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The opinion of the court was delivered by
Miller, J.:
This is a direct appeal by Robert L. Singleton from his conviction of charges of aggravated kidnapping, K.S.A. 21-3421, aggravated battery, K.S.A. 21-3414, and unlawful possession of a firearm, K.S.A. 21-4204. He was sentenced to terms of life, not less than five nor more than twenty years, and not less than three nor more than ten years, respectively, all sentences to run concurrently.
Defendant raises two points, one concerning comment by the prosecutor upon defendant’s post-arrest silence, the other concerning jury instructions.
The acts with which defendant was charged and convicted occurred between six and seven o’clock on Sunday morning, June 22, 1975. Defendant was arrested three days later. He was given the Miranda warnings, and thereafter he talked at length with Detective Crisp of the Wichita Police Department. The state did not introduce evidence of this conversation during the presentation of its case-in-chief.
Defendant testified in his own behalf. He gave precise details of his movements from 10:30 o’clock p.m. on Saturday the twenty-first, until 8 o’clock a.m. on Sunday the twenty-second, giving names of persons and places. He said that he was in the Siesta Motel with his girl friend, Mary Jolene Brown, from six to eight o’clock Sunday morning.
On cross-examination he was questioned about differences between his trial testimony and the statements he made to Detective Crisp shortly after his arrest. He responded that it had been so long (nine months) that he didn’t remember what he talked about with Detective Crisp, or what was said. He did say that Detective Crisp had not asked him where he was (during the time the offense was committed) and that he probably would have told Detective Crisp, had he been asked.
Detective Crisp was called by the state as a rebuttal witness. He testified that he interviewed the defendant on June 25, three days after the occurrence. Crisp first advised defendant of his rights. Defendant did not ask for an attorney and gave no indication that he did not want to talk to the officer. Upon being asked to account for his time during the crucial Saturday evening and Sunday morning, he responded that he had been quite active with his work and his hobbies, but he could not tell the officer “exactly what he had done at any particular time three days or four days or two days prior.” Defendant did not mention Mary Brown, did not indicate that he had been at the Siesta Motel, and did not mention the other people and places detailed during his trial testimony.
In closing argument, the prosecutor pointed out the differences between defendant’s statement to the detective and his trial testimony, and emphasized defendant’s failure to remember where he was after three days, and his detailed recollection months later, at the time of trial.
The cases upon which defendant relies are Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240; State v. Mims, 220 Kan. 726, 556 P.2d 387; and State v. Heath, 222 Kan. 50, 563 P.2d 418. These cases hold that it is constitutionally impermissible for the prosecution to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining him as to his silence after arrest and after receiving the Miranda warnings, or by commenting thereon. The rationale for the rule is that one should not be penalized for exercising a constitutional right.
Singleton, however, did not exercise his constitutional right to remain silent. He talked to the officer, responded willingly, and answered all questions asked. At trial, however, he changed and embellished his story, supplying many additional details.
We view this not as an instance where the accused carried on but a limited discussion with the arresting officers, as was the case in Doyle, supra, and in State v. Clark, 223 Kan. 83,_P.2d__ There was no exercise of the right to remain silent, partial or otherwise, by Singleton.
A similar case is Twyman v. State of Oklahoma, 560 F.2d 422 (10th Cir. 1977). The following discussion from that case is particularly apropos:
. . Shortly after surrender, Twyman was advised of his Miranda warnings and informed that he was under investigation for unlawful flight to avoid prosecution for murder. Twyman’s response was to give the F.B.I. agent a detailed accounting of his recent activities, including his association with the murder victim. Twyman also chose to testify at trial where he again gave a purportedly full and detailed accounting of his activities. Twyman thus opened himself up to full cross-examination, the same as any other witness. Under the circumstances presented he waived his right to remain silent. There accordingly was no infringement upon his Fifth Amendment rights when the prosecution cross-examined him regarding omission, in his purportedly complete explanation to the arresting F.B.I. agent, of information regarding procurement of the pistol.” (p. 424.)
We hold that Singleton waived his right to remain silent when he voluntarily answered all of the questions propounded by Detective Crisp. Defendant was thus open to full cross-examination on the same footing as any other witness. The trial court did not err in permitting the state to cross-examine him as to the variance between his statement and his testimony, and as to his failure to give full answers to the detective’s questions. Likewise, the prosecution’s comment thereon was not error.
We turn to the final claim of error. After the parties rested, the trial court instructed the jury. The state then made its opening argument. At that point the trial judge gave the jury one additional instruction, PIK Crim. 54.05, on aiding and abetting. Defense counsel and the prosecutor then concluded their oral arguments.
After the jury had deliberated for about three hours, defense counsel objected to the aiding and abetting instruction on the ground that the court’s timing in giving the argument separately gave it added emphasis. The court overruled the objection. Shortly thereafter the jurors were brought into court in order that the judge might answer a question submitted, and at that time the judge admonished the jury that the aiding and abetting instruction should not be given undue consideration, but should be considered in the same manner as the other twenty instructions which had been given.
K.S.A. 22-3414(3) provides that the judge shall instruct the jury “at the close of the evidence before argument . . .” This comports with our long standing practice in both criminal and civil trials.
Upon the record before us it was error for the judge to give the added instruction after the state concluded its opening argument; however, we hold that the error was not prejudicial. Counsel for the defendant had not yet argued the case when the instruction was given, and thus he had the opportunity to comment on the instruction during his closing argument. The judge very carefully cautioned the jury to place no more emphasis or importance on that instruction, although given out of time, than upon the other instructions. Failure to give it at the usual time was merely an oversight, and the court corrected it at the first opportune time.
Under the evidence, the aiding and abetting instruction was appropriate and germane. The fact that defendant was charged as a principal does not make an aiding and abetting instruction improper; one who counsels, aids or abets in the commission of an offense may be charged, tried and convicted as a principal. K.S.A. 21-3205; State v. Smolin, 221 Kan. 149, 152, 557 P.2d 1241; State v. Pierson, 222 Kan. 498, 565 P.2d 270. We conclude that the giving of the instruction was not prejudicial error, and does not require a reversal.
The judgment is affirmed. | [
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Per Curiam:
This is a negligence action brought to recover damages for personal injuries wherein the jury returned a verdict for the plaintiff-appellee in the amount of $200,000.00.
The plaintiff was a truck driver. On February 22, 1969, he was operating an eighteen-wheel tractor-trailer on a consignment haul for Grainbelt Transportation Company. The shipment was from defendant Interpace Corporation, Kansas City, Kansas, to Tulsa, Oklahoma, and consisted of two concrete tubes weighing a total of 37,000 pounds. On the date of the accident the plaintiff checked all tires for air pressure, adding 3 or 4 pounds per tire to achieve the 90-95 pounds normal pressure. He then went to Grainbelt to pick up his shipment papers and proceeded to the Interpace yards. An Interpace fork-lift operator loaded the tubes onto the trailer without incident. They were placed in cradles and chained down. Plaintiff then proceeded a short distance to a weigh station where he learned that the truck was unevenly loaded with the weight on the rear axles being in excess of the legal limit. He returned to Interpace to have the load moved forward. A different Interpace fork-lift operator assumed this task. In changing the load, the heavier tube dropped onto the flatbed and off the end of the forks. Considerable difficulty was encountered in attempting to place the forks under the tube. In the process the truck itself was pushed sideways by the force from the fork-lift. The truck’s marker lights were broken by the impact from the fork-lift. After the loading plaintiff returned to the service station. At that time plaintiff again checked the tires and noticed an inside tire on the trailer had only 53 pounds of air. He could not get to the valve stem without removing the outside tire. After removing the outside tire he put approximately 20 pounds of air in the inside tire. When he attempted to bring the tire pressure up to 90 pounds the lock ring came off the wheel assembly, struck the plaintiff in the head with great force, and caused severe injury to him. This action resulted therefrom.
The plaintiff contended that the lock ring came off as a result of the negligence of the defendant in the reloading process. The defendant contended that the lock ring came off due to the negligence or contributory negligence of plaintiff in failing to use adequate safeguards. The defendant further contended that it was not negligent, that the risk to plaintiff was not foreseeable, and that the injury was due to equipment failure in the wheel assembly resulting from causes other than any acts of defendant.
On appeal defendant raises a number of claims of error. It contends that it was error to allow the testimony of expert George Forman. This witness is the head of the Mechanical Engineering Department at Kansas University. Mr. Forman listened to the testimony of plaintiff and his brother (a witness to the accident) before he, himself, was called to testify. The lock ring involved was not preserved after the incident. Mr. Forman testified he had examined similar or identical wheel assemblies. Defendant contends that such testimony is in contravention of K.S.A. 60-456(fe) as follows:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the v, itness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
Defendant contends that the testimony should have been excluded as the witness did not see the actual rim and snap ring in question. These items were not available.
“Where the facts and data are not perceived by or personally known by the witness, they must be supplied to the witness so that he is aware of them at the time he testifies. This may be done by having him attend throughout the trial; but it is certainly much more common, and just as proper, for counsel to provide the witness with the factual background prior to the time he expresses his opinion. The facts made known to him and upon which his opinion is based should, of course, be in evidence; as we said in Casey v. Phillips Pipeline Co., [199 Kan. 538, 546, 431 P.2d 518], ‘made known’ as used in K.S.A. 60-456(fi) refers to facts put in evidence. Before stating his opinion, the witness may be examined concerning the data upon which the opinion is founded, if the judge so requires, and upon cross-examination the witness may be required to state the data which he has considered. K.S.A. 60-457, 458.” (Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 6, 574 P.2d 136.)
After carefully reviewing the testimony of the witness we find the court did not abuse its discretion in permitting the testimony.
The defendant next contends that the plaintiff’s injuries were proximately caused by his own negligence and that the plaintiff was contributorily negligent as a matter of law. Defendant claims error in overruling its various motions for summary judgment, directed verdict, etc., on this issue.
Defendant asserts contributory negligence in that the plaintiff was present when the truck was loaded and knew of the jostling and yet failed to take care when inflating the tire. A defense expert said that both tires should have been deflated before either was removed and then put in a safety cage to be inflated.
Plaintiff testified that he had never studied rules for changing tires and that he was not aware of any danger. A rebuttal plaintiff witness testified that drivers did not normally remove the air from tires before putting more in and that cages were used only when tires were first assembled or were being re-inflated after repair.
“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is the legally contributing cause, cooperating with the negligence of the defendant, in bringing about the plaintiff’s harm. It is conduct which falls short of the standard to which a reasonable man should conform in order to protect himself from harm.” (Simpson v. Davis, 219 Kan. 584, Syl. 2, 549 P.2d 950.)
“Mere knowledge of the danger of doing a certain act without full appreciation of the risk involved is not sufficient to preclude a plaintiff from recovery, even though there may be added to the knowledge of danger a comprehension of some risk.
“The question whether a plaintiff is guilty of contributory negligence must be submitted to a jury, if the facts of record are such that reasonable minds, in the exercise of fair and impartial judgment, might reach different conclusions thereon.” (Frevele v. McAloon, 222 Kan. 295, Syl. 6, 7, 564 P.2d 508.)
Defendant relies on Bass v. Firestone Tire and Rubber Co., 497 F.2d 1223 (2nd Cir. 1974), in which a plaintiff was held contributorily negligent when injured by a truck tire he was inflating. The Bass case may be distinguished in that the plaintiff had just assembled the wheel, rather than it having been already on the truck and in use as in the case at hand.
The reasonableness of plaintiff’s actions under the circumstances was a proper question for the jury.
The defendant next claims that the injuries to plaintiff could not have been foreseen by defendant. This point is considered and found to be without merit.
Defendant objects to instructions 16a and 16b and the refusal of the court to give its requested instructions 16 and 17. After a review of the record we find that the court’s instructions were proper and that there was no error in failing to give the requested instructions.
The plaintiff presented substantial competent evidence supporting his claim that his injuries were caused by the defendant’s negligence. The defendant presented substantial competent evidence to the contrary. The jury, as the trier of fact, had the task of weighing the evidence so presented and determining the facts. We find the verdict in favor of plaintiff in the sum of $200,000.00 was supported by substantial competent evidence and will not be disturbed on appeal.
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Pierron, J.;
Monte J. Thompson appeals from his conviction of possession of marijuana and possession of drug paraphernalia after the district court admitted evidence he claims the police obtained based on Ins involuntary consent to search his home. Thompson also claims constitutional reversible error occurred when the State solicited testimony that was prohibited by a pretrial motion to suppress.
On August 28, 2004, Officer Danny Strobbe was attempting to serve a notice to appear to a person at a home in Augusta, Kansas. No one answered the door. Flowever, Strobbe noticed Thompson stick his head out of his front door across the street. Strobbe walked across the street to ask Thompson if he knew where his neighbor was.
While crossing the street, Strobbe saw several people through Thompson’s front door who were inside the living room passing around what Strobbe believed was a marijuana joint. While approaching the front door, Strobbe smelled marijuana, an odor he has had experience with as a detective. Strobbe called for backup.
Officer Chris Jones arrived and also smelled marijuana. Both officers went to the front door and Strobbe knocked. Thompson answered the door, started to step outside, and then tried to shut the wooden door behind him. Strobbe told Thompson to leave the door open, that he could smell burned marijuana, and Thompson needed to stay outside and answer his questions. Thompson confirmed that he and his friends had been smoking marijuana and that the marijuana was in the living room next to the couch. Strobbe asked Thompson for his consent to search the house. Thompson refused. Thompson said he did not understand why the officers needed to search his house since he had already told them where the marijuana was. He also told Strobbe that he did not want to go to jail.
While Strobbe was talking with Thompson, Jones entered the house and stood just inside the front door to watch the three people in the living room for “officer safety” reasons. Jones asked each person to identify themselves, and while in the house noticed the smell of burned marijuana. Casey Thompson, Thompson’s daughter, told Jones that her license was in her room and asked permission to go get it. Jones went with her because the doorway toward the bedrooms was covered by a curtain. Jones saw a used marijuana pipe in Casey’s bedroom. After identifying everyone, Jones stepped back out onto the porch to discuss the situation with Strobbe.
Strobbe told Jones that Thompson admitted having marijuana but refused to give them consent to search the house. Strobbe also told Jones drat Thompson did not want to go to jail. Unsure of how to proceed, Jones contacted the on-call investigation officer. The investigation officer suggested that Jones explain Thompson’s options to him and that if he was willing to be honest and cooperate, that the officers would not take him to jail that night.
Jones asked Thompson if he would be willing to talk with Jones in the patrol car. Thompson agreed and sat down in the front passenger seat. Jones asked Thompson why he did not want the police to search his house; Thompson responded that he did not want to go to jail. Jones promised Thompson that he would not arrest Thompson that night if he cooperated, but Jones did not make any promises about future prosecution. Jones also explained to Thompson that if Thompson refused consent, the officers would apply for a search warrant.
Jones asked Thompson for his consent to search the house when they first got into the patrol car and again after Thompson confirmed with Jones at least two times that Jones would not take him to jail if he cooperated. Thompson eventually consented.
Jones and Strobbe seized the marijuana that Thompson had told them about and several other items. The officers did not arrest Thompson that night. They did not at any time read him his Miranda rights. The State eventually filed charges against Thompson.
Before trial, Thompson moved to suppress the physical evidence and the statements he had made to the police. The district court adopted the facts included in Thompson’s motion, clarifying only that there was insufficient evidence to determine whether the windows of the house were open, and that Strobbe had asked for consent once and Jones had asked for consent twice. The court found that the officers had interrogated Thompson without Mirandizing him and suppressed Thompson’s statements. However, the court did not suppress the physical evidence because it found that Thompson had voluntarily consented to the officers’ search of his house despite being in custody.
At trial, Thompson objected to the admission of each piece of physical evidence and to Strobbe’s statement that Thompson told Strobbe he did not want to go to jail. A jury convicted Thompson of possession of marijuana and misdemeanor possession of drug paraphernalia.
Thompson argues his consent to the search of his home was coerced because the officers created a situation where no reasonable person would have believed he or she could refuse to give consent. Although the State maintains Thompson voluntarily consented to the officers’ search, alternatively it argues that the evidence would have been discovered inevitably.
“In reviewing a district court’s decision regarding suppression, this court reviews die factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]” State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).
When the material facts to a district court’s decision on a motion to suppress evidence are not in dispute, the question of whether to suppress is a question of law over which an appellate court has unlimited review. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
“The Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights generally prohibit the warrantless entry of a person’s home. [Citation omitted.]” Porting, 281 Kan. at 324. Both the federal and state constitutions pro vide that the privacy interest in a person’s home requires special deference and is entitled to unique sensitivity. United States v. Martinez-Fuerte, 428 U.S. 543, 561, 565, 49 L. Ed. 2d 1116, 96 S. Ct. 3074 (1976); State v. Platten, 225 Kan. 764, 769, 594 P.2d 201 (1979); State v. Blair, 31 Kan. App. 2d 202, 206, 62 P.3d 661 (2002).
Moreover, searches conducted without a search warrant are per se unreasonable, subject to a few recognized exceptions. Kansas recognizes voluntary consent as an exception to the warrant requirement. State v. Groshong, 281 Kan. 1050, 1052, 135 P.3d 1186 (2006).
When the district court determines the State was permitted to conduct a search because it had consent to search, an appellate court reviews the holding for substantial competent evidence. The State must prove by a preponderance of the evidence that the consent was voluntarily, intelligently, and knowingly given. State v. Jones, 279 Kan. 71, 77, 106 P.3d 1 (2005). Consent is voluntary if it is the product of free and independent will. See State v. Kermoade, 33 Kan. App. 2d 573, 581, 105 P.3d 730, rev. denied 279 Kan. 1009 (2005). “[Sjubstantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]” State v. Luna, 271 Kan. 573, 575, 24 P.3d 125 (2001).
Here, the district court found Thompson’s consent was voluntary primarily because the court found that sufficient probable cause existed to permit the officers to obtain a search warrant. Because the officers could have secured a warrant, telling Thompson they could apply for a warrant was not a threat and thus, not coercive.
Thompson does not claim that he was seized in violation of his Fourth Amendment rights. His only contention is that he did not voluntarily consent to the search of his home. Thompson relies on Kermoade to establish that his consent was coerced. Thompson claims his facts are similar because, as in Kermoade, the officers threatened that they would get a search warrant if Kermoade did not consent to the search. However, as both the district court and the State point out, Kermoade is factually distinguishable and does not support Thompson’s arguments.
In Kermoade, police seized evidence of a marijuana farm after an unreliable informant told police that his neighbors were growing marijuana. Kermoade refused to consent to a search twice. The police told Kermoade that they would apply for a search warrant and would secure the house until they received the warrant. Although people would be allowed to leave, anyone who stayed would have to be in an officers presence. Kermoade went inside to talk to her husband, Moyer.
While Kermoade was inside, the police claimed to have smelled fresh marijuana while standing on the porch. The officers entered Kermoade’s house and yelled for Kermoade and Moyer to come to the front door. Kermoade, Moyer, and the officers sat in the living room to talk about their options. The officers did not threaten, yell, or tell Kermoade or Moyer that they had to consent. Kermoade and Moyer eventually consented to a search of their house and showed officers the marijuana farm in their basement. The district court suppressed the evidence, holding that the consent was coerced because of the officers’ persistence, the lack of probable cause to justify seizing Kermoade or Moyer, and the officers’ claim of authority that they were absolutely entitled to a search warrant.
A panel of the Court of Appeals affirmed the district court. The appellate court applied a clearly erroneous standard and noted that there was not an intervening break between the Fourth Amendment violation and the consent. 33 Kan. App. 2d at 581-82.
Here, there are two major differences. First, the police had probable cause to believe that a crime was being committed in Thompson’s home. The district court specifically found that, unlike in Kermoade, the officers had sufficient probable cause to obtain a search warrant and were not on a fishing expedition.
The district court also noted that the police conducted their conversation with Thompson outside his home, rather than in his home as in Kennoade. Because the police provided Thompson with his legal options outside Thompson’s home, and they had probable cause to secure a warrant, the court found that the officers’ actions were not coercive. The court noted its decision would have been different if the police had not had probable cause, and explicitly disapproved Jones entering the home without a justifiable legal basis.
The second major difference is that the police seized Kermoade in violation of her Fourth Amendment rights and there was not an intervening event or break in time to remove the taint of the illegal seizure. Here, the police did not illegally seize Thompson. The police may briefly detain an individual when they reasonably suspect that the person is committing or has committed a crime. K.S.A. 22-2402(1). Because probable cause is a higher standard than reasonable suspicion, the officers could detain Thompson after he stepped out of his house to talk with them, and question him about the illegal activity going on in his house. See State v. Riddle, 246 Kan. 277, 281, 788 P.2d 266 (1990) (upholding warrantless arrest where police arrested the defendant when he stepped out of his house and onto the porch at the officer s request; defendant no longer had a reasonable expectation of privacy). Therefore, Thompson was not illegally seized, and the State needed only to prove that Thompson voluntarily consented to the search.
Although there was not an illegal seizure here, car consent search cases identify factors the courts may use to determine whether Thompson’s consent was coerced. See State v. Reason, 263 Kan. 405, 409, 415-16, 951 P.2d 538 (1997) (coercion factors include the number of officers and whether the officers demonstrated authority, used forceful language, or showed their weapons); State v. Ninci, 262 Kan. 21, 32, 936 P.2d 1364 (1997) (factors indicating voluntariness were officer behavior, defendant’s indication of intent to consent, defendant’s education, intoxication); see also Schneckloth v. Bustamonte, 412 U.S. 218, 233-34, 248-49, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (voluntariness to be determined from all the circumstances; burden is on the State).
Repeatedly asking for consent also may be coercive depending on the number of requests in a specific time period. See State v. Garcia, 250 Kan. 310, 317-19, 827 P.2d 727 (1992). In Garcia, the State obtained Garcia’s consent to search his car after they had illegally detained him beyond the time necessary to issue a citation and without any articulable suspicion of criminal activity. Based on the totality of the circumstances, the Supreme Court upheld the district court’s finding that Garcia’s consent was not voluntaiy. 250 Kan. at 316, 319.
Here, there is no indication of how long the police interrogated Thompson before he consented to the search. Unlike Garcia or Kermoade, the police were not on a fishing expedition, but investigating a crime they had witnessed. Additionally, the State is not required to prove an intervening bréale between an illegal seizure and the consent because Thompson was not illegally detained. Finally, even though Thompson consented to the search while sitting in the patrol car, the fact consent is given while in custody is insufficient by itself to demonstrate coercion. See United States v. Watson, 423 U.S. 411, 424, 46 L. Ed. 2d 598, 96 S. Ct. 820 (1976).
The facts do not necessarily demonstrate that the officers created an oppressive environment. The officers did not brandish their weapons, raise their voices, or threaten to harm Thompson. Finally, the officers did not claim they had a right to enter and search his home without his consent.
Conversely, there are facts that could cause a reasonable person to believe that he or she did not have the authority to refuse the officer’s request. First, the negative implication of Jones promising not to take Thompson to jail if he cooperated was that if he refused and the police got a search warrant, Thompson was going to jail.
Additionally, Jones entered Thompson’s house without a warrant or permission for the reasons of officer safety. Yet, there is no evidence that the people in the house posed a threat to the officers, nor is there any evidence that the people in the house attempted to destroy evidence. Also, Jones’ request that Thompson talk to him inside the patrol car seems unusual because although Jones claimed it was for Thompson’s privacy, Jones did not recall seeing any neighbors gathering or watching from their porches. Finally, Thompson refused to give consent at least twice, maybe three times, before finally consenting to the search.
As has been said many times, the touchstone of our analysis under the Fourth Amendment is always the reasonableness, under all the circumstances, of the particular governmental invasion of a citizen’s personal security. The reasonableness depends on a bal anee between the public interest and the individual’s right to personal security free from arbitrary interference by law officers. See State v. Jones, 27 Kan. App. 2d 476, 482, 5 P.3d 1012 (2000), aff'd 270 Kan. 526, 17 P.3d 359 (2001) (citing Pennsylvania v. Mimms, 434 U.S. 106, 54 L. Ed. 2d 331, 98 S. Ct. 330 [1977]).
Where only a minor crime is involved and there are no emergencies requiring immediate police entry, the Fourth Amendment protections of homes should be strictly enforced.
Here, there was only a minor crime involved that did not require immediate police entry into the home, and Thompson had two or three times denied permission for warrantless entry, the consent obtained by the police through continued pressure on Thompson was invalid. See State v. Jones, 24 Kan. App. 2d 405, 947 P.2d 1030 (1997). Therefore the search was in violation of the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights.
However, we believe the evidence can be admitted under the inevitable discovery doctrine. Evidence obtained in violation of the defendant’s constitutional rights may be admitted if the State can prove by a preponderance of evidence an alternative legal basis for the admission of the evidence. See State v. Brown, 245 Kan. 604, 612, 783 P.2d 1278 (1989) (citing Nix v. Williams, 467 U.S. 431, 81 L. Ed. 2d 377, 104 S. Ct. 2501 [1984]).
In Brown, the Kansas Supreme Court upheld the admission of evidence obtained without a warrant. The court held that Brown’s consent was not coerced when officers gave him the option of consenting and being searched at that time or waiting for a warrant, because the officers had sufficient probable cause to obtain the warrant. Brown, 245 Kan. at 613. The court appears to have upheld the admission of the evidence on both grounds. Because there was sufficient probable cause for the police to secure a warrant and they were in the process of obtaining the warrant, the evidence discovered on Brown would have inevitably been discovered. Additionally, because tire police had sufficient probable cause to obtain a warrant, they did not impermissibly threaten him by stating they were applying for a warrant. 245 Kan. at 612-13.
The essential facts in the instant case are similar and require the same result as Brown as regards to inevitable discovery. There was enough probable cause to obtain a search warrant which would have lead to the inevitable discovery of the evidence.
Thompson also argues the district court committed reversible constitutional error by admitting Strobbe’s statement, over Thompson’s objection, that Thompson refused consent and told Strobbe he did not want to go to jail that night. The State denies that the statement was within the pretrial suppression order and even if it was, claims the error was harmless due to the overwhelming evidence of Thompson’s guilt.
“ ‘An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Thus, before an appellate court may declare the error harmless, it must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial.’ [Citation omitted.]” State v. Brown, 280 Kan. 65, 77, 118 P.3d 1273 (2005).
Whether a trial error is harmless or prejudicial requires the court to scrutinize the trial record as a whole and consider the claimed error in light of the entire trial, not as an isolated incident. State v. Abu-Fakher, 274 Kan. 584, 613, 56 P.3d 166 (2002). When there is direct and overwhelming evidence of the defendant’s guilt, such that the admission of erroneously admitted evidence would not have affected the outcome of the trial, then the error is harmless. State v. Hebert, 277 Kan. 61, 96, 82 P.3d 470 (2004).
Here, the district court suppressed “all incriminating statements of admission and location of the drugs made by the defendant following his coming outside his home.” The statement, “I don’t want to go to jail” could be interpreted as being inculpatory, if the jury inferred that Thompson made the statement because he knew there was marijuana in his house. Thus, the statement was within the order and tire district court should have sustained the objection and struck the statement from the record.
But in light of the other evidence, tire statement was harmless error. Both officers testified to smelling marijuana when approaching the home. Strobbe also testified to seeing people inside passing around a hand-rolled cigarette, which he believed to be a joint. Thompson owned the home. Upon searching the home, the officers seized rolling papers that were on top of a skydiving certificate with Thompson’s name on it. The certificate was sitting on top of a trunk which, Strobbe testified, was near where he had seen Thompson sitting. The officers did not find any loose tobacco but did find marijuana. Additionally, the officers seized nine hand-rolled cigarettes, six baggies of green botanical substance, forceps, rolling papers, and a gold pipe. Thompson did not present any evidence.
Considering all of the evidence was found in Thompson’s home and most of it was found near where Strobbe testified Thompson had been sitting, it is direct and overwhelming evidence that Thompson possessed both the marijuana and drug paraphernalia. Although neither officer testified that Thompson was holding any of the illegal items, there were facts that established constructive possession. Jury instruction number 8 correctly defined constructive possession and the factors the jury should consider for finding constructive possession. The district court did not err.
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Pierron, J.:
Via Christi Regional Medical Center and Liberty Mutual Fire Insurance Company, (collectively Via Christi) appeal a workers compensation award in favor of David A. Lleras in light of Lleras’ one-time lump sum distribution of retirement benefits. Via Christi argues the Workers Compensation Board (Board) erred in determining the proper offset amount by allowing Lleras’ retirement benefits to be apportioned over his remaining life expectancy. We affirm.
The facts in this case are not disputed by the parties, and the single issue of law facing the court is a determination of how the offset provision of K.S.A. 44-510(h) in the workers compensation act applies to a one-time lump sum payment of retirement benefits. The factual findings of the Board were as follows:
“The facts are not in dispute. The parties agree that on November 4, 2003, claimant settled his claim with respondent for an April 29, 2003, low back injury. That settlement entitled claimant to receive permanent partial general disability benefits under K.S.A. 44-510e for a five percent whole person functional impairment. Within days of the settlement hearing, on November 7, 2003, respondent eliminated claimant’s position and terminated him.
“The setdement agreement reserved claimant’s right to seek review and modification of his workers compensation award. The parties agree that claimant’s settlement award should be modified to increase claimant’s permanent partial general disability to 38 percent commencing November 7, 2003, when he was terminated.
“The parties also agree that on February 1, 2004, claimant was paid a lump sum retirement benefit of $52,999.21, which netted claimant the sum of $42,399.37 after taxes. The parties agree the retirement benefit was fully funded by respondent.
“At the review and modification hearing, claimant introduced a mortality table from the Pattern Instructions Kansas 3d. Claimant testified he was bom on December 25,1953, and the records of Dr. Philip R. Mills that were introduced into the record indicate claimant is Hispanic.
“The Board is persuaded by claimant’s argument that claimant’s retirement benefits were intended to last him a lifetime. Consequently, the lump sum should be converted to a weekly equivalent amount by dividing the lump sum amount by claimant’s estimated life expectancy. Claimant was 50 years old in February 2004 when he received the lump sum retirement benefit. Accordingly, claimant’s estimated life expectancy at the time he received payment was approximately 28 years, or 1,456 weeks.
“The Board concludes the gross sum of the retirement benefits, or $52,999.21, should be divided by 1,456 weeks, which yields a weekly credit of $36.40. Therefore, the Board affirms the Judge’s finding that claimant’s permanent partial general disability should be increased from five percent to 38 percent as of November 7, 2003, when he was terminated by respondent. Moreover, the Board affirms the Judge’s finding that commencing Februaiy 1, 2004, respondent and its insurance carrier are entitled to receive a retirement credit under K.S.A. 44-501(h) in the sum of $36.40 per week for the retirement benefits if disbursed to claimant in a lump sum.”
Via Christi appeals the ruling.
Via Christi argues the Board erred in applying the offset provision in K.S.A. 44-501(h) to Lleras’ disability award. This case involves pure statutory interpretation. The interpretation of a statute is a question of law over which this court has unlimited review. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).
Special rules apply, however, when considering whether an administrative agency erroneously interpreted or applied the law:
“The interpretation of a statute by an administrative agency charged with the responsibility of enforcing that statute is entitled to judicial deference. This deference is sometimes called the doctrine of operative construction. . . . [I]f there is a rational basis for the agency’s interpretation, it should be upheld on judicial review. . . . [However,] [t]he determination of an administrative body as to questions of law is not conclusive and, while persuasive, is not binding on the courts.” State Dept. of SRS v. Public Employee Relations Board, 249 Kan. 163, 166, 815 P.2d 66 (1991).
See K.S.A. 77-621(c)(4).
Lleras also argues the lack of Kansas precedent involving a similar factual scenario and the uniqueness of the offset language in K.S.A. 44-501(h) compared with jurisdictions makes operative construction even more persuasive.
K.S.A. 44-501(h) provides:
“If the employee is receiving retirement benefits under the federal social security act or retirement benefits from any other retirement system, program or plan which is provided by the employer against which the claim is being made, any compensation benefit payments which the employee is eligible to receive under the workers compensation act for such claim shall be reduced by the weekly equivalent amount of the total amount of all such retirement benefits, less any portion of any such retirement benefit, other than retirement benefits under the federal social security act, that is attributable to payments or contributions made by the employee, but in no event shall the workers compensation benefit be less than the workers compensation benefit payable for the employee’s percentage of functional impairment.”
The court in McIntosh v. Sedgwick County, 34 Kan. App. 2d 684, 123 P.3d 740, aff'd 282 Kan. 636, 147 P.3d 869 (2006), recently provided a helpful look into the legislative intent and policy behind the offset provision in K.S.A. 44-501(h).
“ ‘The purpose of the workers compensation benefit offset under K.S.A. 44-501(h) is to prevent wage-loss duplication. See Wishon v. Cossman, 268 Kan. 99, 107, 991 P.2d 415 (1999); Dickens v. Pizza Co., 266 Kan. 1066, 1070-71, 974 P.2d 601 (1999). Recognizing that an employee experiences only one wage loss and should receive only one wage-loss benefit, the author of 9 Larson’s Workers’ Compensation Law § 157.01 (2002), discusses the impropriety of duplicate wage-loss benefits as follows:
‘Wage-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds, of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the categoiy of legislation applicable. Now if a worker undergoes a period of wage loss due to all three conditions, it does not follow that he or she should receive three sets of benefits simultaneously and thereby recover more than his or her actual wage. The worker is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. This conclusion is inevitable, once it is recognized that workers’ compensation, unemployment compensation, nonoccupational sickness and disability insurance, and old age and survivors’ insurance are all parts of a system based upon a common principle. If this is denied, then all coordination becomes impossible and social legislation becomes a grab-bag of assorted unrelated benefits.’
“K.S.A. 44-501(h) is designed to prevent against wage-loss duplication by reducing the amount of workers compensation benefit payments by the amount of the employee’s weekly equivalent amount of retirement benefits. Retirement benefits, other than federal social security retirement benefits, which can be attributed to the employee’s contributions do not reduce the workers compensation payments. See K.S.A. 44-501(h).” 34 Kan. App. 2d at 689-90.
The offset provision has worked relatively smoothly in many situations under the statute. In State v. McIntosh, 282 Kan. 636, 147 P.3d 869 (2006), the court offset the weekly award by the weekly payments McIntosh received from his social security and state re tirement benefits. In Wishon v. Cossman, 268 Kan. 99, Syl ¶ 5, 991 P.2d 415 (1999), the court held that where an injured worker is receiving a workers compensation award and also social security disability payments which are converted to social security retirement benefits because the recipient has reached age 65, tire workers compensation award is subject to the K.S.A. 44-501(h) offset provision.
In Dickens v. Pizza Co., 266 Kan. 1066, 1070-71, 974 P.2d 601 (1999), Dickens was already receiving retirement benefits. He delivered pizzas to supplement those benefits when he was injured. The Dickens court held that his compensation award was to replace the second wage loss and was not a duplication of the retirement benefits he was already receiving. 266 Kan. at 1071. In Green v. City of Wichita, 26 Kan. App. 2d 53, 977 P.2d 283, rev. denied 267 Kan. 888 (1999), the question was whether an employee’s disability payments from a city-based retirement system constituted “retirement payments” under K.S.A. 44-501(h) and were thus subject to offset. The Green court held they were not. 26 Kan. App 2d 55-57.
In Injured Workers of Kansas v. Franklin, 262 Kan. 840, 942 P.2d 591 (1997), the court upheld the constitutionality of K.S.A. 44-501(h):
“Subsection (h) allows an offset against workers compensation benefits to which an injured worker would otherwise be entitled for each dollar of social security retirement benefits received by tire injured worker, as long as the workers compensation benefits do not dip below the workers compensation benefits payable for the employee’s percentage of functional impairment.” 262 Kan. at 865.
Lleras argues there are four possible ways to interpret the K.S.A. 44-501(h) offset provision in this case: (1) No credit since after a lump sum distribution the claimant is no longer “receiving” retirement benefits; (2) Prorata credit for the year of receipt of a lump sum distribution; (3) Prorata credit based on the number of weeks remaining on the award; and (4) Prorata credit based on the claimant’s remaining life expectancy at the time of the distribution.
Via Christi counters that some of the points argued by Lleras are not properly on appeal due to the lack of a cross-appeal. K.S.A. 60-2103(h) requires an appellee to file a notice of cross-appeal from adverse rulings in order to obtain appellate review of those issues. See Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191-92, 106 P.3d 483 (2005). Via Christi contends, based on the award granted by the Board, it is improper for Lleras to request a remedy: (1) no offset should be given at all since he is no longer receiving retirement benefits or (2) because the Board found the offset provision applies, the offset credit should be based on the net, after tax and after penalty, pension actually received, rather than the pre-tax/pre-penalty balance in the pension fund. We agree that these two issues are not properly before this court and our discussion is limited to the issues raised by Via Christi.
Via Christi argues the administrative law judge and the Board improperly applied a hypothetical set of facts of retirement monies normally paid out in monthly payments upon retirement, instead of facing the reality that Lleras freely chose to have his retirement benefits paid out in one lump sum to obtain the present value of his retirement. Via Christi argues the Board’s decision is illogical and inconsistent because all of Lleras’ retirement money is available now and it would have had more value and more favorable tax treatment if held until proper retirement. Via Christi argues that if the Board is going to use a hypothetical, it should at least use an accurate one and not choose the result that provides the smallest offset and largest net recoveiy for Lleras.
Via Christi cites a previous decision of the Board as persuasive value to help in the court’s determination. In Odle v. Cramer, Inc., Docket No. 206,313, filed October 1998, the claimant had a 50 percent work disability and the Board offset amounts for the claimant’s social security benefits and retirement benefits in the following manner:
“K.S.A. 44-501(h) provides for such an offset when the claimant is receiving retirement benefits under the federal social security act and/or where a plan is provided by the employer. Claimant testified that she began drawing social security retirement benefits when she turned 62 years of age on March 14, 1996, at the rate of $842 per month. This equates to a weekly benefit of $194.31. Claimant’s weekly permanent disability compensation should be reduced by this amount beginning with the week the social security benefits commenced.
“Respondent is also entitled to a reduction for the retirement benefits it provided claimant. Respondent’s human resources coordinator, Linda Collins, testi fied that the pension was totally provided by respondent. There is no evidence to the contrary. Thus, the record establishes that all of the $7,700 retirement benefit claimant rolled over into an IRA was attributable to payments or contributions made by the employer. The maximum number of weeks of permanent total disability benefits that can be awarded is 383.44. This is determined by dividing the weekly compensation rate of $326 into the $125,000 maximum compensation benefit for a permanent total disability award. Dividing 383.44 into $7,700 results is a weekly credit of $20.08. This is the amount by which all weekly compensation benefits will be reduced for the employer provided pension benefits.”
Lleras argues Via Christi’s reliance on the Board’s prior decision in Odie is unreasonable. Lleras argues Odie did not involve a harsh result after application of the offset for a retirement benefit of only $7,700. However, applying Odie to the present case where the retirement benefit is close to $50,000 demonstrates an extremely harsh result if the retirement offset is applied at a pro rata amount over the remaining weeks of a claimant’s work disability payments as opposed to claimant’s life expectancy. Lleras argues applying the offset for the remaining weeks of a claimant’s work disability creates a windfall for Via Christi by allowing it to avoid responsibility to compensate an injured worker for his or her work disability by using the worker’s pension to offset the workers compensation benefits. At the end of the payments, the claimant is destitute and not able to fall back on either the workers compensation benefits or a pension. Lleras contends this type of system will allow employers such as Via Christi to lay off long-time employees who become injured and require them to withdraw their retirement funds in a lump sum regardless of their age or their intent to retire from the workforce, as those funds could reduce the amount of permanent disability benefits that must be paid. Lleras argues surely it was not the legislature’s intention to force workers to cash their pension plan as a result of the employer’s failure to pay workers compensation benefits and then deduct that lump sum payment from the employer’s obligation to compensate the worker for his or her injuiy.
Under the doctrine of operative construction, we find there is a rational basis for the agency’s interpretation of the offset provision in K.S.A. 44-501(h) and its application to Lleras’ award of work disability for permanent partial general disability. We start with the premise as outlined in McIntosh that the legislature’s intent in adopting K.S.A. 44-501(h) was to prevent wage-loss duplication by allowing employers to offset retirement benefits. Lleras’ award should be reduced by the amount of the retirement benefits he received. The question is what is the proper time period for the offset. The Board applied a rational interpretation of K.S.A. 44-501(h) in allowing Lleras’ retirement benefits to be apportioned over his remaining life expectancy.
The court in McIntosh stated, “K.S.A. 44-501(h) is designed to prevent against wage-loss duplication by reducing the amount of workers compensation benefit payments by the amount of the employee’s weekly equivalent amount of retirement benefits.” 34 Kan. App. 2d at 690. K.S.A. 44-501(h) does not state that the employee’s work disability is reduced simply by the weekly benefit of the employee’s retirement benefits. Rather, the statute expressly states the work disability benefit is “reduced by the weekly equivalent amount of the total amount of all such retirement benefits.” The Board properly concluded that even though Lleras received a lump-sum payout of his retirement benefits, the lump-sum does not prevent the Board from determining what the “weekly equivalent amount” of the retirement benefits would have been. Lleras’ retirement benefits were intended to apply for the remainder of his lifetime and the Board’s determination of his life expectancy in computing the “weekly equivalent amount” was proper. Lleras’ retirement, even if done early, does not end simply because he chose to receive his benefits in a one-time lump sum payout. The Board properly used the mortality table from the Pattern Instructions Kansas Civ. 3d 171.45 in arriving at the offset amount.
Although the Board’s prior decisions set no precedent and stand simply for persuasive value, the Board’s decision in Odie provides a more realistic fact scenario of what might occur with an employee’s pension upon layoff or termination. The employee would most likely roll the pension over into an IRA-type financial vehicle in order to avoid substantial penalties, as occurred in the present case. The employer is still entitled to an offset under K.S.A. 44-501(h), but as computed in the present case the rational approach is to apportion the retirement benefits over the remaining life expectancy of the claimant.
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The opinion of the court was delivered by
Parker, C. J.:
This is the aftermath of a divorce action in which a plaintiff father appeals from orders and rulings made by the trial court in connection with the status of the custody order, made in the original proceeding, relating to the minor son of the parties.
Although not in dispute the basic pertinent facts on which the rights of the parties depend are important to a proper understanding and review of the issues involved. For that reason such facts will be stated in accord with our view of their import as briefly as the state of the record permits.
On February 17, 1955, in what was obviously a concerted effort, both parties being residents of Douglas County and each engaged in the lawful practice of medicine in that community, plaintiff, Ray A. Clark, was granted a divorce from defendant, Margaret G. Clark, in the district court of Pottawatomie County on grounds of gross neglect of duty and extreme cruelty. Shortly prior to rendition of the judgment the parties entered into a postnuptial agreement the provisions of which, so far as here pertinent, read:
“That Margaret G. Clark shall have as her sole and separate property, free from any claims of her husband, Ray A. Clark, the following described real estate and personal property, to wit: ( Description)
“That Ray A. Clark shall have as his sole and separate property, free from any claims of his wife, Margaret G. Clark, the following described real estate and personal property, to wit: (Description)
“That said Margaret G. Clark, wife of said Ray A. Clark, in consideration of the foregoing provisions, releases her said husband from all obligation to support her, and, in case of divorce, from all obligation to pay her alimony.
“This agreement is intended as a fair, full, and complete settlement of all rights in property now owned by the parties hereto or either of them.
“That their son, Ray A. Clark, Jr., who is now a student at the University of Kansas, shall remain with his mother, Margaret G. Clark, and his father, Ray A. Clark shall pay tire sum of $100.00 per month to her for the proper care, support, maintenance and education of said Ray A. Clark, Jr., unless and until otherwise agreed by the parties hereto. . . .” (Emphasis supplied. )
After hearing the case the district court found, among other things, that the postnuptial property settlement between the parties, which was introduced in evidence, was fair and just and should be approved and confirmed and made a part of the divorce decree, and that the plaintiff should have reasonable right of visiting with the son and have such child with him at reasonable times. Orders were made and included in the journal entry accordingly.
Further portions of the judgment and decree as reflected by the journal entry, which it is to be noted do not fully conform with the last paragraph of the postnuptial agreement, read:
“• • . that the custody of the minor child of the parties hereto, Ray A. Clark, Jr., age 16, is hereby awarded to the defendant, and the plaintiff shall pay the sum of $100.00 per month to the defendant for the proper care, support, maintenance and education of said minor child until otherwise ordered and directed by the court; . . .” (Emphasis supplied.)
On April 1, 1959, the son, Ray A. Clark, Jr., became twenty-one years of age. All child support payments were made by plaintiff up to and including that date.
On November 16, 1961, the plaintiff filed a motion asking that the court modify and change the order and judgment entered on February 17, 1955, for the reason and upon the ground plaintiff was not liable for any further child support payments for said minor under the judgment after such minor became twenty-one years of age on April 1, 1959. After a hearing on the motion the court, on January 3, 1962, disposed of such motion by an order which, so far as here pertinent, reads:
“. . . the Court finds that the plaintiff’s Motion to modify and change order for child support in the above-entitled case should be sustained in part as of December 5, 1961; that the order of this Court dated February 17, 1955, directing that plaintiff pay the sum of $100.00 per month to defendant for the care, support, maintenance and education of the minor child of the parties, Ray A. Clark, Jr., as set out and agreed to by the parties in a post-nuptial agreement, approved by the Court and made a part of the Court’s decree as of February 17, 1955, is terminated as of December 5, 1961; that the said post-nuptial agreement has been in effect and the plaintiff is obligated thereunder for such monthly payments up to and including the month of November, 1961; that the plaintiff should pay the court costs herein, and rr is so ordered.”
On February 3, 1962, tbe plaintiff filed a motion in the district court to set aside the foregoing order. Portions of such motion, material to a disposition of the appellate issues here involved, read:
“Comes Now the plaintiff and moves the Court to set aside that part of the Order made herein on January 3, 1962, requiring the plaintiff to pay support of $100.00 per month to the defendant for Ray A. Clark, Jr., from the time he attained his majority on April 1, 1959, to December 5, 1961, totalling $3,200.00, for the following reasons:
“1. The Court had no jurisdiction to make and enter such an order.
“2. The Order for support of minor child dated February 17, 1955, had not been appealed from reversed or modified.
“3. Since April 1, 1959, when Ray A. Clark, Jr., became 21 years of age, the plaintiff has conveyed to Ray A. Clark, Jr., real estate worth more than $12,000.00.”
Thereafter, and on February 20, 1962, after a full and complete hearing on the merits of the last mentioned motion the court made an order. Pertinent portions of that order read:
“And the Court, . . . finds that the Order of this Court entered herein on January 3, 1962, should be modified in that any judgment in favor of the defendant [Margaret G. Clark] against the plaintiff [Ray A. Clark] may be satisfied by payment on the part of Ray A. Clark, Jr., to the defendant in the amount of $3,200.00, by mortgage or deed of property; or otherwise, . . . that the plaintiff’s Motion to Set Aside Order should be overruled, . . .”
Thereupon, within the time prescribed by statute, plaintiff gave notice that he was appealing from the orders of January 3,1962, and February 20, 1962, (describing them). The appeal has been duly perfected and appellant brings the cause to this court under proper specifications of error.
The principal claim advanced by appellant in this appeal, on which all other questions raised by the parties depend, is that the trial court had no jurisdiction to make an order in connection with its February 17, 1955, judgment requiring the appellant to pay appellee any sum whatsoever for the care, support, maintenance and education of their minor child after it became twenty-one years of age on April 1, 1959; hence that portion of the order susceptible of a construction appellant was required to make payments for the care, support and education of such child after he attained majority is void and unenforceable.
It must, of course, be conceded that our statute (G. S. 1949, 60-3009) relating to proceedings for the vacation and modification of judgments provides that “A void judgment may be vacated at any time, on motion of a party or any person affected thereby.” And it cannot be denied our decisions universally hold that a judgment rendered by a court which it has no jurisdiction to render is void and may be set aside at any time on motion or other appropriate proceedings (Poorman v. Carlton, 122 Kan. 762, 253 Pac. 424; Penn. Mutual Life Ins. Co. v. Tittel, 153 Kan. 530, 111 P. 2d 1116; McFadden v. McFadden, 174 Kan. 533, 539, 257 P. 2d 146); that the length of time which has lapsed between the void judgment and the motion to vacate is inconsequential (Cadwallader v. Bennett, 187 Kan. 249, 356 P. 2d 862.); and that this court has ample authority to modify a judgment, or any portion thereof, which is void under the provisions of 60-3009, supra. (Hardcastle v. Hardcastle [on rehearing], 131 Kan. 627, 628, 293 Pac. 391; Shriver v. Board of County Commissioners, 189 Kan. 548, 554, 370 P. 2d 124.)
At the outset, arguments advanced by the parties make it necessary to determine the nature of the trial court’s support order. On the one hand appellee contends the order is based specifically on what the appellant agreed to do by contract in writing, not on his legal obligation as a parent pursuant to G. S. 1959 Supp., 60-1510, now G. S. 1961 Supp., 60-1510, and that there is no ambiguity and conflict existing between the agreement and the judgment of the court. On the other hand appellant contends such order was based on the provisions of the foregoing statute which, so far as here pertinent, read: “When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, . . .” (Emphasis supplied. ) Let us see. Conceding the court made the contract a part of its decree it becomes obvious, upon resort to the heretofore quoted support paragraphs of the contract and the judgment, that it was making its support order under the statute (60-1510) and not basing such order upon the support clause of the contract. This is fully demonstrated by the fact that the order constitutes an allowance for the proper care, support, maintenance and education of said minor child until otherwise ordered and directed by the court, whereas the contract does not purport to contain those provisions.
Having determined that the order in question is to be construed as a pure and simple support order, made under the provisions of 60-1510, supra, we have no difficulty in concluding that the paramount question, to which we have heretofore referred, has been decided by our decisions, to which we adhere, in accord with appellant’s view as to its disposition.
Long ago in Emery v. Emery, 104 Kan. 679, 180 Pac. 451, a case which has been cited with approval in numerous subsequent decisions and which has never been disapproved, we held:
"The statute authorizing the court upon granting a divorce to provide for the guardianship, custody, support and education of the minor children of the marriage, contemplates making provision for the children only during their minority, and grants no power to transfer any of the property of either parent to the children for the purpose of creating an estate for their permanent benefit. A part of a decree attempting to do this is wholly void and open to collateral attack.” (Syl. ¶ 1.)
And in the opinion said:
“. . . Inasmuch as no appeal was taken and no effort was made to procure a modification of tire judgment according to some method prescribed by the statute, it has become final and is binding upon the parties unless the portion of it now in question was without force from the beginning by reason of being in excess of the jurisdiction of the court, (p. 680.)
“. . . The provision with regard to the protection of the children reads: ‘When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect whenever circumstances render such change proper.’ (Gen. Stat. 1915, §7580 [now G. S. 1961 Supp., 60-1510, which contains identical language].) This clearly means that provision shall be made for the support and education of the children until they shall become of full age. It does not contemplate the creation of a fund for their maintenance after attaining majority, their parents being then under no legal obligation to care for them.
“A judgment which declares a legal obligation where none exists under the statute may be effective until set aside in accordance with some prescribed method, upon the ground that where the court is required to pass judicially upon a question the binding force of its decision does not depend upon its correctness (Investment Co. v. Wyandotte County, 86 Kan. 708, 121 Pac. 1097); but that principle applies only where the action taken is within the field over which the power of the court extends. Although a court may be called upon to decide the extent of its own power, it cannot be true that where the question so presented is purely one of law, a mistaken decision affirming its jurisdiction must be deemed binding upon the parties to the litigation until set aside, for this view would, in effect, abolish the limits of jurisdiction, and a judgment (for instance) by a justice of the peace upon a claim for more than three hundred dollars would be merely erroneous, and not void. It may not always be easy to distinguish between tire attempted exercise of a power that is utterly lacking, and the mistaken exercise of an existing power, but the soundness and importance of the distinction cannot be doubted.
“The power even of a court of general jurisdiction does not extend to taking property from a party to an action and giving it to a stranger. Whatever power the district court has in a divorce suit to afford protection to the children of the parties, is derived from the statute quoted, and is limited to making provision for their support and education during their minority. We regard the attempt to give them outright a part of the father’s property, as lying outside the power granted, and therefore as wholly ineffective, where, as is this case, it is clear that the purpose of such transfer was not to make provision for their maintenance during their minority.” (pp. 681, 682.)
For a more recent decision of like import see Allison v. Allison, 188 Kan. 593, 363 P. 2d 795, which holds:
“Where parents have been granted a divorce the provisions of G. S. 1959 Supp., 60-1510, authorize the making of provision for the children of the marriage only during their minority. (Syl. ¶ 3.)
“The provisions of G. S. 1959 Supp., 60-1510, are sufficiently broad to authorize a trial court to make provision for the college education of a minor child, where the evidence shows a plan for such education, and ability on the part of a parent to provide such education. Thus, it is proper for a trial court to require a suitable life insurance policy designating the child as beneficiary to assure the child an opportunity for a college education, provided the responsible parent is not bound to continue such policy of insurance beyond the age of the child’s majority.” (Syl. ¶ 5.)
And in the opinion states:
“Where a divorce has been granted it has been held 60-1510, supra, authorizes making provision for the children of the marriage only during their minority. (Emery v. Emery, 104 Kan. 679, 180 Pac. 451; and Sharp v. Sharp, supra.)
“On this point the appellee concedes the portion of the order which carries the beneficiary of the life insurance policy beyond the age of minority is invalid, and it is suggested that portion of the order should be amended or sent back for modification by the trial court so that it will not exceed the age of majority of the minor child. (p. 599.)
“In our opinion, it is proper for a court to require a suitable insurance policy designating the child as beneficiary to assure the child an opportunity for a college education, provided the responsible parent is not bound to continue such policy of insurance beyond the age of the child’s majority. Here the order of the trial court authorized the appellant to change the beneficiary in the policy ‘upon said minor child reaching the age of 25 or having graduated from college.’ As heretofore noted, the extent to which the trial court required the appellant to carry the minor child as a beneficiary beyond the age of majority is invalid.
“On the facts presently before the court, we think it is properly within the discretion of the trial court to make provision for the education of the minor child in question by an order requiring the appellant to establish a trust fund, as herein set forth, and to designate such child as the beneficiary of one-half of the $10,000 government insurance policy, until suck time as the child graduates from college err attains the age of majority.” (p. 602.) (Emphasis supplied.)
We know of and are cited to no decisions in this jurisdiction holding that under the facts and circumstances of record a support order such as is here involved, if construed to extend beyond the age of majority, can be held to be valid and enforceable. Moreover, what has been heretofore stated, and held in the decisions to which we have referred, compels a conclusion the portion of such support order, subsequently held by the trial court to extend the payments for support of the child of the parties for a period of time after he reached the age of majority, is wholly void and unenforceable. By the same token, it necessarily follows that the trial court erred in its orders of January 3, 1962, and February 20, 1962, wherein, in each order, it held in effect that post majority child support payments, amounting to $3,200.00, were valid and enforceable under the original decree and must be paid to the appellee by either the appellant or the adult child of the parties.
Therefore, and without further ado, the orders and rulings of the trial court, last above mentioned, are reversed and the cause is remanded to the district court with directions to set them aside and modify the original child support order in accord with the views herein expressed.
