following instruction :
“Under the law of this state the county clerk has the right to appoint deputies, and those deputies may be of his 6wn choosing. • There is another law of this •state which gives the board of county commissioners the right to employ clerks in certain offices of this county, among which is the office of county clerk. The ground on which the authority is given to ¿he board of county commissioners to employ a clerk in the office of the county clerk is when, in their judgment, they deem the same necessary. Without the exercise of such judgment they can make no valid employment. This judgment cannot be exercised in any capricious or unnecessary manner. It must be the result of careful investigation^ from which they arrive at the conclusion that the needs of'the office are such that the employment of a clerk is necessary. So that, in this case, if you believe from the evidence that the defendant board of county commissioners, at the time they passed the resolution employing the plaintiff to work in the office of the county clerk, deemed that her services in such office were necessary, and that they did not employ her from any capricious motive, but exercised a fair judgment as to the necessity of clerical help in the county clerk’s office, and that they did not employ her solely on the belief that the county clerk intended to appoint her as one of his deputies, but from the necessity of clerical help in the county clerk’s office as it appeared to them, if it did so appear; then the plaintiff is entitled to recover judgment against the defendant, and in such case she is entitled to recover compensation for. the sum of $70 per month, for a period of one year from the 8th day of January, 1900, with interest thereon at the rate of six per cent, per annum from the time the several amounts become due, less such sum as, by reasonable efforts upon her part, she has been able to earn within that time.”
We think her contention in this respect must be sustained. The only questions to be determined in this litigation were, Did the commissioners employ the plaintiff as alleged in her petition, and if so, did she perform the services for which she was employed? Or, if not, did she at all times hold herself in readiness so to perform them?
Whether the commissioners employed plaintiff out of caprice, or did not exercise a fair judgment in her employment, or whether her services were actually necessary in the office of the county clerk, are not questions that she must litigate before recovery can be had on the contract. These are all matters within the exclusive knowledge of the commissioners, and she was not required to investigate and inform herself upon such questions before accepting employment. The commissioners were the legal representatives of the county, with authority to employ such help, and the plaintiff could well assume, and rely upon the assumption, that they were performing their duty. Having entered into the contract, they will not now be heard to say that they did not at the time deem her services necessary, or that they were acting capriciously, or did not exercise their best judgment. So long as there was no collusion or bad faith attributable to either party, the contract of employment, if made by the commissioners, is binding upon the county.
The rights of the county clerk, in case the county commissioners should undertake to force upon him assistance which was objectionable to him, are not involved in this controversy.
The judgment of the court below is reversed, and the cause remanded for further proceedings.
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The opinion of the court was delivered by
Johnston, C. J. :
B. F. Blaker & Co. recovered a judgment against the Kansas City, Fort Scott & Memphis Railroad Company for the destruction of their .umber-yard at Fontana by fire alleged to have beenl negligently started by an old and defective engine which the railroad company was operating. The fire started on the roof of an elevator owned by B. F. Blaker & Co., which was situated on the right of way of the railroad company, and had been placed there under a lease which had been renewed several times. The lease under which possession was held when the fire occurred, among other things, provided :
“ Said second parties agree to use the above-described property for elevator and warehouse only, said premises and all buildings thereon to be used conjunctively for the purpose of receiving, storing and holding freight and property received or transported over lines of party of the first part.”
There was a further provision in the lease that the railroad company—
“shall not be held liable for any loss or damage by fire communicated either by sparks from locomotives or otherwise to any property erected or stored upon said rented premises.”
Aside from the elevator, the fire destroyed lumber sheds and other structures wholly or partly on the right of way, but on account of the provision in the lease above mentioned no recovery was sought or given for the destruction of property situated on the right of way. The lumber-yard, including structures and material, was insured in the Lumbermen’s Exchange, a mutual insurance company, to the extent of $3000. After the fire that company paid B. F. Blaker &Co., as indemnity, $2980. An agreement was made between the insurance company and B. F. Blaker & Co. that the latter should bring an action in their own names and prosecute it to judgment, and of the amount recovered the insurance company should get three-fourths and the firm the remaining one-fourth. In the pleadings and at the trial the railroad company insisted that the Lumbermen’s Exchange 'was the real party in interest, but it was not made a party, and the action was prosecuted to judgment by B. F. Blaker & Co. alone, who were awarded by the jury $3000 as damages, and there was a further award of $400 as attorney’s fees.