It is so ordered. | [
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|
The opinion of the court was delivered by
Robb, J.:
This is an appeal from the trial court’s judgment overruling the separate motions of defendants for new trial, for judgment on answers to special questions, for judgment notwithstanding the verdict, and from its order overruling defendants’ demurrer to plaintiff’s evidence.
The parties stipulated that the collision here involved took place at the intersection of South Main, or U. S. highway 83, and Downie Drive, one of the entrances to Finnup Park in Garden City, and that the amount of damage to plaintiff’s transport truck was $4,060.76 and the damage to defendants’ automobile was $300.00.
Although no question in regard to the pleadings is raised, a short reference will be made thereto for clarity.
In its petition plaintiff alleged that the following acts of negligence on the part of the defendant, Ova Pash, proximately caused plaintiff’s damage: Her failure to keep a proper lookout; to make a proper turn; to keep her vehicle under control; to yield the right of way to plaintiff’s vehicle before making a left turn; and her further failure to stop, turn her car aside or otherwise avoid the collision.
Defendants answered with a general denial and specifically stated Richard Pash was not negligent; that Ova Pash, driver of the car, was not acting in any capacity on behalf of Richard, Ova was not negligent, and if she were negligent, then plaintiff’s driver was guilty of contributory negligence, which was the proximate cause of the collision, in that he was speeding in excess of thirty miles per hour, and attempting to pass on the left when both vehicles were within 100 feet of the intersection, in violation of G. S. 1949, 8-540 which in pertinent part reads:
. • (fe) No vehicle shall, in overtaking and passing another vehicle . . . be driven to the left side of the roadway under the following conditions: . . . (2) . . . when approaching within 100 feet of or traversing any intersection. . .
Plaintiff’s driver was further guilty of contributory negligence in attempting to pass defendants’ automobile in violation of G. S. 1949, 8-539, after Ova had signaled for and was making a left turn. The statute reads in part:
“(a) The driver of a vehicle may overtake and pass upon the right of another vehicle which is making or about to make a left turn. . . .,”
and he was also guilty for failure to sound his horn indicating his intention to pass defendants’ car prior to turning out, passing to the left of defendants’ car when it was not safe so to do, and failing to yield the right of way.
Defendant Richard cross-petitioned for damages to his car proximately caused by plaintiff’s negligence as above stated. Plaintiff generally denied Richard’s cross-petition and expressly denied contributory negligence on its part which was the proximate cause of the accident. Richard replied by a general denial to plaintiff’s answer to the cross-petition.
Taylor, plaintiff’s driver, and its first witness, testified, in substance, that where highway 83 changed from four to two lanes and a sign increased the speed from thirty to forty miles per hour, he began picking up speed. A car just ahead of him turned off the highway and defendants’ car was the only other vehicle on the road. He checked in his front and rear vision mirrors and started to pull out for a pass. When he was approximately 200 feet from the intersection he saw defendants’ car start to turn, he cut his wheels to the left, and applied his brakes 200 feet from the point of impact. He “recollected” his speed was thirty-nine miles per hours at the point of impact. Defendants’ car hit the right rear wheels of the tractor. He heard Mrs. Pash telling the investigating officer she had neither signaled nor looked in her rear view mirror. He pointed out to the officer there were no yellow lines indicating a no passing zone. His truck made skidmarks for a length of fifty-nine paces.
On cross-examination Taylor stated he was familiar with the traffic laws and with the various intersections of highway 83 and roadways leading into Finnup Park in Garden City. He was also familiar with G. S. 1949, 8-540, regarding the overtaking and pass ing of another vehicle on the left when approaching within 100 feet of an intersection. He did not see any attempt by defendants to slow the speed of their car by applying their brakes. He applied his brakes because defendants’ car was cutting into him. He slid about 200 feet. The point of impact was approximately nine feet south of the north edge of Downie Drive.
He further testified it would take about 900 feet for him to complete his pass since his speed was forty miles per hour and defendants’ speed was thirty miles per hour. He had started to pass about 350 feet north of the intersection and had completed the pass at the intersection. He knew he had violated the state statute.
Dale Davis, a Garden City policeman, testified there were no yellow lines in the center of the highway. The point of contact on the plaintiff’s tractor-trailer was ahead of the rear wheels of the trailer and the truck’s skidmarks measured ninety-four feet before the point of impact. The truck wheels had left the highway 49.7 feet north of the north edge of Downie Drive and the vehicles came to rest in the ditch side by side.
The officer further testified that defendant, Ova Pash, stated to him that “she didn’t signal for a left hand turn. She didn’t state anything about looking in her rear view mirror.”
Keith Denchfield, a deputy sheriff of Finney county, testified he located the sign reading “begin 40 end 30” miles per hour at 980.2 feet north of the north curve line of Downie Drive.
Ova Pash, called as a witness by plaintiff, stated she gave a left-hand turn signal at the speed limit sign, which was three or four hundred feet north of the intersection, by just putting her hand out. She drew it back and “rolled the window back up” because it was chilly and she had the heater on. Her speed was thirty miles per hour. She stepped on her brake lights when she was just “below the sign.” She had seen the truck at the railroad tracks, had gone around it, and then saw it again in her rear view mirror when she was down near the filling station where the speed limit sign was located. She did not hear anything until she heard plaintiff s brakes when the truck was just ready to hit their car.
Richard demurred to plaintiff’s evidence on the ground a cause of action was not stated against him. Ova demurred thereto on the grounds plaintiff’s evidence affirmatively disclosed that Taylor, plaintiff’s driver, was guilty of negligence when he attempted to pass defendants’ car within 100 feet of an intersection, which negligence was a direct and proximate cause of the collision, and that the evidence showed plaintiff’s driver had continuous notice of Ova’s intention to turn for more than 100 feet prior to the intersection and his subsequent actions showed contributory negligence, which was a direct and proximate cause of the damage to all vehicles involved. Both demurrers were promptly overruled by the trial court.
Richard, the first witness for the defense, testified that Ova was driving about thirty miles per hour and the only other traffic at the time was plaintiff’s truck. She signaled a left turn by the filling station and made a left turn into Downie Drive. When she had almost completed the turn, the truck crashed into their car. He did not hear any warning signal before the collision and the truck took the car right along with it.
Ova followed Richard on the stand and stated they were “pretty well into Downie Drive” before the collision occurred. The screech of brakes was the first notice she had of the impending collision. She did not have time to look up to see where the noise came from. The back of the cab struck their car and the two vehicles came together in a sort of sliding motion. She had started braking their car at the speed sign and continued to do so on into the intersection. When the truck went into the ditch, their car was released. She told the investigating officer she did not make a left turn signal as she was actually turning at the intersection because after she had looked in the rear view mirror, she thought she was far enough ahead of the truck to make the turn. She had signaled some distance to the north. On cross-examination she stated she commenced maldng the turn about half way between the speed limit sign and Downie Drive. She did not know there was a truck within “a hundred feet until he hit.” She did not keep her hand out continuously because it was cold. The truck was in the intersection the instant she heard the brakes.
Rebuttal testimony of Taylor lends nothing to the record affecting this appeal.
Both parties rested and defendants moved for a directed verdict setting up the same grounds as were relied on for the demurrers.
The trial court submitted its instructions to counsel and defense counsel object to instruction No. 4 and particularly the third paragraph thereof. We shall briefly review the pertinent instructions:
No. 1 covered the pleadings; No. 2 referred to the stipulations already mentioned herein; and No. 3 imputed the negligence of Taylor to plaintiff.
No. 4 set out rules of the road, a defense of due care, and a third paragraph, specifically objected to by defendants which is later set out and discussed herein. Included also in No. 4 was the stock statement that violation of certain statutory regulations with inference to the use and operation of motor vehicles on the public highways, if the proximate cause of harm to another, is actionable negligence for which the injured party may recover damages. No. 5 set out G. S. 1959 Supp., 8-501, defining an intersection and instructed that the junction of U. S. highway 83 and Downie Drive is an intersection within the meaning of such statute.
No. 6 quoted from G. S. 1949, 8-547, to the effect that before a person may turn a vehicle from a direct course upon a highway he shall give an appropriate signal in the event any other vehicle may be affected thereby, and further quoted therefrom:
“(b) A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet traveled by the vehicle before turning.” (Our emphasis.)
No. 6 also referred to the applicable portion of G. S. 1959 Supp., 8-549, providing the method of giving signals either by arm or by lamps. No. 7 referred to speed, No. 8 to passing, which has been heretofore mentioned, and No. 9 quoted G. S. 1949, 8-544, stating that the approach for a left turn shall be made in that portion of the right half of the roadway nearest the center line thereof. No. 10 referred to the fact that one driver has a right to assume others using the highway will observe the law until he has knowledge to the contrary and explained how this applied hereto. No. 11 was on the proof of negligence, No. 12 on proximate cause, and the remaining thirteen instructions were the usual stock instructions.
Defendants requested instructions which were properly refused by the trial court. We think the instructions given by the trial court herein fully cover the issues raised by the pleadings and the evidence in the case.
The trial court submitted eleven special questions to the jury to which answers were given as follows:
“1. Was the plaintiff’s vehicle passing on the left within one hundred feet of the intersection of U. S. Highway 83 and Downie Drive? A. Yes.
“2. If you answer question No. 1 ‘yes’, do you find such act of passing was a proximate cause of the collision? A. No.
“3. Did the driver of the plaintiff’s vehicle sound his horn or give any audible signal of his intent to pass defendants? A. No.
“4. If your answer to question No. 3 is ‘no’, do you find his failure to sound his horn or give audible signal was a proximate cause of the collision? A. No.
“5. State the act or acts of negligence, if any, of the driver of the plaintiff’s vehicle. A.:
“6. State the act or acts of negligence, if any, of Ova Pash. A. Failure to keep a proper lookout. Failing to make a proper turn. Failing to yield right of way to plaintiff’s vehicle before making left turn. Failing to stop, turn her car aside or otherwise avoid collision.
“7. At the time of the collision was the plaintiff’s vehicle traveling at an excessive rate of speed under the then existing circumstances? A. No.
“8. If your answer to question No. 7 is ‘yes’, was such excessive rate of speed a proximate cause of the collision? A.:
“9. How far was the plaintiff’s vehicle from the intersection when it started to pass the defendants? A. Approximately 900 feet.
“10. Did the defendant, Ova Pash, give a proper signal at the proper place of her intention to make a left-hand turn? A. No.
“11. If you answer question No. 10 ‘no’, was her failure to do so a proximate cause of the accident? A. Yes.”
The jury returned two forms of verdict as follows:
“We, the jury, empaneled and sworn in the above entitled case, do upon our oath, find for the plaintiff in the sum of $4,060.76.”
“We, the jury, empaneled and sworn in the above entitled case, do upon our oath, find for the plaintiff, Oil Transport Company, Inc.”
Defendants filed separate motion for judgment on answers to special questions and more particularly, answers to special questions No. 1 and 3 because the negligence contained therein on the part of plaintiff was the direct and proximate cause of the resulting collision and barred plaintiff’s recovery. Defendants also filed separate motion for new trial asking the court to set aside the answers to special questions No. 2, 4, and 9 and further moved to set aside the following quoted portions of the answers to special question No. 6:
1. “Failure to keep a proper lookout” because there was no such duty on defendants to keep such lookout to the rear.
2. “Failure to yield right-of-way to plaintiff’s vehicle before making a left turn” because the answers to special questions submitted showed that plaintiff was not entitled to the right of way when defendants made the left turn.
Defendants thereafter filed a motion for judgment notwithstanding the verdict and in the alternative for a new trial.
The trial court accepted the verdict, discharged the jury, entered judgment in favor of plaintiff and against Ova Pash for the stipulated sum of $4,060.76, and overruled all of the defendants’ post trial motions. Hence this appeal.
The first question to be considered is whether the trial court ■erred in overruling defendants’ demurrer to the evidence and in overruling defendants’ motion for a directed verdict made in compliance with the rule prescribed in Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295:
“Where defendants’ demurrer to plaintiff’s evidence is overruled, and defendant elects to introduce evidence on his own behalf, the question of whether the case should be submitted to the jury at the close of all the ■evidence depends upon a consideration of all of the evidence produced by the parties. Under such circumstances, defendant must again raise the sufficiency of the evidence by a motion for a directed verdict or be deemed to have waived the sufficiency of plaintiff’s evidence as raised by his former demurrer.” (Syl. ¶ 1.)
In discussing the trial court’s order overruling their demurrer to plaintiff’s evidence defendants cite certain decisions of this court (see Most v. Holthaus, 170 Kan. 510, 513, 227 P. 2d 144, and cases cited therein) but we are of the opinion those cases are inapplicable here because of the particular factual situation disclosed by our present record. On the other hand, plaintiff argues the appropriate and applicable rule is that stated in Krentz v. Haney, 187 Kan. 428, 357 P. 2d 793:
“In determining whether as a matter of law a plaintiff is guilty of contributory negligence which precludes his recovery for injuries sustained, all of the testimony favorable to the plaintiff must be accepted as true, and if the facts are such that reasonable minds might reach different conclusions thereon, the question must be submitted to the jury and cannot be determined by the court as a matter of law.” (Syl.)
Plaintiff also cites Hubbard v. Allen, 168 Kan. 695, 699, 701, 702, 215 P. 2d 647, wherein one truck was attempting to pass a second truck, and when the passing truck was even with, or slightly ahead, of the second truck, the driver thereof gave a signal for a left turn. The passing truck tried to avoid the collision but was unable to do so. It was there said that since the two trucks were in the par ticular situation they were, the sounding of a horn could have given no better notice than the fact that the passing truck was in plain view of the second truck, the driver of which was signaling for a left turn while his attention was to the right. We there adhered to the rule that mere violations of the statutes regulating traffic on the highways are not sufficient to make the driver of an automobile guilty of actionable negligence in an action for damages growing out of a collision unless such violations contributed to the accident and were the legal cause of the injuries sustained. The opinion concludes with this statement:
“In our opinion the answers can be reconciled with the general verdict, and do not convict the plaintiff of negligence which was the legal cause of his injuries.” (p. 702.)
Applying these rules to the above narrated evidence of plaintiff herein, we are convinced there was ample testimony to justify the trial court’s order overruling defendants’ demurrer thereto, and on consideration of the entire record, we think the evidence was also ample to overrule the motion a for directed verdict. We are unable to say that minds of reasonable men could not differ upon the proposition of negligence, contributory negligence, and whether either or both were the proximate, or legal, cause, or causes, of the injuries sustained. Thus on the first question presented we conclude the trial court properly overruled defendants’ demurrer to the evidence and also their motion for directed verdict.
The next question is whether the trial court erred in failing to grant judgment on the answers to the special questions, previously set out herein. Careful examination of the answers reveals nothing contrary to the jury’s general verdict in favor of plaintiff. While it is true that violations of the statutes pertaining to laws and rules of the road may constitute negligence, the jury in its answers to questions Nos. 2 and 4 specifically found that such violations by plaintiff were not the proximate cause, or causes, of the collision from which plaintiff’s injuries flowed. See Siegrist v. Wheeler, 178 Kan. 286, 290, 286 P. 2d 169, where, as here, there was sufficient evidence to support each and every special finding of the jury, and we stated that such special findings will not be disturbed on appellate review even though the record discloses some evidence which might have warranted contrary answers.
In Koch v. Suttle, 180 Kan. 603, 306 P. 2d 123, where a collision occurred between plaintiff’s truck making a left turn and defend ant’s automobile trying to pass on the left at a rural intersection, many of the cases cited by present counsel were discussed and we think it unnecessary to reiterate that discussion except to point out that here, as there, another very cogent reason for the statement the answers to special questions were amply supported by the evidence is the rule that after the trial court refused to set aside answers to certain special questions, defendant moved for judgment notwithstanding the verdict and this court stated that in order to obtain a ruling on such a motion, or for the purpose of testing such a ruling, it is admitted that all special findings are supported by the evidence. (p. 607.)
The next question challenges the instructions of the trial court and more particularly the following portion of instruction No. 4:
“It is the duty of all drivers of motor vehicles on the highways to keep a lookout for other vehicles using the highways and which may be approaching from the opposite direction or which may be traveling ahead in the same direction or following or approaching from behind, and the driver of a motor vehicle on the highways is presumed to have seen that which he could or would see had he been exercising due care.”
In defendants’ argument they call attention to the Koch case where we said that a motorist in a hurry has no absolute right to require all other cars ahead of him to get out of his way, but the evidence in this record does not show that plaintiff was speeding either by exceeding the speed limit prescribed or under the conditions of the road or the weather. Further, Ova testified she had looked in her rear vision mirror when she passed the filling station and had seen the plaintiff truck but thought she had time to make the left turn and she paid no further attention with the result she had no idea where the truck was when she actually started her turn to the left. The only evidence in the record on this point is that of the plaintiff driver who stated he saw her cutting in and he immediately swerved to the left. We cannot say defendants in this case, after having seen the trailing vehicle, could ignore its presence on the highway.
The fourth and final objection is made to a remark in the opening statement of plaintiff’s counsel that defendant, Ova Pash, as a result of her illegal left turn was arrested, given a ticket, and fined. A proper objection thereto and a request that the jury be admonished to disregard such statement was sustained by the trial court and the members of the jury were told to disregard any statement of counsel relating to an arrest of any kind and to put such statement entirely out of their minds. There is nothing in the record indicating such remark was repeated and we are of the opinion the jury followed the trial court’s admonition which was sufficient to remove any question as to the prejudicial effect thereof. (Bagnall v. Hunt, 131 Kan. 805, 812-813, 293 Pac. 733.)
Consideration of the entire record compels us to conclude there was no prejudicial or reversible error committed by the trial court.
Judgment affirmed.
Schroeder, J., dissents. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action designed to impress a constructive trust upon the assets of the Chandler Investment Company, a corporation, (or upon its stock) formerly owned by the Western Control Corporation, Inc. It is alleged the assets or stocks of the Chandler Investment Company were in the hands of, or subject to the control of, Frank W. North and L. Chandler Smith (defendants-appellees).
Upon joinder of issues the action was tried to the court against L. Chandler Smith alone, resulting in a judgment in favor of the defendant. Appeal has been duly perfected from this judgment (No. 42,750), and the orders of the trial court overruling post-trial motions (No. 42,882).
The primary question to be determined on appeal is whether the evidence supports the findings and judgment of the trial court.
The appellant contends the trial court drew erroneous conclusions of law from the undisputed facts.
The facts material to this appeal may be summarized as follows:
James House, Robert Kolde and their wives were the owners of Western Control Corporation, Inc., located in Wichita, Kansas. House and Kolde were willing to sell the business. In the month of July, 1959, Lewis A. Paul (plaintiff-appellant), a resident of Wichita, commenced a series of discussions with House concerning the proposed sale of the Western Control Corporation, Inc. to him. Four different proposals were made by Paul to House during July and August, 1959. The first two proposals were options in favor of Paul. The last two proposals were in the form of sales contracts running from the corporation and its stockholders to Paul. All of these proposals were in writing and were prepared by Paul’s attorneys. None of these proposals, however, was ever executed by the Western Control Corporation or by any of its stockholders.
The fourth and last of Paul’s proposals was a sales contract which embodied the terms upon which House and Kolde were willing to sell. This contract provided that the total purchase price was to be $500,000, payable $200,000 in cash and $300,000 in credit, to be represented by two notes to the sellers for $150,-000 each. The notes were to be secured by first mortgages on all of the land, plant and equipment of the Western Control Corporation. Paul’s testimony was to the effect that House agreed to sign the contract if Paul could raise the money to make the payments called for in the contract, and if Paul could also raise an additional $150,000 needed for working capital to operate the business. House testified, however, that during all of his discussions with Paul he was engaged in similar discussions with other prospective buyers, both in Wichita and outside of Wichita, Kansas. House stated “it is not correct that we had an agreement, no sir. I was at the time willing to deal with anybody.”
Paul did not have the necessary funds to implement his proposal to House, so he enlisted the aid of various stock brokers in Wichita and Kansas City to find a financial angel. Paul contacted Frank North, a Kansas City broker, and informed North that he had an option to purchase the assets of Western Control Corporation, Inc. for $500,000; that $150,000 in additional working capital would be needed which he could obtain in the form of a line of bank credit; that the purchase would require a cash payment of $200,000; and that the sellers would carry bank mortgages for $300,000. Paul stated that he and a friend could put up $100,000, and he wanted “the other $100,000.00 to be raised either by selling stock or getting the funds from an individual or a group of individuals.”
Paul submitted to North numerous papers, financial statements, and certain projections showing the future financial possibilities of the corporation. North made contact with a prospective purchaser in Kansas City and arranged a meeting between Paul and this prospect, a Mr. Perry. However, Perry decided not to go through with the proposition. North then made contact with L. Chandler Smith (defendant-appellee) and told him of Paul’s proposition, and he showed Smith the figures that Paul had prepared.
The first meeting between Paul and Smith took place in Wichita on September 16, 1959. At this meeting Paul represented to Smith that he had an option to buy the assets of the corporation for $500,-000, and that an additional $150,000 was needed as working capital; that Paul and Guy Shelley could put up $100,000, and that if Smith would put up $100,000, the remaining $450,000 could be raised by a first mortgage loan of $300,000 by the sellers and a working capital loan of $150,000 from certain Wichita firms where Paul had a line of credit.
Smith expressed doubt that any bank would loan a new enterprise $150,000, when all of its assets would be subject to prior first mortgages to the seller for $300,000. Paul then proposed that Smith contribute the entire additional sum of $250,000 required to complete the down payment, and to provide working capital. He also proposed that the stock of the purchasing corporation be originally issued to the parties in proportion to their initial capital contributions, 72% to Smith and 28% to Paul and Guy Shelley. Paul also asked that Smith give him a ten-year option to purchase 22% of the stock originally issued at the option price of $150,000.
Paul also proposed to Smith that he be given a ten-year management contract at a salary of $35,000 per year. Paul told Smith that the owners of the corporation had previously offered him a job to manage the business for them, and that he could manage it.
Smith told Paul that he would not commit himself to any deal with him until he had investigated the business, and had investigated Paul and Guy Shelley. Smith then went to the plant of Western Control Corporation, Inc. and inspected the business for the first time, and returned to Kansas City.
On the 22nd day of September, 1959, Smith returned to Wichita, and the parties again met. Paul testified that on this date he re iterated his offer and Smith agreed to go into the deal on Paul’s terms. Smith denied that he made any answer to Paul’s offer at that time. Paul’s wife was present at this meeting, but her testimony did not corroborate that of her husband, and the trial court did not see fit to give credence to Paul’s testimony on this point.
On the 23rd day of September, 1959, Smith conferred with the officers and owners of the Western Control Corporation, Inc. and was told by House that Paul had no option to buy the business; that House and Kolde were willing to sell the business to any qualified buyer who would meet their price; that they were negotiating with other prospective buyers; that they would not consent to a loan of $300,000 to the purchasing corporation, unless Smith would personally guarantee its payment; that they had never offered Paul a job to manage the Western Control Corporation, Inc.; and that the value of their assets had increased by about $50,000 since House had first talked to Paul in August, 1959.
On the 26th day of September, 1959, the parties met again. Smith told Paul what his investigations had disclosed; that he was unwilling to guarantee Paul a ten-year management contract at $35,000 a year; that he was unwilling to pledge his personal credit for $300,000 and put a disproportionate amount of cash into the business for the purpose of financing a ten-year stock option for Paul. Smith then offered Paul and Guy Shelley the opportunity to participate in the purchase to the extent of their cash contribution. In other words, if Paul and Guy Shelley put in $100,000 and Smith put in $250,000, Paul and his associate would get 28% of the stock. Paul told Smith that he would have to consult with his attorneys about the matter. Smith then told Paul that he would try to complete the purchase of the business without Paul, if Paul chose not to go into the deal on the basis of the counter proposal.
Paul called Smith on the 28th day of September, 1959, and rejected Smith’s counter proposal and insisted that Smith accept his proposal. The parties met for the last time on the 30th day of September, 1959, at which time each one reiterated his previous position.
Thereafter, Smith organized the Chandler Investment Company, and on the 7th day of October, 1959, this newly organized corporation entered into a contract with Western Control Corporation, Inc. to purchase the assets of the latter. Under the terms of this contract the purchase price was $552,600, and Smith was obligated to and did personally guarantee the payment of $300,000 extended in credit.
The information upon which the Chandler Investment Company acted in purchasing the business was a combination of the data volunteered to Smith by Paul’s agent, North, the Kansas City broker, and by Paul, and information supplied to Smith by Western Control Corporation, Inc. and its stockholders. Smith also made his own' financial projections and analyses and had an appraisal of the assets made by an independent company with the consent of the seller. All of the information in the hands of Paul was freely available from the selling corporation to any prospective purchasers, and much of it had been published annually by the seller in Dun and Bradstreet.
The foregoing facts are in substance the findings of the trial court, and they are fully supported by the evidence in the record.
In addition to the foregoing, the trial court found that Paul’s demand for a ten-year management contract at a salary of' $35,000 per year was an essential part of Paul’s proposal to Smith; and that in making the purchase of the Western Control Corporation, Inc., Smith was obligated, upon demand of the sellers, to personally guarantee the payment of $300,000 extended in credit to the purchasing corporation.
The 28% interest in the business offered to Paul and his associate, Guy Shelley, for $100,000, which Paul refused to purchase, was sold to Mr. Kemper for the sum of $105,000, without any stock option and without any management contract going to Kemper.
The trial court found the business of the Western Control Corporation was for sale, and the figures which Paul’s agent, North, gave to Smith were given to North by Paul and to Smith by North with no contractual restrictions whatsoever upon their dissemination or use. In concluding its findings the trial court said:
“. . . Plaintiff sought to tie prospective purchasers to plaintiff not by contractual restrictions upon the dissemination or use of this information but by representing that plaintiff had an option to purchase the business.”
The trial court concluded (1) that no fiduciary relationship was created between Paul and Smith; (2) that no joint adventure between Paul and Smith was established by the evidence; (3) that Paul was not entitled to specific performance; (4) that the evidence was insufficient for the imposition of a constructive trust in favor of Paul; and (5) that no wrong or breach of legal duty was committed by Smith for which Paul could seek equity. It thereupon entered judgment for Smith.
In the verified allegations of the petition commencing this action Paul alleged that Smith had actually agreed to his proposals and had entered into a contract for a joint adventure with him. In his prayer Paul requested specific enforcement of such contract. This was the theory upon which the case was tried in the lower court.
After hearing conflicting evidence on this point the trial court found against Paul (appellant). On appeal this theory has been abandoned by the appellant.
Having met with failure on the first point, the appellant contends his proposal that he and Smith buy the property as co-adventurers created a fiduciary relationship which prevented Smith (appellee) from acting on his own behalf to the exclusion of the appellant. The appellant takes the position that when he furnished confidential information to the appellee to be used for their joint benefit, the appellee was precluded from using it for his individual benefit.
By reason of the foregoing the appellant states the only question presented by this appeal to be as follows:
“Can one to whom a purchase opportunity is disclosed in conjunction with a proposal of joint participation in the purchase accept the information and appropriate the purchase opportunity for his exclusive benefit and upon his own terms?”
To support his position the appellant relies on Goodrich v. Wilson, 106 Kan. 452, 188 Pac. 225; and Ballard v. Claude Drilling Co., 149 Kan. 506, 88 P. 2d 1021, contending the latter is directly in point. We make specific reference to these cases and, without an extended review herein, simply call attention to the fact that these cases were based upon agreements between the parties, and a constructive trust was sought to restore the fruits of those agreements. In each of these cases, Ballard and Goodrich, the trial court had sustained a demurrer to the plaintiff’s petition, from which order appeal was perfected to this court. The petition in each instance specifically alleged an agreement, and it was held on appeal that a cause of action was stated on the theory of constructive trust. Further discussion of the instant case will reveal other distinctions.
It has been recognized that a fiduciary relationship between parties does not depend upon some technical relation created by, or defined in, law. It exists in cases where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard for the interests of thé one reposing the confidence. (Lindholm v. Nelson, 125 Kan. 223, 264 Pac. 50, Syl. ¶ 3; and Howell v. Cooperative Refinery Assn, 176 Kan. 572, 576, 271 P. 2d 271.)
Fiduciary relationships recognized and enforceable in equity do not depend upon nomenclature; nor are they necessarily the product of any particular legal relationship. (Grannell v. Wake-field, 172 Kan. 685, 242 P. 2d 1075; and Lindholm v. Nelson, supra.) They may arise out of conduct of the parties evidencing an agreement to engage in a joint enterprise for the mutual benefit of the parties., (Grannell v. Wakefield, supra; and Yeager v. Graham, 150 Kan. 411,. 94 P. 2d 317.) But they necessarily spring from an attitude of trust and confidence and are based upon some form of agreement, either expressed or implied, from which it can be said the minds have met in a manner to create mutual obligations. (Shoemake v. Davis, 146 Kan. 909, 73 P. 2d 1043; Pomeroy’s Equity Jurisprudence, Vol. 3, § 902; and Appleman v. Kansas-Nebraska Natural Gas Company [U. S. C. A. 10th Cir. 1954] 217 F. 2d 843.)
For the plainest of reasons, agreements establishing fiduciary relationships, if not in writing, must be clear and convincing. Because of the acuteness of the equitable remedies, courts will not reach out to establish legal relationships from which enforceable equitable rights may flow. A confidential relationship is never presumed, and the burden of proof is upon the party asserting it. (Yeager v. Graham, supra; Grannell v. Wakefield, supra; and Appleman v. Kansas-Nebraska Natural Gas Company, supra.)
Mere concert of action, without more, does not establish a fiduciary relationship. (Grannell v. Wakefield, supra; and Yeager v. Graham, supra.) Undoubtedly, parties may deal at arm’s length for their mutual profit. It is only when, by their concerted action, they willingly and knowingly act for one another in a manner to impose mutual trust and confidence that a fiduciary relationship arises. (Appleman v. Kansas-Nebraska Natural Gas Company, supra.)'
Obviously, the appellant did not convince the trial court that a fiduciary relationship was established between the appellant and the appellee, because it found the appellant sought to tie prospective purchasers of the Western Control Corporation to him, not by contractual restrictions upon the dissemination or use of the information which he had, but by representing that the appellant had an option to purchase the business.
This point is emphasized in the record by the testimony of House as follows:
“Q. Did you ever make any agreement with Mr. Lewis Paul as indicated by the first paragraph of that letter [written by Paul] to sell him this corporation under the contract as stated?
“A. No, sir.
“Q. Now in these various conferences you had with Mr. Paul which terminated with his going to his home or his . office and writing up some memorandum and returning it back to you, will you state to the Court why you rejected those various contracts that he continued to bring to you?
“A. Well there were several reasons. Basically perhaps the most important reason in one form or another they would have constituted an option and he would be appointed as exclusive agent. That was one reason, and the next reason, perhaps equally important, was that there was no money apparent to me to implement these things. It was a theoretical proposal, each one of them being if I did this or that and get this much money together at some future date- you will sell me this Corporation. I couldn’t do that. The assets of the Corporation, we were proposing to sell fixed assets and keep the liquid assets. Every month or every week the liquid assets changed. We would buy a piece of machinery and it would become a fixed asset and the cost of fixed assets increased and there was no basis on which we could say that somewhere in the future the price would be such and so and I was not about to enter into any such option agreement.
“Q. As I understand, in all your negotiations with Mr. Paul you are telling the Court that you never at any time gave him an option, either oral or in writing, to purchase your Company?
“A. No sir I certainly did not.
“Q. Did you ever appoint him your agent to sell the property?
“A. No sir I did not. As this thing progressed it became increasingly apparent to me that this man’s connections that were going to furnish this money were nonexistent and what was apparently happening was that Mr. Paul was going out as a kind of broker making various proffers and we were getting some publicity that was doing us real damage. It was getting back to our employees that the business was for sale and they were all wondering what was going on and it was hurting us and as this thing progressed finally I had to tell Lew that we had to stop this thing; if he couldn’t deliver this money and get the thing buttoned up we would just have to forget it, and as a result of the publicity I began to be approached by other individuals and as a matter of fact I was dealing with perhaps three or four or five individuals toward the end of these negotiations and I furnished them with the figures and the balance sheets and the profit and loss and I was by that time ready to sell to any qualified individual or group of individuals that would come up with the money and the credit rating and the ability to run the Company and I didn’t particularly care whether it was Mr. Smith or this guy or that guy or the other guy.
“Q. Did you furnish Mr. Paul your balance sheets and other information in connection with your firm?
“A. Yes, sir.
“Q. Did you likewise furnish that information to other prospective buyers?
“A. Yes, sir, I furnished it to several other people.
“Q. Was there anything confidential about the information you gave Mr. Paul?
“A. It was rather hardly confidential. As a matter of fact it was in the Dun and Bradstreet reports, a lot of it for five years, and you could hardly call it confidential.”
Assuming, without conceding, that a fiduciary relationship arose between the parties by reason of their negotiations concerning the purchase of Western Control Corporation, the appellant’s own conduct was not consistent with such relationship. Where such relationship exists fair dealing requires that the parties be frank with each other. It demands the utmost good faith in all the dealings of the parties with each other. If the appellee had fiduciary obligations toward the appellant, the appellant in turn had fiduciary obligations toward the appellee. A contractural or fiduciary duty cannot be predicated upon false representations. (Stegman v. Professional & Business Men’s Life Ins. Co., 173 Kan. 744, 252 P. 2d 1074; Lassen v. Marland Production Co., 133 Kan. 313, 299 Pac. 947; and Westerman v. Corder, 86 Kan. 239, 119 Pac. 868.)
Here the appellant represented to the appellee that he had an option to purchase the business; that the option price was $500,-000; that he had a line of credit of $150,000 from Wichita banks; and that the appellant’s managerial capacity was such that he had been offered a management position by the owners of the business sought to be purchased. All of these statements were false. (See, Ohio Oil Co. v. Sharp [10th C. C. A. 1943] 135 F. 2d 303.)
The appellant seeks to circumvent these statements by contending that they are not material to a determination of the issue in this case. Appellant’s counsel argue that appellant was using the word “option” as a layman would use the term, and not in its legal sense. In the face of the record this argument cannot be asserted because the appellant repeatedly attempted to get a written option to purchase Western Control Corporation on the basis of proposals prepared by his attorneys, and such proposals were consistently rejected.
Whether the appellant had an option to purchase Western Control Corporation and the terms upon which it could be purchased were vitally material in this case. It was not until the 23rd day of September, 1959, that the appellee learned the representations made to him by the appellant were fálse. The appellee then learned for the first time that the sellers would not consent to a loan of $300,000 to the purchasing corporation, unless the appellee would personally guarantee its payments.
At this point it became apparent the appellant was asking for an option from the appellee which, according to the appellant’s testimony, would return the appellant a clear profit of $190,000 for which he was to pay nothing, and thus the entire risk of loss for the extra $150,000, which appellee was asked to put into the deal, was to be on the appellee. In addition, the appellant’s proposal was that he should receive a contract to manage the business for ten years for a salary of $35,000 per year. The trial court found this management contract was an essential part of the appellant’s proposal.
We think the record may fairly be interpreted to support the trial court’s conclusion that all dealings between the appellant and the appellee were at arm’s length — that no fiduciary obligation was created between them, and that no joint adventure was established.
After the appellee learned the truth about the whole matter, he told the appellant what his investigation had disclosed. He told the appellant he was unwilling to guarantee the appellant a ten-year management contract for a salary of $35,000 a year, and was further unwilling to pledge his personal credit for $300,000 and put a disproportionate amount of cash in the business to finance an option for 22% of the stock for the appellant at the appellee’s risk.
At this conference the appellee made an honest disclosure to the appellant of his intentions. On the 26th day of September, 1959, the appellee offered to include the appellant and Guy Shelley in the enterprise to the extent of their actual contributions in relationship to the actual contribution that was to be made by the appellee. The appellee then told the appellant if he and Shelley did not wish to participate in the deal on this basis, he would go ahead and try to put the deal together without them.
From the 26th day of September until the 7th day of October, the appellant and Guy Shelley had as much opportunity as the appellee to deal with the owners of Western Control Corporation. Both appellant and appellee were free to negotiate and acquire the property for their own accounts without infringement of any prior relationship. Equity will not decree a double standard and appellee was just as free to deal for his own benefit as was the appellant. Each party was dealing for his own benefit and neither was in a fiduciary relationship. (Harris v. Morse [D. C., S. D. N. Y. 1931] 54 F. 2d 109; and Beckett v. Pierce [1946] 157 Fla. 184, 25 So. 2d 486.)
The foregoing full disclosure by the appellee to the appellant negatives the charge of fraud or double dealing on the part of the appellee. (Beckett v. Pierce, supra.)
The counter proposals of the appellant and the appellee did not create a joint adventure between them. A joint adventure must be based upon some form of agreement. (Curtis v. Hanna, 143 Kan. 186, 53 P. 2d 795.)
Even if there had been a joint adventure between the parties to this appeal relative to the acquisition of Western Control Corporation on the basis of appellant’s proposal to the appellee, and a fiduciary relationship stemming from it, such relationship would have ended when the appellant’s plan of acquisition failed. The appellee was thereafter free to negotiate and acquire the business without infringement of any prior relationship to the appellant.
We have no Kansas cases similar to the instant case on the facts. Two cases in the United States have been decided upon similar facts where the legal theories propounded by the plaintiffs have been identical to those propounded by the appellant herein. They are Appleman v. Kansas-Nebraska Natural Gas Company, supra, decided by the Circuit Court of Appeals for the Tenth Circuit on the basis of Kansas law; and Beckett v. Pierce, supra, a Florida case decided in 1946.
Both parties rely upon the Appleman case. On the facts there, the district court gave judgment for the defendants and concluded that no fiduciary relationship was ever established. The Court of Appeals affirmed the district court and held that the relationship between the parties, whatever it may have been, terminated with the plan of acquisition when it failed. Rules of law applicable to the instant case were there set out in the opinion citing Kansas cases. The parties there agreed upon a tentative plan for the purchase of properties, and the interest each would have upon the consummation of the plan. But the agreement was subject to and contingent upon various factors, one essential condition being dependent upon financing from the bank and insurance company. In the opinion the court said:
“But the arrangement whereby they would acquire the properties did not contemplate a joint ownership and a sharing of the profits in the sense that they would be partners or joint adventurers. It clearly contemplated that each would acquire a separate and distinct interest in the properties, after which the joint enterprise would come to an end. It follows, therefore, that the relationship between the parties, whatever it may have been, terminated with the failure of the plan of acquisition, and the parties were thereafter under no mutual obligation with respect thereto. . . .” (p. 849.)
Kansas-Nebraska later entered into negotiations with Fin-Ker which resulted in the purchase of the property. In the acquisition of the properties the parties acted upon information, some of which was assembled during the prior negotations. They dealt with the same parties, secured finances from the same sources, and obstacles formerly insurmountable were easily overcome in the new approach. Upon these facts and circumstances the court said in the Appleman opinion:
“. . . But under the findings of the court, which we credit, we do not have a situation in which one co-adventurer connives behind the back of another to acquire the subject property of the venture, as in Dexter & Carpenter, Inc., v. Houston, 4 Cir., 20 F. 2d 647, and Probst v. Hughes, 143 Okl. 11, 286 P. 875, 69 A. L. R. 929. Nor do we have an unfaithful trustee of confidential information as in Ohio Oil Co. v. Sharp, 10 Cir., 135 F. 2d 303, and Ballard v. Claude Drilling Co., 149 Kan. 506, 88 P. 2d 1021. Information upon which Kansas-Nebraska acted was neither confidential nor the property of either Appleman or Kansas-Nebraska individually or both of them jointly.
“With a clean break between the negotiations that failed and those that succeeded, each of the parties was free to negotiate and to acquire the property for his own account without infringement of any prior relationship. . . .” (p. 850.)
In Beckett v. Pierce, supra, the facts are similar to the instant case. The plaintiff sought to impress a trust upon corporate stock and to have himself declared the owner of a one-third interest. The plaintiff alleged that he participated in a joint venture with the defendants to buy stock of the Pi'ggly-'Wiggly Corporation, and that as a result thereof a fiduciary relationship between the parties arose. Later the defendant purchased the stock without the plaintiff. The evidence showed that the plaintiff solicited the aid of the defendants to finance the venture; that the plaintiff fully disclosed all information he had as to price and projected profits to the defendants; that the plan of purchase was rejected by the selling corporation; that thereafter the defendants offered the plaintiff a chance to buy his share of the stock on an equal basis; and upon rejection by the plaintiff the defendants bought the stock themselves.
The Florida court held a joint venture was not established by the proof, but even assuming a joint venture was present, when the selling corporation' declined the parties’ plan to buy, the project ended then and there. Further, after the plan of acquisition was rejected, the defendants’ disclosure to the plaintiff, and offer to let him purchase stock, did not substantiate the charge that the defendants conspired to defraud the plaintiff of any interest in the venture.
In the instant case the appellant’s plan of acquisition failed. That plan was to buy the business for $500,000. The business could not be bought for that — it cost $52,600 more. Just as the deal in Beckett v. Pierce needed the infusion of the defendants’ cash, which plaintiff there had not planned, the deal in this case not only departed from the appellant’s plan in the matter of price, but it also needed the infusion of appellee’s personal credit to the extent of $300,000. Just as in the Beckett case, the appellee in this case offered the appellant stock in the changed deal at appellee’s cost.
The appellant’s third contention sounds in tort. The appellant claims that he was the exclusive owner of the knowledge that the business was for sale and the financial data concerning the business — that it was a species of property — and such knowledge had been wrongfully appropriated by the appellee. In his petition he alleged:
“. . . It was further understood by plaintiff and House and Kolde that the contemplated sale should be kept confidential and divulged only to the extent necessary to procure such additional capital for plaintiff. . . .”
The trial court found this allegation in the appellant’s petition was false, and that House and Kolde were willing to sell the business to any qualified buyer who would meet their price, and were in fact negotiating with prospective buyers other than the appellant. It further found that all of the information in the hands of the appellant was in the public domain, and was freely available from sellers to any prospective purchaser. It had been made available to other prospective purchasers by House, and much of it had been published annually by the sellers in Dun and Bradstreet.
This information was not confidential, and information of this type is not “property” which is capable of being owned by anyone. The appellant gave this information to his agent, North, when he employed North to find a financial angel, and there were no restrictions imposed upon the agent as to whom he was to give the information.
Cases holding that promotional ideas and plans are not property are Appleman v. Kansas-Nebraska Natural Gas Company, supra; and Haskins v. Ryan [1906] 71 N. J. Eq. 575, 64 Atl. 436, affd per curiam 75 N. J. Eq. 623,73 Atl. 1118.
In 73 C. J. S., Property, § 2, the following rule is stated:
“. . . the general rule is that a person has no property right in an idea that is not novel, not subject to copyright, or not patentable. However, the courts recognize that there may be property in an idea, business suggestion, trade secret, process or formula, or system, but only if the proprietor or originator protects it from escape or disclosure by contract, express or implied, prior to voluntary disclosure. . . .” (p. 153.)
In support of the foregoing statement, see Bristol v. E. L. A. Society [1892] 132 N. Y. 264, 30 N. E. 506; and O’Brien v. RKO Radio Pictures [D. C., S. D. N. Y. 1946] 68 F. Supp. 13.
The appellant argues that the information possessed by the appellant was worth $15,000 as evidenced by the payment of this sum by the purchasing corporation to Rarret, Fitch, North & Company in the month of December, 1959- The payment of this sum by the purchasing corporation to North was admitted by the testimony of the appellee.
Contrary to the appellant’s contention, the record does not disclose this sum was paid by the purchasing corporation to North for simply advising the appellee of what the appellant had said about the opportunity. The record discloses that when North first called the appellee in Kansas City on the telephone to inform him of the fact that the business in the instant case was for sale, the appellee replied that he was about to get in touch with him because he was looking for a new investment.
In view of this testimony and the general finding of the trial court favorable to the appellee, it must be assumed this payment was a finder’s fee to North. Whether North was engaged in double dealing is not a matter about which we are concerned on this appeal.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal from an order of the trial court refusing to open a default judgment on the ground that it was irregularly obtained.
The primary question is whether the default judgment foreclosing two mortgages and setting the period of redemption at six months was irregularly obtained.
The appellants contend the mortgages were not purchase money mortgages, and that the redemption period should have been fixed at eighteen months. This is the extent to which the appellants seek to have the foreclosure judgment modified.
In December, 1956, Jesse J. Long and his wife (defendants-appellants) borrowed $27,500 from the Eureka Federal Savings and Loan Association, a corporation (plaintiff-appellee) to construct a motel in Cottonwood Falls, Kansas. Two notes were given by the Longs to cover the loan, and each note was secured by a real estate mortgage. The Longs defaulted in the repayment of the loan and the savings and loan association foreclosed its mortgages and bid in the mortgaged property at sheriff’s sale on November 6, 1961. Both mortgages contained the following provision which was printed in the body of the mortgage:
“It is further agreed by the parties of the first part and the Eureka Federal Savings and Loan Association, Eureka, Kansas, that this is a purchase price mortgage.”
When the foreclosure petition was filed in the district court of Chase County, Kansas, the Longs were personally served with summons, but they failed to answer or appear in the action. Accordingly judgment was entered by default on the 29th day of September, 1961.
At the trial the mortgages, copies of which were attached to the petition and made a part thereof, were duly submitted to the court and merged in the judgment. The trial court found “said mortgages are purchase price mortgages,” and fixed the period of redemption at six months from the date of sale.
The mortgaged property was sold on the 6th day of November, 1961, to the savings and loan association, and the sale was confirmed on the same day. A new term of court opened on the 7th day of November, 1961.
Thereafter on the 16th day oí November, 1961, the Longs filed a motion to reopen and set aside the judgment of the trial court entered on the 29th day of September, 1961, insofar as it fixed the period of redemption at six months, and requested the trial court to enter an order fixing the period of redemption at eighteen months.
The motion alleged the mortgages foreclosed in the action were not purchase money mortgages; that the judgment was obtained by fraudulent representations of the savings and loan association to the court and was irregularly obtained as provided in G. S. 1949, 60-3007, Third and Fourth. The motion also recited that the judgment was obtained without the introduction of any evidence, and that no mention was made in the petition that the savings and loan association would request a reduction in the period of redemption.
The appellants in their reply brief concede that no fraud was involved and state that they so informed the trial court on the hearing of the motion. We are therefore confronted solely with an attempt on the part of the appellants to have the trial court modify the foreclosure judgment, fixing the period of redemption at six months, on the ground that it was irregularly obtained pursuant to the provisions of G. S. 1949, 60-3007, Third.
It must be noted the motion filed by the appellants on the 16th day of November, 1961, was after the term of court in which the foreclosure judgment was entered. It is settled law that when a mortgage on real property is foreclosed, and the property is sold and the sale confirmed, such confirmation is res judicata and becomes a final and binding judgment of the court, subject only to the right of appeal. It cannot be collaterally attacked after the time for appeal has passed and after the term of court has changed, except in accordance with the code of civil procedure. (G. S. 1949, 60-3007, et seq.; National Reserve Life Ins. Co. v. Kemp, 184 Kan. 648, 656, 339 P. 2d 368, and cases there cited.)
Here the appellants seek to reach through to the foreclosure judgment by an appeal from the order of the trial court overruling their motion to vacate the foreclosure judgment, and by an appeal from the foreclosure judgment entered more than two months prior thereto, on the force of G. S. 1959 Supp., 60-3314a. (See, First National Bank of Topeka v. United Telephone Ass’n, 187 Kan. 29, 353 P. 2d 963.)
It may be conceded the appellants are here on their appeal from the order overruling their motion to vacate the default judgment (G. S. 1949, 60-3303; and New York Life Ins. Co. v. Slentz, 145 Kan. 849, 67 P. 2d 522), but the provisions of 60-3314a, supra, under these circumstances, do not have the effect of opening up the foreclosure judgment to this court on appeal. The procedure to be followed in cases of this type was thoroughly discussed in Becker v. Roothe, 184 Kan. 830, 339 P. 2d 292, to which reference is made. Further discussion herein will proceed upon the assumption that the reader is familiar with this case.
Since the appellants’ motion was framed to come within the provisions of 60-3007, Third, supra, the motion filed after the term in which the judgment was rendered is not addressed to the judicial discretion of the court. The appellants were required to establish “irregularity” as that term is used in the statute at the hearing on the motion.
An “irregularity,” within the meaning of the foregoing section of the statute, authorizing vacation of a judgment for irregularity in obtaining it, is the want of adherence to some prescribed law or mode of procedure, and consists either in omitting to do something that is necessary for the due and orderly conduct of a suit, or doing it in an unreasonable time or improper manner. (Dearborn Motors Credit Corporation v. Neel, 181 Kan. 598, 313 P. 2d 243; and Becker v. Roothe, supra.)
At the hearing in the trial court the appellants produced witnesses who testified in effect that the real property, described in the mortgage foreclosure petition and in the mortgages, had been deeded to the appellants in 1943 and paid for at that time. This was the extent of the appellants’ evidence. This would indicate that the foreclosure judgment fixing the redemption period at six months may have been erroneous, but it does not establish irregularity.
The appellants’ contention was that no evidence was presented to the trial court in the mortgage foreclosure proceedings is not substantiated by the record. The mortgages, copies of which were made a part of and incorporated in the petition, were presented to the trial court as evidence in the mortgage foreclosure proceedings. From these documents and the recitals in them the trial court determined the mortgages to be purchase money mortgages and fixed the period of redemption at six months.
By the provisions of G. S. 1949, 60-748, “Allegations of value, or of amount of damages, shall not be considered as true by failure to controvert them; but this shall not apply to the amount claimed in actions on contract, express or implied, for the recovery of money only.” All other allegations which are uncontroverted are to be taken as true.
This was an action on contract and the recitals in the mortgages, alleged in the petition and disclosed in evidence, which were uncontroverted were sufficient to support the finding of the trial court. This does not establish irregularity in obtaining the foreclosure judgment.
Since the appellants failed to establish either fraud or irregularity, alleged in their motion, the trial court was correct in overruling the motion. Any further question as to the correctness of the foreclosure judgment could only have been raised by timely motion for a new trial or by timely motion, made within the term, addressed to the discretion of the trial court.
A case in point is Home Owners Loan Corp. v. Holmberg, 148 Kan. 50, 79 P. 2d 859. There after the term of court at which a judgment was rendered, and at which the sale was confirmed, the defendants filed a motion to modify the judgment. It was alleged the court erroneously fixed a shorter period for redemption than that allowed by the statute; that the allegations of the plaintiff’s petition to the effect that the defendants had paid less than one-third of the purchase price were inaccurate and misleading, and that the court acted on a misunderstanding of the facts, and alleged the facts to be that they had paid more than one-third of the purchase price; that the defendants permitted judgment to be taken by default because of a misapprehension as to what the allegations of the petition were, and upon their belief and understanding that the period of redemption would be eighteen months, and that they had not been advised that the period of redemption had been fixed at six months until after the term of court at which the judgment had been rendered. In the opinion the court said:
“The motion to modify the judgment because of alleged inaccuracies in the allegations of the petition on which the judgment was rendered, and because of defendants’ alleged misunderstanding as to the allegations of the petition, is not one authorized by G. S. 1935, 60-3007, or by 60-3010, or by any other section of the code which has been called to our attention. The time for defendants to learn what the petition alleged was before judgment was taken upon it. They had ample opportunity to do so, since they were personally served with summons. The term of court having expired, the trial court had no judicial discretion in the matter aside from the provisions of the code. These considerations amply justified the ruling of the court denying the motion.” (p. 52.)
Throughout the proceedings in the instant case the appellants’ rights have not been legally prejudiced in any way by fraud, irregularity or wrongful advantage taken by the appellee. The appellants were served with summons and the service was in person. All of the proceedings were regular, and the court so found in its order confirming the sale of the real estate. The appellants, having been put on notice at the outset of the action, have no cause to complain now that the judgment was taken without their being present in court or represented by counsel. They are charged with notice of the content of the pleadings, including the provisions of the instruments sued upon, and with the nature of the relief sought.
It has been said that a party who is summoned in a course of a regular judicial proceeding, either personally or by publication, in a court having jurisdiction, will have his day in court, and must appear and take proper steps to protect his interests within the time allowed for that purpose. Opportunity may not knock again at his door. (Brenholts v. Miller, 80 Kan. 185, 186, 101 Pac. 998; and Becker v. Roothe, supra.)
The appellants contend the parties to a mortgage cannot reduce the period of redemption by agreement, citing Capitol B. & L. Ass’n v. Ross, 134 Kan. 441, 7 P. 2d 86. This point is not here because the appellants failed to establish sufficient grounds to open the foreclosure judgment. (Becker v. Roothe, supra.)
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This appeal arises out of an action for wages due under a contract of employment
Plaintiff (appellee) Douglas T. Ferraro commenced this action against A. A. Fink, doing business as Lattimore-Fink Laboratories, defendant (appellant), to recover wages due and owing for services as a pathologist in defendant’s laboratory.
Defendant answered, denying lie was indebted to plaintiff for the reason that plaintiff had, in violation of the contract of employment, performed services other than for the account and benefit of defendant, thus forfeiting any right for the wages alleged to be due. The defendant, by way of cross petition, alleged that plaintiff had breached a subsequent written agreement not to compete with appellant by opening a laboratory or practicing pathology in competition with appellant’s laboratory. The agreement so relied upon reads as follows:
“May 20, 1959.
“I, Doctor Douglas T. Ferraro, hereby agree that I will not open a laboratory, accept a position or practice pathology which is in any way competitive to the Latlimore-Fink Laboratories. If I should do this I would return to Dr. A. A. Fink of The Lattimore-Fink Laboratories the last six months salary or income which I had received from him.
“s/ Douglas T. Ferraro.”
Defendant further alleged that notwithstanding the agreement plaintiff opened a laboratory and began the practice of pathology in competition with defendant. Under the agreement the defendant sought to recover six months’ salary paid plaintiff.
Plaintiff, in answer to defendant’s cross petition, denied the allegations thereof and further alleged that the mentioned alleged memorandum agreement was not a part of the oral contract of employment originally entered into between the parties nor a part of any contract of subsequent employment, and that such memorandum agreement was wholly without consideration, void, and of no legal effect.
On the issues thus joined the case proceeded to trial to a jury that returned a general verdict in plaintiff’s favor for $816.62 and its answer to the following special question:
“1. If you find that Dr. Ferraro signed a non-competition agreement, dated May 20, 1959, was there something of value, some promise, benefit or advantage constituting a consideration flowing to> Dr. Ferraro in exchange for his signing?
“A. No.”
From an order of the trial court overruling defendant’s motion for a new trial and entering judgment on the general and special verdict defendant has appealed.
An examination of defendant’s specifications of error reveals that the sole question presented on this appeal is whether, under the circumstances, the trial court committed prejudicial error in submitting to the jury the question of whether there was any con sideration for the alleged unilateral contract of May 20, 1959, made a part of defendant’s cross petition. It is defendant’s contention the question of consideration was a matter of law for the court. It is plaintiff’s contention, in view of the issues joined by the pleadings, any consideration for the alleged contract of May 20, and the further fact the instrument was unilateral in nature, reciting no consideration, and not being a part of their original contract of employment nor referring to any fact in which consideration could be implied, that therefore the question of consideration was properly submitted to the jury.
At the outset it may be stated this is purely a fact case. In March of 1958 defendant, operating a medical laboratory and providing services to doctors and hospitals in Kansas, was seeking an additional staff member. As a result of the search plaintiff came to Topeka for a conference, and, after additional correspondence, plaintiff was employed by defendant and reported to work July 1, 1958, at an agreed salary and a promise of an increase in salary at the end of the first year. Plaintiff performed services in connection with defendant’s laboratory. There was nothing in the original agreement of the parties that plaintiff was not to compete with defendant in his business.
During the spring of 1959 defendant became concerned with reference to possible competition from the plaintiff and sought to have plaintiff enter into an agreement not to compete; however, plaintiff refused to sign any such agreement. Plaintiff testified that at no time was there submitted to him a contract such as the one of May 20, 1959; that he received an increase in salary in June of 1959 and there was no discussion with reference to the aforementioned memorandum. The plaintiff admitted his signature to this memorandum but denied there was any typing or writing above his signature at the time of the signing. Plaintiff testified he had on a few occasions signed blank pieces of paper late in the afternoon so that the matter previously dictated might be typed and sent out to laboratories.
Defendant Fink testified that in the spring of 1959 he pointed out to plaintiff that plaintiff was protected by letters defendant considered a contract, since he had signed them, but that defendant was in no way protected against plaintiff’s performing acts inconsistent with defendant’s situation, and requested plaintiff to sign a document of assurance of loyalty and plaintiff said he didn’t feel it was necessary; that at that time plaintiff wanted to buy a house and that defendant would sign his note in an amount up to $10,000, and that defendant did so; that on May 20 he called plaintiff in and presented him with the contract of May 20 and that plaintiff said he didn’t think it was necessary; however, plaintiff did sign the instrument on May 27.
Plaintiff again denied that he signed the instrument with the typing above, and stated that the signing of the $10,000 note as security on the purchase of his home had nothing to do with the instrument dated May 20.
Defendant further testified that after the contract of May 20 was signed he increased plaintiff’s salary the following month on the assurance that he had plaintiff’s written statement that he would not compete. Plaintiff testified that such increase in salary was due him under the original contract, which provided that at the end of the first year he was to receive an increase in salary.
No useful purpose would be gained in reiterating and detailing the testimony of the parties in view of the question of law raised.
G. S. 1949, 16-107, provides all contracts in writing, signed by the party bound thereby, shall import a consideration. G. S. 1949, 16-108, provides the want or failure in the whole or in part, of the consideration of a written contract, may be shown as a defense, total or partial, as the case may be, in an action on such contract, brought by one who is not an innocent holder in good faith. The presumption of consideration is not a presumption of law; it is a presumption of fact. It extends to any fact which under the situation and circumstances of the parties might reasonably supply a consideration, and it cannot be overthrown except by proof of facts warranting the inference of no consideration of any kind. It is always an affirmative defense, and may not be inferred or presumed. (Palmer v. The Land & Power Co., 172 Kan. 231, 238, 239 P. 2d 960; Chisholm v. Snider, 145 Kan. 573, 579, 66 P. 2d 606.)
In National Bank v. Williams, 117 Kan. 501, 503, 232 Pac. 252, we held that a failure of consideration is a defense to a promissory note when the suit is by the payee against the maker, and this may be shown by parol evidence and is naturally a jury question. Ordinarily the question of the presence of a benefit or detriment to the promisor, sufficient to constitute a consideration, is a question of fact, as is the question of what constitutes the consideration, where it is controverted. (17 C. J. S., Contracts, § 613, p. 1276.) Where consideration for a contract is controverted, the conflict between testimony of want of consideration and a statutory presumption of valuable consideration is sufficient to require a submission of the question of consideration to the jury. (53 Am. Jur., Trial, § 2261, pp. 220, 221.)
In view of the issues joined by the pleadings in this action, and the fact that the May 20 purported agreement was unilateral in nature, reciting no consideration and being no part of the original contract of employment, and the fact that consideration for such instrument was highly disputed, the court did not err in submitting the question of consideration for the agreement to the jury under all the facts and circumstances in the case, and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The defendant was convicted on two counts of burglary in the third degree (G. S. 1949, 21-521) and one count of petty larceny (G. S. 1961 Supp., 21-535), and was sentenced to confinement in the state penitentiary as an habitual criminal. (G. S. 1949, 21-107a.)
During the presentation of ihe state’s case in chief, the defendant objected to exhibits and articles of property obtained by police officers when they searched his apartment without a search warrant at the time he was arrested for the crimes for which he was subsequently convicted. When the objection to the evidence was made, the district court excused the jury and the trial proceeded on the question of the reasonableness of the search and seizure of the items and property offered in evidence. After a full hearing the district court found,
“The court has considered all of the evidence introduced in the absence of the jury by both sides, and the court finds generally that all legal and constitutional objections to the introduction and admission of evidence of the searches and articles found, should be overruled and so orders.”
Thereafter, the jury was recalled and all the evidence presented to the district court was reoffered and heard by the jury.
As indicated above, a verdict of guilty was returned on each of the three counts charged in the information. The defendant filed a motion for a new trial containing five grounds all of which had to do with alleged errors and irregularities during the trial, including the evidence offered by the state which it was contended had been obtained illegally in an unlawful search and seizure in violation of the defendant’s right under the Fourteenth Amendment to the Constitution of the United States. The motion for a new trial was overruled and the defendant was sentenced as an habitual criminal, hence, this appeal.
The appellant’s notice of appeal and motion for record on appeal were abstracted in the joint abstract filed by the state and the appellant, and his notice of appeal recited that he gave “timely notice of intention to appeal from the judgment entered in this court in said numbered case.” (Emphasis supplied.) Thus, the defendant has appealed only from the conviction and judgment rendered in the case, and his appeal does not include the order overruling his motion for a new trial.
In view of the foregoing, we are required to apply the long-established and well-settled rules of appellate procedure that matters specified as error, in order to be reviewable, must be within the purview of those matters contained in the notice of appeal, and when an appellant seeks to have this court review alleged trial errors he must appeal from the order overruling his motion for a new trial and in addition must specify such ruling as error in conformity with Rule No. 5 relating to appellate procedure which provides that “The appellant’s abstract shall include a specification of the errors complained of, separately set forth and numbered.” (188 Kan. p. XXVII; [G. S. 1949, 60-3826].) A few of our many cases applying the rule to appellate review of criminal cases are State v. Shehi, 125 Kan. 110, 263 Pac. 787; State v. Owen, 161 Kan. 361, 168 P. 2d 917; State v. Turner, 183 Kan. 496, 328 P. 2d 733; State v. Hamilton, 185 Kan. 101, 340 P. 2d 390, 361 U. S. 920, 4 L. Ed. 2d 188, 80 S. Ct. 265; State v. Combs, 186 Kan. 247, 350 P. 2d 129; State v. Bednark, 187 Kan. 236, 356 P. 2d 848; State v. Armstrong, 188 Kan. 567, 363 P. 2d 520, and State v. Mize, 191 Kan. 129, 379 P. 2d 317.
Failure to comply with either or both of such requirements precludes appellate review of alleged trial errors which, it has been held, include rulings of the district court on dilatory pleas, orders setting the case for trial, denial of additional time to plead, the admission or exclusion of evidence, the sufficiency of evidence to support the judgment, erroneous instructions to the jury, misconduct of court or counsel, and general miscellaneous irregularities of procedure and practice for which new trials may be granted on a timely motion. (Jeffers v. Jeffers, 181 Kan. 515, 313 P. 2d 233, and cases cited; Marshall v. Bailey, 183 Kan. 310, 327 P. 2d 1034; Andrews v. Hein, 183 Kan. 751, 332 P. 2d 278; Shelton v. Simpson, 184 Kan. 270, 336 P. 2d 159.) Here the appellant neither appealed from the order overruling his motion for a new trial nor did he separately specify such ruling as error. In State v. Burnett, 189 Kan. 31, 367 P. 2d 67, it was said:
“While a defendant may appeal to this court as a matter of right from any judgment against him by complying with the adequate and easily complied-with method of appeal (G. S. 1949, 62-1701, 62-1724), the statute does not contemplate that he is entitled to review of eveiy matter involved in his trial and sentence without complying with the well-established rules of procedure relating to appellate review. (State v. Hamilton, 185 Kan. 101, 103, 340 P. 2d 390; Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 503, 73 S. Ct. 397.)” (l. c. 33.)
Rule No. 5 has been printed repeatedly in various volumes of the Kansas reports and it is neither necessary nor required that we labor the reasons for its adoption and application. It is sufficient to say that it was designed to promote definiteness, fairness, and orderly procedure on appellate review. It was intended to be of benefit to the Bench and Bar alike. Specifically, its purpose is to advise both the appellee and this court concerning error or errors which the appellant claims the district court committed in rendering its judgment, and it has been applied with like application to both civil and criminal cases.
As we have seen, the point here attempted to be raised relates to the admission or exclusion of evidence which is a trial error and may be reviewed only when the appeal is from the order overruling the motion for a new trial and such rule is specified as error in conformity with Rule No. 5 of this court, and the fact that a claimed federal right is presented does not preclude this court from refusing to decide the federal question and apply adequate and independent well-settled state rules relating to appellate procedure. In John v. Paullin, 231 U. S. 583, 58 L. Ed. 381, 34 S. Ct. 178, it was said:
“Without any doubt it rests with each State to prescribe the jurisdiction of its appellate courts, the mode and time of invoking that jurisdiction, and the rules of practice to be applied in its exercise; and that state law and practice in this regard are no less applicable when Federal rights are in controversy than when the case turns entirely upon questions of local or general law. . . .” (p. 585.)
In In re Lamkin, 355 U. S. 59, 2 L. Ed. 107, 78 S. Ct. 137, a petition for a writ of certiorari was denied upon the ground that the judgment of the court of criminal appeals of Texas rested upon an adequate state ground since the petitioner in filing his application for habeas corpus in the state court failed to comply with applicable state procedures. See, also, Fox Film Corp. v. Muller, 296 U. S. 207, 80 L. Ed. 158, 56 S. Ct. 183, holding that where the judgment of a state court rests upon two grounds, one of which is federal and the other nonfederal in character, the Supreme Court of the United States is without jurisdiction to review if the nonfederal ground is independent of the federal ground and adequate to support the judgment. In the opinion it was said:
. . This rule has become firmly fixed at least as early as Klinger v. Missouri, 13 Wall. 257, 263 (20 L. Ed. 635, 637), and has been reiterated in a long line of cases since that time. It is enough to cite, in addition to the Klinger case, the following: Enterprise Irrigation District v. Canal Co., 243 U. S. 157, 163-165 (61 L. Ed. 644, 648, 649, 37 S. Ct. 318); Petrie v. Nampa Irrigation District, 248 U. S. 154, 157, (63 L. Ed. 178, 179, 39 S. Ct. 25); McCoy v. Shaw, 277 U. S. 302 ( 72 L. Ed. 891, 48 S. Ct. 519); Eustis v. Bolles, 150 U. S. 361 (37 L. Ed. 1111, 14 S. Ct. 131).” (l. c. 210.)
In Williams v. Georgia, 349 U. S. 375, 99 L. Ed. 1161, 75 S. Ct. 814, it was said:
“A state procedural rule which forbids the raising of federal questions . . . by any other than a prescribed method, has been recognized as a valid exercise of state power. . . .” (p. 382.)
See, also, Ferguson v. Georgia, 365 U. S. 570, 5 L. Ed. 2d 783, 81 S. Ct. 756, as tending to bear on this point. In Beck v. Washington, 369 U. S. 541, 549, 550, 8 L. Ed. 2d 98, 82 S. Ct. 955, it was said that Rule 43 of the Rules on Appeal, Revised Code of Washington, relating to appellate review of alleged error of the trial courts of that state which provides that “[n]o alleged error of the superior court will be considered by this court unless the same be definitely pointed out in the ‘assignments of error in appellant’s brief” was a valid exercise of state power, and that the supreme court of the state of Washington was not required to search through an appellant’s brief to find specific contentions which should have been raised within the “assignments of error.”
We rest our decision in this case upon the appellant’s failure to invoke and apply the adequate and easily complied-with rules of this court relating to appellate procedure and do not pass upon the merits of the case or upon the correctness of any of the rulings of the district court. Appellate jurisdiction in this instance was not invoked in accordance with those rules, and we here deny no federal right since there was no federal question before us for decision.
The judgment is affirmed. | [
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Hill, J.:
This appeal has been brought in an untimely manner. The district court held that Joshua Patton had an attorney for the purpose of filing an appeal and that attorney failed to perfect and complete an appeal. The court then granted the out-of-time appeal while giving no weight to the written waiver of appeal signed by Patton in his plea agreement. Because Patton has signed this waiver of appeal, and his plea agreement has not been set aside, we hold that we do not have jurisdiction. Accordingly, we dismiss the case.
Background Facts
In 2003, Patton pled guilty to one count of attempted manufacture of methamphetamine, a severity level 1 drug felony, and one count of possession of anhydrous ammonia in an unapproved container, a severity level 4 drug felony. During the entire preceding, Patton was represented by counsel.
Patton made a plea agreement with the State. See K.S.A. 2005 Supp. 22-3210. Patton agreed to plead guilty to the attempted manufacture charge and the anhydrous ammonia charge. Furthermore, he agreed to waive his right to appeal and not file any motions under K.S.A. 60-1507. In exchange, the State agreed to dismiss all of the remaining charges and recommend a downward durational departure sentence of 78 months’ imprisonment.
At sentencing, Patton’s criminal history score was determined to be I, resulting in a possible 146-month prison sentence. After reviewing Patton’s motion for downward durational departure and motion for dispositional departure, and being aware that Patton tested positive for methamphetamine ingestion, the sentencing court granted only the durational departure motion. Patton received a 78-month sentence for the methamphetamine charge and an 11-month concurrent sentence for the anhydrous ammonia charge.
We note that the sentencing court informed Patton of his right to appeal, “specifically, in regards to the finding against him on the dispositional departure.” Patton, however, did not file an appeal within the statutory time.
In March 2004, Patton filed a motion to correct an illegal sentence under K.S.A. 22-3504, claiming that he should have been sentenced with a severity level 3 drug felony under K.S.A. 65-4161 (a) instead of K.S.A. 65-4159, a severity level 1 drug felony. In his motion to correct an illegal sentence, Patton did not comment on the absence of his direct appeal but did request the court to apply the ruling of State v. McAdam, 277 Kan 136, 83 P.3d 161 (2004), to his sentence.
In due course, the district court denied his motion, finding that McAdam did not apply retroactively to his sentence because Patton failed to raise the issue on direct appeal. A panel of this court affirmed that ruling, holding that McAdam only affects direct appeals from sentencing and, thus, could not apply retroactively to Patton’s collateral attack. See State v. Patton, No. 92,682, unpublished opinion filed May 13, 2005.
Then, in June 2005, Patton filed a motion under K.S.A. 60-1507, requesting the district court to allow him to file his direct appeal out of time. He alleged his attorney failed to perfect and complete his appeal. Patton stated at the hearing that he thought he was originally going to be released on probation and when he was not, he then wanted to appeal. He failed to make contact with his lawyer within the statutory time and then asked his mother to discuss the matter with his lawyer. After conducting a hearing on the matter, the district court determined that the evidence supported Patton’s claim under the third exception of State v. Ortiz, 230 Kan. 733, Syl. ¶ 3, 640 P.2d 1255 (1982). The district court then granted Patton’s motion and ordered him to file this appeal within 10 days. This matter is now brought to us.
The two issues that Patton raises in this appeal are: (1) he should have received a severity level 3 drug sentence and (2) he should have been placed on probation.
The State asserts throughout its arguments in this case that Patton waived his right to appeal in the plea agreement and therefore the district court’s finding that the third exception to Ortiz was applicable was incorrect. The State therefore claims that this court should dismiss the appeal as untimely. This is a question of law regarding this court’s jurisdiction to hear this appeal.
Jurisdiction
“Whether a court has jurisdiction over a matter is a question of law over which an appellate court has unlimited review.” State v. Campbell, 273 Kan. 414, Syl. ¶ 1, 44 P.3d 349 (2002). In addition, the right to appeal is entirely statutoiy and is not contained in the United States or Kansas Constitutions. State v. Legero, 278 Kan. 109, Syl. ¶ 2, 91 P.3d 1216 (2004). Therefore, “[a] knowing and voluntary waiver by the defendant of his statutory right to appeal is generally enforceable.” Campbell, 273 Kan. at 425.
It is well established that an appellate court has no jurisdiction to entertain an appeal by the defendant in a criminal case unless the defendant appeals within the time prescribed by the statutes providing for such an appeal. State v. Flynn, 274 Kan. 473, 477, 55 P.3d 324 (2002). Three limited exceptions have been recognized by our Supreme Court:
“A limited exception to the general rule requiring a timely appeal from sentencing is recognized in the interest of fundamental fairness only in those cases where an indigent defendant was either: (1) not informed of [any] rights to appeal; (2) was not furnished an attorney to perfect an appeal; or (3) was furnished an attorney for that purpose who failed to perfect and complete an appeal.” (Emphasis added.) State v. Phinney, 280 Kan. 394, 401, 122 P.3d 356 (2005) (citing Ortiz, 230 Kan. at 735-36).
In this case, paragraph 6 of the plea agreement contains Patton’s waiver of his appeal rights. It states: “The defendant waives his right of appeal, and waives his right to file any motions under K.S.A. 60-1507 arising from this matter.”
On March 20, 2003, Patton signed the plea agreement and attended the plea hearing. At that hearing, Patton orally confirmed that he (1) had read and fully understood the plea agreement; (2) had authorized it to be drafted; and (3) had agreed with the statement and the conditions in the document. In spite of this, Patton filed a motion under K.S.A. 60-1507, over 2 years later, claiming that he should be allowed to file his appeal out-of-time because his trial counsel was ineffective in failing to perfect his appeal within 10 days following imposition of sentence. See K.S.A. 22-3608(c).
It is quite clear that at the Ortiz hearing, the facts were not contested. Patton expressed his desire to appeal; he had attempted to contact his attorney through his mother; his attorney failed to contact Patton since the sentencing; his attorney faxed the proper appellate documents to Patton’s mother; and no appeal was filed.
The district court also questioned the waiver:
“THE COURT: So the motion for dispositional departure was not part and parcel of the plea agreement, was it?
“[State]: No.
“THE COURT: And as such, his agreement to waive his right to appeal would not affect that, would it, since it was not part of the plea agreement?
“[State]: I — that could be an interpretation.
“THE COURT: So what would be the basis of the State of Kansas moving to set aside the plea if — if he was to exercise his rights?
“[State]: Well, the State’s position could be that, by taking an appeal, he is violating the agreement, just on its face.
“[State]: . . . but there’s also that flip side of, hey, you said you wouldn’t appeal —
“ — and there was no limitation on what he would not appeal from.
It’s a straight — it’s a flat, I will not appeal.”
Ultimately the district court held that the third exception under Ortiz applied and granted Patton’s appeal out of time. When asked for clarification from the State’s attorney, the court said:
“The last information that was received was that this appeal should be filed. Maybe it could be that Mr. Patton would have dismissed his appeal after reviewing this matter, but I don’t lcnow that. The last indication was, is that the appeal was to be filed. Therefore, in the interest of justice and in the interest — and pursuant to case law, this Court finds that, although he had an attorney, that the appeal was not perfected, and he should gain access to the courts.
“You lcnow, we can go all the way through the rights of due process, but if — if the defendant ■ — • and the Court notes and the Court looks at the plea agreement and notes in the plea agreement it states the defendant waives his right to appeal, and that’s the plea agreement. Not contained in that plea agreement is the motion of dispositional departure, and the parties state that they are free to argue that at sentencing. If the plea agreement was to concern the motion of dispositional departure, I believe it would have said something to the point that the notice of appeal, as — as to all issues involved at sentencing, et cetera. It’s not. The plea agreement is veiy explicit that the motion for dispositional departure may be argued by the parties. Parties don’t know what the Court’s ruling is going to be at that time. They don’t lcnow what my findings are going to be.
“[a]fter considering all these matters, [the Court] finds the defendant should be allowed to file his appeal out of time.” (Emphasis added.)
In its order, the district court only addressed the Ortiz issue, not the written waiver. By doing this, the court did not limit Patton’s appeal only to the dispositional departure motion. But, we cannot ignore the presence of Patton’s written waiver of his right to appeal.
While it is clear that the evidence supports the third exception under Ortiz, it is not clear that the district court had the power to apply that ruling because Patton had previously waived his right to appeal in his plea agreement. The court evidently decided that if the dispositional departure motion was not covered by the plea agreement then the waiver was ineffective. We can only assume this is the court’s position since it did not say one way or the other. Even if we construe the written waiver of appeal not to include the dispositional departure motion, we lack jurisdiction to hear the matter. Simply put, it has been held that when a district court imposes presumptive sentences, an appellate court lacks jurisdiction to consider claims that the trial court erred in denying a motion seeking a departure sentence. State v. Flores, 268 Kan. 657, 660, 999 P.2d 919 (2000).
If the only subject of this appeal could be whether Patton should be placed on probation, that is not the effect of the district court’s ruling because Patton also raises the McAdam sentencing issue, which was clearly covered by the written waiver of appeal in the plea agreement.
A series of three cases helps us decide this issue, Ortiz, 230 Kan. 733, State v. Willingham, 266 Kan. 98, 967 P.2d 1079 (1998), and Campbell, 273 Kan. 414, Syl. ¶ 1. All three lead us to the conclusion that written waivers of appeal rights must be given weight. They are contracts between the parties not to be ignored the courts.
First, we turn to Ortiz itself for guidance on the interplay between written appeal waivers and the exceptions that permit untimely appeals. In Ortiz, the defendant signed a written waiver and its provisions were specific:
“I want to state my intentions with regard to any appeals concerning the two cases that have been previously named in this letter. . . .
“Regarding case No. 78-CR-37, ... I NOW STATE THAT I DO NOT WANT TO APPEAL THE SENTENCE OF THE COURT ....
“Furthermore, in case No. 79-CR-15 I also state that I do not want to appeal that case and in fact, have been so informed by the Court that upon my plea of guilty to said charge that I forego any further appeal rights on account thereof.
“EVEN THOUGH I KNOW THAT I HAVE AN ABSOLUTE RIGHT TO APPEAL THE SENTENCE HANDED DOWN IN CASE NO. 78-CR-37,1 DO NOT WANT TO DO SO AND I SEPARATELY IN THIS SENTENCE EMPHASIZE THIS MATTER.” 230 Kan. at 733-34.
Over a year later, Ortiz filed a K.S.A. 60-1507 motion where he claimed he was illiterate and had failed to understand his appeal rights when he signed the written waiver. When making its final ruling on the subject, our Supreme Court held the written waiver disproved the allegations in his K.S.A. 60-1507 motion. Furthermore, it noted he had the assistance of an interpreter to assure his understanding. As a consequence, his appeal was dismissed for want of jurisdiction. 230 Kan. at 736-37. Clearly, written waivers have an effect on a defendant’s attempt to file an untimely appeal.
We point out that the facts in this case are not identical with Ortiz. Here, the written waiver was not as explicit as the waiver in Ortiz. Further, Patton never claimed that he did not knowingly or intelligently waive his right to appeal as was tire case in Ortiz. Patton claimed that he asserted his right and that his attorney failed to file the appeal. Finally, the evidence was clear in this case that Patton wanted to appeal and his attorney failed to take the proper steps.
Moving forward we turn next to Willingham, 266 Kan. at 100-02, for guidance regarding what weight written waivers should be given in Ortiz-type situations. In Willingham, the court held that despite the defendant’s apparent verbal desire not to appeal, the record on appeal was insufficient to demonstrate that the defendant waived his right to appeal. But the court noted that it may have held differently had the trial counsel followed the provisions of K.A.R. 105-3-9. 266 Kan. at 101. The regulation, K.A.R. 105-3-9, deals with court-appointed trial counsel and what is expected of them after sentencing. It provides:
“(a) In order to protect a convicted defendant’s right to appeal, it shall be the duty of each trial counsel to prepare, file, or both, the following documents:
“(3) file a notice of appeal in a timely manner, unless a waiver of the right to appeal has been signed by the defendant.” (Emphasis added.) K.A.R. 105-3-9(a)(3).
From this it is clear that Willingham reasoned that the basis of an Ortiz denial of a defendant’s appeal would be grounded in the fact that the defendant had made a written waiver of the right to appeal. 266 Kan. at 101. Because Patton waived his right to appeal in writing, under K.A.R. 105-3-9(a)(3) this conduct also removed his appointed counsel’s duty to file an appeal for him within the 10 days following sentencing.
We conclude that in the absence of a withdrawal of his plea agreement, Patton’s written waiver of his right to appeal stands as a bar to permitting this appeal.
We believe this holding is in accordance with Campbell, 273 Kan. 414, another case which involved a written waiver in a sentencing agreement. In Campbell, the defendant signed a written sentencing agreement, stating that the defendant “ waives any right to appeal the verdict against him. . . .’” 273 Kan. at 419. At his sentencing hearing, Campbell confirmed that he understood the agreement. But at the sentencing, the district court failed to inform the defendant of his right to appeal.
On appeal, the defendant failed to address the waiver issue. Campbell also noted that the defendant never alleged that the waiver of the right to appeal his convictions was not entered into freely and knowingly. As a result, the court held that despite the sentencing court’s failure to fulfill its statutory duty, this failure did not overcome the defendant’s waiver. 273 Kan. at 425. The Campbell court looked at the bargain and stated:
“Campbell bargained with the State for a reduction in sentence in exchange for his cooperation, testimony against [a codefendant], and waiver of his appeal rights. The State abided by the terms of the agreement. Thus, Campbell knowingly and voluntarily waived the right to appeal his conviction when he entered into the sentencing agreement with the State.” 273 Kan. at 425.
The facts are similar here. First, Patton’s brief fails to mention tire waiver issue. Second, the record shows that Patton entered into the plea agreement freely and knowingly. Third, Patton bargained with the State for a downward durational departure of his sentence and for the dismissal of four other charges in exchange for his cooperation, such as giving testimony against Benjamin Faulkner, stipulating to the admission of a report and its results and the waiver of his right to appeal. Fourth, Patton concedes that the State complied with the plea agreement terms. Therefore, similar to the holding in Campbell, despite the trial counsel’s alleged failure to file his notice of appeal within the statutory time period, this alleged failure should not replace the fact that Patton knowingly and voluntarily waived his right to appeal.
In this case, where the defendant bargained with tire State and knowingly and voluntarily agreed to waive his right to appeal in exchange for a sentence reduction and dismissal of additional charges, the district court cannot ignore the waiver because it stands as a bar to the defendant filing an appeal unless the plea agreement is set aside.
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Rulon, C.J.:
The State appeals the district court’s refusal to permit retrial on defendant Wendy DuMars’ drug-related offenses after this court reversed the defendant’s convictions on the basis of cumulative trial error and remanded the case for new trial in State v. DuMars, 33 Kan. App. 2d 735, 108 P.3d 448, rev. denied 280 Kan. 986 (2005) (DuMars I). The State contends the district court disregarded this court’s mandate and that double jeopardy did not bar retrial of the defendant. The defendant responds that prosecution for the drug offenses is moot and the district court properly dismissed the charges on either double jeopardy or due process grounds. We reverse and remand for further proceedings.
The defendant was convicted by a jury of attempted manufacture of methamphetamine, two counts of possession of drug man ufacturing paraphernalia, possession of methamphetamine, possession of marijuana, three counts of child endangerment, obstruction of official duty, and criminal use of a weapon. At trial, the defendant requested a mistrial on the basis of improperly admitted and prejudicial hearsay evidence. The district court denied the requested mistrial. The defendant renewed her argument in posttrial motions for judgment of acquittal and new trial, which were denied.
The defendant appealed her convictions for attempted manufacture of methamphetamine and possession of drug manufacturing paraphernalia and one of the convictions for child endangerment. This court concluded the defendant’s trial had been prejudiced by cumulative errors involving the admission of hearsay evidence and multiple instances of prosecutorial misconduct. With respect to the prosecutorial misconduct, specifically, this court noted: (1) the prosecution elicited hearsay from witnesses on two occasions; (2) improperly created a negative inference from the defendant’s invocation of her right to remain silent post -Miranda warnings; (3) undermined the weight the jury might have placed in the instruction requiring jury unanimity; and (4) misstated facts in closing arguments. DuMars I, 33 Kan. App. 2d at 745-50.
Due to the deliberate and repeated nature of the prosecutorial misconduct, this court concluded the errors collectively worked to deny the defendant a fair trial. We further concluded the State had failed to present sufficient evidence to support the one child endangerment conviction challenged on appeal and ordered the conviction to be vacated. 33 Kan. App. 2d at 756.
Accordingly, the DuMars I court remanded the case for a new trial only on the attempted manufacture of methamphetamine and possession of drug manufacturing paraphernalia charges. 33 Kan. App. 2d at 757.
After the district court received the mandate of this court, the defendant filed an objection to the State’s attempt to retry the drug-related offenses. After a hearing, the district court found double jeopardy had barred further prosecution of the defendant’s convictions and refused to allow retrial. The State filed a timely notice of appeal.
APPELLATE MANDATE
The State primarily contends the district court had no authority to disregard this court’s mandate and dismiss the methamphetamine-related drug charges against the defendant. When an appellate court has remanded a case for further proceedings consistent with its mandate, a district court is obliged to effectuate the mandate and may consider only those matters essential to the implementation of the ruling of the appellate court. A determination of the district court’s compliance with an appellate court mandate constitutes a question of law over which this court possesses unlimited review. Edwards v. State, 31 Kan. App. 2d 778, 780, 73 P.3d 772 (2003).
The appellate mandate rules are a subset of judicial policy regarding law of the case and are designed to implement consistency and finality of judicial rulings. State v. Collier, 263 Kan. 629, 636, 952 P.2d 1326 (1998). Consequently, when a second appeal is brought in the same case, the first appeal is settled law regarding all questions actually decided, explicitly or implicitly, in the first appeal. 263 Kan. at 632 (citing Waddell v. Woods, 160 Kan. 481, Syl. ¶ 3, 163 P.2d 348 [1934]).
Citing State v. Downey, 29 Kan. App. 2d 467, 470-71, 27 P.3d 939, rev. denied 272 Kan. 1421 (2001), the State argues this court, by ordering a retrial on the drug-related convictions, implicitly rejected a double jeopardy bar to further prosecution. In Downey’s direct criminal appeal, this court affirmed Downey’s convictions but remanded the case for resentencing. On remand, however, the district court granted Downey’s motion to set aside his convictions and ordered a new trial. The district court’s ruling was based upon evidentiary stipulations that Downey had entered in his first trial. This court implicitly addressed the stipulations in Downey’s direct appeal, concluding that Downey waived any defect in the admission of such stipulations by failing to object at trial. When the State appealed the order setting aside the convictions, this court ruled the district court had violated the mandate of the appellate court by considering Downey’s arguments related to his convictions. 29 Kan. App. 2d at 470-72.
Downey is distinguishable from this case. In Downey, the district court was presented with a mandate permitting consideration only of sentencing issues, yet the district court exceeded the scope of the mandate to consider Downey s argument related to his convictions. Moreover, Downey s trial issues on remand undermined a specific issue considered and rejected by this court, i.e., the propriety of the admission of evidence by stipulation. In contrast, here, this court specifically reversed two of the defendant’s convictions and ordered a new trial on those convictions in DuMars I. However, this court did not specifically address the defendant’s double jeopardy claim, and the claim is not inconsistent with this court’s ruling in DuMars I.
“Where the mandate of an appellate court merely reverses a ruling of the district court and remands the case for further proceedings but does not direct the judgment of the district court, the district court has discretion to preside over the remaining trial proceedings, as if the district court had originally made the ruling mandated by the appellate court. [Citation omitted.] In other words, a district court may address those issues necessaiy to the resolution of the case that were left open by the appellate court’s mandate. [Citations omitted.]” Edwards, 31 Kan. App. 2d at 781.
In DuMars I, this court reversed the drug-related convictions for trial error and remanded the case for further proceedings. The district court was in the same position following remand as if the district court had granted the defendant’s motion for a new trial on a similar basis. Under the circumstances, the district court possessed the authority to consider the defendant’s double jeopardy claim without violating the appellate court’s mandate.
MOOTNESS
The defendant initially contends the State’s appeal is moot because prosecution of the attempted manufacture and possession of drug paraphernalia charges will not serve any legitimate interest of the State in obtaining convictions. The defendant argues she has completely served any sentence which might be imposed after conviction and a conviction for tire additional drug-related crimes will not affect the defendant’s criminal history score.
An appellate court does not decide moot questions or render advisory opinions. The rule is based upon a judicial policy of adjudicating only real controversies relative to the legal rights of persons and property involved in a particular case so that the judicial determination will possess operative and conclusive effect. Skillett v. Sierra, 30 Kan. App. 2d 1041, 1046, 53 P.3d 1234, rev. denied 275 Kan. 965 (2002) (citing Board of Johnson County Comm'rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 [1996]).
Mootness is not a question of jurisdiction, and the courts have routinely acknowledged two exceptions to the rule. First, where a judgment is not enforceable only because of lapse of time or other changed circumstances and where dismissal of an issue will adversely affect rights vital to one of the parties, a court may address the issue. Skillett, 30 Kan. App. 2d at 1046-47 (citing Gonzales v. State, 11 Kan. App. 2d 70, 71, 713 P.2d 489 [1986]). Second, where an issue, although moot, is capable of repetition and raises concerns of public importance, a court may address the issue. Skillett, 30 Kan. App. 2d at 1048.
Although Kansas appellate courts have not had an occasion to consider the mootness question in the context of a State’s appeal, this court has considered whether a criminal defendant’s appeal of a conviction becomes moot when the defendant has served the entire sentence imposed. See State v. Flanagan, 19 Kan. App. 2d 528, Syl. ¶ 1, 873 P.2d 195 (1994).
“[W]e hold that a criminal contempt conviction does not become moot because a defendant may have served his or her time on that conviction. We recognize that the judicial system is an integral part of American life, and a criminal contempt conviction cannot help but affect a defendant’s life if he or she appears before a judge who becomes aware of that conviction. That fact, and other possible collateral consequences of this conviction, are too obvious to declare this appeal moot simply because defendant cannot be subjected to additional jail time.” 19 Kan. App. 2d at 529-30.
Aside from the collateral consequences exclusively attending a criminal contempt conviction, any criminal conviction possesses collateral consequences that are not perhaps immediately discernible. The same collateral consequences that support a criminal defendant’s interest in challenging a conviction after the immediate consequences of the conviction no longer exist also support the State’s interest in preserving a criminal conviction. See State v. Jordan, 716 A.2d 1004, 1007 (Maine), cert. denied 525 U.S. 1007 (1998) (“If the defendant has an interest in avoiding the collateral consequences of a conviction, then the State has an equally compelling interest in securing a conviction to effect those consequences.’’).
“[E]ven after a defendant has served the full measure of his sentence, a State retains a strong interest in preserving the convictions it has obtained. States impose a wide range of disabilities on those who have been convicted of crimes, even after their release. For example, in California, . . . persons convicted of a felony may be disqualified from holding public office, subjected to restrictions on professional licensing, and barred from possessing firearms. [Citation omitted.] Further, each of the 50 States has a statute authorizing enhanced sentences for recidivist offenders. [Citations omitted.]” Daniels v. United States, 532 U.S. 374, 379-80, 149 L. Ed. 2d 590, 121 S. Ct. 1578 (2001).
Collateral consequences arising from a criminal conviction are generally presumed, and the United States Supreme Court has abandoned inquiry into the actual existence of specific collateral consequences arising from criminal convictions. See Sibron v. New York, 392 U.S. 40, 55, 20 L. Ed. 2d 917, 88 S. Ct. 1889 (1968). There is no principled reason collateral consequences presumed to have arisen from a conviction will not support the State’s interest in retrying the defendant, just as such collateral consequences would be presumed if the defendant sought to challenge her convictions. Even if the particular convictions at issue in this appeal do not affect the collateral consequences imposed upon the defendant because of her other convictions, the State has an interest in prosecuting a violation of the law and in redressing the victims of that violation, including members of society at large. See State v. Kluttz, 9 Conn. App. 686, 710, 521 A.2d 178 (1987). The State’s appeal is not moot.
DOUBLE JEOPARDY
The real issue upon which this appeal revolves is whether double jeopardy prevents the defendant from being retried for convictions vacated on the basis of prosecutorial misconduct. The State chai lenges the district court’s ruling that double jeopardy bars retrial. The defendant argues in support of the district court’s decision, contending the prosecutorial misconduct was intentionally calculated to coerce the defendant into moving for a mistrial and, therefore, should be barred by double jeopardy. Review of a question concerning the application of double jeopardy is a question of law over which an appellate court possesses unlimited review. See United States v. McAleer, 138 F.3d 852, 855 (10th Cir.), cert. denied 525 U.S. 854 (1998).
The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution prohibits a person from being twice placed in jeopardy for the same offense. The protection of the Double Jeopardy Clause contains three components, “shielding] an accused from: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” State v. Mertz, 258 Kan. 745, Syl. ¶¶ 2, 3, 907 P.2d 847 (1995). The Double Jeopardy Clause is applicable to the states through the Fourteenth Amendment to the United States Constitution. State v. Wittsell, 275 Kan. 442, 445, 66 P.3d 831 (2003).
Section 10 of the Kansas Constitution Bill of Rights contains an analogous protection. The defendant invites this court to interpret the Kansas Constitution to provide greater rights than the federal Constitution affords. However, the Kansas Supreme Court, in inteipreting § 10 of the Kansas Constitution Bill of Rights, has stated the protection provided therein is “ ‘equivalent to the protection guaranteed in the United States Constitution.’ ” Wittsell, 275 Kan. at 446 (quoting Mertz, 258 Kan. at 749). This court is bound by Kansas Supreme Court precedent, absent some indication the court is departing from that precedent. State v. Burton, 35 Kan. App. 2d 876, 882, 136 P.3d 945, rev. denied 282 Kan. 792 (2006). Because Kansas courts have never construed § 10 of the Kansas Constitution Bill of Rights to extend greater rights than the Double Jeopardy Clause of the Fifth Amendment, it is unlikely our Supreme Court will depart from the precedent established in Wittsell. See State v. Schoonover, 281 Kan. 453, 474, 133 P.3d 48 (2006).
The constitutional prohibition against double jeopardy does not absolutely bar retrial. When an initial trial results in a conviction, as here, and the conviction is reversed because of trial error (including prosecutorial misconduct), double jeopardy generally does not bar retrial. Lockhart v. Nelson, 488 U.S. 33, 38, 102 L. Ed. 2d 265, 109 S. Ct. 285 (1988); Burks v. United States, 437 U.S. 1, 15, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978) (“[Reversal for trial error] is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct.”).
However, when a conviction is reversed for insufficiency of the evidence, double jeopardy bars any further prosecution for that particular offense. Lockhart, 488 U.S. at 39 (citing Burks, 437 U.S. at 18); State v. Pabst, 268 Kan. 501, 512, 996 P.2d 321 (2000). In DuMars I, this court determined the State had presented insufficient evidence to support the defendant’s conviction for child endangerment related to C.W., but the State had presented sufficient evidence of the drug-related charges. 33 Kan. App. 2d at 755-56.
The defendant suggests the reversal of her convictions ought to be treated as a mistrial because she sought a mistrial in the initial proceedings but the district court denied her motion. The defendant implies that, if the district court had granted her motion for mistrial, the State would be barred from seeking to retry any of the charges. However, this case does not involve a mistrial but a reversal of some of the defendant’s convictions. The United States Supreme Court has recognized a fundamental difference between a case resolved by mistrial and a case resolved by an adjudication of guilt. See United States v. Jorn, 400 U.S. 470, 484, 27 L. Ed. 2d 543, 91 S. Ct. 547 (1971) (“For the crucial difference between reprosecution after appeal by the defendant and reprosecution after a sua sponte judicial mistrial declaration is that in the first situation the defendant has not been deprived of his option to go to the first jury and, perhaps, end the dispute then and there with an acquittal.”).
The defendant received a complete trial in this case, which ended in convictions on most of the charged offenses. Even though the defendant requested a mistrial, the request was overruled by the district court, and the case proceeded to a verdict. The Tenth Circuit Court of Appeals has addressed a similar situation in McAleer. McAleer involved several defendants who requested a mistrial, contending the prosecutors repeated questioning concerning a witness’ right to avoid self-incrimination prejudiced their trial. The district court denied the motion, and the defendants were convicted. After trial, the defendants successfully moved the district court to set aside the convictions. When the United States sought to retry the defendants, the defendants argued that double jeopardy barred further prosecution. The Tenth Circuit interpreting Oregon v. Kennedy, 456 U.S. 667, 673, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982), rejected the argument, stating:
“[N]o mistrial was declared in this case. The district court never granted Defendants’ motions for a mistrial. The case proceeded to the jury and guilty verdicts were returned. Defendants did not obtain a mistrial, but instead succeeded in having the district court set aside tire guilty verdicts. Although Defendants attempt to characterize the district court’s order setting aside the jury verdicts and granting a new trial as the functional equivalent of a mistrial, Defendants miss a crucial distinction. The Kennedy prosecutorial misconduct exception is a narrow one, designed to protect the defendant’s right to ‘have his trial completed before the first jury empaneled to try him.’ [Citation omitted.] Without this exception a prosecutor could intentionally provoke a defendant into requesting a mistrial and the defendant would then be prevented from later invoicing a double jeopardy bar to his retrial. Such a result would render a defendant’s Valued right to complete his trial before the first jury’ a ‘hollow shell’ [Citation omitted.] Defendants, however, do not require such protection because without the declaration of a mistrial, they were not deprived of their Valued right’ to have their case submitted to the first jury, and perhaps have the dispute end with an acquittal. For these reasons, we conclude that the mistrial exception for prosecutorial misconduct set forth in Kennedy simply does not apply to Defendants.” 138 F.3d at 855-56.
Based on McAleer, we conclude double jeopardy does not bar retrial where a criminal defendant has obtained a reversal of his or her conviction on appeal on the basis of trial error, which includes prosecutorial misconduct. See Burks, 437 U.S. at 15. However, even if we considered the present case to involve a retrial following mistrial, we conclude double jeopardy does not bar the State’s attempt to retry the defendant under the circumstances presented in this case.
Normally, when a criminal defendant seeks a mistrial, double jeopardy does not bar retrial. Kennedy, 456 U.S. at 672; State v. Muck, 262 Kan. 459, 466, 939 P.2d 896 (1997). However, where prosecutorial conduct is designed to “goad” a criminal defendant into seeking and obtaining a mistrial, double jeopardy bars further prosecution for the same offense. Kennedy, 456 U.S. at 673; State v. Williams, 268 Kan. 1, 7, 988 P.2d 722 (1999). The exception, however, is extremely limited.
“Prosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on defendant’s motion, . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause. A defendant’s motion for mistrial constitutes ‘a deliberate election on his part to forgo his valued right to have his guilt or innocence determined before the first trier of fact.’ United States v. Scott, 437 U.S. 82, 93[, 57 L. Ed. 2d 65, 98 S. Ct. 2187] (1978). Where prosecutorial error even of a degree sufficient to warrant a mistrial has occurred, ‘[t]he important consideration, for purposes of the Double Jeopardy Clause, is that the defendant retain primary control over the course to be followed in the event of such error.’ United States v. Dinitz, [424 U.S. 600,] 609[, 47 L. Ed. 2d 267, 96 S. Ct. 1075 (1976)]. Only where the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion.” Kennedy, 456 U.S. at 675-76.
Applying the Kennedy standard to the facts presented in the present case leads to a conclusion that the district court improperly sustained the defendant’s objection to retrial. The defendant’s motion for mistrial was based upon the admission of allegedly prejudicial hearsay testimony elicited by the prosecution in rebuttal to the defense examination of the same witness. Here, as the district judge noted in overruling the defendant’s motion for mistrial, “[the prosecutor] called a witness to impeach the testimony of Ms. Metro, and I think you can do that under Kansas law.” Clearly, this court concluded the district court’s admission of some of the hearsay statement to be error and held the prosecutor committed misconduct by soliciting such comments. DuMars I, 33 Kan. App. 2d at 739-46. Nevertheless, the district court’s comments demonstrate the prosecution’s misconduct, while prejudicial, was intended to obtain a conviction, not to force the defendant into moving for a mistrial. Prosecutorial misconduct committed in bad faith is not sufficient under Kennedy if the misconduct is designed to obtain a conviction rather than to induce a defendant’s request for a mistrial.
Here, the defendant cites no other bases for the motion for mistrial, and an independent review of the trial record reveals no other requests for a mistrial. Consequently, the defendant has failed to satisfy the stringent test announced in Kennedy requiring a mistrial to have been requested by the defendant because the prosecutor intentionally goaded the defendant into requesting a mistrial. Double jeopardy does not bar further prosecution on the defendant’s reversed drug-related convictions. See 456 U.S. at 675-76.
We note that our Supreme Court recently reached a similar conclusion in State v. Morton, 283 Kan. 464, Syl. ¶¶ 2-3, 6, 153 P.3d 532 (2007). But, at the time of this court’s consideration, the mandate had not yet issued.
DUE PROCESS: FUNDAMENTAL FAIRNESS
Alternatively, the defendant argues the State should be barred from retrying her on the drug-related charges because retrial would be fundamentally unfair.
“Not eveiy trial error or infirmity which might call for application of an appellate court’s supervisory powers correspondingly constitutes a failure to observe that fundamental fairness that is essential to the very concept of justice.” State v. Cady, 248 Kan. 743, 758, 811 P.2d 1130 (1991) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642, 40 L. Ed. 2d 431, 94 S. Ct. 1868 [1974]). Application of the fundamental fairness component of the Fifth Amendment’s Due Process Clause should be reserved to intolerable conduct which shocks mind and conscience. See State v. Singleton, 33 Kan. App. 2d 478, 489, 104 P.3d 424 (2005).
Fundamental fairness implies a balancing of the interests involved in criminal prosecution. Although a defendant possesses a significant interest in being free from harassment and the burden of repeated trials, the State possesses a significant interest in the sound administration of justice.
“Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were eveiy accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. From the standpoint of a defendant, it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put tire accused irrevocably beyond the reach of further prosecution. In reality, therefore, the practice of retrial serves defendants’ rights as well as society’s interest.” United States v. Tateo, 377 U.S. 463, 466, 12 L. Ed. 2d 448, 84 S. Ct. 1587 (1964).
Retrial of the defendant in this case balances significant interests and does not rise to the level of shocking or intolerable conduct. Consequently, we conclude there is no violation of the fundamental fairness component of due process in allowing the State to proceed with prosecution of the attempted manufacture and possession of drug paraphernalia charges in this case. The district court’s dismissal of the above charges was error. The judgment of the district court is reversed, and the case is remanded to the district court for retrial on the attempted manufacture and possession of drug paraphernalia charges.
Reversed and remanded for further proceedings. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for breach of a written contract wherein the defendant agreed to sell and convey certain real estate to the plaintiffs, and further agreed to construct a residential structure on the same prior to the transfer of title, all in accordance with certain plans and specifications referred to in the contract. The trial court overruled a demurrer to the third amended petition, from which order appeal has been duly perfected.
The only question presented is whether the third amended petition states sufficient facts to constitute a cause of action.
Allegations material to this appeal are that the plaintiffs (appellees) are husband and wife and reside at 2719 James, Topeka, Shawnee County, Kansas; that the defendant is a Kansas corporation with its principal place of business in Topeka, Kansas; and:
“2. That on or about the 29th day of November, 1958, the plaintiffs entered into a written agreement with the defendant whereby plaintiffs agreed to buy and defendant agreed to sell a certain tract of land and under which defendant agreed to construct a residential structure on said land all as contemplated and set forth in said agreement in consideration of and for a certain sum of money to be paid by the plaintiffs; that said agreement is attached hereto, marked Exhibit 'A,’ and made a part hereof as though fully set out herein.
“3. That said agreement was made through the S. K. Stephen Realtor Agency; that certain plans and specifications were displayed to plaintiffs in inducing said agreement; that plaintiffs chose certain plans by number as indicated in said Exhibit ‘A’; that the defendant represented to plaintiffs that the said Capitol Federal Savings and Loan Association would keep said plans and specifications on file and would make periodic inspections to assure compliance by the defendant with said plans and specifications; that the plaintiffs relied on the said representations in making said contract.
“4. That said plans and specifications are not now available to the plaintiffs to attach hereto; that plaintiffs have on many occasions themselves and by their attorney made demand on the defendant and the said Savings and Loan Association to inspect said plans, but the said Savings and Loan Association denies having said plans, and the defendant denies that such plans were ever in existence.
"5. That under said agreement the defendant had a duty to perform the construction of said house in. a workmanlike manner and to use proper materials for the same; that defendant had a further obligation to perform in conformance with the plans and specifications referred to in said agreement and displayed to the plaintiffs; that in fact the defendant breached his contract and his duties and obligations thereunder in the following particulars, to wit: [Seven defects are here enumerated.]
“6. That as a direct and proximate result of the defendant’s default the plaintiffs have been damaged in that they do not have a heated crawl space as contemplated under the plans for said structure and as paid for by them under said contract; that the said crawl space has been damp and soggy; that on occasions plaintiffs had several inches of water in said crawl space; that water gets into the heating vents and stands there; that said water causes a foul and permeating odor throughout the house and causes clothing and other items in said house to mold; that said moisture has caused irreparable damage to the walls, paint, and furniture.
“7. That at the inception of said agreement the defendant through one S. K. Stephens, Realtor, and various salesmen of said realtor, all of whom, were agents of the defendant, orally represented to the plaintiffs that the defendant warranted the workmanship and materials used in construction of said structure for the period of one year against defects; that after the construction was completed, the plaintiffs on many occasions after March or April of 1959 and during the early part of 1960, did report to Mr. Van Hess and one Mr. Beck, the defendant’s agents, the defects in materials and workmanship and breaches of contract herein stated; that each of them repeatedly stated that all errors and defects would be corrected with the ‘one year warranty’; that on one occasion shortly after the plaintiffs occupied the house, the said Van Hess stopped by the premises and agreed to correct the said errors, defects and breaches within the one year warranty if the plaintiffs would pay the balance they had withheld of the purchase price, and that plaintiffs relying thereon did pay said balance; that the exact dates of said conversations are unknown to plaintiff, but that they occurred during 1959 and 1960; that some of said conversations were on the premises at 2719 James, Topeka, Kansas, some of them by telephone, and some of them at the defendant’s office; that at the inception of said agreement and at all times thereafter the plans and specifications displayed to the plaintiff warranted said construction to comply with the then current FHA and GI requirements as to workmanship and materials.
“That thereafter during the late summer or early fall of 1960, the defendant put two vents in the north foundation wall without permission or request of the iffaintiffs; that on or about February IS, 1961, tire defendant installed a window well in the west foundation wall; that said vents and window well allow outside air in the ‘heated crawl space’ causing the same to be cold and making the floors of the rooms above to be cold; that the same causes the plaintiffs to have a costly heating bill for the reason that the heating plant was constructed to provide a heated crawl space.
“8. That the plaintiff has been damaged as a result of the negligent acts and omissions of the defendant in breaching the said agreement and warranties; that plaintiffs will have to expend the sum of Five Thousand Two Hundred Eighty and no/100 Dollars ($5,280.00) to make the necessary repairs and improvements to make said structure conform to that contemplated in said agreement and to correct the defects hereinbefore mentioned.”
Provisions of the attached contract material to the appeal will be set forth as they are discussed in the opinion.
Various motions were lodged against the petition, some of which were sustained and others overruled. Insofar as possible, the plaintiff complied with the trial court’s rulings. Without going into detail it may be said the third amended petition is entitled to a liberal construction. The applicable rules may be found in Gibbs v. Mikesell, 183 Kan. 123, 325 P. 2d 359; and Wycoff v. Winona Feed & Grain Co., 187 Kan. 98, 353 P. 2d 979.
Where a general demurrer, as here, challenges the sufficiency of the entire petition to state a cause of action, the trial court does not err in overruling such demurrer if the pleading so challenged states a cause of action on any theory. (Hickert v. Wright, 182 Kan. 100, 319 P. 2d 152; Gibbs v. Mikesell, supra; Shirk v. Shirk, 186 Kan. 32, 348 P. 2d 840; Morehead v. Rush, 187 Kan. 624, 358 P. 2d 752; Wycoff v. Winona Feed & Grain Co., supra; and Voss v. Bridwell, 188 Kan. 643, 364 P. 2d 955.
The appellant contends the appellees have not framed their petition upon a distinct and definite theory, but on a confusion of theories from which it cannot be determined under which theory recovery is sought. It is argued the appellees allege certain breaches of the contract, plans and specifications, none of which appears in the written contract attached to the third amended petition. The appellant argues under paragraph 7 the appellees allege oral warranties and "one year warranty” and suggest that perhaps the action is based on said warranties. The appellant says in the second paragraph of paragraph 7 the appellees suggest that the appellant was a trespasser and did certain negligent acts suggesting that perhaps this is an action on tresspass or tort. The appellant says in paragraph 8 the appellees allege they have been damaged as a result of “negligent acts and omissions of the defendant in breaching the said agreement and warranties.”
It should be observed that at no time has the appellant requested the trial court for an order requiring the appellees to separately state and number their causes of action. Furthermore, if it can be said the third amended petition alleges more than one theory under which recovery is sought, the appellees have not been required at this point to elect upon which theory they will proceed.
At this point it cannot be said the confusion of theories, if any, is fatal to the third amended petition.
In paragraph 5 it is alleged the appellant had a duty to complete the construction of the house in a workmanlike manner and to use proper, materials for the same. In the same paragraph the appel lees alleged the various things the appellant failed to do in performing the contract. The appellees cannot be precluded from alleging the appellant was negligent in the performance of the construction contract, where the appellant is required under the contract to perform in a workmanlike manner. (Crabb v. Swindler, Administratix, 184 Kan. 501, 337 P. 2d 986.)
In the Crabb case it was said:
“. . . A breach of an implied warranty to use reasonable and appropriate care and skill, that is, to do a workmanlike job, usually results from the negligence or failure to use due care and skill in performing the particular work. . . .” (p. 505).
The court there held the torts or negligent acts alleged may be considered as allegations of the breach of the implied warranty.
The appellant seems to take the position that since the plans and specifications are not attached to the appellees’ petition, they cannot recover on the contract. The appellant’s reasoning is that the appellees are unable to show any provisions of the contract which have been violated.
The allegations of the pleading under attack disclose the facts and circumstances surrounding the signing of the contract; that the plans and specifications displayed to them by the appellant were not in the appellees’ possession; and that the appellant displayed them to the appellees representing that they would be on file witih the Capitol Federal Savings and Loan Association. The contract called for the plans and specifications to be on file with the Capitol Federal Savings and Loan Association, and it is not the appellees’ fault that they do not have them to attach to their petition. The appellees should not be barred by tire failure of the appellant to comply with the contract, or by the failure of the loan company to keep the plans and specifications. Under these circumstances the appellees could not be required to attach the plans and specifications to the petition.