It is contended here that the evidence did not establish a right of action in B. F. Blaker & Co., and that the court erred in not sustaining the railroad company’s demurrer to the evidence, fact t]ie insurance company was
not a party plaintiff is the principal ground of this contention. The claim is that as the insurance company had paid the greater part of the loss it was a proper party, and, in fact, the only real party in interest in the result of the action. This question has already received the consideration of the court and sanction has been given to the rule that where the value of the property destroyed exceeds the insurance money paid the action must be brought in the name of the owner and not in the name of the insurance company. (Railroad Co. v. Insurance Co., 59 Kan. 432, 53 Pac. 459.) The rule proceeds on the theory that the insured sustains toward the insurer the relation of trustee, and is well supported by the authorities. (Norwich Union Fire Ins. Soc. v. Standard Oil Co., 59 Fed. 984, 8 C. C. A. 433; Ætna Insurance Co. v. Hannibal & St. Joseph R. R. Co., 3 Dill. [C. C.] 1, Fed. Cas. No. 96; London Assurance Company v. Sainsbury, 3 Doug. 245; Rockingham Mut. Fire Ins. Co. v. Bosher, 39 Me. 253, 63 Am. Dec. 618 ; Hart v. Railroad Corp., 13 Metc. 99, 46 Am. Dec. 719 ; Conn. Mutual Life Ins. Co. v. N. Y. & N. H. R. R. Co., 25 Conn. 265, 65 Am. Dec. 571; St. Louis &c. Railway v. Commercial Ins. Co., 189 U. S. 223, 11 Sup. Ct. 554, 35 L. Ed. 154; Marine Ins. Co. v. St. Louis, I. M. & S. Ry. Co., 41 Fed. [C.C.] 643.) The rule stated is applicable here, as' the value of the property destroyed exceeded the amount paid by the insurance company. In addition to the rule of law which holds the insured in such cases chargeable as trustee, there was a specific agreement between the insured and the insurance company that the former should act and account in the capacity of a trustee to the insurance company, and the recovery would necessarily conclude both parties and effectively bar any other or further recovery against the railroad company for the loss.
It is next contended that no liability exists because the fire was communicated from the elevator to other structures not rightly on the right of way, and thus carried along to property not on the right of way. There was, as we have seen, a provision in the lease exempting the company from loss by fire of property situated on the rented premises. This exemption was not a license> however, negligently to set out fires which might burn the ele.vator and pass over 0f way destroying other property. B. F. Blaker & Co. assumed the risk of destruction by fire of property on the right of way which was rented and nothing more. There was no release from liability for the negligent destruction of other property, although it may have been connected with that situated on the right of way. It is not necessary to a recovery that the fire should have been directly communicated to the property destroyed, nor will the fact that the fire passed over intervening land in order to reach that destroyed prevent a recovery. It was a continuous fire, negligently set out by the railroad company, as the testimony of the plaintiff below tends to show, and, under the authorities, appears to have been the proximate cause of the loss for which the action was brought. (A. T. & Santa Fe Rld. Co. v. Stanford, 12 Kan. 354, 15 Am. Rep. 362; A. T. & Santa Fe Rld. Co. v. Bales, 16 id. 252. See, also, Rutherford v. Wabash R. R. Co., 147 Mo. 441, 48 S. W. 921.) The other buildings near to or connected with the elevator cannot be regarded as an intervening and independent cause of the injury.
There is a claim that as there was a provision in the lease that the lessee should use the premises for elevator and warehouses only, the maintaining thereon of other structures, like ° lumber sheds, was unwarranted and to some extent contributed to the injury. The lumber sheds and some other structures wholly or partly on the right of way may not have been warehouses in the strict sense of that term, but the parties to the lease had given practical interpretation to the term and had treated these structures as proper' appurtenances. Most if not all of them were on the right of way when the lease was executed and materials shipped over the railroad had been previously stored in them. Aside from that, their existence and location were recognized in the lease itself where it w.as—
‘ ‘ agreed by parties of the first part that they will at all times leave open and unobstructed, for the passage of wagons and vehicles, a strip of ground sixteen feet wide between their elevator and lumber sheds, parallel with main track of said railroad.”
The lumber sheds referred to were manifestly located on the right of way, and the parties contemplated that they should remain there and be used for the purpose of storing lumber and other material shipped over the railroad. If there had been no such express recognition of the lease, but the structures had been placed or maintained on the right of way with the consent of the company, and from them the fire was communicated to the other property, it would not constitute contributory negligence on the part of the lessees, nor deprive them of the remedy given by law for losses to property not on the right of way, the proximate cause of which was the negligence of the railroad company. (Sherman v. M. C. R. R. Co., 86 Me. 422, 30 Atl. 69; G. Trunk R. R. Co. v. Richardson et al., 91 U. S. 454, 23 L. Ed. 356; 13 A. & E. Encycl. of L., 2d ed., 487.)
It is contended that the evidence of negligence of the railroad company in setting out the fire was insufficient and that some of that received was incompetent. It was mainly circumstantial, but we deem it to have been sufficient to support the verdict. A heavy freight-train passed the buildings destroyed .. . „ _ n _. _ shortly before the fire was discovered. It was running rapidly, working steam, and leaving a trail of smoke behind it. Within a few minutes after it passed persons in the neighborhood saw a patch of fire on the roof of the elevator. No fire was kept in. the elevator at the time, as it had been locked up for two weeks before the fire occurred. The wind was blowing from the railroad-track toward the elevator. As far as the testimony goes, no one saw sparks proceeding from the engine and lighting on the building, but there was nothing in the testimony to show that the fire could have arisen from any other source, and the facts recited, in the absence of proof of any other cause, tend to show that the fire was caused by the sparks from the engine, and whether the fire so originated was a proper question for the •jury. The effect of circumstantial evidence of this character was before the court in the recent case of Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876. After a full consideration and a review of the authorities, it was there held :
“The fact that soon after the passing of an engine a fire starts near a railway-track in an enclosed field, ■covered at the time with a growth of highly inflammable vegetation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders or was put to special exertion, and without further proof excluding other possible origins.”