If the written plans and specifications cannot be produced at the trial, the appellees are entitled to show by parol evidence what they contained since they are not available. In Souder v. Tri-County Refrigeration Co., 190 Kan. 207, 373 P. 2d 155, it was said:
“The rule against the admission of parol evidence to contradict, alter or vary the terms of written instruments is not violated when such evidence does not contradict but explains or supplements indefinite or incomplete matters contained in the instruments, or when it tends to show the relation of the parties and the circumstances under which the instruments were executed.” (Syl. 3.)
The third amended petition alleged the plans and specifications warranted said construction to comply with the current F. H. A. and G. I. requirements as to workmanship and materials.
The appellant in the trial court sought by motion to require the plaintiffs to set forth in their petition various matters of affirmative defense. On these points the trial court overruled the appellant. The appellant insists on pursuing these points on appeal. For example, it contends the appellees are barred from recovery because of the “Evidence of Completion” clause in the contract executed by the parties. This clause in the contract reads in part:
“Completion and full performance by First Party shall be conclusively evidenced by any of the following, whichever shall first occur, and as applicable: (a) certification of final inspection by the Federal Housing Administration; (b) acceptance of completion by Mortgagee when no governmental agency is involved; (c) delivery of deed and possession as hereinafter provided; . . .”
As a part of the appellant’s attack under the foregoing clause, it is contended the appellees have failed to allege performance on their part in order to maintain this action. A provision of the contract made it subject to the qualification of the appellees for a loan to be secured by the subject property. The contract provided that upon the loan being secured and completion of the construction, the balance of the purchase price would be paid. At the same time the deed would be delivered and possession given to the appellees.
The appellant contends there are no allegations that these further provisions were carried out, and not a single allegation that the appellees are the owners of the property involved.
The appellees allege they reside at 2719 James, Topeka, Kansas, and the contract after giving the legal description of the property adds, “being more commonly described as 2719 James.” Under paragraph 2 the appellees allege under the written contract they agreed to buy the land and the structure to be placed on the property. In paragraph 7 they allege the balance of the purchase price was paid, after construction was completed, when the appellant agreed to correct certain defects within the “one year warranty.”
Liberally construed the third amended petition shows performance on the part of the appellees.
The appellant next contends, if the petition is so construed, the appellees are estopped from maintaining this action by the terms of the contract itself. On this point they refer to the “Evidence of Completion” clause in the contract. The short answer to this argument is that no allegations in the petition show fulfillment of any of the three conditions for completion of the contract. In fact, the allegations are to the contrary. Before the purchase price was paid the appellees demanded that the appellant correct certain defects in workmanship and materials. The balance of the purchase price was paid only upon the appellant’s promise to correct the defects in its performance. This promise by the appellant was made subsequent to the execution o,f the written contract, and it is not necessary on demurrer to determine its legal effect. Material to a determination of this appeal on demurrer is the allegation that performance by the appellant was not completed. The reason for full payment on the part of the appellees was adequately explained. Under these circumstances the appellees are not estopped.
This point was presented in Linville v. Nance Development Co., 180 Kan. 379, 304 P. 2d 453. Under similar facts and circumstances the court there said:
“. . . Appellant will not be permitted to induce appellee to enter into possession and to accept a deed, under the facts here existing, and then repudiate its agreement and assert estoppel against its grantee. . . .” (p. 386.)
All of the appellant’s contentions have been carefully considered but are found to have no merit. Accordingly, the judgment of the lower court overruling the demurrer to the third amended petition is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
Plaintiff-appellant filed a petition containing three causes of action, each based upon an oral contract made with the defendant-appellees. Each contract was for services performed by plaintiff as an architect. It was alleged that at all times hereinafter mentioned, the defendants, Robert P. Harrison and Pauline Gill Harrison, were and still are partners doing business under the firm name of M. R. Gill Real Estate Agency, with their principal office in Lawrence, Kansas. That at all times hereinafter mentioned, and to which reference is herein made, the defendant, H. C. Murphree, was the duly appointed, qualified and acting agent of the said Robert P. Harrison and Pauline Gill Harrison, doing business as the M. R. Gill Real Agency, with full power to represent and bind them in relation to the making of the agreements set out and hereinafter mentioned.
The first cause of action was based upon an oral contract made by H. C. Murphree as the agent of the M. R. Gill Real Estate Agency, in which it was alleged that Murphree on May 6, 1959, told plaintiff that the Real Estate Agency had the exclusive agency for Schwartz Acres No. 2, an addition to Lawrence, Kansas; that Murphree ordered from plaintiff five house plans with elevations and alternate elevations for each of the plans. Murphree represented to plaintiff that there were 52 lots in the addition, that it was proposed the Agency would sell a house for each of these 52 lots; that only people who would use one of the house plans would be allowed to purchase a lot; that they would sell the lots only to individuals and would not deal with other real estate agencies or contractors; that Murphree agreed to pay plaintiff $100 for each plan used and sold, and that the total compensation for plaintiff would amount to $5,200. That plaintiff furnished the plans and alternate elevations to the defendants, but that sometime after August 24, 1959, the defendants breached the ora] contract by selling lots in the addition in violation of the terms set out in the oral contract. That because of this breach plaintiff has not been able to receive the compensation expected. That plaintiff has made demand on defendants for the money due under the oral contract; that only $300 of the sum due was paid to plaintiff on or about September 1, 1960, leaving a balance due and owing in the amount of $4,900, which defendants refuse to pay.
The second cause of action was based upon an oral contract in which a Mr. and Mrs. Alvord desired plans to build a house on a lot on which they had an option. Murphree arranged with plaintiff to furnish a complete set of architectural plans for the sum of $500. Three sets of plans were drawn and turned over to Murphree. Plaintiff had several talks with the Alvords. The plans were completed on or about June 16, 1959, which was only a short time before the death of Alvord. Murphree and Harrison refused to pay the plaintiff the agreed price for the plans.
In the third cause of action it was alleged that on or about July 9, 1959, Murphree told plaintiff that he, Murphree, had a client who wanted to build a fourplex apartment house; that Murphree, as the agent of the Gill Real Estate Agency, promised plaintiff that if he would prepare all plans and drawings for such apartment house, he would pay him the sum of $600; and that plaintiff agreed to make the plans and drawings and did prepare all preliminary studies, all working drawings and specifications, and all such scale and full size drawings necessary for a contractor to use in making the apartment house. That plaintiff completed all of his work on the contract on or about July 28, 1959, by working steadily on the project, but that neither Murphree nor the Gill Agency has paid the consideration promised to plaintiff.
Early in the trial, the plaintiff testified that he had met Bob Harrison first in 1958 before he met Murphree; that Harrison ordered a house plan to be drawn, and when it was delivered, he immediately paid $100 for it.
In the early part of the year 1959, Murphree began to talk about the Schwartz Addition. Murphree said they needed five plans of five different houses and plaintiff agreed to make the five plans with alternate elevations so that a contractor could use the plans; and that he delivered the plans with the proper elevations needed. Plaintiff agreed to check any houses where he was needed to do so. However, as plaintiff understood the deal, there were 52 lots which Murphree desired to use for these plans. Murphree said he would not sell to anyone who was not interested in using one of the house plans.
The plaintiff’s testimony established the oral contract as to Schwartz Acres in accordance with the allegations in the petition. He testified that contrary to the terms of the oral contract the defendants had been selling lots to the other contractors and to individuals who were allowed to construct homes thereon without using the architectural plans prepared by the plaintiff. He said that the five house plans, one of which had been revised, were finally completed after three months’ work in August, 1959, and delivered to the defendants; that Murphree said they were short of cash at that time, and since they did not make any payment he took four of the plans back with him.
The trial court, in commenting after the demurrer to the plaintiff’s evidence, said:
"... I think there is sufficient evidence to go to the jury on plaintiff’s theory of oral contract on the first cause of action if there was any deal on which the Court could inform a jury on what the measurement of damages are. If you want to talk about that I will hear you. He has claimed a contract and has established it in a prima facie case. . . .”
The court, nevertheless, after hearing arguments sustained the demurrer to the first cause of action.
The court is of the opinion that here the trial court erred; that Murphree and Harrison failed to carry out their contract and that plaintiff had shown sufficient evidence to warrant the case going to the jury on a breach of contract theory under proper instructions.
As to the second cause of action, the jury held for the defendants. On appeal objection is made by the plaintiff to the introduction of certain evidence. The plaintiff completed three sets of plans for the Alvord home which he turned over the Murphree, and Murphree gave the plans to the Alvords. The plans were ordered by Murphree for the Alvords and Murphree received a retainer fee on the Alvord project using the plans prepared.
The basic issue in the plaintiff’s second cause of action, in regard to the plans for the Alvords, was whether or not a contract had been established. The question whether or not the plaintiff later sold his house to Mrs. Alvord after the death of her husband is immaterial and not relevant to that issue, and the evidence admitted by the trial court relative to the plaintiff’s sale of his home to Mrs. Alvord five months after he had completed the plans, which he turned over to Murphree, is immaterial and not relevent to the issue in the second cause of action. The admission of such evidence had a definite prejudicial effect on the jury. It is quite apparent that whether the plaintiff sold his house to Mrs. Alvord had absolutely no bearing on the original contract in regard to drawing plans for Mr. and Mrs. Alvord, as requested by the defendants. This necessitates a reversal on the second cause of action.
The jury found for the plaintiff on the third cause of action, which dealt with the fourplex apartment house. Plaintiff, as appellant, has no fault with that part of jury’s verdict and has not appealed from the judgment of the trial court on this cause of action. Inasmuch as the appellees have virtually abandoned their cross appeal on the third cause of action, the judgment of $600 as to this cause of action stands unchallenged.
The appellees have filed a motion to dismiss the matter of the demurrer being sustained to the first cause of action on the theory that the order was a final, appealable order and would not be delayed until the final judgment in the case. In this argument the appellees are in error. (See, G. S. 1961 Supp., 60-3314a, and Walton v. Walton, 170 Kan. 13, 223 P. 2d 997, and other cases cited under annotations of the statute.)
To sum up the matter, we are holding that the trial court must be reversed as to the ruling on the demurrer in the first cause of action; also, the court is reversed as to the second cause of action in allowing admission of the evidence of the sale of plaintiff’s house to Mrs. Alvord.
The judgment to the lower court is therefore reversed with directions to grant a new trial on the first and second causes of action. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by defendants below from the trial court’s judgment, findings of fact and conclusions of law, orders and decisions, and from all rulings of any type or nature, whether “mesne, intermediate or final,” adverse to defendants, or any of them. Other questions raised in the notice of appeal will be discussed later herein where necessary.
The action was commenced by a group of purported stockholders and directors in their capacity as such against another purported group of stockholders and directors which latter group was in charge of and operating the General Savings and Loan Association, hereafter referred to as the association. Involved with the association is another separate and distinct corporation, General Insurance, Incorporated, but for the sake of expediency we shall refer only to the association.
On March 3, 1960, Lee J. Vaughan, the apparent organizer of the association, died leaving 145 shares of stock in the association to his widow, Una Vaughan. The total permanent stock of the association was 250 shares valued at $100 per share. The remaining 105 shares were owned by Rlake A. Williamson, Joe F. Jenkins, J. E. Tobin, Joseph G. Evans, Grant Rarcus, James K. and Margaret Cubbison, and Norman C. Christiansen. It is undisputed that at the time of organization the association had only five directors, that the number of directors was later increased to nine, and that was the number at the time this action was filed. The record clearly reveals that antagonistic feelings existed between the plaintiff group and the defendant group but we are not concerned therewith and will not discuss those matters herein.
Under date of October 4, 1961, the following agreement was entered into;
“This Agreement between Fbed Hobnaman, party of the first part; and Blake A. Williamson, as trustee for himself, Joe F. Jenkins, James K. Cub-bison, Norman C. Christiansen and Grant Bareus, parties of the second part.
“Whereas, parties of the second part, represented by Blake A. Williamson, as trustee, are the owners collectively of seventy-five (75) shares of the common stock of General Savings and Loan Association and also the owners collectively of seventy-five (75) shares of stock of the General Insurance, Inc.; and
“Whereas, the said party of the first part has indicated a desire to purchase the above described stocks and parties of the second part have expressed a desire to sell the same. The agreed price for both stocks is One Thousand Two Hundred Dollars ($1,200) per share, to be payable by purchaser to sellers in cash.
“Now, Therefore, party of the first part deposits with Blake A. Williamson, trustee, certified check in the amount of Ten Thousand Dollars ($10,000) and further agrees to pay the additional amount of Eighty Thousand Dollars ($80,000) within 20 days from this date in payment for such stock.
“It is further mutually agreed that the said Blake A. Williamson, tmstee, shall obtain and have assigned in blank shares of stock in each of said above companies as follows:
“Blake A. Williamson 25
“Joe F. Jenkins 20
“Norman C. Christiansen 10
“James K. Cubbison 10
“Grant Barcus 10
“It is further mutually agreed that the said Blake A. Williamson, trustee, has obtained and has assigned in blank the following additional shares of stock in each of the above companies.
“J. E. Tobin 10
"It is agreed as to these shares that they will be sold on the terms herein provided except that because of a previous business transaction Homaman shall pay for said ten shares the sum of Fourteen Thousand Eight Hundred and Seventy Dollars ($14,870.00).
“In addition to the acquisition of stock as described on the first page of this Agreement, Blake A. Williamson, as trustee, and Homaman agree that Hornaman will attempt to acquire the twenty (20) shares of stock at One Thousand Two Hundred Dollars ($1,200.00) per share held by Dr. Joseph G. Evans. If Homaman is unable to acquire said stock, Homaman at his option may terminate this Agreement as to the stock accumulated by Williamson, as tmstee, and may recover any amount so paid under this Agreement.
“It is understood by the parties that first party is desirous of acquiring the stock covered by this Agreement only in the event control of the Board of Directors can be maintained at least until the next annual meeting of General Savings and Loan Association; and because of circumstances known to both parties a general procedure as hereinafter described shall be followed, and Williamson, as trustee, agrees to cause said procedure to take place, to wit:
“There are presently eight (8) directors with three-year terms expiring in January of the years shown:
“Blake Williamson 1964
“Joe Jenkins 1964
“Una Vaughan 1964
“Joseph G. Evans 1963
“J. E. Tobin 1963
“R. J. Breidenthal 1963
“Charlie Vaughn 1962
“Grant Barcus 1962
“Director Barcus has submitted his resignation; but it has not been acted upon and, therefore, the parties agree that they will attend and cause the following replacements to taire place. (In addition to the above there is one vacancy in the Board created by the resignation of Director Christiansen whose term would have expired in January, 1964.) At the monthly Directors Meeting on October 5, 1961, Hornaman will be nominated to the vacancy created by Christiansen. Upon election Homaman will qualify as director and enter the meeting. The question of Barcus’ resignation will next be presented for approval and said resignation shall be accepted. Nomination will then be made of Richard M. Erickson for Barcus’ position, and he shall be elected. Thereupon Erickson wiE quahfy and enter the meeting. The resignation of Director Evans wiE next be tendered, accepted; and nominations and election to his office shaE be made. Dick Griswold wiE be named to fill this office, and he shall quahfy and enter the meeting. Director Tobin shaE then submit his resignation. It shall be accepted, and nomination of Robert Klehr shall be made. He shall be elected to fulfiE the Tobin term and shall immediately quahfy and enter the meeting. The next order of business shall be the resignation and acceptance of Joe Jenkins, and Ray Hodge wiE be nominated and elected for the unexpired term of Jenkins. Upon his election Hodge will quahfy and enter the meeting. Thereupon the resignation of Blake Wilhamson shall be tendered and accepted, and the nomination and election of Charles W. Hess will take place. He shall quahfy and enter the meeting.
“If the above procedure is foEowed and said parties elected as above stipulated, then this Agreement shall thereafter be binding and in full force and effect. If any part of the procedure is not foEowed or if for any reason the above parties are not present in order that the above stipulated control of the Board may be maintained, this Agreement may be terminated at the option of first party; but said option shaE be forthwith exercised.
“In Witness Whereof the parties have hereunto set their hands and seals this 4th day of October, 1961.
“s/ Fred Homaman
“Party of the first part
s/ Blake A. Wilhamson
“Blake A. Wilhamson
“Trustee for Parties of the second part”
An unnumbered exhibit, wherein the bylaws of the association were set out, was admitted into evidence. We hereinafter summarize the pertinent provisions thereof:
The corporation name and the object and purpose of the association was set out; the corporate existence was to be for a period of fifty years from October 21, 1921; all shareholders and borrowers from the association were members; the annual meeting was to be held at the association’s office at 4:00 p. m. on the first Thursday after the first Monday in January of each year; the meeting could be held at such other time or place in the same community as the board of directors (hereafter generally referred to as the board) might determine; each shareholder was entitled to cast one vote for each $100 or fraction thereof of the withdrawal value of his account; each permanent stockholder was entitled to one vote for each share of stock held; each borrowing member was entitled to only one vote; provision was made for voting by proxy.
Special meetings of members of the association could be called with proper notice given; on or before thirty days before the date of the annual meeting, the president, with approval of the board, was to appoint a nominating committee of three members and that committee, on or before twenty days before the annual meeting, was to nominate a suitable member of the association to serve as a director for each vacancy on the board whose term was to expire at such annual meeting; such nominations were to be in writing signed by the nominating committee and filed with the secretary; all nominees’ names were to be posted in a prominent place in the home office for at least fifteen days prior to the date of the annual meeting; if the nominating committee had not made nominations prior thereto, nominations could be made from the floor at the annual meeting; proposals with respect to new business were to be presented at the annual meeting; the affairs of the association were to be managed and controlled by a board of five (now nine) directors; at least a majority of the directors had to be elected from the permanent members of the association with approximately one third of the board being elected each year; the board was empowered to operate and manage the association in accordance with the bylaws and the Savings and Loan Act of Kansas; any vacancy occurring in the board or among the officers of the association could be filled by the board; provision was made for regular monthly meetings of the board fixed by resolution of the board without notice; the place of meeting could be changed by the board; special meetings could be held and were to be called by the secretary upon written request of the president, or of three directors, upon at least three days’ written notice to each director, stating the place, time, and purpose thereof; a majority of the directors (5) constituted a quorum and an act of a majority of the board of directors present at any meeting, where there was a quorum present, was an act of the board; a director could resign at any time by sending written notice thereof to the office of the association addressed to the secretary and the resignation took effect upon receipt thereof by the secretary; directors could be removed by a two-thirds vote of all votes cast at an annual or special meeting; the board could appoint an executive committee composed of the president and two additional directors, which executive committee would have the power of the board between board meetings except as to amending the bylaws; each executive committee member was to continue in office until his successor was appointed; special meetings could be called by the president, or the other two members of the executive committee; the board was empowered to fill an executive committee vacancy; the secretary of the association was to serve as secretary of the executive committee and was to report to each regular meeting all actions taken by the executive committee; at the annual meeting of the board to be held within thirty days after the annual meeting of the members, the board was to elect a president, one or more vice-presidents, a secretary, and a treasurer provided that any two offices could be held by the same person; the chairman of the board could be elected from among the directors but the president had to be a director; all terms of the officers were for one year or until their respective successors were elected and qualified, and the officers had such powers and duties as were specified in the bylaws; the duties of the president, vice-president, secretary, assistant-secretary, treasurer, and assistant-treasurers were thereafter set out.
Provisions of the bylaws covering execution of instruments included one to the effect that with respect to securities owned by the association proxies to vote could be executed and delivered from time to time by the president, vice-president, secretary, or the treasurer; the manner in which membership certificates were to be issued to depositors or borrowers was outlined; a fee of $1.00 could be authorized by the board for transferring on the books the assignment of interest of any share accounts; the association had such power as was set forth in the Savings and Loan Act of 1943; included also were explanations of the relation of capital to shares paid for by members, how optional savings shares were to be issued, and how annual and semi-annual dividends were to be credited; “full paid shares” were issued upon the payment of $100; dividends could be declared at the close of business on June 30 and December 31 of each year; although dividends were provided for they were not to be paid on permanent stock until all liabilities of the association were fully liquidated and paid.
We are not concerned here with the provisions of the bylaws regarding reserve stock shares or with respect to further provisions regarding the payment or restriction of dividends.
Members could request, and the association had to repurchase shares of depositors and the board could determine if any or all of the outstanding shares were to be redeemed on a dividend date in compliance with the Savings and Loan Act.
We are not particularly interested in and will not delineate other provisions relating to fines, fees, penalties, liens on shares or how amendments to the bylaws were to be made.
The trial court made findings of fact which are hereinafter summarized in pertinent part:
At the 1961 annual meeting of the association Charles Vaughan, Una Vaughan, Blake Williamson, Joe Jenkins, and Norman Christiansen were elected for three years terms; the other four members of the board at that time were Grant Barcus, Joe Tobin, and Dr. J. G. Evans, whose terms expired in 1963, and R. J. Breidenthal, whose term expired in 1962; the authorized permanent stock of the association was 250 shares; Una owned 145 shares, Blake Williamson 25 shares, Joseph Jenkins 20 shares, Norman Christiansen 10 shares, Grant Barcus 10 shares, Joe Tobin 10 shares, and Dr. Evans 20 shares; (the record shows that James and Margaret Cubbison owned the other ten shares but the trial court found only that the other shares were owned by individuals not directly involved in this appeal).
The trial court further found that on May 4, 1961, Christiansen resigned and was disqualified as a director; on August 22, 1961, Barcus tendered his resignation, which was accepted by the board on August 24, 1961; in the fall of 1961 the minority stockholders entered into a written agreement (already set out in full herein); on October 10, 1961, Williamson, Tobin, and Barcus requested the secretary to call a special meeting of the board on October 16,1961, which Una, the secretary, failed to do; on October 16,1961, Williamson, Tobin, Jenkins, Evans, and Barcus advised Una they were calling a special meeting for October 20, 1961; the minutes of that special meeting showed Barcus, Jenkins, Evans, Tobin, and Williamson were present and that Robert L. Klehr was nominated to fill the unexpired term of Norman Christiansen although the minutes did not indicate tire vote; on October 19, 1961, Una had called a board meeting which was attended by Una, by Charles C. Vaughan, president, and by R. J. Breidenthal, a director, at which meeting they attempted to elect Cynthia Vaughan, John William Mahoney, Guy Stanley, Jr., Dr. Wilson A. Reitz, Jack K. Dear, and Ira O. Orr, as directors to replace Evans, Williamson, Barcus, Tobin, and Jenkins, whom they had declared to be disqualified; on November 9, 1961, in the offices of the Guaranty Abstract Company, Evans, Jenkins, Tobin, Williamson, Barcus, and Klehr held a meeting, and in accordance with the above-mentioned agreement, a transfer of stock was made and new directors were elected from among the new stockholders in the following order:
Charles W. Hess,
Ray Hodge,
Richard M. Erickson,
Richard Griswold,
Fred E. J. Hornaman.
It was further found that on November 10, 1961, Hess wrote a letter to Una advising of the action of November 9, 1961, and therein tendered for surrender the stock certificates in question “upon reissue of new certificates;” he requested that combined certificates be issued; his letter included a list of the certificate numbers of the stock, the number of shares of each particular certificate, and to whom they were transferred; no further tender of the stock certificates was made and the transfer was not shown on the books of the association.
The record before us discloses that the last above finding of the trial court was correct and it is also undisputed that with his letter to Una of November 10, 1961, Hess did not submit the stock certificates in question.
The trial court also found that on November 9, 1961, Williamson, Jenkins, Tobin, and Evans tendered their resignations as directors and Barcus tendered a second resignation to Una.
The trial court’s conclusions of law were that the election of October 19, 1961, attended by Una, Charles, and Breidenthal was illegal (1) for lack of notice to all qualified directors (2) no quorum of directors was present, and (3) the vacancies of Barcus and Christiansen were the only vacancies at the time because the other directors were still qualified acting directors; the position of Barcus as director had been vacated on August 24, 1961; the purported election of Klehr by the plaintiffs was illegal (1) because the meeting was not called by the secretary, as required by the bylaws, and (2) the minutes of the meeting did not show a vote by a majority of qualified directors attending the meeting; the purported election of Hess, Hodge, Erickson, Griswold, and Hornaman on November 9, 1961, was not legal because they were not qualified by reason of being stockholders under provisions of G. S. 1949, 17-5407, as follows:
“Shares shall be transferable only upon the books of the association and upon proper application by the transferee and the acceptance of the transferee as a member upon terms set forth in the bylaws of the association.”
The trial court then found the parties (plaintiffs) could not assert any rights as stockholders against the association until this statutory requirement had been complied with; that Barcus had participated in the November 9 purported election although he was not a qualified director; after the qualified directors attending the November 9 meeting resigned one by one there was no longer a quorum of legally-qualified directors present; Hornaman could have qualified as a director by reason of his savings deposit, but he was the last one to be elected and therefore, he was not elected by legally-constituted directors.
The trial court determined there were only three duly-constituted directors who had not resigned and that the six vacancies should be filled at the next annual meeting, which the trial court then attempted to postpone for a period of thirty days to allow time for the provision of the bylaws to be operative that the president should appoint a three member nominating committee thirty days before the annual meeting which committee, at least twenty days before the date of the annual meeting, should nominate a suitable member for each vacancy; any member could nominate a candidate fifteen days before the meeting and such names were to be posted fifteen days prior to the meeting; a nominating committee had been named at a board meeting on December 1, 1961, but the trial court was of the opinion a new nominating committee should be named and also that previously solicited proxies should be disqualified since the solicitation was directed by less than a majority of the qualified directors; a new solicitation of proxies by any qualified member of the association would be permissible upon proper transfer of stock.
The trial court ordered plaintiffs to present their assigned stock for transfer on the association’s books, and the officers were directed to so transfer the stock of the parties; with the exception of Charles, Una, and Breidenthal all defendants and plaintiffs were enjoined from attempting to assert any rights or privileges or management of the association as directors until they were properly elected and qualified as directors in compliance with the statutes and the bylaws of the association; the annual meeting was ordered postponed for at least thirty days from the regularly provided date and the six vacancies on the board should be filled at such annual meeting as prescribed by statute and the bylaws as well as the additional vacancy due to the expiration of the term of Breidenthal; a new solicitation of proxies was provided for with which we are not presently concerned; the trial court retained jurisdiction for determination of whether the annual meeting and election of directors was conducted pursuant to statute and the bylaws, as well as for the promulgation of specific rules to be followed in the election of directors if necessary.
No motion for new trial was filed and absent such a motion, the first point to be considered on appellate review is whether the pleadings and the findings of the trial court sustain and support its conclusions of law and judgment. (1 Hatcher’s Kansas Digest, rev. ed., Appeal and Error, § 366, p. 166, 1962 Cum. Supp., § 366, p. 35; 2 West’s Kansas Digest, Appeal & Error, § 281 [1], p. 347, 1962 Cum. P. P. 281 [1], p. 29.)
The trial court’s findings were consistent with the bylaws of the association and with the appropriate provisions of the Savings and Loan Code (G. S. 1949, 17-5407, above quoted) so far as transferring shares in the association were concerned. The above section of the code requires that proper application be made for the transfer of shares on the books of the association, which proper application is set out under the Uniform Stock Transfer Act (G. S. 1949, 17-4801), as follows:
“Title to a certificate and to the shares represented thereby can be transferred only, (a) by delivery of the, certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby, or (b) by delivery of the certificate with an assignment endorsed thereon or accompanied by a separate document containing a written assignment of the certificate. . . . [Our emphasis.]
“The provisions of this section shall be applicable although the charter or articles of incorporation or code regulations or bylaws of the corporation issuing the certificate and the certificate itself, provide that the shares represented thereby shall be transferable only on the books of the corporation . . . ,”
and 17-5407 further requires:
“. . . the acceptance of the transferee as a member upon terms set forth in the bylaws of the association.” (Our emphasis.)
The foregoing statutory requirements are clear but the record discloses that no certificates of stock were ever actually tendered for transfer, in compliance therewith at the association’s office, and the trial court so found. We conclude that failure on the part of the purported transferees to deliver their certificates of stock to the association prevented their qualifying as stockholders in the association.
The trial court correctly found that neither group of directors was properly elected and that Charles, Una, and Breidenthal were the only qualified stockholders and directors, but by so finding the trial court also in effect found there no longer remained a plaintiff, or plaintiffs, in the case before the lower court for consideration. Thus, since the trial court had no jurisdiction over the plaintiffs or the subject matter, it had no power or authority to make any orders governing the annual election of the association members, or the future actions of the managing officers. The reasoning in support of this ruling as to the proper course to be followed by a court in such a circumstance was clearly stated in Robertson v. The State, ex rel. Smith, 109 Ind. 79, 83,10 N. E. 582, 584, which was quoted with approval in Armour v. Howe, 62 Kan. 587, 64 Pac. 42, as follows:
“ ‘The only course which the court can rightfully pursue is to decline to speak in all cases where it cannot speak by the law. It is not a matter of choice; it is a matter of duty. The duty is as solemn and imperative as any one among all the grave duties that rest upon the courts of the country. Nor ought the courts to give opinions which are in form judgments, but in reality mere phantomatic resemblances, since, in more ways than one, such a course is productive of evil.’” (Our emphasis.) (p.592.)
The above principle was reiterated in our later case of McFadden v. McFadden, 174 Kan. 533, 257 P. 2d 146, as follows:
“It is elementary that two essentials to a valid judgment are that the court have jurisdiction of the subject matter and of the persons whose rights are to be adjudicated.” (p.538.)
It should also be noted that in Row v. Artz, 168 Kan. 71, 211 P. 2d 66, which was originally an injunction action but was expanded to cover other matters upon which the appeal was ultimately determined, this court stated the following cardinal rules pertaining to effective judgments:
“This court under numerous and varying circumstances has, in conformity with well established principles, declined to decide issues where its judgment could not be made effective. (Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113, and cases therein cited.) In other words, when a judgment is merely on an abstract question of law or fact and the authority of the court cannot be vindicated by the enforcement of process a judgment is a useless thing. Under such circumstances courts simply withhold their judgment. (See State, ex rel., v. Smith, 140 Kan. 461, 36 P. 2d 956.) The rule has been applied not only in cases pertaining to private controversies but in actions involving the public interest where no actual controversy remained and where a judgment could not amount to a judicial decision. (Ellis v. Landis, 118 Kan. 502, 235Pac. 851.)” (p.72.)
In view of the record before us and all that has been considered herein, we conclude the trial court could not enter a valid judgment and, likewise, this court cannot make a valid decision based upon such purported judgment. We are therefore compelled to reverse the judgment of the trial court with directions to dismiss the action. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal in a wrongful death action seeking $25,000 damages is by the defendant, Lawrence Haverkamp, from the trial court’s orders overruling defendant’s motion for judgment notwithstanding the verdict of the jury, and his motion for new trial.
At the hearing on the merits of this appeal a motion to dismiss was lodged by plaintiffs, pursuant to leave granted by this court when a previous motion was denied, whereby this court is presented with a jurisdictional question based on acquiescence of defendant in the judgment of the court below by payment thereof. Our attention will first be directed to a consideration of this question.
On March 29, 1962, the jury returned a verdict in favor of plaintiffs and against defendant in the sum of $15,000, pursuant to G. S. 1949, 60-3204, and for costs of the action.
On April 25, 1962, an execution was issued against the defendant and a garnishment summons was issued to the State Farm Mutual Insurance Company, defendant’s liability carrier. On May 24,1962, the insurance carrier’s check in the sum of $15,000 was received by the clerk of the Nemaha district court from the sheriff and entered in the judgment docket as a release of the $15,000 judgment. The sheriff’s return on the execution showed he had received the writ on April 25, 1962, at 5:00 p. m. and recited the following:
“On this May 24th, 1962, at 9:50 o’clock A. M. I delivered a copy of this execution to the defendant Lawrence Haverkamp and advised him that I was about to levy upon his goods and chattels, and upon his real estate if his goods and chattels were insufficient to pay the judgment, and to sell the same to cause the moneys herein specified to be made, whereupon the said Lawrence Haverkamp paid me the sum of $15,000.00, the amount of said judgment without costs; and the amount of the costs not having yet been determined, I now, this 24th day of May, 1962, pay said sum of $15,000.00 to the Clerk of said District Court and return this execution.”
Motions were filed by plaintiffs to quash the sheriff’s return on the execution and to require the clerk to amend the judgment docket because of incorrect statements in the return which were prejudicial to plaintiffs. The clerk testified she had actually received the check from defendant’s insurance carrier and that she first saw it on the morning of May 24, 1962, at which time defendant’s counsel, counsel for the insurance carrier, the defendant, defendant’s son-in-law, and the sheriff were all in her office. The check was issued by defendant insurance carrier and made payable to the clerk. The insurance carrier’s attorney handed the check to defendant’s attorney, who in turn handed it over to the clerk asking her to endorse it to the sheriff. Defendant’s counsel then gave the check to the sheriff, who in turn endorsed it and gave it back to the clerk.
Defendant’s counsel was called as a witness and he testified as to the issuance of the execution, summons, and alias summons in garnishment naming defendant’s insurance carrier as garnishee. Cross-examination showed defendant’s counsel had told the insurance carrier’s attorney he would take the check and that he was going to ask the clerk to endorse it and give it to defendant, who would then give it to the sheriff. The clerk had endorsed the check and given it back to defendant’s counsel, who took the position that because the execution and garnishment were outstanding at the time of the delivery of the check to the clerk, the payment was involuntary. Defendant’s counsel admitted he had conceived this plan of payment in advance in order to show the payment was involuntarily made. He had previously received from defendant copy of a letter dated May 16, 1962, addressed to defendant by the insurance carrier’s attorney. The letter, which was never answered either by defendant or his counsel, was admitted into evidence as exhibit B, and reads in pertinent part as follows:
“As attorney for State Farm Insurance Company, I am writing to inform you that the company has forwarded their draft to this office in the amount of $15,000.00 to pay the judgment against you in the District Court of Nemaha County, Kansas, by Henry F. and Antionette F. Hermesch, next of kin of Robert J. Hermesch, Case No. 8932. The company is desirous of paying this judgment in the very near future and will do so by May 25, 1962, unless you notify this office in writing that you do not want the judgment paid by that date. In any event, the judgment will be paid on June 17, 1962. . . .”
Counsel for the insurance carrier testified he had written the above letter and no one had told him not to pay the judgment. The insurance carrier had told him to pay the judgment before answer day on the garnishment summons.
The sheriff testified he had talked to defendant and defendant’s counsel about the execution, but he had not done anything “toward levying” before May 24,1962. He had not intended to do anything until the day after motion day, which had been continued from May 21, 1962, to May 24, 1962. He had delivered a copy of the execution to defendant in the clerk’s office on the morning of May 24, 1962, and he had defendant’s counsel make out the return for him. He did not remember from whom the defendant obtained the check but defendant handed the check to him.
Defendant’s counsel was recalled and he corroborated the sheriff’s statement that he had made out the return on the execution. The costs had not been determined because of a motion to tax costs concerning a guardian ad litem fee. He had not asked the defendant or the insurance carrier to pay the costs because the sheriff had another month in which to make his return on the execution.
The trial court ordered the district court clerk’s record to be changed as follows:
“May 24, 1962. Received of Harry A. Lanning, Attorney for Defendant Lawrence Haverkamp, for endorsement and redelivery to him, a check issued by the State Farm Mutual Automobile Insurance Company, payable to the Order of the Clerk of the District Court of Nemaha County, Kansas, in the amount of $15,000.00, said check was endorsed by me and returned to Harry A. Lanning, thereafter in my office, such check was delivered to Lawrence Haverkamp by Harry A. Lanning and then delivered to Sheriff Holthaus; whereupon, the sheriff endorsed said check and delivered it to me and I received it from him in payment of the $15,000.00 judgment, and the within judgment is hereby released as to the $15,000.00.
“Execution issued April 25, 1962.
“Execution returned May 26, 1962.”
The trial court also ordered the sheriff to amend his return tc show he had received the check issued by the insurance carrier and had delivered it to the clerk of the court.
Narration of the foregoing circumstances brings us to the question as to whether the $15,000 payment was voluntarily or involuntarily made. If the payment was voluntary, then defendant cannot maintain this appeal, which defendant admits. It is also admitted the sheriff had thirty days remaining to make his return. No controversy exists over the fact that both defendant and defendant’s counsel had knowledge that the insurance carrier intended to pay the judgment not later than the return day of the garnishment summons but they saw fit to stand idly by and let the time expire without any effort on their part to stop the insurance carrier from carrying out its intention. By a pre-conceived plan, which defendant’s counsel admits, they undertook to make it appear that defendant was paying the full amount of the judgment under compulsion and as an involuntary act. The facts just do not support such a conclusion. The insurance carrier, through its attorney, was carrying out its duty to its insured, and the insured, by allowing the payment to be made in the manner in which it was made, acquiesced therein at a time and under circumstances that neither could nor would constitute an involuntary payment.
The record reveals the insurance carrier, under the following provision of its contract with the insured, had the duty to pay premiums on bonds including required appeal bonds:
“(2) As respects the insurance afforded under coverages A and B and in addition to the applicable limits of liability:
“(c) To pay premiums on bonds to release attachments, premiums on required appeal bonds, and the cost of bail bonds. . . .”
Defendant admits no request was made of the insurance carrier to make any bond in this case to protect against the issuance of an execution, or anything in aid of execution.
Under these facts and circumstances, we are of the opinion that defendant’s actions savored of acquiescence in the judgment and cut off his right to appellate review. A few of our many applicable decisions are Peters v. Peters,. 175 Kan. 422, 424, 263 P. 2d 1019; Rose v. Helstrom, 177 Kan. 209, 212, 277 P. 2d 633; Benson v. Wiley, 182 Kan. 403, 404, 320 P. 2d 827, and authorities cited therein.
Plaintiff’s motion to dismiss is, therefore, appropriate and must be granted.
Appeal dismissed. | [
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The opinion of the court was delivered by
Jackson, J.:
The appellant in this appeal, apparently a resident of Manhattan, was charged with soliciting a minor child under the age of fifteen years as prohibited by G. S. 1961 Supp., 38-711. Appellant asked through his attorney for a continuance to enable him to have a psychiatric examination. The request was opposed by the state upon the ground that many of the witnesses were connected with armed services at Fort Riley and thus were subject to being moved with little notice.
The appellant was tried by a jury during the month of May, 1962, and was found guilty. Thereupon, the trial judge arranged for the defendant to be assigned to the Topeka State Hospital for psychiatric examination. Following the examination, the defendant was returned to the court since it was found that he could not be benefited by treatment at the hospital.
In defendant’s abstract there are only two specifications of error: First, he complains of the fact that he was not given a continuance before his trial. Secondly, he complains of the admission of a purported written confession.
Roth of these complaints would be classified as trial errors. We thereupon must ascertain whether appellant has sufficiently brought his trial errors before the court.
In order to do this the appellant must appeal from the order denying the motion for new trial in which the errors were noted and then the failure to grant the motion for new trial must have been specified as error. Obviously, the last requirement has not been complied with as we noted above.
In the case of State v. Bednark, 187 Kan. 236, 356 P. 2d 848, we find the rule stated as follows:
“In the recent case of State v. Hamilton, 185 Kan. 101 340 P. 2d 390, many of our state cases pertaining to rule No. 5 were discussed and we again concluded that in order for the supreme court to review alleged trial errors in a criminal prosecution it is required that the defendant appeal from the order overruling his motion for a new trial, and, in addition thereto, such ruling must be specified as error. (Citing State v. Shehi, 125 Kan. 110, 263 Pac. 787; State v. Brown, 145 Kan. 247, 65 P. 2d 333; State v. Owen, 161 Kan. 361, 168 P. 2d 917, and State v. Turner, 183 Kan. 496, 328 P. 2d 733, 359 U. S. 206, 3 L. Ed. 2d 759, 79 S. Ct. 739.) See also State v. Trinkle, 186 Kan. 809, 352 P. 2d 937; 1 Hatchers Kansas Digest [Rev. Ed.], Appeal & Error, §§ 175, 176; 2 West’s Kansas Digest, Appeal & Error, § 719 [10], § 722 [1].” (p. 237)
In view of the above authorities and because the matter of new trial was not specified as error, all that can be done is to announce that the judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action by parents to recover for the alleged wrongful death of their six-year-old son as the result of being struck by an automobile driven by defendant.
The jury returned a verdict for defendant and made special findings. Judgment for defendant was entered thereon, and plaintiffs have appealed from the order overruling their motion for new trial, and specify a number of alleged trial errors.
The facts are not in dispute.
At about eleven o’clock a. m. on Thanksgiving Day, November 24, 1960, defendant, a resident of Atchison, was driving east on East 34th Street in the city of Topeka. His wife and baby were in the front seat beside him. They were on their way to spend the day with relatives who lived in the near vicinity. Plaintiffs lived on the south side of East 34th Street. The area was completely residential. Their six-year-old son, together with several other children, was playing in a neighbor’s yard on the north side of the street about six or eight feet north of the curb. The street was paved and the day was dry and clear. A car was parked on the north side of the street, heading west, near where the children were playing. Another car was parked on the south side of the street, heading east, approximately in front of plaintiffs’ residence which was located diagonally southeast from where the children were playing. As defendant drove in an easterly direction down the street he noticed the children playing and scuffling in the yard on the north side of the street. He did not sound his horn or give any other warning of his approach. As the children were playing plaintiffs’ son apparently was hit in the stomach. He sort of doubled over and started to run for home. In doing so he “darted out” from behind the automobile which was parked on the north side of the street and was hit by the left front end of defendant’s car. Defendant did not see the boy and did not know what had happened until he heard the “thump.” He was driving between fifteen and twenty miles per hour. The boy died immediately. He was forty-six inches tall and the height of the car parked on the north side of the street was approximately sixty-two inches. Shortly after the accident police officers arrived on the scene to make an investigation.
The jury was given twenty-five instructions. Among them were the following:
“No. 9.
“Under the law of Kansas, a child of tender years is not required to exercise the same care and judgment as an adult, and in this connection, you are instructed that a child of six years of age cannot be held guilty of negligence which will prevent his parents from recovering damages for the child’s death, if you find said death resulted from tire defendant’s negligence.”
“No. 17.
“You are instructed that a motorist driving on a street where children are at play is required to keep his motor vehicle under control and to so manage his car as to be able to turn aside or stop and avoid an accident in the light of the apparent risk that children may not exercise the care for their own safety and protection that adults are expected to exercise.
“No. 18.
“Where the driver of a motor vehicle knows of the presence of a child or children in, near, or adjacent to the street or highway or by the exercise of ordinary care should have known that children may be reasonably expected to be in the vicinity, you are instructed that the driver of such motor vehicle must anticipate that a child may suddenly cross the sreet or highway in front of his vehicle and must exercise the care which an ordinary, prudent man would exercise to avoid striking any child or children who might suddenly cross such street.”
Over plaintiffs’ objection, the jury also was given this instruction:
“No. 11.
“You are instructed that the 1959 Supplement to the General Statutes of Kansas, 1949, provides as follows:
“Section 8-556. Pedestrians’ Right of Way at Crosswalks; Control Signals. (c) No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.
“The General Statutes of Kansas for the years 1949, provides as follows:
“8-557. Crossing at Other than Crosswalks, (a) Every pedestrian crossing a roadway at a point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.”
Six special questions were submitted. They, and the answers thereto, are:
“1. Did William Douglas Morían immediately prior to the accident understand and appreciate that injury or death was likely to ensue in crossing the streets, unless he was careful in avoiding moving vehicles?
“Answer: Yes.
“2. Do you find that William Douglas Morían ran into East 34th Street from behind a parked automobile?
“Answer: Yes.
“3. At what rate, in miles per hour, was defendant driving his automobile at the time William Douglas Morían ran into East 34th Street from behind a parked automobile?
“Answer: 16 to 20 miles per hour.
“4. After William Douglas Morían appeared in front of defendant’s car, did defendant have sufficient time to avoid striking him?
“Answer: No.
“5. If you should answer the last question in the affirmative, then state why defendant failed to avoid striking him?
“Answer:
“6. If you find the defendant guilty of negligence causing the death of William Douglas Morían, state the act or acts of negligence of which the defendant was guilty.
“Answer:”
Among the points urged by plaintiffs for a reversal is that while one of the police officers was testifying he stated that “no arrests were made.” It appears, however, that the statement was stricken and the jury admonished to disregard it.
Another point made by plaintiffs is this: Rased upon their investigation, the police officers made out an “accident report.” Over plaintiffs’ objection, a copy of it was introduced in evidence. It contained the statement “no improper driving indicated.” In his closing argument to the jury counsel for the defendant referred to this report and laid much stress on the mentioned statement as being proof that defendant was in no way negligent.
We think plaintiffs’ contention as to the matter is well taken and that the admission of the report containing the statement in question was prejudicial error. In the first place, the report was hearsay, and, secondly — the statement, “no improper driving indicated,” was a pure conclusion on the part of the investigating officer dealing with the very question of negligence which the jury was impanelled to try. In fact, that was the only issue in the case. In this connection, reference is made to the case of Derick v. Blazers, 355 Mich. 176, 93 NW 2d 909, reported at 69 A. L. R. 2d 1143, and the annotation commencing at page 1148, same volume.
Another point strenuously urged by plaintiffs is the giving, over their objection, of instruction No. 11, above quoted, dealing with the question of the statutory duties of a pedestrian when crossing a street — which, in effect, told the jury that a six-year-old child is held to the same degree of care as an adult. Plaintiffs concede that in instruction No. 9, above quoted, the jury was told that a six-year-old child cannot be held guilty of negligence which will bar recovery by his parents provided, of course, it is found that death resulted from defendant’s negligence — but contend that instruction No. 11 was so contradictory to and irreconcilable with instruction No. 9 that the giving of it resulted only in confusing the jury and constituted prejudicial error.
We think this point also is well taken. Under the facts of this case, instruction No. 11 clearly was improper and uncalled for and should not have been given. The rule of law with respect to the negligence of an adult and that of a child of tender years is quite different (Weber v. Wilson, 187 Kan. 214, 220, 356 P. 2d 659). And neither are we able to say that instructions Nos. 9, 17 and 18, all above quoted, removed its prejudicial effect.
Other matters argued by the parties require no discussion. For the reasons stated, it follows that the judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action for damages sustained by the plaintiff in the partially constructed home of the defendant. The case was tried to a jury which returned its verdict in favor of the plaintiff for $7,000 and answered special questions. The district court approved the verdict and entered judgment thereon in favor of the plaintiff.
The defendant makes eight assignments of error, but briefs and argues only three. Under such circumstances, the assignments of error not briefed or argued are considered abandoned and on appeal will not be reviewed or considered. (Brent v. McDonald, 180 Kan. 142, 300 P. 2d 396.) The three assignments of error briefed and argued are (1) the overruling of the defendant’s demurrer to plaintiff’s evidence; (2) whether the court’s instructions properly submitted the issue of willful, intentional or reckless acts on the part of the defendant, and (3) whether the jury’s special findings of fact are inconsistent with each other and of such nature that they should control the general verdict and require judgment for the defendant.
With respect to the first assignment of error, at the close of the plaintiff’s evidence the defendant interposed a demurrer thereto upon various grounds, one being that the evidence showed the plaintiff was a mere licensee and the evidence failed to show that the defendant willfully, intentionally or recklessly injured the plaintiff, and that the dangerous condition, if any existed, was obvious to the plaintiff and that he was guilty of contributory negligence as a matter of law. The demurrer was overruled and the defendant announced he would offer no evidence but would stand on the demurrer. Thereafter, the defendant moved for judgment on the pleadings and evidence for the reasons given in support of the demurrer. The motion was overruled, and the cause was submitted to the jury upon the plaintiff’s evidence.
In his notice of appeal, the defendant did not include the orders overruling his demurrer to plaintiff’s evidence or overruling his motion for a directed verdict, but he did include the order overruling his motion for a new trial. Among other things, the motion for a new trial contained as grounds therefor the overruling of the defendant’s demurrer to plaintiff’s evidence and the overruling of his motion for a directed verdict. Under such circumstances, neither tihe order overruling the demurrer to plaintiff’s evidence nor the order overruling the motion for a directed verdict is presented for appellate review. In Nicholas v. Latham, 179 Kan. 348, 295 P. 2d 631, it was held:
"When a notice of appeal particularly specified the order of the trial court from which the appeal is made, but such notice does not include the ruling on a demurrer made during the trial, the order of the trial court overruling the demurrer is no part of the appeal and presents nothing for appellate review.” (Syl. ¶1.)
This holding has been followed many times by this court. (Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 639, 305 P. 2d 849; Dryden v. Rogers, 181 Kan. 154, 156, 309 P. 2d 409; Gaynes v. Wallingford, 185 Kan. 655, 658, 347 P. 2d 458; Rockhill, Administrator v. Tomasic, 186 Kan. 599, 602, 352 P. 2d 444; Schauf v. Peter Kiewit & Sons Co., 187 Kan. 180, 184, 354 P. 2d 687.)
Nor does the appeal from the order overruling the motion for a new trial under the circumstances here presented permit appellate review of the demurrer to the evidence or the motion for a directed verdict. An order overruling a demurrer to evidence is made separately appealable by the code of civil procedure (G. S. 1949, 60-3302, Second), and the rightness or wrongness of such an order is reviewed as a question of law and is not one which is proper to be included in a motion for a new trial. Hence, a ruling on a demurrer to evidence is not a trial error which requires a motion for a new trial as a condition for appellate review. In Stock v. Union Pacific Railroad Co., 183 Kan. 659, 331 P. 2d 549, it was held that a motion for a new trial was neither necessary, proper nor essential to a review of the order sustaining a demurrer to plaintiff’s evidence and the filing of such a motion did not extend the time for appeal from the order sustaining the demurrer or the judgment rendered pursuant thereto. See, also, Andrews v. Hein, 183 Kan. 751, 332 P. 2d 278, where it was held that a ruling on a demurrer to evidence is restricted to the evidence admitted and considered in ruling on the demurrer, and on appeal from such ruling, trial errors involved in the admission or rejection of evidence are not subject to review unless they are raised by a motion for a new trial. Obviously, that is not the case presented by this record. Thus, the question whether the plaintiff’s evidence presented a submissible case to the jury on the issue of the defendant’s breach of duty to refrain from willfully, intentionally or recklessly injuring the plaintiff is not before us for review.
The plaintiff’s evidence is summarized: The plaintiff and defendant are brothers-in-law. The defendant was constructing a house which had been “roughed in” by a contractor. The plaintiff was helping the defendant finish the house in his spare time. Plaintiff had worked installing septic laterals and had helped felt in the roof. On or about November 10, 1957, plaintiff and defendant unloaded sheet rock at the defendant’s house. Twenty-two sheets were placed on edge leaning against the living room wall. The sheet rock was 4x8 feet and inch thick, and each sheet weighed 64 pounds, for a total of 1,408 pounds. The sheet rock was stacked with the bottom edge 8 to 12 inches from the wall. Two days before the accident, the defendant moved the stacked sheet rock out from the wall to facilitate his installation of furnace ducts. He constructed a “dead man” or a triangular brace out from the wall on which he stacked the sheet rock. A “dead man” is similar to the structure commonly seen at the end of a railroad track, used to keep cars from running off the track. Defendant laid the sheet rock over on the dead man while he worked on the furnace ducts and after completing the work, he stacked the sheet rock up against the wall again.
On Sunday, December 8, 1957, plaintiff and defendant went to the defendant’s house at the defendant’s invitation. They entered the living room and the defendant stood at the end of the stack of sheet rock and the plaintiff stood at the side of the stack. The plaintiff did not know that the defendant had moved the sheet rock and assumed that it was in the same position it was when he and the defendant stacked it. The defendant had built other houses and plaintiff assumed he knew how to safely stack sheet rock. The plaintiff observed the sheet rock in the same general area as it had been when he and the defendant stacked it. There was nothing to indicate that the position had been changed and the only person who could have been expected to know that it was stacked too straight against the wall was the defendant who stacked it in that manner. The first plaintiff knew of danger was when someone hollered “look out” and the stack started to fall. He ran backwards but could not run fast enough, and he was pinned beneath the 1,408 pounds of sheet rock sustaining serious injury.
Following the accident, the defendant told plaintiff that the sheet rock fell because it had been “stacked up too straight against the wall.”
W. G. Dagg, an expert on the storing and handling of sheet rock testified that he had been in the sheet rock business eight years and that his company handled an average of seven car loads of sheet rock per week, each load containing 1,440 pieces. He testified that sheet rock stored in a vertical or near vertical position is a constant danger. During his testimony he was taken through the operation of moving a stack of sheet rock, the bottom edge of which had been eight to twelve inches out from the wall onto a dead man, and then restacking it against the wall, and he stated that the bottom edge would end up three to five inches from the wall. He then stated that the minimum safe distance between the bottom edge of a vertical stack of sheet rock and the wall supporting it would be six inches. Also, that it would take a terrific force— possibly the force of two men — to push over a stack of sheet rock that had been stacked in the manner the plaintiff and the defendant stacked it before it was moved by the defendant.
The defendant contends the district court’s instructions erroneously commingled and interchanged “willful, intentional or reckless acts” with negligence, and that they did nothing but serve to confuse the jury. Specifically, he complains of instructions Nos. 9, 11 and subparagraph 2 of instruction No. 12. He also objected to the giving of instructions Nos. 13 and 18, but his brief fails to mention those objections and we consider them abandoned. (Carpenter v. Strimple, 190 Kan. 33, 37,372 P. 2d 571.)
When the district court overruled the defendant’s demurrer to plaintiff’s evidence, it announced it would instruct the jury that the plaintiff was a licensee on defendant’s premises. Accordingly, the jury was instructed on that basis. In all, the court gave 24 instructions which, under all the facts and circumstances and when considered as a whole and in the light of each other, fairly presented the issues covered by the pleadings upon which evidence was introduced. It is unnecessary to detail the instructions at length but suffice it to say they have all been carefully examined and it cannot be said they did not properly define the defendant’s duty as being the duty to refrain from willfully, intentionally or recklessly injuring the plaintiff while he was on the defendant’s premises, as set out in Steinmeyer v. McPherson, 171 Kan. 275, 232 P. 2d 236; Backman v. Vickers Petroleum Co., 187 Kan. 448, 357 P. 2d 748; and Hogan v. Hess Construction Co., 187 Kan. 559, 358 P. 2d 755. However, we shall briefly discuss instructions Nos. 9, 11 and subparagraph 2 of instruction No. 12.
Instruction No. 9 clearly defined the defendant’s duty to the plaintiff as a licensee while on the defendant’s premises and that failure to perform that duty on the part of the defendant would constitute negligence as would entitle plaintiff to recover if such negligence was the proximate cause of plaintiff’s injury; further, that failure on the part of the plaintiff to so prove by a preponderance of the evidence would render no cause of action and the verdict should be for the defendant.
It is contended that instruction No. 11 was erroneous since the words “or should have known” could refer only to negligence because such words are not properly an element of willful, reckless or intentional act. The point is not well taken. Instruction No. 11 further advised the jury with respect to instruction No. 8 which defined willful, intentional and reckless negligence, that if it found the defendant knew “or should have known” of the dangerous condition of his premises then it might consider his failure to warn the plaintiff, if it found he did not warn the plaintiff of the dangerous condition, as constituting an element of willful, intentional or reckless negligence. The court was dealing with undisputed evidence that the defendant had created “a dangerous condition on his premises.” Moreover, the defendant’s statement that it was “stacked up too straight against the wall” established he knew he had created the dangerous condition. If the defendant did not know of the dangerous condition he could have taken the stand and denied that knowledge, but he was present in the court room throughout the trial and offered no evidence. The failure of a party to throw light upon an issue particularly within his own knowledge raises a presumption that the concealed information is unfavorable to him. (In re Estate of Grisell, 176 Kan. 209, 214, 270 P. 2d 285, and cases cited.) While the court might well have omitted the words “or should have known” from instruction No. 11, we do not think that under the evidence it was prejudicial to the defendant.
Instruction No. 12 informed the jury that the burden of proof was upon the plaintiff to prove to its satisfaction by a preponderance of all the evidence substantially as alleged in his petition, and sub-paragraph 2 stated,
“That such injuries, if any you find, were caused solely by some omission or act of negligence on the part of the defendant as set out specifically in instruction Number One.”
Instruction No. 1 set forth the amended petition which alleged that the defendant was “careless, reckless and negligent” in six specific respects. It is contended that the words “by some omission or act of negligence ... as set out specifically in Instruction One” refer only to negligence which precluded the plaintiff from recovering for reckless, willful or intentional negligence. We do not agree. The allegations of the petition as set forth in instruction No. 1 were sufficient to submit to the jury whether the defendant was guilty of reckless conduct which was the proximate cause of plaintiff’s injuries, and was sufficient to support the general verdict in favor of the plaintiff.
The defendant lastly contends that the jury’s special findings of fact are inconsistent with each other and with the general verdict and are of such nature that they control the general verdict and require judgment for the defendant.
As previously indicated, the jury returned a general verdict in favor of the plaintiff. When the case was submitted, the court submitted two special questions to the jury and those questions and the jury’s answers are as follows:
“1. Was the defendant guilty of any wilful, intentional or reckless act that caused the sheet rock to fall? Answer: Yes. 2. If you answer Question 1 in the affirmative, then state what act or acts he was guilty of? Answer: Defendant knew or should have known of the dangerous condition of his premises and did not warn the plaintiff of this dangerous condition.”
The defendant argues that special question No. 1 inquired of the jury whether any act of the defendant caused the sheet rock to fall, to which the jury answered “yes,” and that in its answer to special question No. 2, the jury stated such act consisted of failure to warn plaintiff of the dangerout condition, and he asserts that obviously a failure to warn the plaintiff of a condition could not have caused the sheet rock to fall. It is further contended the jury’s answer to special question No. 2 related only to a finding of negligence because it referred to a condition which the jury said the defendant “should have known,” relying on Elliott v. Peters, 163 Kan. 631, 185 P. 2d 139. The case is not helpful. It involved the sustaining of a demurrer to a petition attempting to allege gross and wanton negligence as used in our guest statute. (G. S. 1949, 8-122b.)
Under our decisions a general verdict imports a finding upon all the issues of the case not inconsistent with the answers to special questions submitted, and such special findings are to be given such construction as will bring them in harmony with the general verdict. (Kitchen v. Lccsley Co., 186 Kan. 24, 348 P. 2d 588.) While nothing will be presumed in favor of special findings as against the general verdict, it has been said the special findings may be reviewed and interpreted in the light of the testimony. (Schroeder v. Nelson, 157 Kan. 320, 139 P. 2d 868.) Moreover, special findings are to be construed liberally with a view of ascertaining the intent of the jury; special findings are to be given the meaning intended even though unskillfully expressed, and liberalities of construction should be indulged in order to avoid inconsistency between the findings and the verdict and to uphold the verdict. (Epple v. Kress Co., 187 Kan. 452, 457, 357 P. 2d 828, and cases cited.)
In order for the plaintiff to recover, it was not necessary that his evidence establish a formal and direct intention to injure any particular person. It was sufficient if it indicated that degree of indifference to the rights of others which may justly be characterized as reckless. Reckless is an indifference whether wrong is done or not — an indifference to the rights of others. (Stout v. Gallemore, 138 Kan. 385, 391, 26 P. 2d 573.) In popular use and by our decisions “recklessness” is a stronger term than mere or ordinary negligence. (K. P. Rly. Co. v. Whipple, 39 Kan. 351, 18 Pac. 730.) In State v. Custer, 129 Kan. 381, 282 Pac. 1071, it was said:
“. . . To be reckless, conduct must be such as to evince disregard of or indifference to consequences, under circumstances involving danger to life or safety of others, although no harm was intended.” (1. c. 395.)
It was the province of the jury to weigh all the evidence and draw inferences and conclusions therefrom, (Hutchens v. McClure, 176 Kan. 43, 46, 269 P. 2d 473; Bishop v. Huffman, 177 Kan. 256, 278 P. 2d 588), and it had the right to draw the inference that when the defendant restacked the sheet rock he did it in such a manner as to evince disregard of or indifference to the probable or possible injurious consequences, although he intended no harm.
The general verdict is to be regarded as based on whatever substantial testimony there may be tending to sustain it. It is clear that by the jury’s answer to special question No. 1, the defendant was found to be guilty of a willful, intentional or reckless act that caused the sheet rock to fall. In accordance with the rule that a general verdict imports a finding upon all issues of the case not inconsistent with the answers to special questions submitted, the general verdict is to be regarded as having found that the defendant “stacked the sheet rock up too straight against the wall.” In construing the general verdict with the answer to special question No. 2 and interpreting that answer liberally and in the light of the testimony with the view of ascertaining the jury’s intent, we think it may fairly be said that the answer may be construed as a finding that the defendant stacked the sheet rock up too straight against the wall and that in doing so he knew of the dangerous condition thereby created on his premises and that he failed to warn the plaintiff. As thus construed, we find the answers to special questions to be not inconsistent with each other or with the general verdict.
The defendant cites and relies upon Toomey v. Wickison Industrial Gas Co., 144 Kan. 534, 61 P. 2d 891, and Backman v. Vickers Petroleum Co., supra. In the Backman case the pleadings and evidence were all based on alleged negligent acts. There was no claim or evidence or finding by a jury that the plaintiff’s injuries were the result of any willful, intentional or reckless act or omission. The Toomey case may be distinguished in the same manner with the further distinguishing factor that the jury there found only negligence and that the plaintiff was familiar with the character of the work being performed and knew or had reasonable opportunity to ascertain the inherent and attending dangers.
We are of the opinion that the defendant has failed to affirmatively show that there was error committed by the district court which prejudicially affected his substantial right requiring a reversal of the judgment for the plaintiff. (Blakely v. Zirkle, 187 Kan. 562, 358 P. 2d 758.)
The judgment is affirmed.
Pabker, C. J., and Price, J., dissent from paragraph 4 of the syllabus and corresponding portions of the opinion. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover the purchase price of a piece of farm machinery. Judgment was for plaintiff and defendant has appealed.
On February 17, 1960, defendant Bolyard entered into a written contract with the Davis Implement Company of Goodland for the purchase of a Massey Harris sixteen-foot combine bearing serial number 158317. By the terms of the contract he was to be allowed a credit for certain pieces of machinery on a “trade-in.” After allowing this credit the balance of the purchase price was $6,058, which was to be paid in three installments, on August 15, 1960, 1961 and 1962. The combine was to be delivered to defendant in the spring of 1960. Davis had on hand a number of like combines. Davis assigned the purchase contract to Massey-Ferguson, Inc., the plaintiff herein. In the spring of 1960, when Davis was getting ready to make delivery to defendant, it was discovered that the particular combine bearing serial number 158317 had a cracked block, and so delivery was made to defendant of an identical combine but which bore the serial number 157856.
In cross-checking inventories and serial numbers in sales contracts assigned to it, plaintiff company discovered the discrepancy in serial numbers — that is to say, it discovered that it held by assignment from Davis the sales contract executed by defendant covering a combine bearing serial number 158317, when in truth and in fact an identical combine bearing serial number 157856 had been de livered by Davis to defendant. Plaintiff wrote to defendant apprising him of this discrepancy and suggested that he go to Davis and execute a new contract containing the serial number of the combine actually delivered to him. Defendant followed this suggestion and a corrected contract was executed and subsequently assigned by Davis to plaintiff.
Notwithstanding that defendant used the combine delivered to him in the crop years of 1960 and 1961 he failed and refused to make any of the payments due under the contract of sale. As a result plaintiff brought suit to recover the full amount due.
The case was tried before a jury which returned a verdict for plaintiff and ten special findings. These findings will not be set out, but they were consistent with each other and with the general verdict. Judgment was entered on the verdict and special findings, and defendant has appealed.
No new or novel questions are presented by this case. The amount due under the contract is not in dispute. Nothing would be gained by encumbering our reports with a detailed discussion of the evidence and the contentions of the parties. From the argument made it appears that defendant is contending that he purchased a “serial number” rather than a combine. There is no merit to the contention. The evidence established that for the reason heretofore stated an identical combine was delivered to defendant; that the “discrepancy” in the matter of the serial numbers was fully explained to him; that he signed a corrected contract; that no fraud or concealment was in any way involved in the transactions; that notwithstanding all of this he used the combine during two crop years and was wholly in default of payment — and the jury so found.
We find no error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a workmen’s compensation case wherein the appellant seeks review of the decision of the district court denying her, as the surviving widow, an award sought upon the death of Ernest A. Transmeier, her husband, who died of an acute coronary occlusion on October 10, 1960, at the Worden Missile Base site in Kansas, while engaged in his regular work as a common laborer with the Blaw-Knox Construction Company.
The sole question at issue in the case is whether Ernest A. Transmeier, the deceased, met with personal injury by accident arising out of and in the course of his employment.
The trial court found, after a careful consideration of the evidence in the case, that the claimant “wholly failed to establish any causal connection between the work being done by the deceased workman and his death by acute coronary occlusion.”
The burden of the appellant’s argument hinges upon her interpretation of this finding by the trial court. She contends the trial court erred “when it found as a finding of fact and conclusion of law that the appellant had no evidence of any causal connection between the work being done by Mr. Transmeier and his death by acute coronary occlusion.”
We do not so interpret the trial court’s finding. What the trial court found, in substance, was that the claimant failed to sustain the burden of proof.
The record discloses that Ernest A. Transmeier, while in the course of his employment as a common laborer on the job site, was policing the area — picking up debris and throwing it in a truck. This was the kind of work to which he was accustomed. While in the process of scraping some paper together with a shovel, he fell over backward and, after gasping for air for several minutes, died.
Dr. James L. Ruble was summoned and arrived at the scene sometime after the death of Mr. Transmeier. He diagnosed the cause of death as an acute coronary occlusion. No autopsy was performed upon Mr. Transmeier.
Dr. Ruble qualified as a cardiac specialist and testified in his opinion he “did not feel that the work Mr. Transmeier was doing at the time he fell to the ground would in any way aggravate, precipitate or contribute to a coronary occlusion.”
Dr. E. L. Slentz of the Kansas University Medical Center qualified as an expert. The substance of his expert opinion was that “I could not connect his usual amount of exertion with his death. In other words, I don’t see how it could contribute in any way to his death.”
The appellant called Dr. Byron Walters, the coroner, as a witness on her behalf. Dr. Walters qualified as an expert and testified that he talked with Dr. Ruble on the telephone and accepted his diagnosis of coronary heart disease. It was Dr. Walters’ opinion that work, any amount of work for an hour or two, would affect a diseased artery. This is the testimony upon which the appellant relies, contending there was evidence from which the trial court could have found that the accident arose out of and in the course of the decedent’s employment.
Nothing would be accomplished by a more complete statement of the facts, giving in detail the testimony of the doctors, which is for all practical purposes almost identical to that set forth in the case of Rorabaugh v. General Mills, 187 Kan. 363, 356 P. 2d 796. There, as here, the trial court found against the claimant in a heart case.
The decision herein is controlled by Rorabaugh v. General Mills, supra, where the applicable law was discussed and the pertinent cases cited. Nothing further could be added to what has there been said for the assistance of the bench and bar.
The finding and judgment of the trial court denying recovery on the ground claimant failed to establish any causal connection between the work being done by the deceased workman and his death by acute coronary occlusion are supported by the evidence. (Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 334 P. 2d 370; and Heer v. Hankamer Excavating Co., 184 Kan. 186, 334 P. 2d 372.)
The judgment of the lower court is affirmed. | [
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Knudson,
J.: The Boeing Company and Insurance Company of the State of Pennsylvania, c/o American International Group (Boeing) appeal the Worker Compensation Board’s (Board) final order after a review and modification proceeding pursuant to K.S.A. 44-528. The claimant, Donald R. Edwards, has cross-appealed.
In the review proceeding, the Board considered two distinct awards that had previously been entered in favor of Edwards and found that as the result of his layoff from Boeing he had sustained a 100 percent wage loss under each award. The Board found that Boeing was entitled to a credit pursuant to K.S.A. 44-510a to preclude duplicative compensation benefits resulting from his work disability awarded in tire later injury.
Boeing contends the Board erred in pyramiding Edwards’ work disability based on his loss of employment. Edwards contends the Board erred in granting a credit under K.S.A. 44-510a. We affirm in part and reverse in part. We conclude Edwards is not entitled to work disability benefits resulting from his second injury and subsequent layoff from Boeing. Under the evidence presented, all of Edwards’ work disability is attributable to the first injury.
The controlling facts of this case are uncontroverted. Edwards sustained a compensable injury to his back on March 10, 1998. Edwards was employed with Boeing at the tooling department at the time of his injury. He eventually had surgery on his lower back and returned to work in an alternative work program for 8 months. Edwards then returned to the tooling department. After his return to the tooling department, Edwards was accommodated by being allowed to pick jobs that were less strenuous with less lifting and permitting Edwards to get help from his coworkers. Edwards was awarded 15% general body disability for the lower back injury, subject to review and modification.
On April 18, 2001, Edwards sustained an injury to his neck during the course of his employment in the tooling department. Initially, Edwards did not take leave from work but continued to work in his accommodated position in the tooling department. He even tually had surgery on his neck on January 29, 2003. Edwards was off work for 8 months following the neck surgery. Dr. Mills put restrictions on overhead lifting and hyperextension of the arms when Edwards was released to work. However, Edwards testified that Boeing would not allow him back with those restrictions, so he asked Dr. Mills to lift the restrictions. There were documents in the record corroborating Edwards’ assertion that he requested the doctor to lift the neck restrictions. A form from Boeing shows that on September 15, 2003, a modified placement could not be located for his current restrictions of no repetitive or prolonged neck hyperextension, no overhead work, and a maximum of 4 hours per shift. A form from Dr. Mills dated September 15,2003, stated: “[Pier pt’s request, the restrictions [to] avoid repetitive or prolonged neck hyperextension and no overhead work are lifted.” The form released Edwards to work for full duty without restrictions on September 16, 2003. On November 6, 2003, Dr. Mills released Edwards to work for full duty without any neck restrictions. As a consequence, no additional accommodation by Boeing was requested or deemed necessary by Edwards.
When Edwards returned to work on September 16, 2003, there had been layoffs in the tooling department, so Boeing moved Edwards to the modification department.
On December 19, 2003, Edwards was awarded 20% impairment to the body as a whole in a settlement hearing for the neck injury, subject to review and modification.
After the second injury, Edwards worked in the modification department for about 7 months until he was given a medical layoff, effective April 30, 2004. Boeing informed Edwards that it did not have any other jobs that would accommodate his medical restrictions that had resulted from the low back injury.
Edwards then requested review and modification of his award for both claims. In her decision, Administrative Law Judge (ALJ) Nelsonna Potts Barnes set out the evidence presented, contentions of the parties, and her findings, stating:
“Claimant contends that he is entitled to a work disability post award, effective June 14, 2004, as he was given a medical layoff from Respondent at that time. Respondent concedes that Claimant is entitled to a work disability award. The Court must determine whether the Claimant’s work disability is attributable to his low back injuiy of March 10, 1998 or neck injury of April 18, 2001.
“Claimant contends that the work disability should be assigned to Docket No. 1,006,143 which is his neck injuiy. Claimant was off work approximately eight months due to surgery. He returned to work and was placed in a new job classification where he worked without problem and was able to perform his job duties. Nonetheless, he was laid off effective June 14, 2002.
“Respondent argues that Claimant was given a medical layoff, based on permanent restrictions given for his back injuiy of March 10, 1998 (Docket No. 258,707). Thus, Respondent requests that the Court find Claimant is entided to a work disability as a part of that claim. In support of their argument, Respondent demonstrates that Claimant had no permanent restrictions pertaining to his neck at tire time of his layoff. In addition, Respondent’s witnesses testified drat the restrictions which led to Claimant’s layoff pertained to his back condition and his low back injury. The Administrative Law Judge finds that tire evidence is clear and convincing that Claimant was given a medical layoff due to permanent medical restrictions pertaining to his back claim of March 10,1998, Docket No. (258,706). Accordingly, his work disability shall be placed on that claim.
“Work disability has two components. The first component is determined by tire percentage to which the employee, in the opinion of the physician, has lost the ability to perform die work tasks that die employee performed in any substantial and gainful employment during the fifteen year period preceding the accident. In this case, neither party presented evidence from a physician regarding Claimant’s percentage of tasks loss.
“The last component of the work disability equation is the calculation of wage loss. The Court finds Claimant has made a good faith effort to locate employment and his actual wage loss of 100 percent should be used in calculating the Award. Averaging the zero percent task loss with the 100 percent wage loss equals a work disability of 50 percent.”
Edwards appealed to the Board from the ALJ’s award. The Board, although agreeing with the ALJ’s decision regarding work disability arising from the back injuiy, proceeded to also determine there was work disability as a result of the neck injuiy. There is scant explanation for the Board’s decision from the record on appeal. In its order, the Board states:
“Claimant points out that he worked for respondent for over three years after his low back surgery with no further injuiy to his back. He claims he was laid off only after he complained of an injury to his shoulders and respondent discovered the restrictions in his records. Claimant also argues that the reason for his layoff is irrelevant to the determination of work disability, and since the layoff he has had a 100 percent wage loss in each case.
“The Board agrees with the ALJ’s findings and conclusions, except the Board finds that both of claimant’s injuries contributed to his wage loss and his reduced capacity to work. Accordingly, claimant has suffered a 100 percent wage loss in both docketed claims.”
The principal isue on appeal is whether the Board erred by finding 100 percent wage loss in both modification proceedings following the claimant’s layoff. Boeing asserts that this issue requires interpretation of K.S.A. 44-510e(a) and our standard of review is de novo. The claimant agrees. We would also note that whether the Board’s findings are supported by substantial competent evidence is a question of law affording de novo review. Titterington v. Brooke Insurance, 211 Kan. 888, 894, 89 P.3d 643 (2004).
We understand Boeing’s contention to be that as a matter of law a claimant cannot be entitled to a 100 percent wage loss in more than one compensation proceeding as the result of a single layoff. We do not believe that precise question must be addressed in this appeal because the underlying evidence and uncontroverted facts do not support the Board’s decision.
K.S.A. 44-510e(a) provides for permanent partial disability benefits and reads:
“Permanent partial general disability exists when the employee is disabled in a manner which is partial in character and permanent in quality and which is not covered by the schedule in K.S.A. 44-510d and amendments thereto. The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury. In any event, the extent of permanent partial general disability shall not be less than the percentage of functional impairment. Functional impairment means the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body as established by competent medical evidence and based on the fourth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment, if the impairment is contained therein. An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury.”
K.S.A. 44-528(a) provides that an award may be reviewed and modified for certain reasons, including “the functional impairment or work disability of the employee has increased or diminished.” See Niesz v. Bill’s Dollar Stores, 26 Kan. App 2d 737, 741, 993 P.2d 1246 (1999) (“The presumption of no work disability is subject to reevaluation if a worker in an accommodated position subsequently becomes unemployed.’’[Emphasis added.]) When the ALJ modifies an award, the modification is “subject to the limitations provided in the workers compensation act.” K.S.A. 44-528(a).
The following case law is also helpful in resolving the issues presented on appeal. “The two-part test for measuring work disability includes both a measurement of the loss of ability to perform, work tasks and actual loss of wages resulting from the worker’s disability.” (Emphasis added.) Gadberry v. R.L. Polk & Co., 25 Kan. App. 2d 800, 802-03, 975 P.2d 807 (1998). In Gadberry, the worker returned to work after sustaining a back injury and having surgery. About 1 month later, the worker was terminated because her department was relocated. Even though there was no evidence that the worker was in an accommodated position when she returned to work, the ALJ and the Board found that the timing of the worker’s termination was suspect and the worker’s duties continued to be performed by other employees at the same facility. The court held that a worker who returns to work for his or her preinjury wage is not precluded from a finding of wage loss when he or she was given notice of termination for an economic layoff a few weeks after the date of return. 25 Kan. App. 2d at 804-05.
In Tallman v. Case Corp., 31 Kan. App. 2d 1044, 77 P.3d 494 (2003), the worker suffered a back injury. After surgery, the worker was released to light duty and was eventually released to full duty without restrictions. The worker reported that he assumed his regular work duties 2 weeks before his physician released him. The worker’s workload decreased due to a company-wide decrease in work load, but the worker testified that his back continued to hurt even with the reduced workload. The worker was laid off due to an economic downturn. This court upheld the Board’s finding that the worker returned to a situation identical to an accommodated position because he did not work at full capacity when he returned. 31 Kan. App. 2d at 1048. Our court rejected the employer s argument that since the layoff was purely economic and not related to disability, work disability was not available. The opinion noted that the issue was the worker’s capacity to do his or her job and not the amount of wages being earned at the time. The worker was entitled to an award once the employer laid him off because the worker’s work disability came to fruition upon termination. 31 Kan. App. 2d at 1052.
In Roskilly v. Boeing Co., 34 Kan. App. 2d 196, 116 P.3d 38 (2005), the worker was under lifting restrictions due to an unstable back. The worker injured his back but continued to work within the earlier lifting restrictions while undergoing medical evaluation and treatment. While the worker was still receiving medical care for his injury, he was laid off due to a reduction in force. The opinion noted that the Board found the worker successfully rebutted a presumption of no work disability. The opinion also reviewed earlier case law applying the former version of 44-510e(a) in Watkins v. Food Barn Stores, Inc., 23 Kan. App. 2d 837, 936 P.2d 294 (1997), and the more recent interpretation of the work disability statute since its 1993 amendment. The panel agreed with the Board’s determination that a claimant may be eligible for a work disability award even when the loss of employment is not due to injuiy. “An injured worker who demonstrates substantial task loss as a result of a work-related injuiy may recover work disability benefits after returning to his or her unaccommodated employment but thereafter being terminated for a reason not related to his or her underlying injuiy or the resulting disability.” Roskilly, 34 Kan. App. 2d 196, Syl.
In the present case, it is uncontroverted Edwards returned to accommodated work after his lower back injury in claim Docket No. 258,706. After his second injuiy, the neck injuiy in claim Docket No. 1,000,143, Edwards returned to work in a position that continued accommodation for his permanent restrictions related to his lower back injury, but there were no accommodations as a result of his neck injuiy.
Because Edwards was terminated from a position where he was accommodated for his lower back injuries, we agree with the Board that he was entitled to a work disability award for the lower back claim.
However, we cannot agree with the Board that the Workers Compensation Act allows an unsubstantiated finding of work disability arising under the neck claim when there was no accommodation as a result of that injuiy and there was no proof of task loss. Furthermore, there are no findings by the ALJ or the Board that the timing of the medical layoff, 7 months after returning from neck surgeiy, was suspect as in Gadberry.
In summary, Edwards was not eligible for a work disability award in the review and modification proceeding because there was no substantial competent evidence his functional impairment or work disability increased as a result of the layoff. See K.S.A. 44-528(a). All of claimant’s increased work disability is attributable to the back injuiy for which he was afforded accommodated duties by Boeing. Our decision renders moot the issue raised on cross-appeal.
Affirmed in part, reversed in part, and remanded with directions to modify the Board’s order consistent with this opinion. | [
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Greene, J.:
Duane L. Buckner appeals his conviction for attempted manufacture of methamphetamine, arguing that the district court’s failure to give a unanimity instruction together with its failure to define overt act within the instruction for attempt, were clear errors entitling him to a new trial. He does not appeal his related convictions of felony possession of drug paraphernalia, misdemeanor possession of drug paraphernalia, possession of pseudoephedrine, and possession of methamphetamine, and these convictions are not before us. We agree with Buckner that the failure to give a unanimity instruction entitles him to a new trial on the attempted manufacturing charge, so we reverse this conviction and remand for new trial.
Factual and Procedural Overview
In July 2004, during a traffic stop of Buckner’s common-law ex-wife, Joanna Jones, one of the officers involved noticed a backpack in her vehicle containing a “plastic bag full of a white powdery substance.” She claimed the substance was laundiy detergent and that she was in the neighborhood to visit Buckner. The officer allowed her to leave, but then followed her to the vicinity of the residence of Robert Lechwar, where the officer encountered Buckner in the yard. After a short pretextual conversation with Buckner, the officer left the scene with the intent to procure a search warrant for the Lechwar residence.
Three days later, a search warrant was issued for Lechwar’s residence. Specifically, law enforcement was “looking for evidence of a clandestine methamphetamine lab.” The primary suspect at that time, however, was Lechwar. Upon execution of the warrant, evidence found included: liquid ether (starting fluid) cans with punctured bottoms, ephedrine pills, lithium batteries, a blender with white powdery substance “all over the pitcher part,” dark colored liquid later sent to the Kansas Bureau of Investigation, a rusty surgical clamp, aluminum foil, a bag of “rock salt-type of substance,” a bottle with a hose attached, syringes-some of which contained liquid, “pen bodies,” small plastic bags, razor blades, a small spoon, battery carcasses, acid, and wire cutters. This led to the arrest of Lechwar, who told the investigator that Buckner was making methamphetamine on Lechwar’s property 2-3 times a week.
Buckner was charged with the unlawful manufacture of methamphetamine “between the dates of June 1, 2004 and July 31, 2004,” and alternatively he was charged with attempt to manufacture methamphetamine during this same time period. Prior to trial, Buckner filed a motion for a bill of particulars, noting that the 2-month time range “with no specifics is impossible to defend.” The State responded “that [the] methamphetamine was manufactured or was attempted to be manufactured by [Buckner] on June 18 and 19, 2004, and July 3, 4, 7, 9, and 11, 2004. These acts occurred at 1271 12th Road, Washington County, Kansas.” Buckner filed a notice of alibi for the dates at issue.
At trial, the State relied heavily on the testimony of Lechwar, who testified that Buckner made methamphetamine on each of the dates cited in the State’s amended complaint. The defense presented testimony from several different witnesses to support Buckner’s alibi for each of the dates specified; this testimony was not unified, however, and different witnesses supported the alibi for each respective date, with limited overlap among witnesses as to some of the material dates.
No unanimity instruction was requested or given, and there was no objection to the instruction defining attempt to manufacture methamphetamine, which omitted the definition of “overt act.” Buckner was found guilty of the alternative charge of attempt to manufacture methamphetamine and the related charges that are not challenged in this appeal. He was sentenced to a total of 170 months’ imprisonment. He timely appeals.
Standard of Review
Because Buckner complains of a failure to give an instruction that was not requested and an instruction omitting a definition that was never the subject of an objection, we review these errors under the clear error standard. See K.S.A. 2006 Supp. 22-3414(3); State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002). Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the juiy would have rendered a different verdict if the trial error had not occurred. State v. Trotter, 280 Kan. 800, 805, 127 P.3d 972 (2006).
Was It Clear Error for the District Court to Fail to Give a Unanimity Instruction?
Buckner first argues that it was clear error for the district court to fail to give the unanimity instruction, PIK Crim. 3d 68.09-B. This instruction states:
“The State claims distinct multiple acts which each could separately constitute the crime of__In order for the defendant to be found guilty of-, you must unanimously agree upon the same underlying act.”
Jury unanimity is guaranteed in Kansas by statute. See K.S.A. 22-3421; K.S.A. 22-3423(l)(d). Our Supreme Court has addressed the importance of jury unanimity in a multiple acts case in this manner:
“ ‘[Where] several acts are alleged and any one of them could constitute the crime charged . . . the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of the jurors must agree that the same underlying criminal act has been proved without a reasonable doubt.’ ” State v. Carr, 265 Kan. 608, 618, 963 P.2d 421 (1988) (quoting State v. Timley, 255 Kan. 286, 289-90, 875 P.2d 242 [1994]).
Here, the State concedes that this was a multiple acts case, which focuses our review on the more difficult question: Whether the district court’s failure to give a unanimity instruction was clear error entitling Buckner to a new trial. The proper analysis to make this determination has been problematic. See, e.g., Ediger, Elect or Instruct: Preventing Evidence of Multiple Acts from Threatening Juror Unanimity in Criminal Trials, 74 J.K.B.A. 28 (May 2005); Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Cases in Kansas, 44 Washburn L.J. 275 (2005).
Both parties, however, urge us to apply the analysis set forth by our Supreme Court in State v. Hill, 271 Kan. 929, 939, 26 P.3d 1267 (2001).
“[T]he first step is to determine whether there is a possibility of jury confusion from the record or if the evidence showed either legally or factually separate incidents. Incidents are legally separate when the defendant presents different defenses to separate sets of facts or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents. Incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by ‘a fresh impulse.’ When jury confusion is not shown under the first step, the second step is to determine if the error in failing to give a unanimity instruction was harmless beyond a reasonable doubt with respect to all acts.” 271 Kan. at 939.
Additionally, Buckner notes that we have previously stated that harmless error in these situations must ultimately be determined from an examination of whether the defendant has presented separate defenses to any of the acts alleged, citing State v. Voyles, 34 Kan. App. 2d 110, 115, 116 P.3d 720 (2005) (review granted). Although the State argues that Buckner presented a general denial of all the acts alleged, Buckner argues that he “presented separate defenses, with separate evidence and separate witnesses to refute each of the alleged acts.” We must examine the record to ascertain whether such separate defenses were presented and whether the failure of the court to give the unanimity instruction raises the real possibility that the jury would have rendered a different verdict if the instruction had been given.
The State relied principally on the testimony of Lechwar, who testified that Buckner made methamphetamine at his home in Washington County, Kansas, on the dates specified in the State’s amended complaint. Buckner presented evidence in defense to each of the acts alleged as follows:
June 18-19, 2004: Buckner’s son testified that he was with his father on these dates for Father’s Day weekend, and they were in Clay Center (Clay County), Kansas. This testimony was corroborated by both Buckner and Jones.
July 3-4, 2004: Jones testified that Buckner was at Kathy Rose’s home in Clay Center on July 3, 2004. Buckner’s son testified that he spent the Fourth of July with his dad at the Lechwar house, and they had “fireworks and barbecues.” He also watched his dad and Lechwar put in an air conditioner, and during this time Lech-war picked up a plate with “syringes and bags and papers” and told Buckner’s son that he didn’t want him to think it was his dad’s. He stated that his dad never gave him any indication he was hiding anything. The alibi for July 4 was also corroborated by both Jones and one of Buckner s friends, who testified that he spent July 4 with Buckner and drove Buckner and his son to Lechwar’s residence and back to Clay Center on July 4, 2004; he stated that he never saw methamphetamine being made while he was at Lech-war’s home. Buckner corroborated all such testimony.
July 7, 2004: Although Lechwar testified that Buckner manufactured methamphetamine at his house on this date, Buckner testified that he was working on Lechwar’s motorcycle that day and never manufactured any methamphetamine out there. Jones testified that to the best of her knowledge, “nothing was going on on the 7th.”
July 9, 2004: A friend of Lechwar’s girlfriend testified that she was at the Lechwar house all day on the 9th and that Buckner was sleeping and nobody was cooking methamphetamine. Kathy Rose testified that she drove Buckner to Lechwar’s house on this date in order for Buckner to work on a motorcycle; Buckner also called and asked her for a ride home; when she arrived at Lechwar’s house she had trouble waking Buckner. This testimony was corroborated in part by Buckner and also by Jones. Jenny Cole testified that she did not see any methamphetamine being manufactured on July 9, 2004.
July 11, 2004: Kathy Rose testified that Buckner was with her and her family all day on July 11, 2004, and she remembered the date because it was her favorite niece’s birthday.
We do not view Buckner’s defense strategy as a “general denial” as characterized by the State, but rather as separate defenses to each occasion when he allegedly participated in the manufacture of methamphetamine. Depending on how each juror viewed the testimony of each witness, it was possible for there to be disagreement as to which of the specified dates Buckner was involved in manufacturing activity. For example, if one or more but less than all jurors believed Kathy Rose as to July 11, they may have been inclined to find Buckner not guilty on that occasion but guilty on another occasion; whereas one or more but less than all jurors may have believed all other witnesses, but doubted the credibility of Kathy Rose, thus being inclined to find Buckner guilty of the charges on July 11 but not guilty on the other occasions. If this or a similar scenario occurred, Buckner was convicted by less than a unanimous jury and this is precisely the problem that the unanimity instruction is designed to prevent.
We conclude that this was a classic multiple acts case and that the separate defenses to each of the acts required that the unanimity instruction be given in order to assure a unanimous jury. We are convinced that there is a real possibility the jury would have rendered a different verdict if the instruction had been given. The district court’s failure to give the instruction under these circumstances constituted clear error and requires that we reverse Buckner’s conviction and remand for new trial.
Given our conclusion on Buckner’s first claim of error, we need not address his challenge to the attempt instruction for omitting a definition of overt act, but we note that this instruction likely exacerbated the problem caused by a lack of unanimity instruction. No specific overt act on any of the specified occasions was ever charged, discussed, or argued to the jury by the State. In the absence of any specified overt act, the lack of a definition of “overt act” in the instructions, and the lack of a unanimity instruction, it is entirely too likely that Buckner was denied a fair trial. On remand, we trust that a specific overt act on each of the specified occasions will be alleged and that the instructions will carefully define the elements of attempt, including the definition of overt act.
Reversed and remanded for new trial on attempted manufacture of methamphetamine. | [
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|
Green, J.:
Jonas Cole appeals the trial court’s order of restitution and the trial court’s order requiring him to reimburse the Board of Indigents’ Defense Services (BIDS) in his criminal case. First, Cole argues that the trial court abused its discretion in ordering restitution when the amount was not based on reliable evidence. We agree. An order of restitution must be based on rehable evidence that yields a defensible restitution figure. Because there is no evidence in the record to support the amount of restitution ordered in this case, we reverse the restitution order and remand for further proceedings on this issue. Next, Cole argues that the trial court, when ordering restitution under K.S.A. 2006 Supp. 21-4610(d)(1), was required to find that he had the ability to pay the restitution amount. Nevertheless, K.S.A. 2006 Supp. 21-4610(d)(l) imposes no requirement on the trial court to independently consider a defendant’s financial circumstances before ordering restitution. Therefore, Cole’s argument lacks merit.
Finally, Cole contends that the trial court erred in ordering him to reimburse BIDS fees without considering his ability to pay, the financial burden that payment would impose, and the validity of the fees. We agree. Based on our Supreme Court’s decision in State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006), we reverse the BIDS fees order and remand the case for resentencing for the trial court to consider the financial resources of Cole and the nature of the burden the payment of BIDS fees would impose on Cole. Accordingly, we reverse and remand for further proceedings on the amount of restitution owed by Cole and for resentencing in accordance with Robinson,
In September 2005, Cole applied for general and cash assistance from the State of Kansas, Department of Social and Rehabilitation Services (SRS), representing that he was a hurricane victim and had arrived in Salina on September 5, 2005. In reality, Cole had been staying in Salina since July 2005 and worked in Salina from July 2005 to October 2005. Nevertheless, he failed to disclose his employment and income on the SRS application. Cole also applied for financial assistance through the Federal Emergency Management Association (FEMA) and the Salina Office of the American Red Cross.
Cole pled guilty to making a false writing in violation of K.S.A. 2006 Supp. 21-3711 based on his application with SRS. The State dropped two other charges against Cole. As part of his plea, Cole agreed “to pay back any monies owed to tire SRS and determined owing to FEMA.” At the plea hearing, the prosecutor informed the trial court that Red Cross was the agency that processed the FEMA benefits.
At sentencing, the prosecutor asked the trial court to impose a restitution order of $320 for the money given to Cole by Red Cross; $1,540 for the assistance furnished by SRS; and $9,653.76 for the money furnished by FEMA. The trial court ordered Cole to pay the restitution requested by the State, a total of $11,513.76. Cole was also ordered to reimburse BIDS $440 plus its administrative fee. The trial court sentenced Cole to 18 months on probation.
Restitution
First, Cole argues that the trial court abused its discretion in ordering him to pay restitution to FEMA, SRS, and Red Cross because the amount was not based on reliable evidence. “The amount of restitution and manner in which it is made to the aggrieved party is to be determined by the court exercising its judicial discretion and is subject to abuse of discretion review. [Citation omitted.]” State v. Hunziker, 274 Kan. 655, 660, 56 P.3d 202 (2002).
When Cole entered his guilty plea, he agreed to malee restitution in any amount owed to SRS and FEMA. The prosecutor informed the trial court that Cole might be entitled to some of the money he received from FEMA because Cole’s family lived in the area where the hurricane struck and because Cole had some personal property there. Before sentencing, the State sent defense counsel a notice of restitution that set forth the amounts of restitution that it would be seeking from Cole.
At sentencing, defense counsel argued that there was still an issue as to the amount of restitution owed. Defense counsel asked the trial court to continue the matter “so that we can either have a restitution hearing or have people here to say what is owed.” Defense counsel argued that FEMA had admitted that Cole had a right to money for his lost personal property and perhaps for rental allowance. Although defense counsel acknowledged that Cole had admitted that he owed SRS for the assistance he received, he indicated that the amount Cole admitted to owing SRS was $697 for food stamps. The prosecutor asked the trial court to order restitution of $320 to Red Cross in Salina; $1,540 to SRS; and $9,653.76 to FEMA. The trial court ordered Cole to pay the restitution requested by the State in the amount of $11,513.76.
The State maintains that this court’s review on this issue should be limited to the amount owed to FEMA for property loss because Cole did not object at sentencing to paying restitution to SRS or Red Cross or to FEMA for emergency assistance. The State cites State v. Gardner, 264 Kan. 95, 106, 955 P.2d 1199 (1998), where our Supreme Court stated: “ ‘An issue not presented to the trial court will not be considered for the first time on appeal.’ [Citations omitted.]”
A review of the sentencing transcript reveals that Cole’s objection to restitution was based primarily on the amount owed to FEMA. Cole did not specifically raise any arguments concerning tire amounts owed to Red Cross and SRS. Nevertheless, Cole did ask the trial court to continue the matter to hold a restitution hearing or to allow witnesses to speak on the amount of restitution owed. The trial court denied Cole’s request and ordered restitution even though the State failed to present any evidence on the amount of restitution owed. Cole’s request is sufficient to preserve his argument that no evidence was presented on the issue of restitution.
Recognizing that a trial court’s determination of restitution must be based on reliable evidence yielding a defensible restitution amount, our Supreme Court in Hunziker, 274 Kan. 655, Syl. ¶ 3, stated:
“Although the rigidness and proof of value that lies in a civil damage suit does not apply in a criminal case, the court’s determination of restitution must be based on reliable evidence which yields a defensible restitution figure. A victim of a property crime is entitled to restitution only up to the amount of his or her loss.”
Here, there was no evidence presented at the plea hearing or the sentencing hearing concerning the amount of money that Cole received from FEMA, SRS, or Red Cross. We point out that although defense counsel appeared to stipulate at the sentencing hearing that Cole owed $697 to SRS for loss of food stamps, the amount of restitution ordered to be paid to SRS was $1,540. The trial court’s order of restitution to FEMA, SRS, or Red Cross appears to be based on the prosecutor’s representations of the amounts Cole received from these agencies. Statements of counsel are not evidence. See State v. Reser, 244 Kan. 306, 316, 767 P.2d 1277 (1989). There is no evidence in the record to support the trial court’s determination of the amount of restitution. The trial court’s entry of the order of restitution without any evidence to support it constitutes an abuse of discretion. Therefore, the trial court’s order of restitution must be reversed and the case remanded for further proceedings on the issue of restitution.
Because this case is being remanded for further proceedings on the issue of restitution, it is important to point out the impact that our Supreme Court’s decision in State v. Dexter, 276 Kan. 909, 80 P.3d 1125 (2003), might have on an order of restitution in this case. In Dexter, our Supreme Court held:
“A district court, when sentencing a defendant to probation, may only order restitution for losses or damages caused by the crime or crimes for which the defendant was convicted unless, pursuant to a plea bargain, the defendant has agreed to pay for losses not caused directly or indirectly by the defendant’s crime.” 276 Kan. 909, Syl. ¶ 3.
Here, Cole pled guilty to and was convicted of making a false writing based on his application for assistance with SRS. As part of his plea bargain, Cole agreed to pay restitution of any money owed to SRS and FEMA. Nevertheless, Cole never agreed as part of his plea bargain to pay restitution to Red Cross for money it furnished him. In fact, at the plea bargain hearing, the trial court asked the prosecutor if Red Cross, the organization that had been named in one of the dismissed charges, was entitled to any restitution. The prosecutor stated: “No, they processed, they were the agent through which FEMA paid the benefits.” Nevertheless, at sentencing, the prosecutor requested restitution of $320 to the Red Cross in Salina for the money that Red Cross had given Cole “under a program to help somebody who needed emergency assistance.” This amount was included in the trial court’s order of restitution. This money was in addition to the $9,653.76 restitution that the State requested and that the trial court ordered for the money paid by FEMA. Based on the plea agreement and Cole’s conviction in this case, it seems that the trial court was limited to ordering restitution to FEMA and SRS.
Next, Cole argues that when ordering restitution under K.S.A. 2006 Supp. 21-4610(d)(l), the trial court needed to find that Cole had the ability to pay the restitution amount. Cole’s argument requires interpretation of K.S.A. 2006 Supp. 21-4610(d)(l). The interpretation of a statute presents a question of law over which an appellate court has unlimited review. An appellate court is not bound by the trial court’s interpretation. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
K.S.A. 2006 Supp. 21-4610(d) states in relevant part:
“In addition to any other conditions of probation, suspension of sentence or assignment to a community correctional services program, the court shall order the defendant to comply with each of the following conditions:
“(1) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime, in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable. If the court finds a plan of restitution unworkable, dre court shall state on the record in detail the reasons therefor.”
In State v. Goeller, 276 Kan. 578, 583, 77 P.3d 1272 (2003), our Supreme Court considered a similar restitution provision under K.S.A. 2002 Supp. 21-4603d(b)(l), which required restitution “unless” the court found a plan of restitution unworkable. Moreover, just like the restitution provision under K.S.A. 2006 Supp. 21-4610(d)(1), K.S.A. 2002 Supp. 21-4603d(b)(l) stated: “If the court finds a plan of restitution unworkable, the court shall state on the record in detail the reasons therefor.” Our Supreme Court stated: “The design of this provision makes clear that restitution is the rule and a finding that restitution is unworkable the exception. It also leads us to conclude that it is a defendant’s burden to come forward with evidence of his or her inability to pay.” 276 Kan. at 583.
Similarly, under K.S.A. 2006 Supp. 21-4610(d)(l), the trial court is required to order the defendant to pay restitution “unless the court finds compelling circumstances which would render a plan of restitution unworkable.” The language of K.S.A. 2006 Supp. 21-4610(d)(1) reveals that restitution is the rule and a finding that compelling circumstances exist that would malee the plan of restitution unworkable the exception. Moreover, this language leads to the conclusion that the defendant has the burden to come forward with evidence of his or her inability to pay the restitution. K.S.A. 2006 Supp. 21-4610(d)(l) imposes no requirement on the trial court to independently consider the defendant’s financial circumstances before ordering restitution.
As the State points out, there was no evidence presented to the trial court that the restitution plan was unworkable. Cole never even argued to the trial court that his financial circumstances prevented him from paying the amount of restitution requested by the State. The trial court did not err in failing to make a finding concerning whether the restitution plan was workable based on Cole’s financial circumstances.
Nevertheless, citing the Tenth Circuit Court of Appeals decision in United States v. Williams, 996 F.2d 231 (10th Cir. 1993), Cole maintains that this court should follow the analysis of the federal courts that have interpreted the federal restitution statute. The federal restitution statute considered in Williams, however, specifically required the court to consider “ ‘the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.’ ” 996 F.2d at 233 (quoting 18 U.S.C. § 3663). Because no such requirement exists in K.S.A. 2006 Supp. 21-4610(d)(l), the analysis in Walker requiring the court to consider the defendant’s financial assets and earning potential has no application here.
BIDS Fees
Finally, Cole argues that the trial court erred in ordering him to reimburse BIDS for attorney fees without considering his ability to pay, the financial burden that payment would impose, and the validity of the fees. Cole’s argument on appeal concerns the reimbursement of attorney fees under K.S.A. 2006 Supp. 22-4513 and does not extend to the application fee under K.S.A. 2006 Supp. 22-4529.
The State concedes that based on our Supreme Court’s recent decision in Robinson, 281 Kan. 538, this case should be remanded to the trial court for consideration of Cole’s financial ability to re imhurse BIDS fees. In Robinson, 281 Kan. 538, Syl. ¶ 1, our Supreme Court held: “A sentencing court assessing fees to reimburse the Board of Indigents’ Defense Services under K.S.A. 2005 Supp. 22-4513 must consider on the record at the time of assessment the financial resources of the defendant and the nature of the burden that payment of the fees will impose.” We are duty bound to follow our Supreme Court precedent, absent some indication that the court is departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). Because the trial court in this case never considered on the record at the time of assessing BIDS fees the financial resources of Cole and the nature of the burden that payment of the fees would impose on Cole, we remand for resentencing in accordance with Robinson.
Reversed and remanded for further proceedings on the amount of restitution owed by Cole and for resentencing in accordance with Robinson. | [
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Green, J.:
Shane S. Muhl and Teresa A. Muhl appeal from a summary judgment granted in favor of J. Douglas Bohi and Terry Davis on the Muhls’ trespass and conversion claims. On appeal, the Muhls contend that the trial court inappropriately granted summary judgment because genuine issues of material fact remained in dispute. We agree in part, holding that a factual dispute exists on the Muhls’ trespass claim. Nevertheless, we disagree concerning the Muhls’ conversion claim. We determine that any factual disputes were not material to the Muhls’ conversion claim. Accordingly, we affirm in part, reverse in part, and remand for further proceedings in Muhl’s trespass claim.
The Muhls and Bohi both owned land in Franklin County, and the properties shared a common boundary of 970 feet. A partition fence separated the south line of the Muhls’ property from the north line of Bohi’s property. The fence was located on the surveyed boundary line from its westernmost end until approximately 270.35 feet from the east end of both tracts, at which point the fence deviated south of the surveyed boundary line up to 1.2 feet.
Having existed for many years, the partition fence was in a state of disrepair and could not hold cattle. In addition, several trees had grown into the fence. Bohi believed that the fence could not be repaired; rather, it needed to be removed and replaced with a new fence. To do so, Bohi believed the trees that had grown into the fence needed to be removed. The Muhls believed, however, that Bohi could have either patched the fence or replaced the fence without removing the trees.
In October 2004, Bohi hired Davis to remove the old fence and the trees that had grown into the fence. Bohi supplied Davis with a track hoe, and Davis removed the old fence and the trees in the fence line. Davis piled the removed trees on Bohi’s property. When removing the fence, Davis left part of a corner post on the east end and placed a stake on the west end to mark the fence’s former location. Davis instructed the fence builders to follow the post and stake when building the new fence. The new fence was built in the same location as the old fence.
On January 31, 2005, the Muhls sued Bohi and Davis for trespass, civil conspiracy, and conversion. In the pretrial questionnaire, the Muhls explained (1) that Davis entered onto their property without their permission to remove the partition fence; (2) that Bohi and Davis entered into an agreement to destroy the fence and trees on the Muhls’ property; and (3) that without their authorization, Davis uprooted trees located on the Muhls’ property and placed them on Bohi’s property, thereby depriving the Muhls of the quiet use and enjoyment of their property. The Muhls asserted total damages in the amount of $190,000.
After discovery, Bohi and Davis moved for summary judgment on all claims. In their motion for summary judgment, Bohi and Davis maintained that Bohi had a statutory right and duty to maintain the partition fence, that the fence was in poor repair, and that the only way to repair it required Davis to remove the fence and the trees that had grown into it. As a result, Bohi and Davis maintained that they were not liable for any trespass onto the Muhls’ property. They further asserted that the Muhls could not assert a claim for conversion because Davis did not take control of any of the Muhls’ personal property. Moreover, they also maintained that the Muhls could not assert a claim for conspiracy because the Muhls possessed no evidence of an agreement between Bohi and Davis to commit an unlawful act.
In their response to Bohi and Davis’ motion for summary judgment, the Muhls argued that genuine issues of material fact existed. The Muhls further argued that Bohi and Davis had no authority to enter onto their property to remove and replace the fence. The Muhls concluded their response by maintaining that the trees removed were personal property when Bohi and Davis asserted full control over them; therefore, Bohi and Davis were hable for conversion of the trees.
Following a hearing on the motion, the trial court granted summary judgment in favor of Bohi and Davis. In granting summary judgment, the trial judge explained the following:
“In [the defendants’] motion for summary judgment it appears to be that the damage . . . went as far as three feet or one yard beyond the property line and it becomes a question of whether or not that three feet was an appropriate amount ... for the construction of the fence.
“The law makes it clear ... on the boundary fence that there’s some right to go upon the property to build the fence. The Court finds as a matter of law that the entry upon the property for three feet was not an unreasonable incursion upon the property of the plaintiffs. That fact being established, all of the trees that were removed within three feet of the fence line were reasonable.
“The next question . . . was whether the removal of trees was necessary to build a new fence. The Court specifically finds there was no trespass.
“The facts as established by the motion for summary judgment establish that the fence was built on the boundary of the former fence and is on the location of die former fence and ... is the boundary that was recognized with the parties.
“There appears to be no factual dispute as to that. There [were] some indications that undisclosed previous surveys may establish something different but nothing was indicated that was not a recognized boundary between the two and it will be established where the fence is now located.
“The trees were located as part of the real estate when the defendant worked upon them. They were not personal property. So again back to the same question as to whether or not it was necessary to remove the trees to construct the fence and whetiier diat issue can be resolved as a matter of law.
“I believe it can be and I do not tiiink in this day and age it’s possible to build a fence through trees. That it’s necessary that they be removed so an appropriate fence can be constructed. Destruction of property within three feet of either side of it is an appropriate and reasonable area as a matter of law.
“And therefore I find generally for the defendants under their motion for summary judgment. Finding that the actions that they took were appropriate. That the fence was built upon the boundary fine between the properties. That there was no trespass and there was no conversion of the trees.”
After the trial court’s decision, the Muhls moved to reconsider the trial court’s judgment. The Muhls asserted that many of the trial court’s findings and conclusions were wrong: that Davis’ encroachment onto the Muhls’ property was only 3 feet; that the new fence was constructed in the same location as the old fence; that the old fence was the recognized boundary line between the prop erties; that it was reasonable for Davis to enter 3 feet onto the Muhls’ property; that no trespass had occurred; that the destruction of property within 3 feet of the fence was reasonable as a matter of law; that the trees removed were part of the real estate; and that Davis and Bohi were not hable for conversion of the trees. After a hearing on the matter, the trial court denied the Muhls’ motion for reconsideration.
Did the trial court err in granting summary judgment in favor of Bohi and Davis on the Muhls’ trespass claim?
An appeal from a trial court’s grant of summary judgment is governed by the following standard:
“ ‘ “Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply tire same rules and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” [Citations omitted.]’ ” State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
“ ‘An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. The disputed question of fact which is immaterial to the issue does not preclude summary judgment. If tire disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact.’ [Citations omitted.]” Mitchell v. City of Wichita, 270 Kan. 56, 59, 12 P.3d 402 (2000).
Trespass
To support a cause of action for trespass based on an intentional intrusion, a plaintiff must only show that the defendant was intentionally on any part of the plaintiff s land. United Proteins, Inc. v. Farmland Industries, Inc., 259 Kan. 725, Syl. ¶ ¶ 4, 5, 915 P.2d 80 (1996). When a claim of trespass is based on a foreign matter intruding on the plaintiff s land, the plaintiff must show that the defendant intended the foreign matter to intrude on the plaintiff s land or that the defendant performed the act with knowledge that the act would, to a substantial certainty, result in the foreign matter entering the plaintiff s land. 259 Kan. at 729.
Now we turn our attention to the issue in this case. The Muhls contend that genuine issues of material fact exist regarding their trespass claim. According to the Muhls, the parties disputed first whether Bohi and Davis had entered onto the Muhls’ land and, second, how far onto their land the encroachment had extended. The Muhls’ maintain that Davis had entered and removed trees located up to 30 feet onto their property.
In their response to the motion for summary judgment, the Muhls indicated that Davis encroached at a minimum of 3 feet onto their land. In support of their assertion, the Muhls cited Shane Muhl’s deposition testimony and an exhibit provided by expert agronomist Richard James. Shane’s deposition testimony explained that Davis had entered up to 30 feet onto the Muhls’ property and removed trees; James’ exhibit indicated that trees were removed from the Muhls’ property at least 3 feet beyond the property line. At the hearing on the motion for summary judgment, the Muhls indicated to the trial court that Davis had encroached up to 30 feet onto their property. The trial court inquired as to whether Shane’s deposition testimony and James’ exhibit were attached to the Muhls’ response, and the Muhls responded that they were not. The Muhls’ offered to provide them to the trial court, but the trial court declined the offer. The trial court then determined it was an uncontested fact that Bohi and Davis caused damage to the Muhls’ land up to 3 feet beyond the property line.
Although it does not seem James’ exhibit was attached to the Muhls’ response, the Muhls misinformed the trial court regarding Shane’s deposition testimony because it was attached to their response. In addition, 1 day before the trial court ruled on the Muhls’ motion for reconsideration, the Muhls moved to amend their previous response, which included the referenced exhibit to James’ deposition and another copy of the referenced part of Shane’s deposition.
Regarding the Muhls’ first disputed fact, Bohi and Davis do not contest the trial court’s finding that they had entered 3 feet onto the Muhls’ land to remove the fence and that the trees had grown into the fence. As a result, there is no material dispute as to whether Bohi and Davis had entered onto the Muhls’ property.
Normally, the only genuine issue of material fact for a claim of trespass would be whether the defendant had intentionally entered onto any part of the plaintiff s property. United Proteins, Inc., 259 Kan. 725, Syl. ¶ 5. Under the present facts, however, it is necessary to consider the Muhls’ contention that Davis’ encroachment was not limited to just 3 feet because the trial court determined that Bohi and Davis were permitted to encroach a reasonable distance onto the Muhls’ property.
We determine that a genuine issue of material fact existed regarding the Muhls’ contention that Davis had encroached further than 3 feet onto their property. The Muhls argue that Davis had encroached up to 30 feet onto their land. Bohi and Davis argue that the Muhls have failed to establish that the encroachment extended further than 3 feet. Although at the time of the hearing on the motion for summary judgment the Muhls incorrectly told the trial court that Shane’s deposition testimony was not attached to their response, it, however, had been attached to their response and was before the trial court for consideration. Shane’s deposition testimony indicated that Davis had encroached up to 30 feet onto the Muhls’ property. As a result, the parties did not agree that the encroachment was only 3 feet, and the trial court incorrectly determined that the distance of encroachment was an undisputed fact.