A witness who had been a locomotive engineer for sixteen years was introduced to prove the character aQcl 0PeFaii°n of spark-arresters. After describing them, he stated, in answer to an inquiry, that a spark-arrester m first-class condition would prevent the escape from the engine of sparks or fire that would ignite property on the right of way. There was no objection to this testimony on the ground that the witness was not qualified to testify on the subject, but it was that the testimony was upon an ultimate fact which it was the duty of the jury to determine. The witness was qualified, and the testimony related to a matter which is the subject of expert testimony and one which inexperienced persons are not likely to understand. The operation of a spark-arrester and its effect in arresting sparks and cinders passing through it, as well as the length of time, that they would continue to burn, could be intelligently told by witnesses who had had special advantages and opportunities for observing the operations of engines and the effect of sparks issuing from engines equipped with the different kinds of spark-arresters. Tlie opinion, based as it was on experience and observation, was not an ultimate issue in the case, but was an important consideration in the determination of an ultimate issue and was properly admitted.
The case appears to have been fairly submitted to the jury, and although some of the rulings on the instructions are criticized, we find nothing in them which warrants special comment. What has already been said answers most of the objections which were made to the rulings of the court in charging the jury, and we see nothing in them or in other rulings which would warrant us in disturbing the verdict of the jury.
The judgment of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
JohnstoN, C. J. :
The First National Bank of Con-cordia brought an action against Henry Pinney to recover on two promissory notes, each for the sum of $144, payable to the order of W.S. James, and indorsed by him to the bank. In his answer Pinney set up three grounds of defense. The first was a general denial, and the second alleged :
“That he executed the notes; that he signed and delivered the same to the payee, W. S. James. He says, however, that the consideration thereof was the sale and transfer to him of a certain patent-right, to wit: The right to manufacture, use and sell for use in certain territory in this state, for the term of two years, to wit, in Shawnee county exclusively, and in other counties to wit, Jewell, Mitchell, Ottawa, Cloud, Clay, Republic and Washington, jointly with others, a certain window-lock or fastener known as the ‘James window-lock,’ for which the said W- S. James had obtained letters patent, No. 629,446, issued July 25, 1899. That said sale and transfer took place in this county and state, to wit, Cloud county, Kansas ; that although the said James had filed with the clerk of the district court of this county a copy of said letters patent, and also filed with said clerk an affidavit stating that said letters were genuine and had not been revoked and that he had full authority to sell or barter the same, which affidavit also set forth his occupation and residence, and the residence of his so-called principal, the James Lock Company, the said James and the said James Lock Company being-one and the same, however, yet the said James did not, nor did any one, insert in said notes, or either of them, the words “given for a patent-right,” and the said notes were taken by the said James in violation of the law of this state, without consideration, and are illegal and void wheresoever and in whosoever hands they may be. And said defendant says that plaintiff did not purchase said notes, in good faith for a valu able consideration in the usual course of trade, but purchased them well knowing at the time that they were given for a patent-right and all of the facts and circumstances under which they were given.”
The third defense averred that there was an absence of novelty in the patent and hence a lack of validity.
The trial court, on motion of the bank, required Pinney to amend his answer- and state whether the contract transferring the patent-right was oral or in writing, and, if in writing, to set out a copy of the same. In pursuance of this order the defendant filed a statement alleging that the sale was an oral transaction, but that a writing was executed for the purpose of making it appear that the sale was of something else than a patent-right. He averred, however, that it was a mere subterfuge to avoid the penalty of the statutes of the state; that the writing did not serve its purpose, as it appeared from the writing itself that the transaction was the sale and transfer of a patent-right. He alleged that the writing had been accidentally destroyed by fire, and that it was impossible for him to produce it, or a copy of the same.
A demurrer to the answer, on the ground that it did not state a defense, was sustained. Subsequently the court set aside its order and then sustained the demurrer, except as to the third count of the answer, and as to that defense • the demurrer was overruled and time was given to reply. ' Later' the defendant asked and obtained leave to withdraw the third count of the answer and the court then sustained a demurrer, holding that the remaining counts did not state a defense, and, the defendant electing to stand on the ruling of the court, judgment was given in favor of plaintiff.
Pinney comes here with a transcript of the record, alleging error, and the bank challenges the record and insists that the transcript is incomplete and therefore not open to our consideration. The certificate of the clerk attached to. the transcript is in approved form and states that it is a full, true and correct transcript. It is said, however, that the record itself shows that it is incomplete in not including the demurrer to the answer which was filed after the withdrawal of the third count. Only one demurrer appears in the record, and that seems to have been filed on March 29, 1902, and was sustained on April 1 of that year. On September 25, 1902, the court appears to have considered a demurrer to the answer after the third" count had been eliminated, but if a second demurrer was filed it has been omitted from the record. Some language in the record indicates that the sufficiency of the answer was tested by a second demurrer, and if it were satisfactorily shown on the face of the record that such a pleading was filed and not included in the record, it would impeach the certificate and we could not review the case. However, there is an entry in the record which seems to confirm the certificate and tends to show that but one demurrer was actually filed. After reciting the withdrawal of the third count on September 25, 1902, the journal entry proceeds to state that defendant “elects to stand on the order of this court of April 1, 1902, sustaining the demurrer to his answer,” and the court thereupon rendered judgment on the notes. This would indicate that a second demurrer was not in fact filed, but that counsel and court adopted the first demurrer in testing the sufficiency of the answer after it had been amended by striking out the third count. We must, therefore, assume that the transcript is complete and examine the case on its merits.