The Muhls also contend that a genuine issue of material fact existed regarding damages. The Muhls argue that the trial court erred in determining that Davis had encroached only 3 feet onto their land and, in so finding, erred in determining that no damages had resulted from Davis’ encroachment.
Bohi and Davis respond that whether the Muhls suffered damages is not a material fact because they were not entitled under any legal basis to recover damages.
As explained earlier, a genuine issue of material fact exists regarding the distance of Davis’ encroachment onto the Muhls’ land. Because tire parties do not agree that the encroachment was only 3 feet, the trial court prematurely determined that a 3-foot encroachment was reasonable and permissible to remove and rebuild the partition fence and that no trespass had occurred. A fact question exists as to the reasonableness of Davis’ encroachment onto the Muhls’ property to repair the partition fence. As a result, a genuine issue of material fact exists regarding damages in this case. See Longenecker v. Zimmerman, 175 Kan. 719, 721, 267 P.2d 543 (1954) (“From every direct invasion of the person or property of another, the law infers some damage, without proof of actual injury. In an action of trespass the plaintiff is always entitled to at least nominal damages, even though he was actually benefited by the act of the defendant.”).
Because a genuine issue of material fact existed regarding damages and because the trial court did not resolve that material fact in favor of the Muhls, summary judgment was not proper. See Stovall, 278 Kan. at 788.
The next consideration is whether Bohi and Davis were entitled to judgment as a matter of law. The trial court determined that no trespass had occurred because Bohi and Davis were entitled to encroach up to 3 feet onto the Muhls’ land to remove and replace the fence. Although the trial court did not state what law it was basing its ruling on, Bohi and Davis contend on appeal that K.S.A. 29-308 and K.S.A. 29-316 provided Davis with the authority to encroach onto the Muhls’ property. Because this court’s analysis requires interpretation of the partition fence statutes, this court’s review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).
K.S.A. 29-308 provides that “[a]ll partition fences shall be kept in good repair throughout the year, unless the owners of the land on both sides otherwise agree.” K.S.A. 29-316 provides the following:
“A person building a fence may lay the same upon the line between his own land and the land adjacent, so that the fence may be partly on one side of such line and partly on the other; and the owner shall have the same right to remove it as if it were wholly on his own land.”
The Muhls argue that although a landowner can build or repair a fence under K.S.A. 29-303 (“If such [partition] fence be not re paired or rebuilt accordingly, the complainant may repair or rebuild it.”), under K.S.A. 29-308 the landowner is not permitted to trespass on the adjoining landowner s property while building or repairing the fence. Based on the absence of any language in the statutes expressly granting a landowner the authority to enter onto the adjoining landowner s property, the Muhls assert that the trial court erred in ruling that it was reasonable for Davis to encroach 3 feet onto their land to remove the old fence.
On the other hand, Bohi and Davis argue that, under statutory law, Bohi had a duty to maintain tire fence and was permitted to place the fence on the boundaiy line. Bohi and Davis further assert that the statutes provided them with the authority to enter onto the Muhls’ land to maintain the fence on the boundary line. Consequendy, they argue that because they had die statutory authority to enter the Muhls’ property to maintain the fence, no trespass occurred.
The statutes providing for partition fences are silent as to whether a landowner may enter onto an adjoining landowner’s property to build, maintain, or remove a partition fence. See K.S.A. 29-301 to K.S.A. 29-305; K.S.A. 29-308; K.S.A. 29-316. Based on this silence, the Muhls contend that no such authority existed under the statutes for Bohi and Davis to enter onto the Muhls’ property to repair the partition fence.
The Muhls cite Collins v. Morris, 104 Kan. 77, 78, 178 Pac. 980 (1919), in which our Supreme Court stated in dicta that a landowner may not cut a tree that stands wholly or partly on the division line without the consent of the adjoining landowner, and an owner may maintain trespass for any cutting or injury to the tree without consent. In Collins, however, the court was not presented with facts involving the partition fence statutes as we have in the instant case. See 104 Kan. at 78-80.
Our research has revealed no Kansas case which has dealt with the specific issues in this case. Moreover, an examination of cases from other jurisdictions provides littie help. In Brom v. Kalmes, 304 Minn. 244, 249-50, 230 N.W.2d 69 (1975), the defendant argued that a landowner who builds a partition fence is privileged to enter onto an adjoining landowner’s property at reasonable times and in a reasonable manner to build the fence. The court did not address the reasonableness argument, however, because the court determined the fence was not a partition fence under the Minnesota statute. 304 Minn, at 250.
In the absence of direct case authority, we must draw guidance from several legal treatises. Am. Jur. 2d explains that a landowner has no common-law duty to permit an adjoining landowner to enter onto his or her land to erect a fence on the boundary line. 35A Am. Jur. 2d, Fences 6, p. 518. The Restatement (Second) of Torts § 190 (1964) provides, however, that
“[a] duty or privilege to build or repair a party wall or division fence between land in the possession of the actor and land in possession of another, confers on the actor a privilege to enter the other s land at reasonable times and in a reasonable manner, in order to build or repair such party wall or division fence.”
Similarly, C.J.S. provides that “[t]he occupation by a landowner of the requisite land of his or her neighbor for the erection of a partition fence is not adverse, but permissive.” 36A C.J.S., Fences 5, p. 138. Either adjoining landowner “may repair [a partition] fence and lawfully enter on the land of the other for that purpose, and either may replace it after its removal or destruction.” 36A C.J.S., Fences 13, p. 141.
Under K.S.A. 29-301, the owners of adjoining lands are required to maintain in good repair all partition fences between them. Moreover, if a partition fence is not kept in good repair, one of the adjoining land owners may repair or rebuild it. See K.S.A. 29-302; K.S.A. 29-303; Schwartz v. Kunze, 29 Kan. App. 2d 21, 22 P.3d 618 (2001) (statutes construed and applied to repairs and recovery of costs to partition fences). If an adjoining landowner is given the statutory authority to repair or to rebuild a partition fence, then, by implication, the adjoining landowner should be permitted to enter on the land of the other adjoining landowner for that purpose.
Accordingly, we adopt the above-quoted language from C.J.S. and the Restatement (Second) of Torts that the duty to maintain a partition fence confers on a landowner the privilege to lawfully enter onto the adjoining landowner’s property at reasonable times and in a reasonable manner to maintain the fence. Restatement (Second) of Torts § 190; 36A C.J.S., Fences § 13, p. 141. Under this approach, in addition to conferring the benefit of the ability to build, maintain, or remove a partition fence, K.S.A. 29-303, K.S.A. 29-308, and K.S.A. 29-316 would impose the burden on a landowner to allow the adjoining landowner to enter onto the other landowner s property at reasonable times and in a reasonable manner to maintain or rebuild the fence.
Nevertheless, as stated earlier, the reasonableness of Davis’ encroachment is a question of fact. “ Tt is only when it can be said that reasonable persons could reach but one conclusion from the same evidence that an issue may be decided as one of law.’ [Citation omitted.]” Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 (1995). Because more than one conclusion can be drawn from the same evidence, the trial court erred in determining as a matter of law that the Muhls had failed to establish a genuine issue of material fact as to whether Davis’ encroachment onto the Muhls’ property was done in a reasonable manner to repair the partition fence. As a result, Davis and Bohi were not entitled to judgment as a matter of law on the Muhls’ trespass claim. See Stovall, 278 Kan. at 788.
Did the trial court err in granting summary judgment in favor of Bohi and Davis on the Muhls’ conversion claimP
A conversion is defined as an “unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another.” Carmichael v. Halstead Nursing Center, Ltd., 237 Kan. 495, Syl. 2, 701 P.2d 934 (1985).
The standard of review on this issue is the same standard as set forth earlier. The first consideration is whether a genuine issue of material fact existed. The Muhls argue that a genuine issue of material fact existed regarding their conversion claim. According to the Muhls, Davis removed trees on the Muhls’ property and piled them onto Bohi’s property. The Muhls assert that Bohi and Davis denied removing any trees from the Muhls’ land.
Bohi and Davis do not appear to contest that Davis removed trees located up to 3 feet onto the Muhls’ property or that Davis piled the trees onto Bohi’s property. Rather, they contend that because the trees were part of the real estate, the Muhls could not assert a claim for conversion of the trees. In support of their argument that trees are not personal chattels, Bohi and Davis cite Coats v. Kansas Gas & Electric Co., 143 Kan. 885, 887, 57 P.2d 42 (1936) (“Trees are a part of the real estate.”). Moreover, the trial court determined that the trees were not personalty. The Muhls do not argue that the trial court erred in applying the law on this issue.
Finally, our Supreme Court held that a petition alleging that plaintiff was the owner and in the possession of real estate; that defendant unlawfully entered upon the premises, dug out 150 growing trees, worth $250, and carried them away and converted them; that he severed from a building upon said realty stones, lumber, boards, hardware, etc., the property of plaintiff, worth $50, and converted them, stated a good cause for trespass. Johns v. Schmidt, 32 Kan. 383, Syl. ¶ 1, 4 Pac. 872 (1884). Compare the allegations made in Johns to the allegation made in this case; this case is also a trespass case.
As a result, the trial court did not err in granting summary judgment on the Muhlsconversion claim.
Affirmed in part, reversed in part, and remanded for further proceedings in Muhl’s trespass claim. | [
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The opinion of the court was delivered by
Jackson, J.:
On the evening of August 20, 1962, John D. Rogers had a date with Lola Stuteville, who was then eighteen years of age. They attended a movie in Fort Scott and then drove out to Gunn Park at the southwest edge of town. Rogers parked his Mercury sedan north of the south shelter house in the park. Rogers and Lola were sitting in the front seat smoking and listening to the radio and had been parked only about five minutes when Lola heard footsteps on her side of the car. Three or four figures stood near the car- Lola screamed. Rogers on looking closely could see that they were colored men. He criticized them for sneaking up and scaring them. They asked for money and cigarettes. He had no money but gave them cigarettes. He then noticed that there were about three or more on his side of the car also. He then attempted to start his car but they grabbed his arm and prevented him from doing so.
One of the Negroes on Lola’s side of the car opened the door and sat down in the seat beside her. Rogers was pulled out of his seat on the driver’s side and another one of them got into the seat on the other side of Lola. Lola, badly frightened, jumped over the back of the front seat and out of the car on the driver’s side, ran up to Rogers and held on to his arm.
There is no reason to go into detail of all that occurred, but they attempted to make Rogers and Lola have intercourse in the back seat of the car. When this failed, they took Lola and Rogers to the shelter house and attempted to force them to have intercourse on the table- After about five minutes, Rogers was pulled away and they began taking turns raping Lola. During this time she was raped ten or twelve times.
Gerald Lee Woods was the first of the boys to be tried. The appeal here is apt to be followed in the other cases. It might be said that appellant’s counsel has brought into the picture almost every objection possible.
The appellant first raises the question of the denial of a continuance. In the case at bar, defendant was first charged only with the crime of rape on August 23, 1962. On August 27, he was charged with kidnaping in tihe first degree as well as with forcible rape. Within thirty-two days after his arrest, the trial date of the defendant had been set. The fact that defendant’s counsel lived in Wichita was not a matter which could be taken into consideration in finding that he was not ready for trial. As far as the record would indicate, counsel for the defendant was entirely ready and most alert in making every point for his defendant.
But while appellant argues that he needed more time in which to prepare his case, we would rather think that had there been any delay, counsel would have been the first to argue that his defendant was entitled to a speedy trial. We find no abuse of discretion in compelling defendant to go to trial at the time the case was set. State v. Sweet, 101 Kan. 746,168 Pac. 1112; State v. Johnson, 70 Kan. 861, 79 Pac. 732; State v. Wiswell, 128 Kan. 659, 280 Pac. 780, Syl. 1; and see State v. Badgley, 140 Kan. 349, 37 P. 2d 16.
Not to overlook anything, it is then contended that defendant was entitled to bail. Section 9 of our own Bill of Rights to the state constitution reads as follows: “All persons shall be bailable by suffi cient sureties except for capital offenses, where proof is evident or presumption great. Excessive bail shall not be required nor excessive fines imposed nor cruel or unusual punishment inflicted.” First degree kidnaping is a capital offense and the jury convicted the defendant although they did not assess the death penalty. It would seem clear that the presumption was great and the proof evident.
The appellant filed a motion for change of venue and argues strongly that feelings ran high against the defendants in the town. Notice also that the affidavits and motion filed asked that the case be removed from the district as well as from the county since the application was evidently filed under G. S. 1949, 62-1319, and not under G. S. 1949, 62-1318: It should also be noted that the application was not made during the term of defendant’s arraignment under provision of section 62-1324 and should not have been considered without an additional affidavit under section 62-1325. Needless to say, there were no affidavits showing that the defendant could not receive a fair trial in Linn or Miami county, which counties are a part of the same district with Bourbon county of which Fort Scott is the county seat. The state did file an affidavit showing that a fair trial could be had in Linn county. Moreover, there were a number of affidavits taking issue with the ones filed by the defendant. See section 62-1321. The trial court took the question seriously, passed upon it and found that there existed no serious threat of violence or feeling against the defendants in general and that a fair trial could be had in Bourbon county. We know of no reason why the court should be reversed on this holding.
The state cites the case of State v. Parmenter, 70 Kan. 513, 79 Pac. 123, which is in point on the matter, and which came from the same county.
The defendant next makes a strong argument to show that the jury which tried the defendant was not impartial because of the fact that it was claimed no Negro had sat on a jury in Bourbon county since 1936, citing many cases since Bush v. Kentucky, 107 U. S. 110, 1 S. Ct. 625, 27 L. Ed. 354.
In order to prove discrimination, defendant introduced Exhibit 1, which was an excerpt from the 1950 and 1960 U. S. census reports prepared by an official state agency, the Kansas Commission on Civil Rights. This exhibit shows that the total population of Bourbon county for the year 1950 was 19,153, of which number 18,478 were white and 675 non-white, or 3.5%. Of the 675 non-whites, 661 or 3.45% were Negroes.
While the state attacks this showing as not being an official document and actually of no worth, it agrees to assume that the figures are correct. Rut the state attacks the exhibit mainly on the ground that there is no showing of how many of the Negroes were between the ages of twenty-one and sixty-five and therefore eligible for jury duty. While it is said in the briefs that all Negroes in the county live in Fort Scott, that would not appear to be accurate as to the census figures.
It was further shown that often no jury is called during an entire term of court.
After full consideration, the trial court gave the following ruling:
“The Court: The figures that were submitted in Defendant’s Exhibit Number 1 show the 1960 population of the county was 16,090 and the Negro population of 582, and non-white population of 3.7 of which 582 are Negro and fifteen other races, or a Negro population of the county of approximately 3.6 per cent. That would tie in with Mr. Owen’s testimony. As I recall, he said there were some three or four hundred votes at the general election that were Negro votes and that the Negro population as shown in 1950 is 661. In 1960 it is 582, showing a decline, not quite as large proportionally as the decline in the population of the county. The non-white population is shown as 3.5 percent in 1950 and 3.7 in 1960. At any rate, gentlemen, the problem we have here is not whether or not there are Negroes serving on the jury selected to try the case, but whether or not Negroes as a separate class are being arbitrarily discriminated against in not having their names picked for jury service. The problem is to have jury lists drawn from the proportions that are drawn strictly by lot and by chance and not by design. Of the one hundred thirty or forty jurors who were drawn in the present instance for the trial of this action, or for service at this term of court, as pointed out by counsel, there were only four Negroes who were drawn and only one of those was notified and appeared for jury service. And as I have already indicated in the record here, for reasons of personal health he asked to be excused and was excused from jury service. I feel that the question here is not what has been previously the picture in the county with regard to juries but what is the picture on this present jury. Since there are presently three Negroes who have been drawn on the jury list, along with a number of other jurors who are still available for service at this term of court, I feel that the county officials in drawing this jury list for the trial of the present case did not exclude arbitrarily any members of a particular race, sect or class, and, therefore, I will overrule the motion to quash and discharge the panel. With reference to the manner in which they were drawn, of which the lists were made up, I believe the testimony established that there are presently no Negroes living in the county outside the limits of the City of Fort Scott. The four Negroes who were drawn on the panel are residents of the City of Fort Scott, so it is apparent that the names of Negroes are on the jury lists prepared and submitted within the City of Fort Scott. Now, with reference also to the making of the lists, the county assessor testified that the trustees, I believe, bring the lists to him and he takes them to the county clerk, I presume on a form in the book which the assessors use and is certified by the trustee who does the assessing in the township, and then the list is simply turned over by him to the clerk. At any rate, the lists are apparently prepared correctly in the townships. The drawing of the jurors is done apparently in compliance in all practicable respects to conforming with the statute, is done by the required officials in the jury room. While it may be the county clerk actually types up the lists, it may not be her hand that goes into the box. I think the drawing is done, according to the evidence of the deputy county clerk who testified, in all practicable respects in conformity with the statutes. I might say that some months ago, in fact upon reading the Florida case, Hoyt against Florida, which was a case in which the defendant, a woman, took an appeal to the Supreme Court alleging that there had been an arbitrary exclusion of women from the jury lists in the State of Florida. I, upon reading that, was referred back to the Hernandez case and read at that time some of the annotations and at that time realizing that the problem was not confined to those states in which the particular cases were appealed from, advised all the county clerks in my district, that I would expect them to comply strictly with the law and to draw the jurors without question as to race, creed or color, and that there should be no arbitary exclusion of anyone from jury service, whether it be on account of his religion, his race or any other reason. The only reason that the officials may not add the name on the jury list is because they have knowledge that the person is deceased or has removed from the county or is insane. I feel that the officials are presently properly exercising their offices and I will not quash the present panel. Gentlemen, I expect at this time we should have a few moments recess and then we will proceed.”
Thus, the court shows that he had taken steps some time before to set aright the jury lists of Bourbon county so that four Negroes were actually drawn for the jury in this case.
We would raise a technical question as to wether appellants challenge to the array was made in time. Challenges to the array at common law must be made at once and before the beginning of the voir dire. As we read appellant’s brief and abstract, counsel readily admits that the voir dire was about over before he ever challenged the array. We would direct attention to the case of State v. Logan, 344 Mo. 351, 126 S. W. 2d 256, 122 A. L. R. 417. In this case, decided in 1939, it was held that a challenge to the remaining members of the jury amounted to a challenge to the array and could not be allowed after the voir dire examination had begun.
Four Negroes were drawn on the panel; the one notified was excused for health reasons from the present jury, therefore we fail to see how it can be contended that there was discrimination in this case.
Appellant next attempts to base error upon the order refusing to provide for the separation of witnesses. It seems that in Fort Scott there are no facilities for such separation and the court therefore must deny such a request. But the appellant is brave enough to admit that the ruling is simply based upon the sound discretion of the trial judge. Furthermore, this court held in State v. Davis, 48 Kan. 1, 28 Pac. 1092, which was a capital case, that there was no abuse of discretion in denying such an order. See also State v. Sweet, 101 Kan. 746, 168 Pac. 1112, a murder case.
Under the sixth section of his brief, the defendant contends that he was in fact charged with the crime of conspiracy and tried therefore although he was not so charged in the information.
The Rouble here is that conspiracy has never been considered to be an indictable offense in this state. See State v. Robinson, 124 Kan. 245, 259 Pac. 691. See also State v. Borserine, 184 Kan. 405, 337 P. 2d 697. We believe instruction No. 9 clearly followed State v. Borserine, supra.
Next, the defendant objects to the fact that insRuction No. 6 omitted the part of the statute G. S. 1961 Supp. 21-449, which deals with secret confinement in first degree kidnaping. In the case of State v. Brown, 181 Kan. 375, 312 P. 2d 832, the kidnaping statute was defined in a case which had much the same facts involved as this case. The same arguments were made in the Brown case and specifically answered. We shall not repeat them herein, but see p. 384, et seq.
The last matter referred to in defendant’s brief is the contention that the court should have insRucted on second degree kidnaping and attempted rape. The state first mentions that nothing is absRacted as to requested instructions on these points. So any error thought possibly to exist would be waived on the record before us.
It is pointed out by the state that the same objection was raised in State v. Brown, supra. See p. 390, et seq. As said there, “the defendant was either guilty of kidnaping in the first degree under the evidence or he was not guilty of kidnaping in any degree.”
The case at bar seems to be a stronger case than the Brown case, so the above quotation should be important.
Likewise, if it be thought that the evidence in this case would convict the defendant of attempted rape but not of the crime of rape, the jury should acquit the defendant, and he would have no ground to complain that the aRempt was not put into the picture.
We feel that the defendant had a fair trial. He was found guilty as charged. Therefore, the judgment of the trial court is affirmed.
Price, J., concurs in the result. | [
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|
The opinion of the court was delivered by
Hatcher, C.:
This is an action for damages as the result of personal injuries suffered by a pedestrian when struck by an automobile.
The action was instituted by Mrs. Catherine Letcher, as plaintiff, against Richard Rubin Derricott, the owner and driver of an automobile which struck plaintiff as she was attempting to cross a street.
The petition alleges in substance that while the plaintiff was crossing Eighteenth Street in Kansas City, Kansas, at a point where Eighteenth Street is entered by Homer Street, she was struck by an automobile which was being carelessly, recklessly, and negligently operated by the defendant. The plaintiff was seriously injured. The usual grounds constituting negligent driving were alleged. The petition further alleges that plaintiff was not negligent in crossing the street, but that if it should be found that she was negligent, her negligence had ceased at the time of the injury, and that the defendant could have, with ordinary care, seen the plaintiff in a position of danger from which she could not extricate herself, and by the exercise of ordinary care avoided striking her. The prayer was for damages in the amount of $100,000 and costs.
The defendant answered denying that he was guilty of any negligence and stating that plaintiff was guilty of negligence which caused her injuries. The answer specifies the usual acts constituting negligence by a pedestrian crossing a street. The answer further alleges that the defendant was confronted with a sudden emergency not of his own making and that he attempted to exercise his best judgment to avoid colliding with plaintiff.
The jury answered special questions and returned a general verdict in favor of the plaintiff in the sum of $50,000. The verdict was approved by the trial court. The defendant has appealed specifying twelve trial errors.
The appellant contends that the trial court erred in failing to sustain the demurrer to plaintiff’s evidence, in failing to direct a verdict for the defendant at the close of all of the evidence, and instructing the jury on the last-clear-chance doctrine for the reason that the plaintiff was guilty of negligence as a matter of law which was the proximate cause of, or contributed to, her injuries.
The contentions require a review of the evidence. The evidence will be considered in considerable detail, as most of the questions raised are affected by the facts to be presented.
Eighteenth Street runs north and south through the city of Kansas City, Kansas. At the area in controversy, it is sixty-four feet in width. Running through the center of the street is a medial strip approximately five inches or six inches in height and four feet wide separating the north and south bound traffic. Homer Street enters Eighteenth Street from the west and comes to an end forming a “T.” This street is twenty-six feet three inches in width. Where Homer Street enters Eighteenth Street there is a break in, or an absence of, the raised medial strip for a distance of eighty-nine feet five inches for the purpose of permitting the north bound traffic on Eighteenth Street to turn onto Homer Street and for the eastbound traffic on Homer Street to turn onto Eighteenth Street going north. There was no marked cross-walk for pedestrians at the area in question.
On April 24, 1961, between 8:30 and 9:00 p. m., the appellee, a woman of approximately 55 years of age, started to cross Eighteenth Street from west to east. She was accompanied by her husband, some 75 years of age, and in ailing condition. They started to cross Eighteenth Street at a point north of Homer and proceeded to a point in the center of the street, a short distance south of the north break in the medial strip. The area was unusually well lighted by street lights and also by flood lights and spot lights at filling stations on both sides of the street. “The lighting condition in the area was pretty near next to daylight; just as clear as it would be during the day.”
The distance from the 30 miles per hour speed limit sign on the east side of Eighteenth Street to the south edge of the space between the medial strips was 1100 feet.
The facts, as stated up to this point, are not in dispute. The remaining facts are in dispute to the extent that numerous, although honest, witnesses differ in what they saw at the scene of the accident. Before continuing with the disputed testimony, it will be well to pause here and consider the law which guides us in the consideration of the testimony on the questions involved.
In reviewing a ruling on a demurrer to the evidence, this court does not weigh or compare contradictory evidence. It considers only such portions of the evidence as are most favorable to the party adducing it. It then considers such evidence in the light most favorable to the party against whom the demurrer is directed and gives it the benefit of all inferences that may be drawn therefrom. (Haga v. Moss, Administrator, 181 Kan. 171, 311 P. 2d 281.)
The rule is stated in Reda v. Lowe, 185 Kan. 306, 342 P. 2d 172, at page 311 of the opinion:
“In testing the sufficiency of evidence as against a demurrer, the evidence and the inferences that may be properly drawn therefrom must be considered in the light most favorable to the party against whom the demurrer is directed, and if the evidence and the inferences viewed in that manner are of such character that reasonable minds, in the exercise of fair and impartial judgment, may reach different conclusions thereon, the demurrer should be overruled and the issue submitted to the jury. (Creten v. Chicago, Rock Island & Pac. Rid. Co., 184 Kan. 387, 337 P. 2d 1003.)”
In Krentz v. Haney, 187 Kan. 428, 357 P. 2d 793, it is stated:
“It is a well-established rule in this state that in determining whether a plaintiff is guilty of contributory negligence when tested by a demurrer, the question must be submitted to the jury if the facts of record are such that reasonable minds, in the exercise of fair and impartial judgment, might reach different conclusions thereon. Moreover, the question whether a negligent act is the proximate cause of an injury and whether an ordinarily reasonable and prudent man would have seen that injury might have occurred as the result of a negligent act is also a question for a jury. Mr. Chief Justice Dawson, in speaking for this court in Harshaw v. Kansas City Public Ser. Co., 154 Kan. 481, 485, 119 P. 2d 459, stated, ‘It is only in clear cases which require no subtleties of reasoning that contributory negligence becomes a matter of law.’ ” (p. 430.)
In considering the demurrer to plaintiff’s evidence and the motion for a directed verdict at the close of all the evidence, it must also be understood that the plaintiff invoked the last-clear-chance doctrine. If the plaintiff had by her own negligence placed herself in a position of peril from which she could not extricate herself, the defendant had the duty to exercise due care to avoid injuring plaintiff if he had a last clear chance to do so.
This also presents a question for the jury, and a reviewing court considers the evidence on demurrer under the same rules as those heretofore announced.
In Gibbs v. Mikesell, 183 Kan. 123, 325 P. 2d 359, it was held:
“1. Negligence — Alleging Facts Invoking Last Clear Chance Doctrine. A plaintiff may plead in his petition a cause of action on the ground of ordinary negligence and may also plead in the alternative a cause of action which states facts involving the doctrine of last clear chance, and he may recover under whichever aspect proof of the case may show."
In the opinion the court stated:
“The essential elements under the doctrine of last clear chance are: (1) The plaintiff by his own negligence placed himself in a position of danger; (2) that the plaintiff’s negligence had ceased; (3) that the defendant seeing the plaintiff in a position of danger, or by the exercise of due care should have seen the plaintiff in such position, by exercising due care on his part had a clear chance to avoid injuring the plaintiff; (4) that the defendant failed to exercise such due care; and (5) as a result of such failure on the defendant’s part plaintiff was injured. (Goodman v. Kansas City, M. & S. Rld. Co., 137 Kan. S08, 21 P. 2d 322; and see, Restatement of Law, Torts, Negligence, §479.)” (p. 130.)
The use of the phrase “that plaintiff’s negligence had ceased” has caused some confusion. The phrase means, and perhaps the better term is, “that the plaintiff had, by her own negligence, placed herself in a position of peril from which she could not extricate herself.” If the plaintiff could extricate herself from the danger, and did not do so, her negligence had not ceased. If the plaintiff could not extricate herself from the danger, her negligence had ceased.
There is another rule of law pertaining to the Iast-clear-chance doctrine which is made applicable by the facts in this case. Some authorities restrict the application of the doctrine to cases where the defendant had actual knowledge of the plaintiff’s peril. There are other authorities, including Kansas, which permit recovery where defendant had no actual knowledge of the peril but could have discovered it by the exercise of reasonable care. (65 C. J. S., Negligence, § 137d (2), page 770.)
In Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50, 23 P. 2d 449, this court held:
“A contention that the last-clear-chance doctrine includes knowledge of helpless peril only and does not include duty to exercise vigilance to discover helpless peril, considered, and held to be unsound.” (Syl. 3.)
The opinion reviewed the previous decisions of this court and stated, beginning on page 62 as follows:
“Defendant contends it would be liable only if Thompson actually saw plaintiff in a position of peril from which he could not extricate himself in time to prevent the collision. In other words, if Thompson were watching a scrub ball game out in the field east of tire highway until too late to avoid crashing into the Dodge, he would be excused because he did not actually see the Dodge sooner. That is not the law of this state.
“In an excellent book just off the press, A Treatise on the Law of Torts, by Fowler Vincent Harper, professor of law in Indiana University (BobbsMerrill Company, Indianapolis, 1933), the origin and development of the doctrine of last clear chance in England, adoption and development of the doctrine in the United States, and the present status of the doctrine, are presented. Concerning the subject under consideration it is said:
“ ‘But a majority of jurisdictions allow a wider scope to the principle of last clear chance and hold the defendant to the duty of ascertaining the plaintiff’s perilous predicament, if, in the exercise of reasonable care, it would have been discovered and if the relation of the parties is such that the defendant owes to the plaintiff the duty of reasonable vigilance. Under this rule a plaintiff who has negligently exposed himself to a danger from which he is unable, at the time of the accident, to extricate himself, may hold a defendant who, as a reasonable man, should have discovered the plaintiff’s danger at any time after the situation had got beyond the plaintiff’s power to save himself and if such discovery would have enabled the defendant, by the exercise of reasonable care, to avoid the accident.’ (p. 305, § 138.)”
With the guiding rules established, we will consider the more detailed evidence presented by plaintiff.
Appellee testified in substance that she reached the center of Eighteenth Street and stopped for her husband to catch up. She looked to the south and observed the headlights of a car down by the Turnpike. She could not tell how far it was. (The north end of the break in the raised medial strip is 668.5 feet from the Turnpike overpass.) The automobile was northbound and near the medial strip rather than the east curb line. She could not tell at what speed the car was traveling. She saw no other cars approaching. She took two steps to the east from the center of the medial strip. This placed her about two feet east of the medial area. She looked to the south and saw the car lights bearing down on her. She did not remember anything more.
Joseph M. Dodd, who was working at a filling station located west of Eighteenth and north of Homer Street, was called as a witness. His testimony, as narrated in the abstract, was in part as follows:
“When he first heard the fight squeal [of brakes], the car was by the overhead sign which says ‘Turnpike.’ ‘. . . [H]e put on his brakes, and he kind of pulled towards that breaker strip . . . dividing the street on 18th, and there is an open place for Homer. His car seemed like it kind of pulled in towards that and hit Mrs. Letcher.’ The faint squeal stopped for a second or less, ‘and then he put on his brakes again.’ When the brakes were applied the second time the car was just about even with ‘that breaker strip down by Homer.’ The car did not proceed in a straight line. ‘It seemed like it kind of pulled in’ about a foot, foot and a half or two foot.
“Mrs. Letcher was standing about a few steps from the breaker strip, if it came all the way through on 18th Street, if Homer wasn’t there. She was stopped still. Mr. Letcher was a few steps behind her.
“Dodd formed a judgment that the car was going around 40 to 45, when he first saw it down by the overhead sign. (The distance from the overhead sign to the south edge of the medial strip is forty-one feet seven inches.) The defendant did slow his car down. The judgment of Dodd as to the speed at the moment the car hit Mrs. Letcher was about 30.
“The car traveled about sixty-five feet after it struck the lady, until its front end came to rest in the north station drive.
“Dodd first observed the car turning to the left about half way between where Mrs. Letcher was standing and the edge of the breaker strip.
“When Dodd first saw the car, it was going around 45. That was down where he heard the little squeal. In the opinion of Dodd the car was going 30 at the time it struck Mrs. Letcher. The car did not leave any skidmarks after it hit her. Dodd did not hear any brakes squeal after the car hit Mrs. Letcher.
“Dodd did not see the car change lanes as it was going North on 18th Street. The only thing he saw was that ‘it pulled in’ into the medial area or divider area. Dodd did not see it fishtail.”
Under the facts presented, it was for the jury to determine whether the appellee was guilty of contributory negligence in starting to cross a thirty-foot one-way traffic strip when she could see only one car approaching at a distance; whether the appellant started to reduce his speed in time; whether he used due care to see and avoid the plaintiff; whether he made proper use of the thirty-foot traffic strip; whether, by the exercise of ordinary care, he would have had a last clear chance to avoid striking appellee, and whether he exercised his best judgment to avoid the collision.
Appellant objects to specific instructions of the trial court on the last-clear-chance doctrine. The trial court instructed the jury as to the effect of contributory negligence and then added:
“If the defendant has established by a preponderance of the evidence that the plaintiff was guilty of contributory negligence, then the plaintiff can not here recover from the defendant, unless it be under the ‘last clear chance doctrine.’ ”
It then proceeded to instruct on the doctrine.
The appellant contends:
“. . . The words essentially changed the instruction so as to inform the jury that it could find the plaintiff guilty of negligence which ‘caused or contributed to’ her injury and at the same time could allow her to recover under the last-clear-chance doctrine.”
It should first be noted that the appellant, although objecting to any instruction being given on the last-clear-chance doctrine, made no objection to any specific instruction given. It is a well settled rule of this court that where no objection is made to the giving of an instruction and no request is made for its modification or clarification during the trial, a litigant cannot be heard to complain on appeal unless the instruction is clearly erroneous. (Jukes v. North American Van Lines, Inc., 181 Kan. 12, 309 P. 2d 692; Boucher v. Roberts, 187 Kan. 675, 359 P. 2d 830; Foley v. Crawford, 125 Kan. 252, 262, 264 Pac. 59.)
However, we see no error in the instruction as given under the facts in this case. The last-clear-chance doctrine presupposes contributory negligence on the part of the person injured. In 65 C. J. S., Negligence, §137b, page 762, the rule is thus stated:
“It is almost universally agreed that the doctrine of the last clear chance presupposes negligence on the part of the person injured and an admission thereof by him; and it has no application where the position of peril of the person or property injured was not due to negligence for which plaintiff is responsible. Under this view, plaintiff must have been guilty of antecedent contributory negligence such as would, but for the application of the last clear chance doctrine, defeat recovery. . . .”
The appellant objects to the refusal of the trial court to admit in evidence the full report of the investigating police officer. The police officer arrived at the scene about eight mintues after the accident. He prepared an official report which is kept on file with the police department. The report consisted of three pages. The second page consisted of statements made by independent witnesses to the accident. The appellant attempted to introduce the full report as an exhibit. The court refused to permit the second page to be introduced. The appellant then withdrew the entire exhibit. He now contends that the full report should have been admitted in evidence as an official record, and also as part of the res gestae. The appellant relies on the case of Mulich v. Graham Ship By Truck Co., 162 Kan. 61, 174 P. 2d 98, where it is stated:
“. . . Appellants complain of the introduction in evidence of the statements made by Logan, the driver of the Graham truck, to the deputy sheriff soon after the collision. The deputy sheriff testified that it was the duty of Logan to make a report of the accident to him. No objection was made to that testimony and it is not contended now that it was erroneous. The statute (G. S. 1945 Supp. 8-523, 8-524) requires the highway department to prepare and furnish sheriffs forms for accident reports (G. S. 1945 Supp. 8-525). The deputy sheriff testified that when such reports are obtained they become a part of the records of his office. Such records are admissible in evidence (G. S. 1935, 60-2869). More than that, the statement was made voluntarily by Logan so soon after the collision that it may properly be regarded as a part of the res gestae. See State v. Funk, 154 Kan. 300, 303, 118 P. 2d 562; State v. McCrady, 152 Kan. 566, 568, 106 P. 2d 696, and authorities there cited. This is specifically true here, where the petition alleged that Logan was the driver of the Graham truck ‘and during all the times herein complained of was its agent, servant, and employee’ of the Graham corporation, which allegation was not put in issue by the answer.” (p. 65.)
The statute (G. S. 1961 Supp., 8-523 and G. S. 1949, 8-524 and 8-525) applies to reports by the driver of a vehicle involved in an accident. It was not intended to permit a police officer to take statements from third-party witnesses to be introduced in evidence under G. S. 1949, 60-2869 in violation of the hearsay rule.
The court found that the statements made to the police officer by the independent witness were not res gestae.
“. . .A great deal of room must be left to the discretion of the trial court in determining admissibility of evidence as a part of the res gestae. (State v. McCrady, supra, p. 568; 2 Kan. L. Rev., 41, 248; 53 A. L. R. 2d Anno., § 5, pp. 1260, 1261.) The record discloses there was a full and complete argument before the trial court on the question of the admissibility of the evidence, and the court ruled adverse to defendants. We cannot say the court erred or abused its discretion.” (Drake v. Moore, 184 Kan. 309, 336 P. 2d 807, p. 318; see, also, State v. McCrady, 152 Kan. 566, 106 P. 2d 696.)
The trial court did not err in restricting the exhibit.
Other alleged trial errors have been examined, and they are found to be without substantial merit.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal involves a dispute between the executor, which is also trustee under the will, and the heirs at law, over the disposition made of a petition designated “Petition for Construction of Will.”
The facts and history of the proceedings material to the determination of the controversy may be stated as follows:
D. N. Freeman, a resident of Beloit, Kansas, died December 21, 1959. He left a will which was admitted to probate in Mitchell County, Kansas, designating the First National Bank of Topeka as executor. The executor was appointed and qualified on January 19, 1960. The will, which is somewhat lengthy, will be summarized.
The will first provided for the payment of all just debts. A sum of five thousand dollars was bequeathed to the testator s daughter, Margaret Elizabeth Perotti, and an equal sum to his granddaughter, Nancy Ann Braile. All of the residue of the estate, after satisfying the above mentioned charges was bequeathed to the First National Bank of Topeka as trustee, “in trust nevertheless for the benefit of my daughter, Margaret Elizabeth Perotti, my granddaughter, Nancy Ann Braile, Linda Locke, adopted daughter of my daughter, Margaret Elizabeth Perotti, and Margaret Annan Freeman, widow of my deceased son, Duane A. Freeman, to be used for their use and benefit in the manner hereinafter described and designated.”
The will provided for various monthly payments to each of the beneficiaries mentioned. It next provided for numerous “in the event” clauses. The requested construction of the validity of these clauses gave rise to the procedural questions presented in this controversy.
On February 24, 1961, Margaret Elizabeth Perotti and Nancy Ann Braile, the heirs at law of the testator, filed an instrument designated “Petition for Construction of Will.” The petition challenged all of that part of the will pertaining to the trust. The petition alleged that the trust provisions were in violation of the rule against perpetuities and void, and that the property covered thereby passed to the petitioners by intestate succession, they being the sole heirs at law of the decedent.
On the same day the probate court appointed a guardian ad litem for the three minor children of Nancy Ann Braüe and the unborn children and immediate issue of Margaret Elizabeth Perotti and Nancy Ann Braile and the unborn issue of such issue. The petition was duly noted for hearing on March 24, 1961. The guardian ad litem filed a written defense to the petition in the form of a general denial. On March 16, 1961, the executor filed his written defense to the petition alleging that the petition was for the contest of the will and not for the construction and was filed out of time. It also raised the question of waiver and estoppel and laches. It specifically charged Nancy Ann Braile with estoppel because she had requested and accepted payments and distributions under the trust provisions of the will. Linda Nuse, nee Linda Locke, adopted daughter of Margaret Elizabeth Perotti, filed a similar written defense.
On March 24, 1961, all parties appeared for the hearing on the petition for the construction of the will, at which time the petitioners filed a petition for transfer of the hearing for construction of the will to the district court. The probate court then adjourned to April 14, 1961, and ordered that the hearing on the petition for construction of the will and the petition to transfer be heard at that time. On April 14, 1961, the matters were again adjourned for hearing to May 9,1961. On May 3, 1961, the executor filed its written defense to the petition for transfer to the district court. It contended that the petition for construction of the will was in effect a petition to contest the will and that the time for filing contest proceedings had expired before the petition was filed. It further contended that the petition being in substance a will contest proceeding, it was not such a petition as may be transferred from the probate court to the district court under the provisions of the Kansas Probate Code.
On May 9, 1961, the petition to transfer the petition for the construction of will to the district court was argued by the parties and the probate court entered a memorandum decision as follows:
“The court finds that the Petition for Construction of Will is in effect a petition to contest Mr. Freeman’s Will, and, since the Probate Court has exclusive original jurisdiction of will contest petitions, the matter is not transferable and the Petition to Transfer to the District Court is denied, and the court does so Order.”
On the same day at the request of the petitioner, the probate court entered an order adjourning the hearing for the construction of the will to June 6,1961.
On May 24, 1961, the petitioners perfected an appeal to the district court from the order of the probate court refusing to transfer the hearing on the petition to construe the will to the district court.
On June 6, 1961, the petition for construction of the will was heard and the probate court entered an order concluding as follows:
“Whereupon at the conclusion of said arguments, the court, being fully advised in the premises, finds that said petition for construction of will is in legal effect a petition to contest the Will of D. N. Freeman, deceased; that said petition, so construed, was filed after the expiration of the time permitted by statute, particularly G. S. 1949, 59-2404; and this court has no jurisdiction to entertain said petition, and that said petition must be dismissed and denied.”
On June 13,1961, petitioner filed a notice of appeal to the district court from the order of the probate court set out above. The appeal, however, was not perfected.
On October 23, 1961, the executor filed a motion to dismiss the appeal to the district court from the order of the probate court refusing to transfer, alleging that the refusal of the probate court to transfer is not an appealable order.
The district court made its final determination of the matter on May 4, 1962, which was reduced to a journal entry on June 28, 1962. We quote from the journal entry as follows:
“Now on this 4th day of May, 1962, the same being a day of the regular April 1962, term of the above entitled Court, written arguments and briefs of the parties to this appeal having been duly submitted to and considered by the Court, the Court now finds that the order and decision of the Probate Court, made on May 9, 1961, whereby the Probate Court did refuse to transfer the hearing on the petition for the Construction of the Will of D. N. Freeman, deceased, was and is an appealable order, and the motion to dismiss this appeal is now by the Court overruled; and the Court further finds that the petition filed in the Probate Court of Mitchell County, Kansas by Margaret Elizabeth Perotti and Nancy Ann Braile, now Howell, on February 24, 1961, is properly a Petition for Construction of the Will of D. N. Freeman, deceased, and the hearing on said petition and the issues formed thereon, was and is transferable to this Court for final decision and determination under the provisions of G. S. 1961 Supp., 59-2402a.
“The Court further finds that this appeal was timely taken from the order refusing to transfer the Petition for the Construction of the Will of D. N. Freeman, deceased, and that this appeal should be and the same is hereby allowed and sustained.
“Now, therefore, it is ordered that the Probate Judge of Mitchell County, Kansas, make transfer of the Petition for Construction of the Will of D. N. Freeman, deceased, and all answers, pleadings, documents and instruments pertinent thereto by delivering to the Clerk of this Court the original files, or so much thereof as may be necessary, for the final determination of all issues raised upon the Petition for Construction of the Will of the said D. N. Freeman, deceased.”
The executor has appealed from the order of the district court allowing the appeal.
The appellant first contends that the order of the probate court refusing to transfer the petition for construction of the will to the district court for hearing is not an appealable order. This contention is bottomed on the further contention that such an order is not a “final decision” as the term is used in G. S. 1949, 59-2401, providing for appeal to the district court from judgments, decrees and decisions of the probate court.
The appeal statute describes twenty orders or decrees from which appeals may be taken and then concludes:
“(21) A final decision of any matter arising under the jurisdiction of the probate court.”
Orders refusing to transfer matters to the district court are not specifically mentioned. The right to appeal must therefore be found in the right to appeal from “final decisions” if the right exists.
The appellant contends that the order is not final because the probate court can hear and determine the matter on its merits and an appeal can then be taken to the district court. That is not the intent or purpose of the transfer statute. The purpose of the statute was to have complicated matters involving technical legal questions heard by a judge trained in the law and also eliminate the necessity of two hearings on the matters. The transfer statute leaves no discretion in the probate court. It is mandatory. G. S. 1949, 59-2402b provides in part:
“Upon the filing of such [transfer] request the probate court shall deliver to the district court the file in the matter, or so much thereof as may be necessary for a determination of the issues raised. . . .” (Emphasis ours.)
When the probate court refused to transfer, on request, an absolute right provided by statute was denied. The order denying the request was final insofar as petitioners’ right to be heard under the jurisdiction of the district court was concerned. An order denying a jurisdictional right is a final decision. A jurisdictional question may be raised at any time. In the case of In re Estate of Weaver, 175 Kan. 284, 262 P. 2d 818, it is stated:
“The executors next contend that an appeal may not be taken from an order of the probate court entered on a preliminary motion prior to final determination of the issues in controversy. We have stated on many occasions that the question of jurisdiction may be raised at any time. (Russell v. State Highway Comm., 146 Kan. 634, 73 P. 2d 29; National Bank of Topeka v. Mitchell, 154 Kan. 276, 279, 118 P. 2d 519; In re Estate of Pallister, 159 Kan. 7, 9, 152 P. 2d 61; In re Estate of Dix, 161 Kan. 364, 367, 168 P. 2d 537.)”
Although the order refusing to transfer did not determine the main issues, it was a final order as to the statutory right to be heard in the district court. If there is to be no appeal from an order of the probate court refusing to transfer, the transfer statute is rendered nugatory by the simple refusal of the probate court to transfer. Appellant contends that the appellees must wait until the probate court has heard the matter on its merits and then appeal to the district court where the matter can be heard de novo. This is the pro cedure that the legislature was attempting to avoid by the transfer statute.
The probate code contains its own procedure for appeal and the Code of Civil Procedure is not applicable. (Cardin v. Apple, 150 Kan. 162, 92 P. 2d 32; In re Estate of Freshour, 177 Kan. 492, 280 P. 2d 642.) The appeal provisions should be so construed as to harmonize with other provisions of the act, and not to destroy the effect of other specific provisions such as the right to have a matter transferred to the district court for hearing.
The appellant next contends that the petition although designated “Petition for Construction of Will,” is in fact a petition contesting a will and that a petition contesting a will is not transferable. The appellant misconstrues the language of the transfer statute.
Prior to 1951 the transfer statute (G. S. 1949, 59-2402a) contained a general provision giving a right to transfer a petition filed in the probate court to the district court. The statute detailed specific exceptions to the general provision. One of the exceptions was a petition for admission of a will to probate. An objection to the probating of a will on any ground was left in the exclusive jurisdiction of the probate court.
The 1951 legislature amended G. S. 1949, 59-2402a and took an entirely different approach. It specifically provided what petitions filed in the probate court could be transferred. The amended section provides insofar as material here:
“When a petition shall be filed in the probate court. (1) to admit a will to probate; . . . (10) for an order which involves the construction of a will or other instrument; any interested party may request the transfer of such matter to the district court. . . (G. S. 1961 Supp., 59-2402a.)
It will be noted that where the old section left will contests, insofar as they arose on objects to probating a will, in the jurisdiction of the probate court, the revised section contained a specific provision for the transfer of such matters to the district court for hearing. It also specifically provided for transfer of a petition for an order which involves the construction of a will. The legislature could have had but one thing in mind — the hearing of such complicated and technical matters by a judge trained in the law.
The phrase “which involves the construction of a will” is a broad and general term. It is not limited to the construction of a will to determine the intent of the testator. It also includes the construction of a will to determine the validity of any of its provisions. The appellees in the present controversy have petitioned for the con struction of the provisions of the will for the purpose of determining whether the rule against perpetuities is violated.
The legislature did not intend that a petition to construe a will for the purpose of determining the intention of the testator should be transferred to the district court, but a petition challenging the validity of a will involving such questions as the rule against perpetuities in the construction should remain under the jurisdiction of the probate court.
If a petition involves the construction of a will it must be transferred on request, regardless of the purpose sought to be accomplished.
The appellant cites numerous cases in support of its contention. The cases cited were determined before G. S. 1949, 59-2402a was amended in 1951. They are of little, if any, aid in construing the language of the amended section. The present case is one of first impression insofar as the interpretation of the phrase “an order which involves the construction of a will” is concerned, in considering the right to transfer the matter to the district court for hearing.
The appellant contends further that appellees abandoned their appeal to the district court when they submitted themselves to the jurisdiction of the probate court at the hearing on the petition to construe the will. We do not agree. G. S. 1949, 59-2407 provides:
“An appeal from an order admitting a will to probate shall not suspend the operation of the order until the appeal is determined, but no distribution to heirs, devisees, or legatees shall be made pending the appeal. In all other cases the appeal shall suspend the operation of the order, judgment, decree, or decision appealed from until the appeal is determined or the district court shall otherwise order." (Emphasis ours.)
Again the statute is mandatory. The appeal shall suspend the operation of the order, etc., from which the appeal is taken. Any action taken by the probate court which affected the order from which the appeal was taken was a nullity and could not be the basis of estoppel. This question was considered in the case of In re Estate of Lillibridge, 161 Kan. 93, 166 P. 2d 720, where it is stated:
“One other question remains which must be answered — Did the filing of and the ruling on the ‘demand’ in the probate court while the case was pending on appeal in the district court estop the appellant from presenting her appeal in the district court? We have examined the cases cited by respective counsel on this point and have concluded that the better reasoning is to the effect that the district court became solely possessed of at least part of the case upon appeal and that the probate court thereafter had no further jurisdiction of the same issues involved in the first appeal. Since the ‘demand’ clearly raised only the same issues the result is that the ruling made by the probate court was in fact a nullity. Such being true, it had no effect for any purpose and could not be the basis of an estoppel. . . .” (p. 106.)
The appellant last contends that the district court ruled that the petition was one for the construction of a will and not a will contest and that the district court had no jurisdiction to make such determination on an appeal from an order refusing to transfer.
We do not so understand the district court’s ruling. It first considered appellant’s motion to dismiss the appeal and found that the order or decision of the probate court refusing to transfer the hearing on the petition for construction of the will “was and is an appealable order, and the motion to dismiss £he appeal is now by the court overruled.’’
The district court next proceeded to consider the merits of the appeal. It found that:
“. . . the petition filed in the Probate Court ... on February 24, 1961, is properly a Petition for Construction of the Will of D. N. Freeman, deceased, and the hearing on said petition and the issues formed thereon, was and is transferable to this Court for final decision and determination under the provisions of G. S. 1961 Supp., 59-2402a,”
and allowed the appeal. It simply found that the petition was one involving the construction of a will and therefore subject to transfer.
The district court did not find that the petition was or was not also a petition contesting the will and the effect thereof. This question, the issues raised by the petition, and the executor’s written defense to the petition are now before the district court for determination.
The judgment is affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to perpetually enjoin the defendants from removing the respective offices of the county seat of Logan County, Kansas, from Russell Springs to the city of Oakley. The action was brought by two plaintiffs who were electors and taxpayers of Logan County, “on their own behalf, and on behalf of other electors of Logan County, Kansas, in the same situation.” The defendants were the Board of County Commissioners and seven other county officials. A temporary injunction was issued on November 16, 1960, enjoining the defendants from removing the county seat, and was dissolved on July 11, 1962, when judgment was entered in their favor that the county seat be removed to the city of Oakley. As hereafter noted, both parties have appealed.
This case was previously before this court in Wycoff v. Board of County Commissioners, 189 Kan. 557, 370 P. 2d 138 (opinion filed April 7, 1962). That appeal was from an order overruling the plaintiffs’ motion for judgment on the pleadings, and was dismissed upon the grounds that the appeal was not from a “final order” since issues of fact material to the disposition of the lawsuit were joined in the pleadings. One question raised in the present appeal was discussed and decided in the former opinion as hereafter noted.
No useful purpose would be served by reciting the many allegations of the various pleadings that have been filed. It is sufficient to say that since Logan County’s organization (G. S. 1949, 18-155, 18-155a) the county seat has been located at Russell Springs and that the order of removal was made subsequent to a special election held on October 18, 1960, and conducted pursuant to the provisions of G. S. 1949, 19-1601 through 19-1630, inclusive, which require the vote of three-fifths or 60 percent of the legal electors to relocate the county seat and to remove it from its present location to the city of Oakley.
The pertinent proceedings preliminary to calling the election, the notices and holding of the election, and the result of the election, are summarized: The regular meeting day of the Board of County Commissioners is the first Monday of the month. (G. S. 1949, 19-206.) September 5, the first Monday in September, 1960, was Labor Day which is declared by statute to be a legal holiday. (G. S. 1949, 35-102.) The following day, September 6, two of the three commissioners, Claude M. Fulton and Jacob Uhrich, met with the county clerk in regular meeting to determine the number of legal electors whose names appeared on the last assessment rolls of the several township and city assessors of Logan County. (G. S. 1949, 19-1604.) One of the commissioners, G. H. Newcom, was absent because of illness. It was determined there were 2177 legal electors whose names were on the last assessment rolls and appeared on what was called the “master” list. Minutes were kept of the meeting.
The next day, September 7, the board convened with Fulton and Uhrich present. Newcom submitted his resignation from the board which was accepted and the two remaining commissioners and the county clerk appointed Roy Kronvall to the board to replace New-com. (G. S. 1949, 19-203.) A petition calling for an election to relocate the county seat was presented and considered and the board determined that the petition bore the signatures of 1592 legal electors of Logan County whose names appeared on the last assessment rolls; that 62 of the signers to the petition had on that date requested their names be removed therefrom, leaving 1480 legal electors who were qualified to sign the petition and that such number was more than two-thirds of the 2177 legal electors of the county and was sufficient to call an election for the purpose stated pursuant to G. S. 1949, 19-1602 and 19-1604.
On September 12, 1960, the board fixed October 18, 1960, as the date of the special election to be held at the usual voting places at each of the election precincts in the county. Notice of the special election was published by the county clerk proclaiming that such election would be held at the usual voting places at each of the election precincts of Logan County,
“. . . for the purpose of determining the question of the relocation of the County Seat of Logan County, Kansas, by removing the County Seat from Russell Springs, its present location, to the townsite of Oakley in Logan County. . . .”
It further recited that the polls would be open in each of the precincts between the hours of 8:00 a. m. and 6:00 p. m.
Prior to the special election the usual voting places in Oakley township precinct No. 1 was the township hall and the usual voting place in Russell Springs township was the school. Five days before the special election the county clerk published a second notice which stated that the polling place in Oakley township precinct No. 1 would be the city hall and that the polling place in Russell Springs would be the community center. No other notice of election was published.
Thereafter, boards of registry were duly appointed and registry lists were prepared of all legal electors in each voting precinct as provided in G. S. 1949, 19-1613 through 1630, inclusive.
On October 18,1960, the special election was held and the printed ballots furnished the electors stated the proposition to be voted upon as follows:
“Shall the County Seat of Logan County, Kansas, be removed to the City of Oakley, Kansas?”