Does the omission from the notes of the words-“given for a patent-right” render them illegal and prevent a recovery thereon ? The statute provides :
“Any person who may take any obligation in writing for which any patent-right, or right claimed by him or her to be a patent-right, shall form a whole or any part of the consideration, shall, before it is signed by the maker or makers, insert in the body of said-written obligation, above the signature of said maker or makers, in legible writing or print, the words,, ‘given for a patent-right.'” (Gen. Stat. 1901, §4357 • Laws 1889, ch. 182, §2.)
Non-compliance with this and other provisions of the act is made a misdemeanor, the penalty of which is a fine not exceeding $1000 or imprisonment in the-county jail not more than six months. In Mason v. McLeod, 57 Kan. 105, 45 Pac. 76, 41 L. R. A. 548, 57 Am. St. Rep. 327, the validity of this act was sustained, and it was held that contracts made by a vendor of patent-rights in violation of the act are void as between the parties.
It is contended in behalf of the bank that the answer discloses that there was no transfer of a' patent-right, within the meaning of the statute; that the contract, pleaded is the transfer of a license and not of a.patent-right and that the statute does not cover a mere license from a patentee. Again, it is said that, under the-United States law (3 Comp. Stat. U. S. 1901, §4898),, the assignment of a patent or any interest therein must be in writing, and if that which was undertaken to be transferred was a patent-right it was ineffectual because the contract of transfer was not in writing.
The pleader does not make himself very clear as to the nature of the transaction. In one part of the amended answer he speaks of it as an oral transfer, and in a later part he says that a writeing was ex- cuted between them which was intended to cover up the nature of the transaction, but that it appeared by the writing itself and upon its face that the transaction was the sale and transfer of a patent-right. In view, of this averment it cannot well be said that the contract was not in writing. Although questioned by the bank, the answer, fairly shows that the interest which the patentee undertook to transfer was a patent-right,, or an interest therein. According to the answer, the interest transferred was the right to manufacture, use ánd sell for use a certain patented invention, in prescribed territory for a fixed time'. As to part of the territory the right was given to be exercised jointly with others, but. an exclusive right was given to Shawnee county, Kansas, and to that extent, • ¿t least, the purchaser was given an. interest in the patent, good not only against strangers, but. against the patentee himself.. Such a transfer, if established by proof, must be held to constitute a sale- of a patent-right within the meaning of our statute relating to the registration and sale of patent-rights. (New v. Walker, 108 Ind. 365, 9 N. E. 386, 58 Am. Rep. 40.)
That the transfer was .not in writing, if it be a fact, • may not be very important so far as this transaction is concerned. The federal act on the subject, which provides that every patent or interest in a patent shall be assignable in law by a writing and be recorded, relates mainly to the matter of notice to purchasers and is intended, for the protection of those subsequently acquiring an interest in the invention. A writing is, provided in order that it may be a matter of record, and the record so made only goes to the matter of notice to those who subsequently may become-interested in the monopoly or invention. While an assignment in writing and the recording of the same are necessary to the transfer of the legal title, binding upon all, it has been held that .a verbal assignment is good between the parties and passes an equitable title, and that the fail-; ure to record an assignment is not material as betwee'h the parties and those having actual knowledge of the transfer. (Burke v. Partridge, 58 N. H. 349; Blakeney v. Goode, 30 Ohio St. 350; Spears v. Willis, 151 N. Y, 443, 45 N. E. 849; 2 Rob. Pat. § 784; 22 A. & E, Encycl. of L., 2d ed., 418.)
In this case it is specifically alleged that the bank was not a bona fide purchaser of the paper, but had actual knowledge that the notes were given for. a paG ent-right, and also of all the facts and circumstances under which they were given. Here, however, the kind of title conveyed is not the real point in contro? versy, nor is it very material at this time whether the transfer was a grant, an assignment, or a license. The answer alleges that, it was a .patent-right which wa§ transferred ;, but, even if it does not amount in law tq a patent-right, the requirements o.f the statute must be complied with whether that which is sold is a patent-right or is only claimed by the vendor .to be a patent-right. A note, or obligation taken for what is claimed to be a patent-right, although it may not constitute one, must have the words. ‘‘ given for a patent-right,” inserted therein the same as if a valid patent-right formed the whole or a part of the con? sideration. (Gen. Stat. 1901, §4357 ; Laws 1889, ch. 182; §2.) '
It is finally contended that non-compliance with the statute, in omitting from the notes the words “ given for a patent-right,” did not-render them void, for the reason that the consideration for the notes is not bad in itself, and further, that the statute does not so.deT clare. It is true the statute does not in express terms provide that the omission to state in a note or obligation that a transfer of a patent-right-forms its consideration shall render it void. It does, however, specifically provide that non-compliance with the statute in this respect shall constitute a misdemeanor, and upon conviction the person violating the law may be fined as much as $1000 or be imprisoned in the county jail as long as six months. In determining whether a contract made in violation of a law is legal ■or illegal the test is the intention of the legislature. As was said in Mason v. McLeod, supra, the imposition of a punishment for the violation of a statute implies a prohibition, and contracts made by a vendor of patent-rights in violation of the act are void as between the parties and those having actual knowledge of the violation. In 15 A. & E. Encycl. of L., 2d ed., 939, it is laid down as an accepted rule that “where the statute expressly provides that a violation thereof shall be a 'misdemeanor, it would seem clear that it was the intention of the legislature to render illegal contracts violating such statute.”