On October 22, 1960, the result of the election was canvassed by the board of commissioners and it was determined that 1441 votes had been cast in favor of the proposition, 783 votes had been cast against the proposition, and 22 votes had been voided and not counted. The number of electors appearing on the various registry lists were totaled and found to be 2409. Standing thusly, the proposition was short the required 60 percent by 4.4 votes. The board then proceeded to canvass the list of qualified electors as prepared by the board of registry at each of the voting precincts to determine the number of legal electors against which to apply the number of “yes” votes to determine whether three-fifths of the legal electors had voted in favor of the proposition submitted. This was accomplished by the board by adding all the names on the various registry lists, and to that total adding the number of electors who had qualified and voted by affidavit pursuant to G. S. 1949, 19-1619, and deducting from the grand total the number of persons whose names appeared on the registry lists but who were known to the county commissioners not to possess the qualifications of legal electors on the date of the election. Accordingly, the names of eleven electors were subtracted from the registry lists for the reason that such persons were either minors, insane, aliens or nonresidents of the county. The board then determined that on the date of the election there were 2398 legal electors of the county entitled to vote, that more than three-fifths of the legal electors had voted in favor of the proposition to relocate the county seat, and it proclaimed the city of Oakley to be the county seat of Logan County.
By direction of G. S. 1949, 19-1609, the county officers were required within twenty days thereafter to remove the county records to the county seat. To prevent this, the plaintiffs filed this action to enjoin the move challenging, among other things, the official composition of the Board of Commissioners and the validity of their acts as commissioners; the sufficiency of the petitions calling for the election; the sufficiency of the notice of election and the ballot; voting irregularities, and the elector status of persons named on four exhibits attached to the petition, summarized as follows: (1) the eleven names subtracted from the registry lists by the board when it canvassed the results of the election; (2) 58 alleged legal electors whose names did not appear on the registry lists and who did not qualify themselves to vote by affidavit as prescribed by G. S. 1949, 19-1619; (3) fourteen persons who were alleged to not be legal electors but who signed the petition for calling the election, and (4) 37 persons alleged to be legal electors whose names appeared on the last assessment rolls and not considered in determining the sufficiency of the petition for calling the election.
The defendants’ answer denied all of plaintiffs’ allegations and alleged, among other things,
“. . . that the said election, the canvass thereof, the determination of the number of legal - electors of Logan County, Kansas, on the date thereof, and the resulting proclamation of the results thereof were in all respects regular and in accordance with the law.”
Trial was to the court, which consumed some ten days. After a full hearing, where many witnesses for both sides testified, resulting in hundreds of pages of transcript, the district court made 29 findings of fact and conclusions of law, finding specifically that the procedures preliminary to the election to remove the county seat to Oakley were sufficient and that the election carried, and entered judgment ordering removal of the county seat to the city of Oakley. The plaintiffs have appealed from the judgment and order overruling their motion for a new trial, and the defendant board, while in accord with the final judgment, has cross-appealed from adverse findings and conclusions that named persons were not legal electors of the county on October 18, 1960, and from that part of the judgment assessing one-half of the costs to the defendant board.
We now turn to the merits of the appeal. Prior to the trial the plaintiffs filed a motion asking for a determination of certain contentions and requested conclusions of law in advance of trial on thirteen different points, among which was the question whether the Board of Commissioners sitting as a board of canvassers had the right to determine the qualification of electors whose names appeared on the lists of registry. The question involved the power of the board of canvassers to subtract eleven names from the registry lists as not being qualified electors and permit the board to determine that the required 60 percent of the legal electors had voted in favor of removing the county seat. In ruling upon the motion, the court concluded as a matter of law that the board of canvassers “had the right” to determine whether one listed on the registry was a qualified elector, and stated,
“The names of persons appearing on the register of election who are not qualified electors of Logan County, Kansas, under the constitution and laws of the State of Kansas, on October 18, 1960, the date of the election, shall not be counted in determining the number of eligible voters or ‘legal electors’ for such election of said county on said date. The board of county commissioners as the board of canvassers had the right to make such determination subject to the duties of this court in this contest proceedings. . . .”
Following the trial, and in its findings of fact and conclusions of law upon which judgment was rendered, the court reversed itself on the point, and concluded,
“The board of county commissioners had no statutory or constitutional authority at any time before or after the election to determine the names or the eligibility of electors on the registers in the various precincts. That authority belonged to the boards of registry in the various precincts by statute. The board of county commissioners had no legal power of appointment and no supervisory power over the precinct boards of registry.”
It is unnecessary to summarize Sections 19-1613 through 19-1630, inclusive, dealing with the registration of electors of a county where an election has been called to locate or relocate the county seat. That was done in Dunn v. Board of County Commrs of Morton County, 165 Kan. 314, 194 P. 2d 924, and it was held that the purpose of the foregoing sections,
. . is to provide a basic list to be used by election officials in the various voting precincts in determining the persons entitled to vote at such elections.” (Syl. f 2.)
It is a common error for a canvassing board to overestimate its power, and it has no right to subtract any name from the lists of registry in determining the total number of legal electors of the county. Its duty is ministerial only and its sole function is to meet, canvass the vote, and declare the results. (Lewis v. Commrs of Marshall Co., 16 Kan. 102, 22 Am. R. 275; Brown v. Commrs of Rush Co., 38 Kan. 436, 439, 17 Pac. 304; Sharpless v. Buckles, 65 Kan. 838, 840, 70 Pac. 886.)
While the Sections 19-1613 through 19-1630 do not specifically state that the total number of persons shown on the final registration lists shall constitute the total number of the legal electors for the purpose of determining whether the required percentage has voted in favor of the proposition (Dunn v. Board of County Commrs of Morton County, supra), it is apparent in the statutory scheme that such total number could not be used for that purpose since a legal elector whose name does not appear on a registry list may qualify himself and vote by affidavit as prescribed by 19-1619. Hence, in determining whether the number of affirmative votes constitute three-fifths or more of the legal electors of the county, the board is required to determine that number by adding the names on the various registry lists and adding to that total the number of those qualifying and voting by affidavit. We find no statutory authority for the Board of Commissioners either before or after the election to determine the eligibility of electors on the lists of registry, or to subtract from such lists the names of persons appearing thereon in canvassing the results of such an election. Where, as here, it is conceded that the returns and lists of registry were regular in form and genuine, the question whether an elector whose name appeared on a list of registry was or was not a legal elector of the county is judicial in nature and one to be passed upon by a court of competent jurisdiction when the election is contested. (Dunn v. Board of County Comm’rs of Morton County, supra; State v. Morton County Comm’rs, 121 Kan. 191, 246 Pac. 504.) On this point the cross-appeal of the Board of County Commissioners cannot be sustained.
The plaintiffs next argue that the district court’s erroneous ruling in advance of trial on the question of law just discussed shifted the burden of proof and had the effect of requiring them to go through ten days of trial with a burden which was not theirs, and to accept the affirmative of a proposition which was not their own. We do not agree. Despite the fact that the Board of Commissioners erroneously concluded it had the right to subtract from the lists of registry the names of eleven persons as not being qualified electors and thereby proclaimed a favorable result for the election, the proclamation was nonetheless made on October 22, 1960. As the matter then stood, the county officials were required within twenty days to remove the county records from Russell Springs to Oakley. To prevent such removal, it was incumbent upon the plaintiffs to file an action contesting the election, which they did. As we have seen, the plaintiffs made various allegations challenging the move, which were all denied by the defendants who affirmatively alleged that the calling of the election, the election itself, the canvass thereof, and the resulting proclamation were in all respects regular and in accordance with the law. Whether the district court did or did not make erroneous conclusions of law before or during the trial did not shift the plaintiffs’ burden of providing the allegations of their petition by a preponderance of the evidence. It is well
settled that the burden of proving a disputed fact or issue rests upon the party asserting it, or having the affirmative of the issue, and remains with him throughout the trial. (Miller v. Kruggel, 165 Kan. 435, Syl. ¶ 4, 195 P. 2d 597.) In In re Estate of Wright, 170 Kan. 600,228 P. 2d 911, it was said:
“. . . It is an elementary rule of law that the burden of proof on any point is upon the party asserting it, and it was incumbent upon appellants to prove the allegations of their petition by a preponderance of the evidence. (Miller v. Kruggel, 165 Kan. 435, 195 P. 2d 597; 31 C. J. S. 709; 20 Am. Jur. 134.)” (l. c.604.)
The district court correctly ruled that the burden of proof was upon the plaintiffs throughout the trial.
The plaintiffs urge that the notice of the special election was defective and void for several reasons: (1) that it did not designate the place of voting, or the time, place and purpose of the meeting of the boards of registry; (2) that the election was held at a place other than stated in the notice, and (3) that it stated a proposition other than stated on the ballot. The notice stated that on the 18th day of October, 1960, the election would be held “at the usual voting places in each of the election precincts” of the county. G. S. 1949, 19-1605 provides for notice of the election and where it will be held, and reads:
“The elections provided for in this act shall be held within fifty days after the presentation of the petition therefor; and the county commissioners shall cause thirty days’ notice of any such election to be given, by publication in one or more newspapers published in the county, or by posting written or printed notices at the several voting places in the county.”
It is observed that notice of election may be given by publication in one or more newspapers, or by posting written or printed notices “at the several voting places in the county.” In the instant case, the notice of election was published in a newspaper each week for five consecutive weeks prior to the election. Notice of the polling places used at the special election was given over the signature of the county clerk and tire usual voting places designated in the notice were those actually used for the election. While no written or printed notices were posted “at the several voting places,” the notice given by the county clerk provided that the election would be held “at the usual voting places.” On its face the notice would seem to be sufficient under the statute. It is an old rule that time and place are of the substance of an election (Gossard v. Vaught, 10 Kan. 162, 167), and it is well known that a county-seat question is vexatious, annoying and deranging, and an election to relocate a county seat is a matter of public notoriety. Considering all the facts and circumstances here present, we think the notice of election designating the polling places which were used was sufficient to adequately inform the electors of the county where to vote, that it, at “the usual voting places” in their precincts. Moreover, more than 93 percent of persons qualified to vote went to the polling places so designated and cast their votes either for or against the proposition to remove the county seat. We think that is ample evidence that no person was mislead or disfranchised by the fact that the notice of election provided they would vote “at the usual voting places” in their precincts. (Wakefield v. Patterson, 25 Kan. 709; Miely v. Metzger, 97 Kan. 804, 808,156 Pac. 753.)
Neither was the notice of election void for the reason that it did not designate the time, place and purpose of the meetings of the boards of registry. A county-seat relocation election is a creature of the statute and there is no provision requiring such notice. The boards of registry are appointed and the time of their meetings and the function they are to perform are prescribed by Sections 19-1613 through 19-1630, inclusive. Those sections were interpreted by this court in Dunn v. Board of County Commrs of Morton County, supra, and show with what detail the legislature has provided for establishing a list of those entitled to vote on propositions to locate or relocate county seats. In the opinion it was said:
“Briefly summarized, this special registration law provides that judges of elections shall constitute the board of registry for their respective voting precincts; that they shall meet three weeks preceding any election for the permanent location or relocation of county seats and make a list of all persons qualified and entitled to vote at the ensuing election, and this list shall constitute an election register (19-1613); the election boards shall enter on said list the names of persons residing in the precinct whose names appear on the poll book of the precinct at the last preceding election. In addition to those names the board shall enter the names of all other persons who are well known by them to be qualified electors of the precinct and shall strike from the poll book lists the names of those who have died or have removed from the precinct. Each of tire judges shall keep a copy of the list so prepared for his use on the day provided for revision of the list, and one copy shall be posted in some conspicuous place where the election is to be held in the precinct and be accessible for examination by any elector who may desire to examine it. (G. S. 1935, 19-1614.) On Tuesday of the week preceding the election, the board shall meet in their respective voting precincts for the purpose of revising, correcting, and completing these lists. (G. S. 1935, 19-1616.) The proceedings of the board shall be opened and all persons residing and entitled to vote in the precinct shall be entitled to be heard in relation to corrections or additions to the register. (G. S. 1935, 19-1617.) Section 19-1618 relates to procedure and evidence to be received in the revision and correction of these registration lists. After the registration lists have been fully completed within three days of the second meeting of the board, four certified copies of tile lists must be made, one of which shall be filed with the township clerk, and one of which shall be delivered to each of the judges. The judges shall preserve these lists for use on election day and designate one of their number at the opening of the polls to check the name of every voter voting whose name is on the register. No vote shall be received if the name of the person offering to vote is not on the register unless he furnishes an affidavit stating that he is an inhabitant of the precinct entitled to vote therein, and also furnishes an affidavit of a householder and registered voter of the precinct that he knows such person to be an inhabitant of the precinct. Any person whether his name be on the list or not may be challenged by the judge or any legal elector. (G. S. 1935, 19-1619.) After the canvass of the votes the poll books and the register shall be attached together and filed on the following day with the township clerk and a duplicate returned to the county clerk. (G. S. 1935, 19-1621.)” (1. c. 324, 325.) (Emphasis supplied.)
The plaintiffs contend that to deny a person the right to register is in effect to add a three-fifths affirmative vote to the end result even though the registrant neither votes nor registers; that their petition listed 58 persons who were legal electors but whose names did not appear on the registry lists and had those persons been so listed, even though they did not vote, the proposition submitted would have failed by 35 votes; that since the election in question was a special election there was a mandatory obligation that each be informed of his right to register, thus establishing his right of suffrage; that those qualified electors absent in military service could not know of that right in the absence of notice or that their right of suffrage would depend upon their being registered, and conversely, that their failure to be registered could affect the result of the election. There was introduced in evidence ballots of absentee service personnel who submitted affidavits establishing qualification to vote in Logan County in the November, 1960, general election which affidavits were filed in the county clerk’s office on October 11, 1960, and the names of three such persons were not included on the lists of registry. Also, wives of service men voted by absentee ballot and other persons voted personally in the November, 1960, general election whose names were omitted from the lists of registry. The plaintiffs contend that had those persons been registered the result of the election would have been affected and had they been informed, they and others might have had their names entered on the lists of registry.
The plaintiffs mistake the purpose of the lists of registry. Those lists are established to provide a basic list of legal electors to be used by election officials to determine persons entitled to vote, and whether the proposition carried by the required percentage. (Dunn v. Board of County Commrs of Morton County, supra.) No statutory notice of the meetings of the boards of registry was required to be given, and no legal elector was required to appear before such boards in order to have his name placed on the registry lists — that was automatic with respect to all known electors of the precincts. There is a presumption that the boards of registry acted in accordance with the law and upon proper and adequate information and there is no evidence or suggestion of fraud. After the initial registry lists were prepared they were subject to revision and correction (19-1616-19-1618), and finally, any qualified elector whose name may have been omitted was entitled to cast his ballot by qualifying himself pursuant to 19-1619. Had the 58 persons alleged to be legal electors qualified themselves and voted pursuant to 19-1619, their votes against the proposition would have been counted. We note, however, that our statute which permits voting by citizens absent from the state does not apply to a special election such as here considered. It applies only to primary and general elections and to the offices specifically designated. (G. S. 1961 Supp., 25-1102.)
With respect to plaintiffs second point, we think the county clerk’s notice five days preceding the holding of the election changing the polling place of precinct No. 1 in Oakley from the township hall to the city hall and in Russell Springs from the school to the community center was ample notice of the voting places of those precincts. The change from “the usual voting places” in those precincts was specifically designated in the county clerk’s second notice to known public places and the polling places designated were not so remote as to vitiate the election. (Gossard v. Vaught, supra, p. 167; Miely v. Metzger, supra, p. 808.)
The third point urged by the plaintiffs was presented to this court and decided adversely to them in the previous appeal. There, the plaintiffs contended they were entitled to judgment for the reason that the notice did not set forth the polling places, and, further, that the proposition stated both in the notice and on the ballot did not fully inform the electors of the place to which the county seat would be removed. The notice stated that the purpose of the election was the relocation of the county seat from its present location “to the townsite of Oakley.” The ballot stated the proposition to be voted on was “Shall the County Seat of Logan County, Kansas, be Removed to the City of Oakley, Kansas?” In Wycoff v. Board of County Comm'rs, supra, it was said:
“. . . Only by a strained construction of the English language could the voters have been mislead by the proposition stated on the ballot. We think the proposition as stated, both in the notice and on the ballot, clearly states the substance of the question on which the electors were called upon to vote.” (l. c. 560.)
The foregoing became the law of this case and the notice of election and the ballot should not be subject to further review. (Webster v. Kansas Power & Light Co., 185 Kan. 498, 503, 345 P. 2d 660, and cases cited.) As tending to bear on this point see Miely v. Metzger, supra; School District v. Davis, 99 Kan. 185,186, 160 Pac. 1008, and Johnson County Comm'rs v. Robb, 161 Kan. 683, 697, 699, 171 P. 2d 784.
In its findings of fact the district court determined that twelve persons listed on the registry were not qualified electors on October 18, 1960, because of residence elsewhere and the total of legal electors should be reduced by that number. The plaintiffs contend that in the absence of evidence challenging the right of such persons to be registered, the district court erred in admitting evidence that they were nonresidents of the county. Under the issues formed by the pleadings, the district court was required to do two things in order to determine the result of the election. First, determine the number of “yes” votes, and second, the number of legal electors against which the statutory percentage should be applied. These acts were independent of each other, and persons not possessing all of the constitutional and statutory requirements of a legal voter should not be counted regardless of whether he did or did not vote in the election. In State v. Dunn, 118 Kan. 184, 235 Pac. 132, it was said:
“The first question is, Who are 'qualified electors’ within the meaning of the statute? It is well settled in this state that the legislature may require registration as a prerequisite to the right to vote. (The State v. Butts, 31 Kan. 537, 2 Pac. 618.) In the cities where registration is required, an elector is a person having the constitutional qualifications of an elector and who is duly and properly registered. (Coney v. City of Topeka, 96 Kan. 46, 149 Pac. 689.) In Clayton v. Hill City, 111 Kan. 595, 207 Pac. 770, the term ‘qualified electors’ was construed to mean persons entitled to vote. Hence tire words ‘qualified electors’ in this statute means persons who have the constitutional (Const., art. 5, §§ 1, 4) qualifications of an elector and who are duly and properly registered. . . .” (l. c. 186, 187.)
As stated in the case of State v. Morton County Commrs, 121 Kan. 191, 192, 246 Pac. 504, in referring to the petition for election, it was said:
“. . . But removal of a county seat is a subject of present practical interest at the time removal proceedings are initiated, and the body of electors . . . does not include those on the rolls who died or who removed from the county before presentation of the removal petition.” (1. c. 192.)
Article 5 of the Constitution of Kansas prescribes the qualifications of electors as follows:
“§1. Every citizen of the United States of the age of twenty-one years and upwards — who shall have resided in Kansas six months next preceding any election, and in the township or ward in which he or she offers to vote, at least thirty days next preceding such election — shall be deemed a qualified elector.
“§2. No person under guardianship, non compos mentis, or insane . . . shall be qualified to vote or hold office in this state . . .”
After a full hearing upon all contested individual cases, the court found there were persons whose names appeared on the various lists of registry who were not qualified electors and entitled to vote. Those persons known or proved to be aliens, nonresidents, deceased, minors, under guardianship, non compos mentis, insane, or otherwise disqualified on October 18, 1960, were not properly on the registries of election and should not have been counted among the legal electors of Logan County. The district court did not err in determining that the twelve persons named in finding of fact No. 23 were not qualified electors on the day of election because of nonresidence in the county despite the fact there was no evidence of challenge prior to their being registered.
The plaintiffs contend that where an unqualified elector voted, the number of “yes” votes should be reduced and that the court erred in failing to make a finding as to the total number of illegally cast votes. The contention is based upon the theory that a vote cast by an unqualified elector does not count, and that where the ballot cannot be identified, a presumption arises it was cast in favor of the proposition since it is impossible to establish it was a “no” vote. The point is not well taken. In the first place the burden of proof was upon the plaintiffs to establish the number of illegal votes and in the second place they did not request the court to make a specific finding on the point. The record shows but one incident where it was determined how any elector voted — that was Violet Eastman named in finding No. 23 (a). She testified that she voted “yes” and her vote was not counted because the court found she was not a resident of the county and accordingly reduced the number of “yes” votes by one. No attempt was made to show how any other person voted, even Mary Lou Swanlund whom the plaintiffs alleged voted in favor of the proposition but which the defendants denied. The court was required to decide questions of fact upon the evidence produced. (Jones v. Jones, 155 Kan. 213, 218, 124 P. 2d 457.)
The plaintiffs next contend that the district court erred in failing to make specific findings of fact and conclusions of law based thereon. The contention deals with the district court’s finding of fact No. 26, which reads:
“The remaining issues raised by the plaintiffs in their amended petition, namely, contentions:
“That the defendant county commissioners were not qualified,
“That their acts were void and without legal effect,
“That the initiating petitions were insufficient,
“That the election of October 18, 1960, was illegal,
“That there was not sufficient notice of election and of polling places and of meetings of boards of registry,
“That acts of the boards of registry were insufficient,
“That the ballot used in the election was insufficient, have all been considered by the court, and the court finds generally against the plaintiffs on all of them.”
The plaintiffs assert the court left undetermined vital questions whether the list of eligible petitioners was accurate, whether the procedure used to prepare the petition was correct, what constituted the last assessment rolls and whether there were names that should have been added, whether the petition was timely presented, and whether it was acted upon at a regular or special meeting of the board.
The record speaks for itself. The plaintiffs made no request for any specific findings, nor did they ask for additional findings fol lowing the filing of the district court’s findings of fact and conclusions of law. It is well settled that where a case is tried by the court and a general finding made in favor of the defendant and no special findings are requested or made, the general finding includes every material fact necessary to sustain the judgment based upon such finding, and where there is some evidence to support the general finding and judgment, it will not be disturbed. (Biltgen v. Biltgen, 121 Kan. 716, 250 Pac. 265; Sledd v. Munsell, 149 Kan. 110, 86 P. 2d 567; Dryden v. Rogers, 181 Kan. 154, 157, 309 P. 2d 409; Huebert v. Sappio, 186 Kan. 740, 742 352 P. 2d 939.)
In connection with the foregoing, the plaintiffs urge that the petition for calling the election was not signed by the requisite number of qualified electors. After a full hearing in which the eligibility of all persons claimed by the plaintiffs to be qualified electors was presented, some of which is abstracted in some 46 pages of the abstract, the district court specifically found against the plaintiffs’ contention that the initiating petition was insufficent. The court was not required to make a finding as to each individual whether he was or was not a qualified petitioner or to point out the specific reasons why he was or was not qualified. The issue before the court was the sufficiency of the petition and the court made a general finding that it was sufficient. Inherent in such a finding was that it was signed by more than three-fifths of the legal electors of the county whose names appeared on the last assessment rolls of the several township and city assessors of the county. It is well settled that a general finding made by a district court determines every controverted question of fact in support of which evidence has been introduced and that such a finding by the district court raises a presumption that it found all facts necessary to sustain and support the judgment. (Dryden v. Rogers, supra; Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, 308, 349 P. 2d 931; In re Estate of Duncans 186 Kan. 427, 433, 350 P. 2d 1112.)
The plaintiffs next contend the district court erred in failing to add to the registers or add to the official count of legal electors as of October 18, 1960, the names of the 58 alleged qualified electors. The court ruled on this question of law in advance of trial and concluded that persons who may otherwise have been qualified electors on October 18, 1960, but whose names did not appear on the lists of registry and who did not qualify themselves and vote by affidavit (19-1619) should not be counted in determining the number of legal voters of the county since to count such persons would in effect permit the addition of what would be tantamount to negative votes subsequent to the election. During the trial the court repeated the ruling, but it patiently permitted the plaintiffs to introduce evidence of the residence of each of the 58 persons. In its findings of fact and conclusions of law the court reiterated its previous ruling, and found that the evidence introduced by the plaintiffs was immaterial and it made no special findings based on such immaterial evidence.
Without question, the court’s ruling was correct, both by the statute and our decision in Dunn v. Board of County Comm'rs of Morton County, supra. After providing for the compilation and final revision of the lists of registry, the legislature provided in 19-1619 as follows:
“. • • No vote shall be received at any such election, if the name of the person offering to vote be not on said register as corrected, unless the person offering to vote shall furnish to the judges of the election his affidavit, in writing, stating therein that he is an inhabitant of said precinct, and entitled to vote therein at such election, and prove by the affidavit of a householder and registered voter of the precinct in which he offers to vote, that he knows such person to be an inhabitant of the precinct, giving the residence of such person within said precinct. . .
Clearly, the court did not err in refusing to consider such evidence.
The plaintiffs advanced arguments concerning the deposition of one Jennie Hazen and that written objections were interposed thereto prior to trial. We fail to see how the plaintiffs were prejudiced. At the commencement of the trial the court considered the objections to the deposition and overruled them.
The point is made that the Board of County Commissioners was not qualified to act when it determined the sufficiency of the petition for calling an election. While the record indicates that Rronvall had not taken and filed his oath of office on September 7, 1960, the remaining two commissioners, Fulton and Uhrich, had previously qualified by filing their oaths of office (G. S. 1949, 54-106) and they were authorized as the majority of the board to adopt the resolution finding the petition sufficient for calling the election. (G. S. 1949, 77-201, Fourth.)
Basic questions presented in this election contest simmer down to who were legal electors of the county and who was to determine that question. A full trial was had on all issues presented by the pleadings with respect to numerous persons the plaintiffs alleged should be added to the registries of qualified electors, and of various persons alleged by the defendants to be disqualified as legal electors who were listed on the registries as qualified electors, including and in addition to the eleven persons the board failed to count as qualified electors at the canvass. After hearing all the evidence the court concluded that the total “yes” votes exceeded the required three-fifths of the legal electors by 2.4 votes, and it entered judgment that the county seat be removed to the city of Oakley. The record indicates there was ample evidence to support the court’s findings and judgment.
As previously indicated, the defendants cross-appealed from the judgment taxing one-half of the costs to the board. This point involved the question whether the board could legally reduce the total number of legal electors when it canvassed the vote. The district court concluded it could not, and we agree.
In view of the conclusion heretofore announced, we do not consider the defendants’ contention the court erred in refusing to find that other persons whose names appeared on the lists of registry and who voted were not legal electors of the county. As the district court’s judgment presently stands there were sufficient affirmative votes to remove the county seat of Logan County to the city of Oakley. That judgment is affirmed. | [
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|
The opinion of the court was delivered by
Robb, J.;
This is an appeal by the defendant mother from the trial court’s order sustaining plaintiff’s motion seeking modification and reduction of a child support order growing out of a divorce action.
On November 23, 1960, the parties entered into a separation agreement wherein support for their thirteen-year-old son was set at $40.00 per week until January, 1962, and thereafter $50.00 per week during his minority. On December 13, 1960, a divorce was granted to defendant and the child support was ordered as above set out although the record does not show the support agreement was made a part of the then order of the court. On April 1, 1961, plaintiff filed a motion for modification of the child support order but prior to a hearing thereon, he was in default of payments and defendant filed an accusation in contempt. Both matters were heard on June 16, 1961. Plaintiff was found not guilty of willful contempt, and on the motion to modify, his counsel was granted time to submit authorities on the power of the trial court to modify its original decree in the light of the prior separation agreement.
At about the same time of the contempt accusation, defendant instituted garnishment proceedings against plaintiff and his employers in Missouri which resulted in another agreement whereby his employers would pay the required current payments plus an amount to be applied on accrued payments which were in arrears.
On March 9, 1962, defendant’s motion for modification was further heard, on May 25,1962, arguments were made, and on June 5, 1962, plaintiff’s motion for modification of the original decree was sustained.
The ruling of the trial court on the motion to modify was first made by letter from the court dated June 5, 1962, wherein it, in substance, stated that by reason of the several hearings, it had had an opportunity not only to hear the evidence but to observe the effect of the trial court’s order in the original divorce decree granted on December 13, 1960. The court stated that plaintiff obviously had not been financially able to comply with the support order and should never have agreed to do so. The court then stated it had verified the fact that plaintiff was heavily indebted to various creditors, including his employers, and his financial condition had deteriorated since the divorce to the point where he could not pay the amount of child support he was required to pay under the divorce decree. The trial court reduced the child support from $200.00 monthly, based on weekly payments of $50.00, to $125.00 monthly beginning on June 1, 1962. Plaintiff was ordered to make arrangements to use a substantial portion of the amount of the reduction toward payment of debts required of him under the divorce decree and that the reduction was conditioned on the plaintiff making such arrangements. Other points discussed in the journal entry of judgment are not material to the question before us.
Roth parties abstracted some of the evidence and parts of it support the findings and conclusions of the trial court.
At the outset we should point out that the fact the parents had agreed to the original custody and support order for their minor child does not affect the continuing jurisdiction of the trial court over subsequent questions of support under G. S. 1961 Supp., 60-1510 which, in part, provides that when a divorce is granted, the trial court shall make provision for the custody, support, and education of minor children and may modify or change any order in this respect whenever circumstances render such change proper. The same statute further provides that if after a divorce has been granted, both parents are found to be unfit to have custody of their minor children, the trial court has power to change the original custody order, and the statute even goes so far as to provide that under the exercise of the trial court’s continuing jurisdiction, the parents’ rights may subsequently be restored to either or both of them by such court. Our latest case under this statute, relied on by both parties and mentioned by the trial court both in its letter of June 5, 1962, and in its journal entry of judgment, is Grunder v. Grander, 186 Kan. 766, 352 P. 2d 1067, where it was stated:
“Subsequent to the decree in a divorce action, the district court has a con- turning jurisdiction to change or modify an order therein made for support of a minor child when facts and circumstances are shown which make such change or modification proper.” (Syl. ¶ 1.)
Under the above ruling, no question remains as to the power and authority of the district court to modify an initial, or original, child support order.
The second question presented is whether the trial court abused sound judicial discretion in modifying the original support order. The same question was also presented in the Grunder case under almost identical facts except that (1) there were three children involved instead of only one, (2) the mother, under an order of the same district court in which the original divorce decree had been granted but made by the judge of another division thereof, had removed the children from the state of Kansas, and (3) although at the time the decree was granted, the home had been given to the mother with the understanding that she should live and remain in the state of Kansas with the children, the mother had sold the family home and removed the children to California.
We cannot here ignore the additional expense to plaintiff resulting from the Missouri garnishment proceeding instituted by defendant, including court costs and attorney fees, whereby, under an agreement entered into by plaintiff, defendant, and plaintiff’s employers, plaintiff’s wages were withheld from him. The Grunder case is decisive of the problem before us on this point also because obviously this new obligation, coupled with plaintiff’s diminishing ability to pay child support, were matters to be considered by the trial court and since there is ample evidence to support its findings and conclusions, we are compelled to conclude the trial court did not abuse its sound judicial discretion in making the modification.
We are appreciative of the diligent work of counsel in preparing their briefs including citations from foreign jurisdictions, but we are of the opinion the Grunder case, which rests upon earlier decisions of this court cited therein, is controlling and we need not enlarge the opinion by analyzing other authorities cited.
Judgment affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal involves the eligibility of twenty-four individual appellee-claimants for unemployment insurance benefits under the provisions of the Kansas Employment Security Law (G. S. 1949, 44-701 et seq., as amended), and particularly G. S. 1961 Supp., 44-706 (d).
The individual appellees were employees of The L. F. M. Mfg. Co., Inc., hereafter referred to as the company. During all periods here involved they were represented for the purpose of collective bargaining by the United Steelworkers Union, which was certified by the National Labor Relations Board as the bargaining unit for all the employees of the company.
Prior to October 9, 1961, the company and the union had been negotiating concerning the terms of a collective bargaining agreement. On October 9, 1961, a strike was called and pickets were posted. On Saturday morning, October 21, 1961, the company received a letter from the union advising that it was removing the pickets and the employees would return for work on Monday, October 23, 1961, unconditionally. On October 23, 1961, all employees who had been out on strike were asked by the company to sign to unconditionally return to work, and on that date it began calling employees to work. The services of substantially all the 700 employees could not be utilized on that date, but all were recalled to work by November 17, 1961. As of November 6, 1961, all the employees had been recalled to work except thirty, including fourteen of the claimants.
The company is a steel and iron foundry and normal production process in the plant is divided into five basic departments, and the production in each phase of the operation is dependent upon the production in the preceding department, that is, it is a kind of production where the second operation is dependent upon the first and cannot be performed until after the first is performed, and the third is dependent upon the first and second, and so forth. The evidence was undisputed that normal production of an item through all stages requires about five weeks. The claimants were employed in the machine shop which is the last phase of production in the plant. Until normal operations were resumed in the proper phases of production so that the flow of items manufactured could reach the machine shop, normal work could not be provided for the employees of that department. The claimants did not all return to work on the same date but were recalled on different dates between October 30, and November 17, 1961, on the basis of work seniority and ability to perform work which they normally did and which was then available.
Each claimant filed a claim for unemployment insurance benefits for the period of his unemployment subsequent to October 23, 1961. A special examiner made findings that “because of the nature of the manufacturing operation at this employer’s plant the stoppage of work did not cease until on or about November 6, 1961”; that “the stoppage of work which continued during the period from October 23, 1961, through November 4, 1961, was the direct result of a labor dispute,” and concluded that the claimants were disqualified for benefits for any calendar week of unemployment occurring during that period as provided in G. S. 1961 Supp., 44-706(d).
The claimants appealed from the examiner’s determination to the Employment Security Board of Review. After a hearing at which testimony was taken, the Board, on April 19, 1962, entered its decision that the unemployment of claimants after October 23, 1961, was due to a labor dispute, and denied benefits.
The claimants sought judicial review in the district court pursuant to G. S. 1961 Supp., 44-709 (h), and the court, upon a consideration of the record and argument of counsel, found,
“That there is no evidence to support the finding of the special examiner or the Board of Review to the effect that the stoppage of work at the plant of the L. F. M. Mfg. Company did not cease until on or about November 6, 1961.
“The Court further finds that the pleadings herein presented a question of law as to the applicability of G. S. 1961, Supp. 44-706(d). In this connection the Court finds:
“That the stoppage of work that existed at the plant of the defendant L. F. M. Mfg. Company, Inc. ceased on October 23, 1961, as the said work stoppage should be construed under said section of the statute.
“The Court further finds that the decision of the Board of Review, dated 19 April 1962, should be reversed and an order entered in accordance with the above finding.”
The parties concede that a stoppage of work existed at the company’s plant because of a labor dispute between October 9, and October 23, 1961, and make the following contentions: The appellants contend that the stoppage of work and claimants’ resulting disqualification did not end until there had been a resumption of normal production at the plant, even though there had been an earlier termination of the strike; further, that although the labor dispute had ended, where there is a necessary delay in a particular department which is due to operation methods adopted by the company because they produced the best results for its type of production, such delay results directly from the labor dispute even though employees in other departments were recalled at an earlier date. The claimants contend, on the other hand, that, as a matter of law, G. S. 1961 Supp., 44-706(cl) applies only to the time an actual “labor dispute” exists which causes a “work stoppage,” and that there was no evidence presented which showed a real work stoppage except from October 9, through October 23, 1961, when the claimants signed the company’s roster to unconditionally return to work. Hence, the sole question presented for appellate review is, did the stoppage of work end when the pickets were removed and the striking workers offered to return to work on October 23, 1961, or did the stoppage of work continue until the claimants were recalled to work in the orderly resumption of normal production of the plant?
The pertinent portion of G. S. 1961 Supp., 44-706 reads:
“An individual shall be disqualified for benefits: . . . (d) For any week with respect to which the commissioner finds that his unemployment is due to a stoppage of work which exists because of a labor dispute at the factory, establishment, or other premises at which he is or was last employed.
At the outset, we note all the parties are agreed that there was no evidence to support the special examiner’s finding that “the stoppage of work did not cease until on or about November 6, 1961.” The appellants are not here on appeal from that determination. They have appealed from the district court’s judgment reversing the decision of the Board of Review which made findings of fact, the pertinent portion of which reads:
“The evidence is clear that both ‘a stoppage of work’ which did occur as a result of ‘a labor dispute’ within the meaning of statute existed and is not in contention. Further, the parties do not dispute the fact that the strike commenced October 9, 1961, and terminated by notice to the employer on October 21, 1961. The major point in contention is whether the claimant’s unemployment after October 21, 1961, was due to the labor dispute.”
“In the instant case, the record clearly shows that the unemployment was most directly attributable to a lack of available work for the claimants; that in turn the lack of available work was due only to the interruption of the normal flow of goods through the production process; and that the interruption of the normal flow, of goods through the production process was due to the labor dispute. Thus by the normal reasoning processes, and in particular in view of the fact of the lack of evidence of any other intervening factors, we can only conclude that the unemployment in the instant case was due to a stoppage of work as a result of the labor dispute.”
The foregoing is a finding of fact and under G. S. 1961 Supp., 44-709 (h), where a claimant seeks judicial review, findings of fact of the Board of Review are conclusive and may not be set aside by the district court in the absence of fraud where they are supported by evidence, and the jurisdiction of the court is confined to questions of law. (Shumaker v. Kansas State Labor Dept., 154 Kan. 418, 118 P. 2d 550; Craig v. Kansas State Labor Commissioner, 154 Kan. 691,121 P. 2d 203; Read v. Warkentin, Commissioner, 185 Kan. 286, 341 P. 2d 980; Clark v. Board of Review Employment Security Division, 187 Kan. 695, 359 P. 2d 856.) Those cases embrace the rule that judicial review must be made in the light most favorable to the findings and holding of the administrative tribunal. (81 C. J. S., Social Security and Public Welfare, §232, pp. 341-349.)
A reading of the record of this appeal reveals there was ample evidence to support the findings of fact made by the administrative board. There is no suggestion of fraud. Hence, the findings of the Board of Review were conclusive on appeal to the district court and in this court. Moreover, and contrary to the conclusion of the district court, the decision of the Board of Review denying benefits is not to be construed as one which merely affirmed the decision of the special examiner, but is to be regarded as a finding of fact that the stoppage of work and the resulting unemployment was attributed to the labor dispute which extended to the time the claimants were recalled to work.
In light of the findings of fact of the Board of Review, did the district court correctly interpret and apply G. S. 1961 Supp., 44-706 (d)? This court has not previously construed the statute, but the highest courts of other states which have considered statutes similar to or identical with it, establishing ineligibility for benefits where the unemployment is due to a stoppage of work as the result of a labor dispute, have universally held that the claimant remains ineligible for benefits during the entire period of his unemployment even though a period of time is required after the settlement of the dispute for the employer to resume normal operations. (Magner v. Kinney, 141 Neb. 122, 2 N. W. 2d 689; In re Stevenson, 237 N. C. 528, 75 S. E. 2d 520; Lawrence Baking Co. v. Unempl. C. C., 308 Mich. 198, 13 N. W. 2d 260; American Steel Foundries v. Gordon, 404 Ill. 174, 88 N. E. 2d 465; Chrysler Corp. v. Review Bd., Emp. Sec. Div., 120 Ind. App. 425, 92 N. E. 2d 565; Bako Unemployment Compensation Case, 171 Pa. Super. 222, 90 A. 2d 309; Saunders v. Unemp. Comp. Board, 188 Md. 677, 53 A. 2d 579; Adomaitis v. Director of the Division of Employment Security, 334 Mass. 520,136 N. E. 2d 259.) However, the stoppage of work caused by a labor dispute must not exceed the time which is reasonably necessary, and required, to physically resume normal operations in the factory, plant or establishment. (Carnegie-Ill., etc. v. Review Board, etc., 117 Ind. App. 379, 72 N. E. 2d 662.)
The authorities are unanimous that it is not essential that the stoppage of work and the labor dispute exist concurrently. The decisive test is whether the labor dispute caused the work stoppage. (Blakely v. Review Bd. Emp. Sec. Div., 120 Ind. App. 257, 90 N. E. 2d 353.) The term “stoppage of work” is not synonymous with “strike” (Saunders v. Unemp. Comp. Board, supra), and where, because of the nature of, or the method of conducting the business of the employer, there is no work for an employee during the period immediately following the strike and until other departments have begun to produce, the employee is not entitled to benefits for such period, his unemployment having been due to a stoppage of work because of a labor dispute. (Ablondi v. Board of Review, 8 N. J. Super. 71, 73 A. 2d 262; Saunders v. Unemp. Comp. Board, supra; Adomaitis v. Director of the Division of Employment Security, supra.) In Buzza v. Unemp. Comp. Com., 330 Mich. 223, 47 N. W. 2d 11, it was held that employees of a particular department were disqualified to receive benefits until the resumption of normal operations in such department began, even though the strike terminated prior thereto and even though employees in another department were recalled at an earlier date, where the delay was necessary under the circumstances.
Generally speaking, and with certain exceptions not here material, the benefits of the Employment Security Law are denied only when the unemployment is due to a labor dispute. Where unemployment is originally caused by a labor dispute, before an employee will be entitled to the benefits of the Act, he has the burden of proving that his continued unemployment is not the result of the labor dispute, but is caused from some other condition beyond his control. Whether it is, or whether it is not, is a question to be determined in each case. The line of demarcation is not the end of the strike, but the end of the work stoppage due to the strike. That test is applied to all alike, and there is no discrimination. (In re Stevenson, supra; Carnegie-Ill, etc. v. Review Board, etc., supra; Employees of Utah Fuel Co. v. Ind. Comm, of Utah et al, 99 Utah 88, 104 P. 2d 197; Chrysler Corp. v. Review Bd. Emp. Sec. Div., supra.) Here, there is nothing in the record to show that the stoppage of work in the company’s plant exceeded the time reasonably necessary to resume normal operations in the chain process method of production in the plant, or that the company acted in an arbitrary or capricious manner in recalling the employees.
While the beneficient provisions of an unemployment compensation act should receive a liberal construction in favor of those claiming benefits under it (81 C. J. S., Social Security and Public Welfare, § 96, pp. 138-140), and provisions for disqualification of an employee from those benefits should be narrowly construed, as constituting an exception to the act, and in order that an employee may be disqualified thereunder the facts must come within the clear meaning of the words used in the provisions. (81 C. J. S., Social Security and Public Welfare, § 98, p. 142.) In applying that rule, it is sufficient to say that we are of the opinion the findings of fact of the Board of Review bring the claimants clearly within the provisions of G. S. 1961 Supp., 44-706 (d), and that those findings were supported by the evidence. As we have seen, the decisions of courts of last resort which have considered the question are nearly, if not entirely, unanimous in their holdings that a stoppage of work ceases when the operations are resumed on a normal basis.
In accordance with the conclusions heretofore announced, we hold that the claimants were disqualified for unemployment compensation benefits.
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The opinion of the court was delivered by
Fatzer, J.:
This is an original proceeding for a writ of habeas corpus. The petitioner is confined in the Kansas State Penitentiary pursuant to the judgment and sentence of the district court of Marion County rendered May 2,1960, upon conviction of the crimes of burglary in the nighttime (G. S. 1949, 21-520) and grand larceny (G. S. 1961 Supp., 21-533).
Prior to May 2, 1960, the petitioner, Floyd E. Johnson, stood charged in the district court of Marion County by information which contained two counts. The first count charged that on April 17, 1960, the petitioner broke into and entered in the nighttime the Tampa Cooperative Elevator and committed grand larceny by taking and carrying away $527. The second count charged that on the same date the petitioner broke into and entered in the nighttime the Ramona Cooperative Elevator and committed petty larceny by taking and carrying away $13.42.
As shown by the transcript of the proceedings attached to the petition, on May 2, 1960, the petitioner appeared in the district court for arraignment. The county attorney advised the court that the petitioner had advised him he did not have funds with which to employ counsel and the county attorney requested that the court appoint counsel to represent petitioner. The court made inquiry whether the petitioner was the defendant charged in the information and upon being advised that he was, further inquired whether he was being held on the felony charge and was without funds to employ an attorney of his own choice. The petitioner stated that he was, and the court announced it had a duty to appoint an attorney to represent him and inquired whether the petitioner desired counsel. The petitioner advised an attorney was not necessary and that he understood all the points involved; nevertheless, the court advised the petitioner that counsel should be appointed to represent him, and appointed Edwin G. Westerhaus, an experienced member of the Bar of this court, to represent and counsel with the petitioner.
On the same day and after counsel had conferred with the petitioner, both petitioner and his counsel appeared in court for arraignment. The county attorney moved to dismiss the second count of the information, and the court sustained the state’s motion. Thereafter, counsel advised the court that petitioner waived arraignment and entered a plea of guilty to the first count and the following colloquy occurred between the court, counsel, and the petitioner:
“The Court: Very well. Upon your waiver of arraignment, Mr. Johnson, the Court makes inquiry of you as to whether you are guilty or not guilty.
“The Defendant: I am guilty, sir.
“The Court: You enter this plea voluntarily after having counseled with your attorney, do you?
“The Defendant: Yes, sir.
“The Court: Very well, upon your plea of guilty, the Corut finds and adjudges you guilty.
“Mr. Morse: If your Honor please, before going further, the State
would like to give notice that they are asking for the habitual act to be applied here. I would like to offer into evidence, and give the accused and his counsel opportunity to study these whatever time is necessary. I should like to offer into evidence two certified copies of journal entries of prior convictions.
“The Court: Within the State of Kansas?
“Mr. Morse: They were within the State of Kansas. I would like to read those to identify them, if your Honor please.
“The Court: (Nods head affirmatively.)
“Mr. Morse: One is a journal entry of conviction of plea of guilty, State of Kansas v. Floyd Johnson in the District Court of Riley County, Kansas, Case No. .1199. The order was entered on December 16, 1938, and that was for grand larceny and he was sentenced to the Penitentiary. The next is a journal entry entered on the 14th day of September, 1948 in the District Court of Saline County, State of Kansas against Floyd Emmett Johnson, and that was for second degree burglary. He was sentenced to the State Penitentiary. The defendant has admitted that Floyd Johnson and Floyd Emmett Johnson were one and the same persons, but is that correct?
“The Defendant: That is correct.
“The Court: Very well, you may examine them, Mr. Westerhaus.
“Mr. Westerhaus: Is it correct that you were convicted of these offenses in both of these cases?
“The Defendant: Yes.
“Mr. Westerhaus: If Your Honor please, I have inquired from die defendant, Floyd Johnson, who says he is also the same person as Floyd Emmett Johnson, defendant in both of the cases which Mr. Morse has read here this morning, and he says that he is the defendant and he entered those pleas, or was convicted of those offenses and that they are true and correct.
“The Court: Very well, the journal entries together with the other
evidence submitted is admitted in evidence and is received.
“Mr. Morse: That is 107a, if Your Honor please, 21-107a.
“The Court: The Court finds and adjudges you guilty and also finds from the evidence submitted and received by the Court that you have been previously convicted. In fact, you have been convicted on two separate occasions.
“Mr. Westerhaus: Of a felony.
“The Court: Of a felony in each instance, and this is a felony, too. It is the third felony conviction so the Court makes inquiry of you and your attorney as to whether or not you or either of you have any legal reason that you wish to give as to why the sentence of the court should not be pronounced upon you.
“The Defendant: (Shakes head negatively.)
“Mr. Westeehaus: No, sir.
“The Court: Very well, it is the sentence of the court that you be confined in the Kansas Penitentiary for a period of time from zero to fifteen years.”
Thereafter the petitioner was sentenced in accordance with the habitual criminal law, to serve a term of confinement at hard labor in the Kansas State Penitentiary for a term of not less than fifteen years.
The petitioner makes two contentions. First, that his court-appointed counsel violated his trust as an official of the court and attorney at law in representing him and in fact represented him in such an incompetent manner as to deprive him of the right to effective assistance of counsel in violation of due process of law and rendered the sentencing court without jurisdiction to accept his plea of guilty or to impose a valid sentence upon him, and second, that he was denied due process of law by the imposition of penalties provided in the habitual criminal statute (G. S. 1949, 21-107a).
With respect to the petitioner’s first contention, the burden was upon him to show that his court-appointed counsel was so incompetent as to deprive him of his right to counsel. (Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; Hicks v. Hand, 189 Kan. 415, 369 P. 2d 250.) To meet this burden, the petitioner submitted the transcript of the proceedings, and made certain uncorroborated statements as to how his counsel advised him. On its face, the transcript reveals no obvious infirmities of the manner in which petitioner’s counsel carried out his trust. It is well settled that the uncorroborated statements of a petitioner are insufficient to support the granting of a writ of habeas corpus where, as here, the judgment is regular on its face and shows full compliance with the judicial requirements of G. S. 1961 Supp., 62-1304. (Szopenske v. Hand, 188 Kan. 590, 363 P. 2d 410; McGee v. Crouse, 190 Kan. 615, 376 P. 2d 792.) The petitioner claims that his counsel failed to object to the admission into evidence of two prior felony convictions. The transcript affirmatively shows that the petitioner admitted in open court that he had been convicted of two previous felonies, one in Riley County on December 16, 1938, showing conviction of the crime of grand larceny, and one in Saline County on September 14, 1948, showing conviction of burglary in the nighttime. The petitioner does not indicate what possible objection there may have been to that evidence. Having admitted those offenses and the previous convictions, there was no valid reason why his counsel should question the duly certified and authenticated copies of the journal entries of the district courts of Riley and Saline Counties showing the petitioner’s previous convictions of felony. Counsel appointed by the district court to represent an indigent defendant in a criminal action, owes to his client the duty to act diligently, faithfully and honestly in behalf of the client, but where the proof shows only a situation where honest exercise of discretion is involved, it may not be held counsel was remiss or that he did not fully and adequately represent his client in the absence of proof of bad faith. (Miller v. Hudspeth, supra; Trugillo v. Edmondson, 176 Kan. 195, Syl. ¶ 2, 270 P. 2d 219; Cox v. Hand, 185 Kan. 780, 347 P. 2d 265; Hickock & Smith v. Hand, 190 Kan. 224,373 P. 2d 206.)
The petitioner makes the specific charge that his court-appointed counsel did not fully explain the significance of a plea of guilty or fully inform him as to the offenses with which he was charged. Here, again, there is only the uncorroborated statement of the petitioner as to this matter and the transcript clearly shows that he advised the district court that, contrary to what he now claims, he had opportunity to counsel with his attorney and that he had done so.
The petitioner is neither youthful in age (the transcript showed him to be fifty-two years of age when he entered the plea of guilty), nor lacking in experience in lawbreaking. His first brush with the law, conviction of the crime of grand larceny, occurred some twenty-two years prior to his arraignment in the district court of Marion County. He was later convicted of breaking and entering in 1948. He had not only served time on both of those convictions but sought and obtained a parole from the Saline County conviction. It cannot be said that the petitioner can be placed in the category of those who have had no experience with the meaning of a plea of guilty to a felony charge, or of the significance of that plea and the penalties which might be imposed as a result thereof. He is a mature adult and no stranger to court or custodial procedure, or unaware of his rights upon arrest.
The petitioner asserts he was not given reasonable notice or opportunity to be heard prior to being sentenced by the district court under G. S. 1949, 21-107a, as an habitual criminal. This case is similar in many respects to State v. Messmore, 175 Kan. 354, 264 P. 2d 911, where it was held that when a defendant does not object to the notice given, freely admits the former felony convictions, and does not object to the imposition of the increased sentence, notice is waived and the judgment will not be set aside. Likewise, it is similar to Sanders v. Hand, 190 Kan. 457, 375 P. 2d 785, where the petitioner was not informed of the state’s intention to request sentencing as an habitual criminal until he was before the court for judgment and sentence. In the opinion it was said:
“. . . the petitioner was present in person and by counsel at the time the state requested the district court to invoke the habitual criminal act and increase the sentence. Neither he nor his attorney objected to the application of the statute in sentencing, or attacked the authenticated records of the two previous felony convictions. The court gave them an opportunity to do so, but they remained silent. The time for complaint was then, not now. The claim that the petitioner was denied due process of law is rejected, and the writ is denied.” (1. c. 460.)
The petitioner concedes that he did not object to the imposition of the habitual criminal sentence, but states his reason therefor was that he feared the wrath of the court for being “out of order.” He claims that he should not be held to have waived any objection to notice given by the state that he might have had. We do not agree. In the first place, there was no objection to the notice since notice was given after conviction and before the allocution. (State v. Woodman, 127 Kan. 166, 172, 272 Pac. 132; Sanders v. Hand, supra.) Secondly, since there is no evidence of bad faith, petitioner must be held to be bound by the acts of his attorney when the acts were performed in his presence and without his objection. This has long been the rule with respect to retained counsel (Miller v. Hudspeth, supra. Syl. ¶ 14), and the administration of criminal justice dictates a similar rule where counsel is court appointed.
When sentence was imposed in the district court of Saline County in 1948, the prior Riley County conviction was introduced to impose the increased penalty under the habitual criminal act. Both the Saline and Riley County convictions were introduced in evidence at the hearing to invoke the habitual criminal act in the case at bar. Petitioner contends that the use of the Riley County conviction twice to secure increased penalty under the habitual criminal act constitutes double jeopardy. The point is not well taken. Our habitual criminal act merely provides a more severe penalty for the commission of a felony by an habitual criminal than by one who is a first time offender. (Luppy v. Hudspeth, 159 Kan. 434, 436, 155 P. 2d 428; Dickerson v. Hand, 186 Kan. 518, 350 P. 2d 793.) The penalty or sentence to be imposed for the commission of the offense for which a defendant is convicted is solely a legal matter for the determination of the district court. (State v. Woodman, supra; Levell v. Simpson, 142 Kan. 892, 52 P. 2d 372.) The use of the Riley County conviction the second time to impose the habitual criminal act does not constitute double jeopardy in any sense of the word. The petitioner had pleaded guilty to the offense charged in Marion County and having been convicted a second and third time of a felony, the district court was authorized to use the prior convictions in Saline and Riley Counties in imposing sentence on May 2, 1960. (State v. Frizzell, 137 Kan. 35, 37, 19 P. 2d 694; State v. Fannan, 167 Kan. 723, 728, 207 P. 2d 1176.)
The petitioner lastly contends that since the governor granted him a pardon from the conviction of felony in Saline County it was a denial of due process of law to use that conviction to impose the increased penalty of G. S. 1949, 21-107a. The point has been decided adversely to the petitioners contention. In Murray v. Hand, 187 Kan. 308, 356 P. 2d 814, it was held:
“Tlie record of a prior felony conviction may be used to increase the sentence imposed for a subsequent felony conviction in accord with the provisions of G. S. 1949, 21-107a despite the fact that the prisoner received a pardon as to the prior conviction.”
See, also, State v. Tague, 188 Kan. 462, 363 P. 2d 454.
We have carefully examined the record and the petitioner has failed to sustain the burden of proof incumbent upon him to prove he was deprived of his constitutional right to effective assistance of counsel and has likewise failed to show that the sentence imposed on May 2, 1960, was not in accordance with our habitual criminal act and the decisions of this court construing it. A writ of habeas corpus is denied. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal by the Allen County State Bank, Iola, Kansas, garnishee defendant, from an order and judgment overruling its motions to quash a general execution and to vacate a default judgment rendered against it on November 20, 1961.
On April 19, 1957, the plaintiff-appellee obtained judgment in the amount of $750 against the defendants, Mr. and Mrs. R. S. Darby, d. b. a. Darby Termite Control. Approximately four years after the judgment was rendered, two general executions were issued directed to Allen County. The first execution was received by the sheriff of Allen County, and on April 18, 1961, it was returned to the district court of Sedgwick County endorsed “unable to find any property upon which to levy.” The appellee filed a second praecipe on June 19, 1961, and an execution was issued that same day to the sheriff of Allen County, however, the files of the district court failed to reflect that a return of the same was ever made.