It is the settled doctrine of the common law that contracts intended to prohibit the doing of things forbidden by law, and made in violation of a penal statute, are void, and this is so although the statute may not expressly so declare, but only inflicts punishment upon the persons doing the act in violation of its provisions. (Chit. Contr., 10th Am. ed., 764-768; Dillon & Palmer v. Allen, 46 Iowa, 299, 26 Am. Rep. 145.) The supreme court of Indiana, in interpreting a law respecting the sale of patent-rights, has also held that on a contract, the making of which is punishable by statute by the imposition of a penalty, there can be no recovery, although such statute does not in express terms prohibit the contract nor pronounce it void. (Sandage et al. v. The Studebaker Bros. Manufacturing Co., 142 Ind. 148, 41 N. E. 380, 34 L. R. A. 363, 51 Am. St. Rep. 165. See, also, Woods v. Armstrong, 25 Am. Rep. 671, and authorities collected in note; The Winchester Electric Light Company et al. v. Veal, 145 Ind. 506, 41 N. E. 334; New v. Walker, 108 id. 365, 9 N. E. 386, 58 Am. Rep. 40.)
The taking of the notes as alleged was a crime in itself, and it would hardly do to allow the party committing the offense to maintain an action on the obligations so criminally taken. No rights can be acquired by persons who so violate a penal statute, nor by those who know that the act on which they ground their claim was done in violation of law.
We think the demurrer to the answer should have been overruled, and therefore the judgment of the district court is reversed, and the cause remanded with directions to overrule the demurrer and proceed with the cause.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
On March 15, 1894, Stewart Brothers sold to the Bank of the Indian Territory, for $206.66, a warrant for $266.66, which had been issued to them by Noble county, Oklahoma, a short time before. The bank held the warrant about three years and then brought action upon it against the county. In this action the warrant was held to be fraudulent and void because issued to make up the difference between the face value and the market value of a warrant issued to Stewart Brothers for the full amount due them upon a contract to build three jail cells. On July 20, 1900, the bank brought an action against Stewart Brothers for the amount it had paid for the warrant, and recovered judgment, which the defendants seek by this proceeding to reverse.
The only question which it is necessary to determine is whether the action was barred by the statute of limitations. The theory of plaintiffs in error is that a cause of action accrued, if at all, immediately upon the sale of the warrant, and that the statute then began to run. If this is correct, the judgment must be reversed. The claim of defendant in error is that the operation of the statute of limitations did not begin until the bank received notice of the invalidity of the warrant', by the filing of the answer in June, 1900, in the action brought against the county. It contends that up to (hat time the facts which rendered the warrant void had been fraudulently concealed by defendants. This contention is based upon the fact that the warrant, upon its face, purported to have been issued “on account of jail cells for county and costs,” and that it was issued upon a verified account, the corresponding item of which was the sum of $266.66, charged for “freight and costs of erecting in place,” referring to the jail cells.
It may be sufficient to say that this case falls within the rule announced in Railway Co. v. Grain Co., ante, page 585, 75 Pac. 105. But the doctrine of that case need not be invoked to determine this. The evidence, so far as it affects the question under discussion, was all in writing, and deductions are to be made from it by this court independently of the conclusions reached by the trial court. There is no claim of any oral misrepresentation made by defendants to effect the sale of the warrant, or of any fraud or concealment, except such as may be implied from the facts already stated as to the purported consideration for the warrant shown by its own recital and by the voucher upon which it was issued. ' The testimony of the defendants contains an explanation of these facts that is entirely consistent with actual good faith on théir part. There being nothing to contradict -this testimony, it must be given some effect. It is, in substance, that defendants made a written contract with Noble county to erect jail cells-and a corridor for the county jail for $2450 cash, or its equivalent in county warrants at their market value ; that before the completion of the work it was stopped by an injunction; that upon the dissolution of the injunction the county commissioners decided to issue to the contractors warrants for the contract price, including the discount to which the warrants were subject on the market, less the equivalent of $200 in cash, which was to, be held until the full completion of the contract, as a guaranty of such completion and of the payment of freight bills; that the warrants were, subject to a discount of twenty-five per cent.. The voucher or verified account, presented to the county, was made up of three items : First, the full contract price, $2450 ; second, the “cash equivalent in warrant at market value,” $550; third, “freight and cost of erecting in place,$266.66.
This distribution of the amounts corroborates the statement of defendants that the $266.66 item was separated from the others as the equivalent of'$200 in cash, representing either an estimate of the freight and the cost of completing the work, or a sum deemed security against any default of the contractor as to these •matters. It is true that this amount seems to have been carved out of the allowance made to cover the discount, and that all warrants issued upon the contract in excess of $2450 were necessarily void under the statute forbidding the allowance upon any demand of more than the amount due thereon, dollar for dollar. But there was no actual fraud or concealment on the part of defendants. Except as they might be held accountable for the language of the voucher, they were not shown to have had anything to do with the wording of the warrant. The plaintiff did not" see the voucher before buying the warrant and could not have been misled by its language if it had seen it. The very fact that it made a charge, in terms covering the discount to which warrants were subject on the market, and included in one item the full amount of the contract price, conclusively shows that, however unlawful the proceeding may have been, the voucher was not framed with the intention of misleading the county board or any one else. We conclude that no such fraudulent concealment was shown as to toll the statute of limitations, upon any theory of the law, and that the claim sued upon was therefore barred" prior to the commencement of the action.
The judgment is reversed, and the cause remanded ■for further proceedidgs in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Burch, J. :
A workman in an ice and cold-storage plant was injured by the falling of a hoisting-crane, which it was his duty to operate, from a beam supporting it some distance above his head. In an action for damages against his employers, the proprietors of the plant, for the injuries received, the workman alleged and proved a number of causes for the accident, any one of which was sufficient to account for it. The issues in the case were partially covered by special findings of fact returned by the jury, as follows :
“Ques. 1. Had not this particular crane been used for about fourteen years immediately prior .to the accident? Ans. Yes, with some changes.
“Q,. 2. Did not the defendants use that care which a reasonably prudent person would have exercised to have the crane with which the plaintiff was working at the time of the accident on October 2, 1901, in a reasonably safe condition ? A. No.
“Q,. 3. Was not the crane which fell on Lewis replaced on the same tracks soon after the accident to Lewis, and on the same night, and used in'that, same condition for several months after October 2, 1901, by other employees of defendants? A. Yes, with some repairs.
“Q,. 4; Prior to October 2, 1901, had the crane ever fallen off of the beams on which it was moved? A. No.
“Q,. 5. If the last question is answered in the affirmative, state when it was. A. -.
“Q,. 6. Was the crane, on the night of October 2, 1901, in an unsafe condition, if handled or moved with ordinary care ? A. Yes.
“ Q. 7. If you answer the last question in the affirmative, did the defendant know the crane was in an unsafe condition at or immediately prior to the accident to Lewis? A. Yes.
“ Q,. 8. Was it not the duty of Lewis to manage and control the moving of the crane without the aid or assistance of any other person ? A. Yes.
“Q. 9. Was not Lewis equally as competent as defendants to judge of the risks or probability of the crane falling ? A. No.
“Q. 10. Had not Lewis worked with the crane several weeks immediately prior to October 2, 1901? A. Yes.
“Q,. 11. Prior to October 2,1901, did the crane work properly while Lewis was operating it ? A. Yes.
“Q,. 12. Did not the plaintiff, Lewis, when working with the crane, have an opportunity of observing or noticing its condition ? A. Yes.
“Q. 13. What caused the crane to fall on Lewis? A. No direct evidence to show what caused it.
“Q,. 14. Did not the plaintiff, Lewis, on the night of 'October 2, 1901, have as good an opportunity as the defendants to judge of the probability of the crane falling on him ? A. Yes.
“Q,. 15. Was the injury to plaintiff the result of an accident occurring without the negligence of plaintiff or defendants ? A. Without the negligence of the plaintiff. ’ ’
The jury also returned a general verdict for the plaintiff, upon which judgment was entered. A motion for a new trial was filed by the defendants, and then withdrawn. They then filed a motion for judgment in their favor upon the special findings, which was overruled, and upon that ruling alone error is predicated.
It is contended that because the findings show a long-continued use of the crane, and that it had worked properly for several weeks before the acóident, the defendants had no reason to anticipate a casualty would occur, and, hence, that actionable negligence does not appear. Much evidence in the case, however, established the fact that the crane was in a defective and dangerous condition, as shown by find ing No. 6, and that though, prior to October 2, 1901, the crane had never- fallen off the beams supporting it, as stated in finding No. 4, it frequently came off the tracks upon which it ran, and only by slender means was prevented from falling entirely down. Though the crane had been used a long time, it was with changes, and though replaced after the accident, it was with repairs. Findings numbered 1, 3 and 10 are entirely consistent with findings numbered 2, 6, and 7, and do not by any means exclude liability on the part of the plaintiff’s employers.
It is further argued that because it was the plaintiff’s duty to manage and control the movements of the crane without the assistance of any other person, because he had worked with it for a considerable length of time, had an opportunity of observing and noticing its condition, and had an opportunity to judge of the probability of the crane falling on him as soon as did his employers, he assumed the risk of an accident. This argument, however, is fairly answered by finding No. 9, that the plaintiff was not as competent as his employers to judge of the probability of the crane falling or the risk of such an occurrence, and by the case of Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253, which decides that mere knowledge or opportunity of observation is not enough to raise the implication of assumed risk.
Finally, it is insisted that finding No. 13 required the court to enter judgment for the defendants, since negligence must be proved and cannot be presumed or conjectured or surmised. The only witness to the accident was the plaintiff himself, who testified that he did not know how the crane happened to get off the track. There was, therefore, as the jury found, no direct evidence of what caused the injury. This, however, falls far short of saying that there was no evidence whatever to sustain the general verdict. The record contains an abundance of evidence describing defects in the mechanism of the crane and its mounting, owing their existence to the negligence of the defendants, amply sufficient to produce the casualty which did occur. By the general verdict the jury drew the conclusion that one or more of these defects caused the crane to fall. The evidence warranted such conclusion and the jury was authorized to draw it. (Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215; Railroad Co. v. Perry, 65 id. 792, 70 Pac. 876; Railroad Co. v. Blaker, ante, page 244, 75 Pac. 71.)
The finding, therefore, is not inconsistent with the general finding of the verdict.
Under these circumstances, the motion for judgment on the special findings was properly overruled, and the judgment of the district court is affirmed.
All the Justices concurring. | [
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Per Curiam:
The plaintiff brought this action in ejectment, claiming the right of possession under a tax title. The defendant was in possession,- holding under a deed obtained by foreclosure, of a mortgage. The cause was tried upon an agreed statement of facts, from which it appears that the holder of the tax-sale certificates, through which the plaintiff claimed, was a party defendant and appeared in the foreclosure proceeding. A judgment was rendered, barring him and all persons holding under him of all interest in and to the real estate. In this action the defendant recovered.
There is some contention about the sufficiency of the allegations of the petition in the foreclosure action, as against the then holder of the tax-sale certificates. The allegations of the petition in this respect fall within the case of Case v. Bartholow, 21 Kan. 300, and are sufficient.
The other question is, Can the plaintiff in the foreclosure of a mortgage litigate an outstanding, paramount and adverse title ? This question has been answered in the affirmative by this court. (Bradley v. Parkhurst, 20 Kan. 462, and cases there cited; Loan Co. v. Marks, 59 id. 230, 52 Pac. 449, 68 Am. St. Rep. 349.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
JohNSTON, C. J. :
This is a companion case of O’Loughlin v. Overton, immediately preceding, and was brought to enjoin the sale of cattle claimed by Earlie Overton, upon an execution issued on the judgment obtained by John O’Loughlin against Emma Overton as administratrix of the estate of her deceased husband. In his petition for injunction plaintiff alleged a number of grounds of invalidity of the judgment, and, as an additional reason why it was not enforceable, he stated that, after the seizure of the cattle on the original execution and before the issuance of the alias execution on which it was proposed to sell them, the plaintiff instituted an action in replevin to recover from Warner, as sheriff, the cattle proposed to be sold, and that notwithstanding the issuance and service of a summons upon him, and the pendency of the replevin action to try the rights of property in the cattle, the sheriff was still attempting to sell them on execution. It was further alleged that in the event that the sheriff should sell the cattle under the execution, and even if Earlie Overton were successful in the replevin action, the cattle so sold could not be returned to him under the judgment in replevin.
On the hearing to dissolve the temporary injunction the parties stipulated and agreed that in the above-mentioned replevin action the cattle claimed by plaintiff were taken from the sheriff on a writ of replevin; that they were valued at $2650; that the execution creditor, O’Loughlin, gave a redelivery bond in double the alleged value of the cattle, which was approved. But the motion to dissolve the temporary injunction was overruled. Afterward, upon a demurrer of defendant, the court ruled that the plaintiff’s petition did not state facts sufficient to constitute a cause of action, and, the plaintiff electing to stand upon the demurrer, judgment was rendered for the defendant and the cause was dismissed.
If the cattle were taken and held under a writ of replevin they were in custodia legis and necessarily beyond the reach of seizure upon- execution or other process. Being in the custody of the law, the seizure and proposed sale of the property by the sheriff were without validity, and, under the authorities, injunction was a proper remedy to prevent the sale. In McKinney v. Purcell, 28 Kan. 446, it was held that property taken by an officer on a writ of replevin and turned over to an individual upon a redelivery bond is to be deemed in custodia legis and the same as if it had continued in the possession of the officer.
It is contended here that the sale of personal property on the execution cannot be enjoined, for the reason that adequate legal remedies may be employed. The case of Ryan v. Parris, 48 Kan. 765, 30 Pac. 172, is quite closely in point. There property which had been attached was taken-from the sheriff on a writ of replevin, and upon the giving of a redelivery bond the property was returned to him. Later the sheriff undertook to seize and sell the property on an execution that came into his hands after the giving of the redelivery bond. It was held that the property was in the custody of the law and could not be disturbed ox-taken on execution or other process, and, further, that injunction might :be granted to restrain the sale of property so situated.
There is a contention that the averments in the petition with i*espect to the taking of the property by replevin are not sufficiently specific to show that the property was in the custody of the law. The aver- ments are somewhat general, it is true, but the interpretation placed upon the pleading by the admissions; previously made by the parties on the.motion to'dissolve the injunction warranted the court in assuming: that the property had been taken on the writ of re-plevin. This interpretation having been placed on* the pleading before the demurrer was determined',, the court no doubt acted upon it, and after the action* of parties it would hardly do now to say that .the* property was not so treated by the court and counsel'.. Following the authorities cited, it must be held that-at least one ground of action was stated in the petition and that error was committed in sustaining the demurrer.
The motion to dismiss because the case-made- wa$; not served upon a party who did not appear and participate in the proceedings, a‘nd who was represented by the sheriff, is not good. (Gen. Stat. 1901, §5020.)*
For the error mentioned the judgment will be reversed, and the cause remanded for further proceed-— ings.
All the Justices concurring.
Mason, J., not sitting, having been of counsel.. | [
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Per Curiam:
The damage sustained by the defendants in error did not result from a defective planning of the improvement in the street, but was occasioned by the negligent acts of the agents of the city in carrying out the plan. The case was tried in the court below upon this theory, and the judgment is amply supported by the evidence.
The judgment of the court below will be affirmed. | [
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Per Curiam:
Bradley, Wheeler & Co. commenced an action against W. P. Yancy for the recovery of specific personal property. On a trial before the court, without a jury, special findings of fact and conclusions of law were made. Judgment was entered, pursuant to the conclusions of law, and the defendant prosecutes this proceeding in error.
The chief complaint is that the findings of fact and the judgment are not sustained by the evidence. The opinion of this court is to the contrary. Any fair interpretation of the evidence shows that the court could not have found otherwise than it did. The parties to the Deering company contract conducted themselves under it and settled their differences under it upon the theory adopted by the trial court. The trust-fund theory contended for by plaintiff in error had no application, because none of the Deer-ing funds were or could be traced into the plaintiff’s goods; and in any event, under all the -evidence in the case, the Deering company could not have been an innocent purchaser of the plaintiffs’ goods, under their mortgage.
It is assigned as error that the court wrongfully admitted evidence “included between pages 106 and 297 of the record, at least, all parts of such depositions wherein witnesses testify in regard to statements made to them by H. L. Stevens or through K. Gr. Dun & Co. to them.” This court has other duties to perform than to institute independent searches for error.
■ , It is also claimed that the judgment should be reversed because a deposition was not properly authenticated and certified, and reference is made to page 175 of the record. No certificate whatever is found upon that page, nor upon many pages preceding and following it; hence no opinion can be given on the question raised.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
JOHNSTON, C. J. :
The first contention is that, under" the averments of the petition, the action was barred by the statute of limitations, and that therefore -the demurrer should have been sustained. The note was dated September 1, 1892, and was payable September 1, 1897. According to the date fixed for maturity, the statute would not bar the note until September,. 1902, and this action was brought in May, 1900. The contention, however, is that maturity was accelerated by the stipulations as to the effect of default in Prepayment of interest. The default occurred on March 1, 1893, and it is claimed that the cause of action accrued at that time. The note provided that a default should mature the entire debt, at the option of the holder, while the provision in the mortgage was that a default made the whole^ debt due, regardless of an election by the holder. Which of these provisions-should control? In the absence of an option clause in the note, the stipulation in the mortgage' would have operated to mature the whole debt upon a default, and the mortgagors could have taken advantage of the stipulation. (National Bank v. Peck, 8 Kan. 660.) The stipulation in the note as to default, however, conflicts with that of the mortgage, and, of necessity, the former controls. The note contains the obligations of the mortgagors, and the mortgage, concurrently executed, is an incident to and security for the note. The stipulation in the note must therefore prevail, and unless the holder exercised the option and elected to declare the whole debt due, the statute would not run earlier than the time originally fixed for the maturity of the note. (Hutchinson v. Benedict, 49 Kan. 545, 31 Pac. 147 ; Keys v. Lardner, 55 id. 331, 40 Pac. 644; Wilcox v. Eadie, 65 id. 459, 70 Pac. 338 ; York-Ritchie Co. v. Mitchell, 6 Kan. App. 317, 51 Pac. 57.) As the holder did not exercise the option to declare the whole debt due, the statute did not begin to run until September 1, 1897, and hence the bar was not complete when the action was brought.
The sustaining of the demurrer to the defenses set up in the answer is also assigned as error. The effect of the allegations was that there was fraud in the inception of the note and mortgage, and the verified answer put in issue the averments as to the transfer of the paper. While the defenses were not clearly and tersely stated, they did set forth that the execution was obtained by false representations and fraud. In substance, it was averred that the makers were indebted to one Leighton, who had been represented by Waldo. At the request of Waldo, the Kennedys met him for the purpose of securing an extension of the Leighton debt. Waldo represented that he had authority from Leigh-ton to make the extension and they relied on his representations. When he presented a note and mortgage for execution they noticed that it was made out in favor of Bessette and declined to execute them, as their purpose was to make papers in extension of the old note and mortgage held by Leighton. Waldo then said that Bessette was a partner of Leighton, was interested with him in the old note and mortgage, and that in dealing with him they were in fact dealing with Leighton. On those representations the note and -mortgage in question were executed, but the statements were all false and were fraudulently made, for the purpose of procuring the Kennedys to make the note and- mortgage in question. The .old notes and mortgage were not returned to them, nor were they released, nor was any money or other consideration given them for the notes in suit.
Shortly after the notes were so fraudulently procured, the Kennedys learned that the representations of Waldo were wholly false; that Bessette was not connected with Leighton, but was connected with a bank in which the notes were executed, and, although present when executed, he did not reveal his identity. They at once went to Waldo and Bessette and challenged their fraudulent action, demanded the return of the note and mortgage, and warned them and all parties concerned that on account of the fraud and lack of consideration the note and mortgage were void and would not be paid by them. The averments are to the effect that the note and mortgage were obtained from them by deception and fraud, in the belief that they were extending an indebtedness already existing. This belief was induced by the representations that there was authority from the holder of the debt to extend t'he credit by the execution of the new note and mortgage. These representations were false ; there was no such authority; the old note and mortgage were not surrendered or canceled and the makers received no consideration whatsoever. As the note was obtained by fraud, it devolved upon the holder to show that he received it bona fide, in the usual course of business, and under circumstances which created no presumption that he knew any facts which impeached its validity. (Brook v. Teague, 52 Kan. 119, 34 Pac. 347.)
Having stated facts which, if proved, established fraud in the inception of the note and mortgage, the presumptions in favor of the holder’s right and title were overcome and a defense was made out. To meet such a defense, it will be incumbent on Gibson to show that he or some antecedent holder took the paper before maturity, in good faith, for value, and in the usual course of business. The plaintiff did not acquire the note and mortgage until 1899, long after maturity. Then, again, the allegations of the transfer of the paper before maturity were denied, and there was ah averment that all of the interested parties were warned of the invalidity of the note and mortgage, and that other acts were done tending to show an absence of negligence by the Kennedys. Whatever the facts may be as developed by the testimony, the averments set up in the answer as defenses are sufficient, we think, to repel the demurrer.
The other objections are not material and do not require special attention; but for the errors mentioned the judgment will be reversed and the cause remanded for further proceedings.
All the Justices concurring. | [
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