In any event, on September 1, 1961, more than sixty days after the issuance of the last execution, the appellee filed his affidavit of garnishment seeking a garnishment summons against the defendants Darby and the garnishee defendant. Garnishment summons was issued to the sheriff of Allen County which was served on the defendants Darby on September 5, 1961, by leaving a copy at their usual place of residence, and on the same day, a copy was served upon the garnishee defendant by delivering the same to one George Mack, the executive vice president of the banking corporation, personally. The answer day was September 26, 1961. The garnishee defendant failed to file its answer in garnishment, and was in default.
On October 27,1961, counsel for appellee wrote the Allen County State Bank directing its attention to the garnishment summons which had been served upon its executive vice president and asked to be informed of what money, property or credits were owing by the bank to defendants Darby as of September 5, 1961. On October 31, 1961, George Mack wrote appellee’s counsel referring to the garnishment summons served upon the bank and stated there was a balance in the account of Darby Termite Control of ninety- nine cents, and that the bank had no other money, property or credits of defendants Darby.
On November 20, 1961, and during the October 1961 term, the district court entered a default judgment against the garnishee defendant for the full amount of the judgment theretofore rendered against defendants Darby plus interest and costs for its failure to answer in accordance with the garnishment summons served upon it. On January 15, 1962, and during the January 1962 term, the appellee filed a praecipe for general execution against the property of the garnishee defendant and execution was issued directed to the sheriff of Allen County. Upon being advised by the sheriff of Allen County that a general execution on a default judgment was in his possession, the garnishee defendant filed motions to quash the execution and to vacate the default judgment. In support of the motions the garnishee defendant filed the affidavit of George Mack as well as a verified answer to the garnishment summons. The affidavit recited that after the bank was personally served with the garnishment summons on September 5, 1961, Mr. Mack checked the accounts of the Darby Termite Control and found a balance of ninety-nine cents; that he marked the account “hold” to comply with further court orders; that he proceeded to the sheriff’s office to effect disposition of the funds with the sheriff; that he was informed the sheriff was unable to take the money but the sheriff suggested that perhaps the funds should be paid into court; that the affiant then proceeded to request instructions from the county judge who refused to accept the funds since he knew nothing of the action, hence the affiant was unable to deposit the funds with the sheriff of Allen County or with the county judge, and since the amount was only ninety-nine cents the garnishment summons was actually misplaced and was later forgotten.
On February 12, 1962, the garnishee defendant’s motions were heard and evidence was introduced on its behalf, being the bank’s statement of accounts of Darby Termite Control with a “hold” notation indicated by Mr. Mack’s initials between the dates of August 31, 1961, and September 29, 1961. The letters heretofore referred to were introduced without objection on behalf of garnishee defendant which showed a notation thereon that plaintiff’s Exhibit 2, being Mr. Mack’s letter of October 31, 1961, in answer to counsel’s letter of October 27, 1961, was shown to the district court before it entered the default judgment and signed the journal entry of judgment dated November 20, 1961. The evidence showed that the notation on Exhibit 2 was made for the reason that the court inquired whether counsel for appellee had “heard from the garnishee” subsequent to the issuance of the garnishment summons. The evidence further showed that the court was informed that appellee’s Exhibit 1, being counsel’s letter of October 27, 1961, had been mailed to the garnishee defendant and that plaintiff’s Exhibit 2 had been received from the garnishee defendant, but that it had failed to file its affidavit as required by law. After due consideration, the district court overruled the garnishee defendant’s motions in their entirety. A motion for a new trial was timely filed and overruled; hence, this appeal.
Various assignments of error are made by the appellant, but in its brief only two points are presented and argued. First, that counsel for the appellee having made a specific inquiry in writing as to how much the appellant was indebted to the defendants Darby and having been advised in writing that the amount owed was only ninety-nine cents, the appellee was estopped some twenty days later from taking a default judgment in the amount of $957.25 against it, being the amount of the Darby judgment, interest and costs, and second, that the appellant had responded in writing to the written inquiry of the appellee stating the amount owing the defendants Darby as of September 5, 1961, and that the appellee had the information requested by the garnishment summons. We are not persuaded the contentions are meritorious.
It is here unnecessary to review the various sections of the code of civil procedure dealing with garnishment and we will not do so except to note that a garnishment proceeding has been held to be a special, independent, provisional remedy, and governed entirely by our code. (Potter v. Banking Co., 59 Kan. 455, 462, 53 Pac. 520; Hutchinson v. Nelson, 63 Kan. 327, 65 Pac. 670.) The proceeding must be conducted in substantial conformity to the statute and the conditions for its exercise are conclusive and exclusive of all others. (Potter v. Banking Co., supra; Hutchinson v. Nelson, supra; Kellogg v. Hazlett, 2 Kan. App. 525, 529, 43 Pac. 987; Swofford v. Brittain, 9 Kan. App. 1, 57 Pac. 235; Dassler’s Kansas Civil Code, Second Edition, Ch. 32, § 2, p. 487.)
While a garnishment proceeding binds only such property, money and credits, not exempt by law from execution, as belonging to the defendant, and are in the possession of the garnishee, or owed by him at the time of the service of the process upon the garnishee (Johnson v. Brant, 38 Kan. 754, 17 Pac. 794; Gillette v. Cooper, 48 Kan. 632, 30 Pac. 13), none the less the statute imposes affirmative duties upon the garnishee to disclose in the manner authorized by law the amount of property, money and credits then in its possession or under its control and belonging to the defendant. (G. S. 1949, 60-940, 60-945, 60-946.) To that end, the code provides that if the garnishee, having been duly summoned, shall fail to file its affidavit or answer as required in G. S. 1949, 60-945 and 60-946, the court may render judgment against the garnishee for the amount of the judgment which the plaintiff has recovered against the defendant, together with the costs of such garnishee. (G. S. 1949, 60-947.)
The appellant concedes that it was properly served with summons in garnishment on September 5, 1961, and that it wholly failed and neglected to file an answer, affidavit, or other pleadings in response to the garnishment summons. In justification of its action, appellant states:
“True, the garnishee unwisely perhaps but nevertheless in pursuance of a basic freedom, had in this instance chosen to act without benefit of counsel. Owing the defendant but ninety-nine cents ($0.99), there is some justification for such independent action.”
We remind the appellant that civil actions are conducted by litigants under rules set forth in the code of civil procedure which apply even to situations involving only ninety-nine cents. Had the appellant promptly and diligently filed its answer and had plaintiff not taken exception to it, its liability would indeed have been limited by its answer. (G. S. 1949, 60-945, 60-948.)
After waiting more than one month after answer date, counsel for plaintiff wrote to appellant on October 27, 1961, and reminded it of its obligation under the garnishment summons. It is not reasonable to assume that plaintiff’s letter written more than one month after the appellant’s failure to answer could be said to have caused the appellant’s default. The appellant had an affirmative duty to file its answer in the district court of Sedgwick County, and it cannot be said that its letter to plaintiff’s counsel on October 31, 1961, indicating the extent of the bank’s liability to the defendants Darby may be treated as such answer or affidavit.
Following the hearing on appellant’s motions on February 12, 1962, the court concluded,
“That under the facts and circumstances and as provided by the statutes in such case, the Plaintiff was and is entitled to judgment against the garnishee for the full amount of judgment which has been recovered against the afore said judgment debtors all as more particularly set forth in the Journal Entry of Judgment against garnishee dated November 20, 1961.”
We are of the opinion that the district court did not abuse its discretion in holding that its order should have been obeyed by the appellant and that the doctrine of equitable estoppel affords it no protection from the consequences of its negligence in failing to obey the garnishment summons. The record clearly indicates that the court was fully informed by appellee’s counsel at all steps of the proceeding and it is barren of any evidence, or even a suggestion, of any fraud or deception of any kind. The appellant has had its day in court nothwithstanding the fact the summons was “actually misplaced and later forgotten.”
The appellant had the affirmative duty to show that the district court erred in overruling its motion to quash the execution and to vacate the default judgment of November 20, 1961, and it has failed to sustain that burden.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from an order overruling a motion to set aside a previous order quashing service upon the appellees after the district court permitted the clerk of the court and the sheriff to amend the issuance date and the returns on the summonses.
On August 7, 1961, the appellant, Richard D. Charlton, Sr., commenced this tort action against D. G. Hansen, Cooperative Refinery Association, and Consumers Cooperative Association. It is conceded that on August 8, 1961, the statute of limitations ran on appellant’s cause of action. Personal service of summons was obtained upon all three of the defendants and one of them, D. G. Hansen, entered his general appearance and is not a party to this appeal.
On September 5, 1961, the other two defendants, the appellees Cooperative Refinery Association and Consumers Cooperative As sociation, entered their special appearance and filed motions to quash service of summons.
On December 20, 1961, the motions to quash were heard, and during argument the appellees pointed out to the district court that the cleric of the court had improperly dated the summonses when issuing them and that the sheriff had not made his return properly thereon. The appellant concedes that upon the face of the summonses the appellees’ contentions were correct and the court did not err in sustaining the motions to quash.
On January 16, 1962, the regular motion day, the appellant orally moved the court for permission to place the clerk of the court and the sheriff upon the witness stand to testify concerning the issuance and service of the summonses upon the appellees in accordance with G. S. 1949, 60-759, and for permission for said officials to amend the date of issuance and the returns on the summonses so they would speak the truth. The court granted the appellant’s motion and the witnesses were duly sworn and testified, and in accordance with their testimony the summonses were duly amended.
Thereafter, and on February 2, 1962, the appellant filed a motion alleging that the defects in the summonses had been remedied by amendments made by the clerk of the court and the sheriff and moved the court for an order setting aside the order of December 20, 1961, sustaining the motions to quash service of summons.
The February, 1962, term of the district court of Phillips County commenced on February 5, 1962, and appellant’s motion filed February 2, 1962, was first presented to the court on February 13, 1962. The court took appellant’s motion under advisement and on April 13, 1962, it was argued by counsel for both parties, particularly with respect to the effect of the termination of the prior term of court in which the motion was filed, and the court overruled the motion to set aside the order of December 20, 1961, sustaining the appellees’ motion to quash, hence this appeal.
The appellees’ motion to quash was predicated upon ministerial errors on the part of the clerk of the court and the sheriff in the issuance and returns on the summonses served upon the appellees. The parties concede that the ministerial defects were corrected by amendments permitted by the court on January 16, 1962, during the same term of court in which the action was filed and in which the motion to quash was sustained. The parties further concede that G. S. 1949, 60-759, grants plenary power to the district court either before or after judgment, and in the furtherance of justice, to amend any pleading or process by correcting a mistake in the name of the party or a mistake in any other respect when such amendment does not change substantially the claim or defense. The statute has been held applicable to an amendment of process during the pendency of an action. (Pierce v. Butters, 21 Kan. 124, 129; Weaver v. Lockwood, 2 Kan. App. 62, 67, 43 Pac. 311; Wells, Fargo & Co. v. Danford, 28 Kan. 487, 490; Harrison v. Beard, 30 Kan. 532, 2 Pac. 632; Meyer v. Lane, 40 Kan. 491, 492,20 Pac. 258.)
Under the record presented, the original summonses and the service upon the appellees were not void. (Pierce v. Butters, supra.) They were correct and proper except for the ministerial errors. The appellant moved to amend the summonses and the returns and the court permitted that to be done pursuant to G. S. 1949, 60-759. When the court permitted the amendments and the summonses were in fact amended to speak the truth so as to show that they were properly issued and regularly served upon the appellees, the then amended summonses related back to the date of the issuance and service of the original summonses. (Talbott v. Farmers Union Co-op Elevator, 174 Kan. 435, 256 P. 2d 856; Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444; Pierce v. Butters, supra; Harrison v. Beard, supra.) Thereafter, if the appellees had any further objection to the issuance and service of the summonses as then amended, it became incumbent upon them to renew their attack upon the summonses, but they failed to do so.
Since the amended summonses related back to the date of the issuance and service of the original summonses, the order of December 20, 1961, quashing service was rendered inoperative and personal service of summonses upon the appellees following the filing of the plaintiff's action on August 7, 1961, must be regarded as valid service. The judgment is reversed. | [
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Per Curiam:
This is an action to recover a landlord’s lien. The facts are fully stated in a former opinion. (Mangum v. Stadel, 76 Kan. 764.) There is no merit in the claims of error in sustaining objections to testimony. The same facts were fully brought out in the testimony of other witnesses, and, besides, it was not contended that the appellant had actual notice of the lien or that he acted fraudulently.
The case appears to have been tried the second time in strict accordance with the rules of law declared in the former opinion. The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
Baugh bought of Fist a quarter section of land in Morton county for $800. He paid $200 down, and gave six notes for $100 each. Later he bought of Fist a quarter section in Rooks county for $5000, turning in the Morton county land at $1400. The deed was made to one John Q. Myers and Baugh assumed a 1900-dollar mortgage, leaving a balance of $8100 for which he executed a mortgage to Myers. Baugh claims Fist returned his six notes of $100 each and was to have credited him with $800 on this mortgage to make up the balance of the $1400 for the Morton county land; that while he was to have $1400 for the latter, the deed, at the suggestion of Fist, recited but $1000; that Fist made repeated promises to have the credit made, and stated that it had been made, but that later, when Baugh had negotiated a sale of the land he found the' credit had not been made; and that Fist denied all obligation thereon. It being necessary to have a settlement with Fist and Myers there was a meeting at the latter’s bank where Fist denied owing anything whatever, but after making numerous offers, finally agreed to give credit for $450 to save litigation. Fist denies that he agreed to pay or credit the $800 on the Myers mortgage. A witness, Abele, testified that at the bank interview Fist persisted that he did not owe anything, but finally paid $450 to save litigation, and that “the other fellow accepted it and said he would settle the balance.” Myers testified that:
“They had some conversation in regard to a payment of a mortgage I held against the farm Baugh owned of $2900,1 think $3100 interest and all, and Baugh claimed he should pay so much and Fist should pay $600, I think. Fist said he was not to pay $600 and interest. He said he owed him nothing. Finally an agreement was made. Baugh said he was to pay the amount of the mortgage less $600 and the interest and that was for Fist to pay. Fist claimed that was not true, that it was not for him to pay any part of it. I did not know anything about the matter. I don’t remember who made the proposition about how they would settle but it was made between them. Either by Fist or by Baugh, I think possibly by Fist, that he would pay $450 and Baugh should pay $250, or something near that. Fist said it was not right for him to pay it, that was the subject of controversy, the difference between them was $600 and interest. I think it was talked over between both of them that Fist would pay $450 to avoid litigation and trouble. After talking the matter over Fist settled that amount $450, approximately that amount, and Baugh the other $250. So far as I knew that ended the matter. They settled up with me and left.
“Ques. What did Fist say or Baugh say with reference to that ? Ans. Why he said this now settles these whole matters except Baugh you remember about that other matter, I think it was $16. A matter outside of the transaction and Baugh said that was all right.”
Abele testified that:
“The conversation seemed to be that Baugh claimed that Fist owed him $600, it seemed to be that, then Fist and I was on a note and Baugh wanted Fist to pay that note and Fist said he did not owe the note. Fist said he would pay, I believe the first time, $300, but finally agreed to pay $450. . .- . He agreed if Fist would pay the $450 he would fix the balance of it. There was not anything said about settlement in full that I know of. When Fist paid the $450 he said he would rather pay $450 than to have a lawsuit but he did not owe a dollar. Baugh said he would settle the balance of the note I and Fist were on. I think Fist said he would pay $450 and no more. Baugh accepted the proposition that way.
“Ques. Well, just state what he said. Ans. He just accepted the proposition that way.
“Q. State what he said. A. That he would pay the remainder of that note of $225.52. Baugh gave his note and I signed it.”
Abele also testified that afterward he saw Fist, who wanted him to testify that he settled in full with Baugh, and that the witness replied that he did not understand it that way; he also testified that Baugh claimed at the bank that Fist owed him $600 but did not claim that he owed him $800. “Fist finally said, T will pay $450 rather than have a lawsuit, but I don’t owe him a cent.’ The other fellow accepted it and said he would settle the balance.” Fist testified that Baugh claimed that Fist owed him $600, that finally he (Fist) agreed to give his note to Myers for $450, which he did, and Myers gave Baugh credit for that amount.
This action was brought to recover the balance of the $800 claimed by Baugh to be due. The jury found that Baugh did not (at the interview) claim that Fist owed him $600; that Fist denied owing anything, but offered to pay $450 to avoid litigation, including the proposition that Baugh should pay the balance of a 625-dollar note with interest; and that Baugh accepted this proposition and paid the balance of the note.
It is urged by the plaintiff that the so-called accord and satisfaction claimed by Fist was not shown by the evidence; that the dispute on Fist’s part was not bona fide but merely a subterfuge, and that the court erred in certain instructions given and in certain instructions refused. It is quite clear from the evidence quoted that ¿he claim of accord and satisfaction was supported by the evidence, and while, no doubt, a dispute on which to base such claim should be bona fide, otherwise there would be no consideration (Fire Insurance Association v. Wickham, 141 U. S. 564, 579; 8 Cyc. 507-509; 1 Enc. L. & P. 637), we are unable to find that it was mala fide here. It is not clear, indeed, why the 800-dollar claim, the 600-dollar claim, and a note for $625, should have been so confused and commingled, and the evidence is none too satisfactory why the deed from Baugh to Fist recited $1000 instead of $1400. While it is claimed that this was at Fist’s suggestion to help him in the matter of taxation, it is significant that no one but the plaintiff testified of his claiming a balance of $800 at the bank, all the other witnesses understanding him to have claimed $600. At least it-is not strange that a bona fide dispute should arise as the result of so much loose dealing.
In the seventh instruction the court used the words an accord and satisfaction of the claim in dispute,” and this is said to mean that the court assumed and instructed that the claim was disputed — the very fact in issue. But taken in connection with the other instructions we do not believe this language was so intended, or so understood by the jury.
The court refused to instruct that there could be no consideration for a compromise unless there was a dispute over the amount of the claim, and therefore any payment made by Fist would not bar the plaintiff from recovering the sum still due, if any; also refused to instruct that if the payment was accompanied with no conditions it would not constitute an accord and satisfaction, or a bar from recovering the balance.
The court instructed as follows:
“If you find, therefore, from the evidence that defendant offered plaintiff $450 in satisfaction of a disputed claim arising out of transactions relative to the sale of lands in Morton and Rooks counties, Kansas, and that the offer of money was accompanied with such acts and declarations as amount to a condition that if the money is accepted it is to be in satisfaction and such that the plaintiff is bound to understand if he takes it, he takes it subject to such conditions, then your verdict should be for the defendant.
“But if you find from the evidence that the payment of $450 was not offered in satisfaction of such disputed claim and not accompanied with such acts and declarations as amount to a condition that if the money is accepted it is to be in satisfaction and such that the plaintiff is not bound to understand that if he takes it, he takes it subject to such conditions, then I instruct you that such does not constitute an accord and satisfaction and the plaintiff would not be thereby barred from recovering the amount you. may find due the plaintiff, if any amount you find is due.”
We think this sufficiently and fairly stated the law applicable to the issues involved. (Harrison v. Henderson, 67 Kan. 194; Neely v. Thompson, 68 Kan. 198; Matheney v. El Dorado, 82 Kan. 720.)
After the jury had been out some time they requested a copy of the testimony of Baugh and the three wit-, nesses as to what was said and done at the bank at the time of the interview. This was furnished. Baugh’s counsel requested the court to send also the testimony of Abele concerning his conversation with Fist afterward. The jury had not requested this portion of the testimony and the court committed no material error in refusing to send it at the suggestion of one of the parties.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This action was brought by Carl W. Miller to recover damages resulting from a collision on the public highway between the plaintiff’s horse and buggy and the defendant’s automobile. The plaintiff, with a driver, was going east about eleven o’clock at night, on a well-traveled public highway, about one mile east of Abilene, and the defendant was going in the opposite direction at the time of the collision.
The abstract of the defendant shows that the jury returned a general verdict in favor of the plaintiff, and also made findings of fact; that the defendant’s motion for judgment in his favor thereon and his motion for a new trial were denied; The defendant appeals. He contends that in the following instruction the court assumed as a fact that the defendant by his negligent act placed the plaintiff in a position of danger at the time of the collision. The instruction reads:
“You are instructed that where one is placed in a position of danger by the negligent act of another, which position requires immediate and rapid action, without time to deliberate as to the better course to pursue, [he] is not held to the strict accountability required of one situated under more favorable circumstances, and contributory negligence is not necessarily chargeable to one upon his failure to exercise the greatest prudence or best judgment in such case or under such circumstances. In such cases, where one is placed in a position of danger by the negligent act of another and in the emergency must act suddenly to avoid injury to himself, and in such a situation, if he acts differently from what duty would require him to do when no emergency or dangerous situation existed, in such case and under such circumstances he is not necessarily chargeable with contributory negligence as will defeat a recovery for injuries caused by the negligent act of such other party so placing him in such position of danger. In passing on the question of contributory negligence, under the rule here stated, you should bear in mind the definition of negligence given in rule 7 of these instructions.”
The instruction is general in form and it seems apparent that the word “where,” being the fifth word in the first sentence and the fourth word in the second sentence of the instruction, was used in the sense of “if,” “wherever” or “whenever.” It is a common form used in stating a legal proposition as applied to assumed facts, and is a proper statement of the law. We do not think it is probable that the jury would un derstand from the instruction that the court asserted or intimated that the defendant, by his negligent act, had placed the plaintiff in a dangerous position, but would understand that the law applicable would be as stated in the instruction, if they found that the defendant by his negligence had placed the plaintiff in such a position. The court properly instructed the jury as to the rights of each party upon the highway, and, in fact, no objection was taken to any of the instructions except as above.
It appears from the evidence and findings of the jury that at the place of the collision the highway was clear and open, about thirty feet in width, but that the beaten track was along a ditch very close to the south line of the highway, and that the plaintiff and his driver were in this beaten track and saw the defendant, in his automobile, approaching rapidly from the east in the same track; that when the conveyances were about eighty feet apart the plaintiff’s driver thought the defendant was not going to turn out of the traveled track and turned his horse to the north. About the same time the defendant turned his machine to the north and struck the horse and buggy, seriously injuring both. The jury found that if the plaintiff’s driver had remained upon the proper side of the highway— the right-hand side — the collision would not have occurred; but the jury must have found that the defendant was approaching directly toward the plaintiff’s conveyance at such speed that the driver had good reason to believe, and did believe, that it was necessary for him to get out of the road to avoid a collision. They also must have found that the defendant, in failing to turn to the right sooner than he did, apparently placed the plaintiff in a dangerous position, and that, while the act of the plaintiff’s driver in turning to the left was a mistake, made under an apprehension of immediate danger, the negligence of the defendant was the proximate cause of the injury and the plaintiff was excused of any negligence under the instruction above quoted.'
Again, it is contended that the court erred in admitting, over the objection of the defendant, the evidence of several witnesses who testified as to the manner in which the automobile was operated and the speed at which it was moving when more than half a mile east of the place of collision. It is contended that the witnesses, not having shown any expert knowledge of the speed of automobiles, were not qualified to estimate the rate of speed at which this one was moving when seen. Probably no person can stand and look at a moving vehicle of any kind and tell the exact rate of speed at which it is moving, but people generally, in this country, are accustomed to seeing moving trains, automobiles, street cars and horse conveyances, and any intelligent person, who has given attention thereto, can give a reasonably accurate estimate of the rate of speed at which any such vehicle is moving when observed by him. The extent of his observation goes to the weight of his testimony; but the matter does not seem to be one of expert knowledge only. (Himmelwright v. Baker, 82 Kan. 569.)
True, the rate of speed of the automobile at such a distance away was not very material, but testimony thereof could not have been prejudicial, as it is a matter of common knowledge that the speed of an automobile may be greatly increased or decreased in a short distance. Besides, there was other evidence of the speed immediately before and at the time of the collision. The defendant was in duty bound to see, and is presumed to have seen, that the plaintiff’s horse was crossing to the north side of the road, eighty feet in front of his machine. If he was going slowly he undoubtedly could have easily avoided the collision, but the evidence indicates that he struck the horse and buggy with great force.
In addition to the general verdict the jury returned the following special findings of fact:
“ (1) Ques. • How far away was the automobile when the plaintiff and his driver first saw it approaching? Ans. Unable to determine.
“(2) Q. How far were the vehicles apart when the defendant began to turn to his right? A. About eighty feet.
“ (3) Q. Did the plaintiff and his driver begin turning to their left at about the same time that the defendant began turning to his right? A. Yes.
“(4) Q. Would the accident have happened if the plaintiff had remained in the beaten track or had turned to his right? A. No.
“(5) Q. Would the accident have happened if the plaintiff’s driver had not turned to his left a few seconds before the vehicles came together? A. No.
“(6) Q. If you answer either the fourth or fifth •question ‘Yes,’ then state what was the direct cause of the accident. A. [No answer.]
“(7) Q. How wide was the unobstructed road at "the place where the accident occurred? A. About thirty feet.
“(8) Q. At the place where the accident occurred was the beaten track, or part of the road most traveled, near the south side of the road? A. Yes.
“(9) Q. At the time of the accident was the defendant’s automobile equipped with a lamp showing a white light which could be seen within a reasonable distance in the direction toward which the automobile was proceeding? A. Yes.
“ (10) Q. Was such light burning and so placed as to Ibe free from obstruction to light from other parts of the automobile? A. Yes.”
Upon these findings the defendant moved for judgment in his favor. The motion was denied, and error :is assigned thereon. It is admitted that the court had ■correctly instructed the jury as to the rights of the respective parties in the highway, to wit, that the plaintiff and the defendant had equal rights in the use thereof. It is contended that the findings of the jury ■.show conclusively that The accident resulted wholly from the act of the plaintiff in turning to the left, and that it would not have happened if he had remained in the beaten track, it being impossible for him to turn to the right. Unless the plaintiff and his driver were justified by the circumstances in believing that a collision would occur if they did not give the road and turn to the' left, the conclusion contended for by the defendant must, of course, follow; but the question was fairly submitted, the jury found in favor of the plaintiff, the court approved the finding, and we are unable to say that it was not supported by- some evidence.
The defendant in his motion for a new trial filed an affidavit that the counsel for the plaintiff in his closing argument, among other things, said to the jury:
• “Drivers of automobiles must so use and control their machines as to insure the safety of persons and property on the public highway. . . . The law requires that the owners of automobiles must so run their machines as to insure the safety of those traveling on the public highway. ... He tried to beat his creditors by transferring his property to his wife. The very next day, for the consideration of $1.20, he transferred his automobile and his drug store to his wife.”
It appears that the defendant merely excepted to the statements of counsel at the time they were made. If the exception be treated as an objection, he did not ask to have the remarks withdrawn from the consideration of the jury or obtain the ruling of the court as to their propriety. The matter is therefore not properly before this court. We can only take cognizance of and review the rulings of the trial court. (St. L., Ft. S. & W. Rld. Co. v. Irwin, 37 Kan. 701; Kansas City v. McDonald, 60 Kan. 481.)
We find no substantial error in the proceedings, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellee brought suit to quiet title to lots 40 and 41 in block 70, Wyandotte City, now Kansas City, claiming to be the owner by adversé possession for more than fifteen years. The court rendered judg ment in favor of the appellee, which the appellant seeks to reverse.
The Wyandotte Town Company held the legal title, and, on the 19th day of January, 1861, conveyed the same to David Crawford, from whom the appellant claims by a direct line of conveyances. Sometime in 1881 or 1882 W. H. Ryus took possession of the lots, in connectipn with six others in the same block to which he held title, inclosed them all with a fence and used them for a time as a part of a brickmaking plant, and afterward as a part of a planing mill which he operated on the property. Several years afterward he transferred the planing-mill property to E. S. W. Drought, and at the same time turned over the possession of the lots in controversy, stating to Drought that •his title to them was by possession and the statute of limitations. Afterward Drought conveyed to Frederick W. Soper and delivered to him the possession of these lots, with the others, making the same statement to Soper that his grantor had made to him with respect to the nature of the title. Neither conveyance described or mentioned the lots in controversy.
Drought was a witness at the trial and testified that the lots were all inclosed together, and that after he took possession he used these lots just as he did the rest of the property, and occupied them until he transferred to Soper; that Soper held the possession in the same way; that for some reason Soper never paid him for the property and he took it back, including the lots in controversy. Soper was in possession of the property about two years. During his possession he conveyed the property to Abby J. Smith, by a general warranty deed dated January 5, 1900, which described lots 40 and 41. Soper, however, continued in possession until May 1, 1900, when he turned the property back to Drought and executed to Drought a warranty deed, which also included lots 40 and 41. At the same time Abby J. Smith and her husband quitclaimed the property to Drought, and- their deed described these two lots. Later in the same year Drought conveyed lots 40 and 41 to the refrigerator company, which has ever since remained in possession.
One contention which the appellant makes is that the possession of the appellee and its grantors was not continuous. It is insisted that the continuity was broken by the conveyance by Soper and wife to Abby J. Smith. Drought’s testimony is that Soper continued in possession until he reconveyed to Drought. The Smiths never had the actual possession, but the appellee claims, and the court doubtless held, that the possession of Soper, the grantor of the Smiths, was their possession. The appellee relies upon McNeil v. Jordan, 28 Kan. 7, and Sellers v. Crossan, 52 Kan. 570. In the latter case the first paragraph of the syllabus reads:
“Where an owner executes and places upon record a warranty deed purporting to convey the complete title of land occupied by himself and family, his subsequent possession will generally be considered as in subserviency to the record title.”
There can be no doubt that the expression there used, “the record title,” refers to the title conveyed by the grantor. The rule, as stated in 1 Cyc. 1033, is that “the possession of one who- recognizes or admits title in another, either by declaration or conduct, is not adverse to the title of such other.” Soper’s possession was not adverse to the title of Abby J. Smith, but it was adverse to the title of the appellant. The doctrine of Sellers v. Crossan, supra, is amply sustained by the authorities. (See 1 Cyc. 1039, 1040, and cases cited.) No authorities to the contrary are cited by the appellant, nor have we been able to find any cases which sustain-his contention.
The appellant contends that the possession of Ryus can not be tacked to the possession of Drought, and that the possession of Soper can not be tacked to Drought's second possession, for the reason that neither was transferred by deed, note or writing signed by the parties at the time of turning over such possession. When Drought acquired the planing-mill property and took possession of these lots they were not included in his deed from Ryus, nor was there any note or writing given by Ryus turning over their possession; and the same is true with respect to the possession which Drought turned over to Soper. The claim is that possession constitutes an estate or interest in lands which under section 5 of the statute of frauds (Gen. Stat. 1868, ch. 43, § 5, Gen Stat. 1909, § 3837) can not be assigned or granted except by deed or note in writing, signed by the parties granting the same. This contention can not be sustained. Title may be acquired by adverse possession for fifteen years without color of title, if there is a claim of right or of ownership. (Anderson v. Burnham, 52 Kan. 454.)
In order that the several possessions can be regarded as continuous and referred to the original entry, there must be privity of estate or title. This privity of estate may be shown by deed or by parol. The rule is thus stated in 1 A. & E. Encycl. of L. 844:
“The privity required to constitute continuous adverse possession may be effected by any conveyance, agreement, or understanding which has for its object a transfer of the rights of the original entry.”'
Among the cases cited is McNeely v. Langan, 22 Ohio St. 32, holding that it is immaterial, if successive transfers of possession were in fact made, whether such transfers were effected by will, by deed or by mere agreement, either written or verbal. Other cases cited in the notes in 1 A. & E. Encycl. of L. 845, which support the rule that paper evidence of possession is unnecessary are Vance v. Wood, 22 Ore. 77; Menkens v. Blumenthal, 27 Mo. 198, 203; Shuffleton v. Nelson, 2 Sawy. (U. S. C. C.) 540. In the latter case it was said:
“Where the possession is actual it may commence in parol without deed or any writing, and I am of the opinion, both upon reason' and authority, that it may be transferred or pass from one occupant to another by a parol bargain and sale, accompanied by delivery. All the law requires is continuity of possession, where it is actual.” (p. 545.)
The court found that the appellee and its immediate grantors had been in the adverse possession of the property for more than fifteen years. The findings are sustained by the evidence, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to foreclose a. mortgage executed by Thomas F. Ledwitch to E. Heliker, as trustee for A. C. Wilcox, who assigned it to Charles E. Gibson. It recited that “the said Thomas F. Ledwitch is indebted to A. C. Wilcox, five hundred dollars, evidenced by one promissory note of even date herewith, executed by said Thomas F. Ledwitch, pay able to the order of A. C. Wilcox.” It also stipulated that if default should be made in payment of either the note or the interest coupons, or in procuring insurance, or in paying taxes, the whole debt should become due at the option of the owner, and that a foreclosure suit might be instituted at once. • It was also agreed that if there was default of payment of any sum for thirty days the mortgagor would be required to pay to the owner of the note interest at the rate of twelve per cent per annum from the date of the note to- the time of actual payment. The only duty devolving on the trustee, by the terms of the mortgage, was that he was authorized by the mortgagor “to pay all liens of any kind, either prior or subsequent, that may in any manner affect the title to the land herein conveyed,” etc. There was no appearance by any of the defendants in the foreclosure aetion, except J. K. Hitch, who set up as a defense that in a former action against E. Heliker, trustee, as defendant, a judgment was rendered by default quieting the title of the land in Hitch. In that action it appears that Heliker was served by publication, and that Wilcox, the payee and owner of the note, was not made a party. In the present action the trial court held that the former decree, quieting title in Hitch, was a bar to' the maintenance of the action of foreclosure by Wilcox’s assignee, and from this decree the plaintiff appeals.
The only question for decision is whether the judgment quieting title in Hitch is binding on Wilcox and his assignee, and is a bar to' the action of foreclosure. The instrument in suit is conceded to be a mortgage— a mere incident to the debt which it secures. It is not a trust deed, and by it nothing is conveyed to the trustee. He is named as trustee, but it seems that he bears only a nominal relation to the security. The debt is not payable to him, the' option to declare the debt due upon default in any of the conditions does not rest with him, he has no authority to transfer the mortgage or to foreclose it and is given no control whatever over the mortgage relations. He is a trustee in name, without powers or duties in respect to the mortgage relations, and manifestly is without authority to represent the owner of the debt which the mortgage secures. Even when a trustee has an interest, and is vested with powers and duties over the mortgage relations, it is generally deemed necessary to make the trustee and beneficiary parties to a foreclosure action. It has been said:
“The general rule is that, in all proceedings affecting the trust estate, whether brought by or against third persons, the trustee and cestui que trust are so far independent of each other that the latter must be made a party to the suit in order to be bound by the judgment or decree rendered therein.” (23 Cyc. 1246.)
(See, also, 2 Black, Judg., 2d ed., § 585; 2 Perry, Trusts, 5th ed., § 873; Wiltsie, Mort. Forecl. § 112.)
In Hutchison v. Myers, 52 Kan. 290, where a mortgage in which a trustee was named as second party and occupied a position similar to the nominal trustee in the mortgage in this case was involved, it was held that the beneficiary or creditor alone could maintain an action to foreclose in his own name. It is easy to imagine a ease of a trustee vested with powers and duties as to the mortgage relations, and clothed with authority to- represent the beneficiary in the collection of the mortgage debt, the foreclosure of the mortgage and the protection of the security from the attacks of third parties, where a judgment against the .trustee might be binding on the beneficiary. (Swenney v. Hill, 65 Kan. 826.)
In Kerrison, Assignee, v. Stewart et al., 93 U. S. 155, it was said:
“It can not be doubted that, under some circumstances, a trustee may represent his beneficiaries in all things relating to their common interest in the trust property. He may be invested with such powers and subjected to such obligations that those for whom he-holds will be bound by what is done against him, as-well as by what is done by him. The difficulty -lies in. ascertaining whether he occupies such a position, not: in determining its effect if he does. If he has been made such a representative, it is well settled that his. beneficiaries are not necessary parties to a suit by him against a stranger to enforce the trust.” (p. 160.)
Here the trustee had no beneficial interest in the mortgage, he was vested with no power or control as to either the debt or the security and was clothed with no authority to represent the creditor as to the mortgage or the mortgage lien, and unless the .creditor is himself brought into the litigation the judgment can not operate as an estoppel against him. Nothing done by or against' the nominal trustee, in an action to which the owner of the note and mortgage was not a party, could operate to bind the latter, and the judgment relied on by the appellees was no defense or bar to the maintenance of the foreclosure action.
It "follows that the judgment of the district court must be reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Mason, J.:
The Marion Auditorium Association is a Kansas corporation, owning an auditorium used for public entertainments, which up to December, 1906, liad been managed for the association by Jerry Forney. In that month the board of directors made an order discharging Forney and executed a lease to T. 0. Kelley, giving him control of the property for five years, with the privilege of an extension to ten. A controversy arose between Forney and Kelley for the possession of the property, and on March 2, 1907, Kelley brought an action of forcible entry and detainer against Forney. A demurrer to the plaintiff’s evidence was sustained. An appeal was taken from that ruling, and in this court the argument was made in its support that the corporation owed such a duty to the public that it could not devest itself of the control of its property and the lease was therefore void. The ruling was reversed upon the ground that Forney could not raise this question, at least until he showed some right of possession in himself. (Kelley v. Forney, 80 Kan. 145.)
Upon a new trial the defendant offered evidence showing that the majority of the stockholders of the cox*p oration regarded the discharge of Forney and the lease to Kelley as parts of an unlawful and ineffectual attempt of an outgoing board of directors to control the property beyond their term of office and tie the hands of the association; that these acts were repudiated by a stockholders’ meeting held February 4, 1907, and by the persons then named as a new board Of directors;, that Forney’s possession at all times was asserted as that of the corporation. The district court instructed the jury that “whether his possession was for himself or whether it was for the auditorium association it was wrongful” and therefore directed a ver •diet for the plaintiff. From the judgment based thereon the defendant appeals.
This situation is entirely different from that presented by the former appeal. In view of the new facts developed we are of the opinion, not only that such a verdict should not have been ordered, but that the ■plaintiff can not recover in this form of action. Under ■our statute a plaintiff who has never been in actual ■possession may recover in forcible entry and detainer against an occupant who has no color of title. (Price v. Olds, 9 Kan. 66.) But the action is not a substitute for ejectment and can not be made the means of litigating a controversy which depends solely upon a disputed question of title or estate.
“Neither is the action of unlawful detainer and that ■of ejectment the same action or the same kind of action, either in substance or in form. The first is by a person who claims the possession only of the real property, and who founds his right to recover the possession solely upon a prior possession, constructive or actual, in himself or grantor, and against a person who can not or who has not the right to set up any right of possession as against the plaintiff; and no question of title or estate can be litigated in the case.” (Buettinger v. Hurley, 34 Kan. 585, 588.)
It now appears beyond substantial doubt that the •defendant has at all times claimed to be in possession as the representative of the corporation; that his claim is supported by the owners of a majority of the stock ■ and by persons now acting as directors. He is defending for the association, and can urge any defense of -which it could avail itself if made a party. Whether •or not the lease was absolutely void, its validity was •challenged in good-faith and upon reasonable grounds, ■for a corporation may well question whether its directors can, without special authority, deprive it of ■ all control of its property for ten years. The ordinary rule is that the directors have no such power. (21 A. •& E. Encycl. of L. 863, 864.) The issue thus raised is not one which in and of itself, and as the vital matter-in the litigation, can be determined under a complaint charging forcible entry and detainer, even for the purposes of the case. The proceeding is in effect one' brought against an owner of property to recover possession under a lease, the execution of which is denied.
The plaintiff could not recover upon a mere showing, that the corporation made him a lease and then refused to give possession. He attempted to show in addition, that he obtained possession and was forcibly ejected, but we conclude that in that aspect he failed to make' out even a prima facie case. Testimony in his behalf was given to the effect that after the lease was executed some of the officers of the association “took possession of the auditorium, opened it up and put Mr. Kelley in-possession, put a lock on, locked it up and turned the' key over to Mr. Kelley.” But the witness who, gave this testimony stated upon cross-examination that they found that the possession of the auditorium was held' by a different key from the one delivered to the plaintiff, and that some of the party broke the lock and put on another with a new key. These specific statements, must be regarded as qualifying the more general ones. On January 17, 1907, in an action between the parties, hereto, and by their consent, the district court appointed a custodian for the property who held possession until February 21, 1907, when he restored matters, to the same status in which he found them. He testified as a witness for the plaintiff that when he was appointed there was a question as to- whether the plaintiff or the defendant had the real possession of the building; that each had a key; that he received and returned the plaintiff’s key, but not that of the defendant, because he arranged for him to take care of the building. It fairly appears that the situation was not changed by the appointment and discharge of the custodian; that the. defendant never admitted that the- plaintiff was in possession, but at all times asserted possession on his part; that the plaintiff was not ousted from a peaceable possession, but merely abandoned the effort to maintain by physical force his share of a double and disputed occupancy. We think his possession was insufficient to form the basis for the present action.
“The action for forcible entry and detainer can not be maintained on a mere scrambling or interrupted possession. Plaintiff’s prior possession must have been actual, peaceable, and exclusive.” (19 Cyc. 1132. See, also, 121 Am. St. Rep. 384, note.)
The defendant’s original possession was rightful. It had not become unlawful unless the action -of the directors, which was disputed and repudiated by the stockholders and by the persons whom the stockholders designated as new directors, was valid, and this we decide can not be determined under the circumstances here presented in this kind of a proceeding. Whatever right of possession the plaintiff acquired under the lease, it was not one to be asserted against the corporation either by an attempt to take possession by force or by bringing an action of forcible entry and detainer. To hold otherwise would be to allow one claiming as lessee to dispossess summarily an owner' who denied leasing the property.
The judgment is reversed and the cause remanded, with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Smith, J.:
After the elucidation of the old rule of this court (No. 10a) in Railway Co. v. Conlon, 77 Kan. 324, followed by the enactment of section 576 of the code of 1909 and the frequent criticisms and suggestions made by this court in various cases, it would seem unnecessary again to advert to the subject. However, it becomes necessary to do so in this case. The appellants present an alleged abstract of 419 pages; it would more properly be called a transcript. A fair abstract of less than one-third the size of the one presented would much better have presented the questions to be considered. We have observed that the appellants did, in the space of about one page, abstract a part of the evidence of one witness. The appellee, however, not content with this, filed a counter abstract of substantially the same matter, covering ten pages. The so-called counter abstract-covers 123 pages, much of which is a transcript, with slight variations from that given by the appellants. The parties are in about equal fault, and neither seems to have a very full comprehension of the title, “Abstract,” which they have given to their respective books. Section 576 of the code provides:
“The appellant shall serve on the appellee, or his attorney of record, an abstract of so much and such parts of the pleadings, record, evidence and proceedings in the case as he deems necessary for the consideration of the court, and the appellee may, within thirty days thereafter, serve on the appellant or his attorney a further abstract containing any other matter deemed by the appellee essential to the consideration of the merits of such cause, and may also challenge the correctness of any matter contained in the appellant’s abstract.”
Volume 3 of the Cyclopedia of Law and Procedure, page 78, states the general rules for the preparation of abstracts, which statement is set forth and approved in Railway Co. v. Conlon, supra. A reading of the statute indicates that the pleadings in an action should be abstracted. All formal parts, including the title, the verification and filing marks, should generally be omitted, as well as separate paragraphs in the body of the pleadings not involved in the assignment of errors.
In abstracting the evidence the questions may usually be omitted, unless error is assigned on a ruling thereon. The evidence as detailed by the answers of the witnesses may be given in narrative form, but reference should be made to the record, and the substance of the evidence and not conclusions as to what it proves should be given. Evidence not pertaining to the issues on appeal should also be omitted. A careful reading of rule 9, as now numbered, and of the statute will • furnish a definite and specific guide to follow.
A general outline of the facts, as found by the court, is as follows: Daniel B. Hunnicutt and Rebecca S. Oren were married in 1867, and thereafter moved to the state of Missouri. Neither seems to have been possessed of much property, and both engaged for a time in teaching. He inherited $5000 from his father’s estate, and in 1876 bought a 53-acre tract of land in Missouri, which he paid for principally out of his inheritance. Not long thereafter the title to this land was transferred from him, through another, to his wife. In 1882 the family moved to Lawrence, and he bought a small residence property, which was paid for out of the money derived from his farming operations in Missouri. In 1883 he bought 305 acres of land near Lawrence, being the land now in dispute, for $6000, of which $1800 was paid in cash from the sale of the Missouri land, arid a mortgage was given for the balance. The title to this land was taken in the name of Mrs. Hunnicutt. For years thereafter Hunnicutt and wife' occupied both the farm and the town property, the wife remaining in Lawrence much of the time to enable the daughter to go to school. In 1888 an agreement by letter was made to sell the 305 acres of land to appellant Elihu J. Oren for $8000. The purchaser was to assume a mortgage for $3000, and pay the balance in cash. At the written, request of Oren, Hunnicutt and wife executed a deed to the land to Oren and placed it in the custody of a Mr. Blair, at Lawrence, who was not authorized to deliver it, but was to hold it a reasonable time to await the consummation of the sale, and, if the sale failed, to return the deed. Oren later declined to consummate the purchase, but Mrs. Hunnicutt got the deed from Blair and caused it to be recorded. On the day Hunnicutt discovered that this deed had been recorded he met his wife and her brother, Oren, on the street and demanded that the title should be placed back as it was before the deed was recorded, and was then advised by Oren that he disclaimed any ownership of the land. Thereafter Hunnicutt and wife continued to operate the farm as before, leasing portions of it and farming other portions. The leases were made in the name of Oren and signed by Mrs. Hunnicutt, as his agent. The appellee was advised that this was necessary because the record title was in Oren. Hunnicutt made some improvements on the property and ditched some land, and, on one or two occasions, he and his wife executed chattel mortgages on the live stock, machinery and growing crops thereon, to secure money borrowed for their personal use. The personal property was assessed and taxed as Hunnicutt’s property. In the fall of 1903 a public sale was made of all the stock and crops upon the farm. The amount realized from the sale was about $2700, all of which was taken and kept by the wife. In the latter part of 1903 Mrs. Hunnicutt left Kansas and went to Indiana, and there died the next year, leaving her husband and her daughter, Gertrude, her only heirs. This action was commenced in March, 1905.
The first assignment of error argued is that the declarations of Mrs. Hunnicutt in her favor, as to the ownership of the land, are not competent as against Oren. These statements were made to a land agent at the time they were negotiating to sell 225 acres of the land. This was in 1900, some years after the recording of the deed from Hunnicutt and wife to Oren, during which time Mrs. Huhnicutt had rented the land and received the rent, as she claimed, as the agent of her brother. The agent inquired of her: “How about the title to this farm ? I understand it is in your brother’s' name.” She said: “Yes, but we own the farm, and whatever I say my brother will do, and we can make a title. ... I can make a title, and whatever I decide on, Elihu, my brother, will agree to. He will do whatever I say. There will be no trouble about making the title to the farm.” According to the claim of the appellee, he and his wife owned the land all the time, and were in possession of it, and she was receiving the rent. The same contention was made and decided in the case of Butts v. Butts, post, p 475. It was said in that case:
“It is claimed that the court erred in permitting defendants to offer in evidence certain declarations made and letters written by W. C. Butts, long 'after the date of the alleged gift, for the purpose of disproving the gift. It is insisted that these declarations are hearsay. The contention can not be sustained, as it clearly appears from the evidence that the declarations, were made and the letters written when W. C. Butts was in the possession of the property, and his declarations were admissible. (Citing numerous Kansas cases supporting the proposition.)” (Post, p. 476.)
In this case the court did not err in admitting evidence, on the theory as to the ownership of the party offering the evidence. The court could not decide in advance who owned the property; that was the very subject of inquiry.
It is contended that the admissions of Mrs. Hunnicutt against her interest, and especially that by making leases for renting the land and receipting for the rent in her brother’s name, would be binding upon her, and are now binding upon Hunnicutt. The first branch of this proposition — that her statements would have been evidence against herself, if living — is undoubtedly correct, but would not be conclusive except as to one who had dealt with her relying thereon. The gravamen in this case is that Mrs. Hunnieutt and her brother, Oren, were in a conspiracy to get the property out of the hands of Hunnieutt, and that a part of the conspiracy was the renting and collecting of rent in the name of her brother. As before said, the court did not err in allowing the plaintiff to introduce evidence in support of his claim and on the theory of his claim.
It is also contended that fraud can not be presumed —that it must be proved, which, of course, is correct; but the court had a right to consider all of the surrounding circumstances. The court undoubtedly took into consideration that the inheritance of $5000 by Hunnieutt was the foundation upon which the fortune of the family, was based. In addition, he drew a pension during all the years, and, it appears, worked industriously, although sometimes somewhat addicted to the use of intoxicating liquors. By the rise in the value of the property which he bought, and his labors, the value of the property increased, but at the end he had nothing; his brother-in-law had it all, or nearly all. With this view, the court was justified in scrutinizing every transaction suspiciously.
It is further contended that a judgment in favor of Mrs. Hunnieutt and against Oren, in an action brought by the agent, Atkinson, against them for a commission on the sale of 225 acres of the land, which he claimed to have negotiated and which they failed to consummate according to the arrangement, is binding on Hunnieutt, as a privy to Mrs. Hunnieutt, as to the ownership of the land. On the trial of that action Mrs. Hunnieutt in her testimony denied having any interest or ownership in the land, except as the tenant of Oren, and Oren claimed to be the owner thereof. Hunnieutt was not a party to that suit and the title to the land in question was not involved nor determined therein. This evidence, while competent, is not conclusive.
Again, it is contended that Hunnieutt transferred the title to the Missouri land and took the title to the other property in his wife’s name for the purpose of defrauding his creditors, and that for that reason he can not recover. There seems to be little competent evidence to support the claim. Besides, his conveyances of property to his wife are not set aside, but he recovers one-half as an heir.
Sometime after Oren’s return to Indiana, after the recording of the deed to the land to him and of the conversation between' Hunnicutt, Oren and Mrs. Hunnicutt on the street, Oren executed three notes to Mrs. Hunnicutt, one for $1000 and two for $900 each, and a mortgage on the land to secure the payment thereof. The execution of the notes by Oren to Mrs. Hunnicutt and of the mortgage on the land as security were properly regarded by the court as not done in good faith, although two of the notes were paid. They were evidently paid from the proceeds of the farm. The one-for $1000, due for sixteen years, was never paid, but apparently ignored. The same may be said of the deeding of the lq,nd by Oren to Gertrude Hunnicutt, the daughter, which deed she returned to Oren without having it recorded, and which he destroyed. In view of the finding of the court, which seems to be supported by the evidence, that after awarding Hunnicutt and his daughter the land Oren was still indebted to them in excess of the taxes paid and money returned in the sum of $1489.16, that these transactions were intended by Oren and Mrs. Hunnicutt to deceive Hunnicutt and so to shape matters that she would have the property-while she lived, and, if she died before Hunnicutt, he would get no part of it, and that Hunnicutt knew nothing of these transactions until after his wife’s death, the judgment holding them for naught seems legal and' equitable.
We have not traced in detail all of the facts, some of' which are claimed to indicate ownership in Oren and some in favor of the Hunnicutts, but it appears from the evidence and findings of the court that, upon the death of Mrs. Hunnicutt, her husband was left practically without any property, that the property which had been conveyed to Oren still stood in his name, and this action was brought to set aside that conveyance.
It is further contended that the claim of Hunnicutt is barred by laches and the statute of limitations. One-half of the property in question was awarded to Hunnicutt and one-half to the daughter, evidently as heirs of the deceased wife and mother. From the judgment in this case it must be assumed that the court found, as a proposition of law and fact, that Oren was holding the title to the land in trust for his sister, Rebecca S. Hunnicutt, at the time of her death. There was evidence to sustain such a finding, under the provisions of the third exception of section 9701 of the General Statutes of 1909 (Gen. Stat. 1868, ch. 114, § 8). When Hunnicutt, in June, 1890, discovered that the deed from himself and wife to Oren had been recorded without his consent, he immediately confronted them on the street and demanded of Oren that he place the title back where it was before the recording of the deed. To this Oren replied, in substance, that the ownership rested with the Hunnicutts, just as it did before the deed was executed; that all he had was just the legal title, but no ownership; that he did not claim any ownership — did not claim to be the owner; that the ownership rested just as it was before the deed was made— just as it had prior to the execution of this deed. He assured Hunnicutt that no harm would come to him from the deed’s being recorded, as “Becky” [Mrs. Hunnicutt] wanted him to have it there and he would hold it for a while, at least; that he had not bought the place and that Hunnicutt’s interest would he safe. This is evidence tending to show that by. agreement between Mrs. Hunnicutt and her brother, Oren, confirmed in the presence of Hunnicutt, Oren was to hold the title in trust for her, and the circumstances all show that there was no fraud in the transaction, unless it was against Hunnicutt. Hunnicutt had paid practically all of the consideration that had been paid for the land, and the conversation recognized that he had an interest therein, and the acquiescence of himself and his wife to the .statement of Oren amounted to an agreement that Oren should hold the land in trust for them. In such ■a case the statute of limitations does not begin to run until there is a demand and a refusal to execute the trust or the trustee repudiates the trust to the knowledge of the beneficiary.
“Thus, even though the trust sought to be enforced is not an express trust, yet if it is one solely within the jurisdiction of a court of equity and is recognized •and acknowledged, by the person chargeable as trustee, it is not subject to the operation of the statute until it terminates or is repudiated by the trustee, according to the rule applying to express trusts. . . . Therefore, although the trust may in a sense be said to arise by implication, yet if it is not imposed upon the trustee by law and against his will, but is voluntarily assumed by him with the consent or at the request of the beneficiary, the statute will not run so long as he admits his obligations and makes no adverse claim.” (25 Cyc. 1159.)
(See, also, 2 Perry, Trusts, 5th ed., note to § 865, p. 560; Zunkel v. Colson, 109 Iowa, 695.)
So long as the contract was being carried out, as it ■appears to have been until shortly before the death of Mrs. Hunnicutt, there was no reason for Hunnicutt or his wife to bring an action, and no laches could be charged against them.
The judgment is affirmed. | [
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Per Curiam:
The judgment in this case must be affirmed for these reasons: The question whether the plaintiff was entitled to a jury trial can not be determined because the record does not show any request for one. The case having been heard by the court, any admission of incompetent evidence was not reversible error, if there was competent evidence sufficient to sustain the judgment, and we find that to be the case. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff takes the position that he is a vendor of land suing for reparation on account of the refusal of the vendee to comply with the contract. The contract is wholly executory, and no claim is made that the vendee is unable to perform. In such cases the vendor is entitled to redress in one of two ways: He may have his contract enforced according to its terms and receive whatever he has contracted for, or he may have damages for the loss of his bargain. If he has sold for cash he may have the purchase money. In such a case he must allege tender and willingness and ability to perform on his side, so that the action becomes in all essential respects one to compel the vendee •specifically to perform. (See Lumber Co. v. Town Co., 51 Kan. 394.) If he has agreed to take other real estate he may compel the vendee to convey it to him. But, if the contract be one for the exchange of lands, neither the vendor nor the court has any authority to substitute for it, in legal effect, a contract to sell for cash, by giving the vendor the value of the land instead of the land itself. He must either take the land or take whatever damages he has sustained. In the latter case the measure of damages is the difference in value between what he was to receive and what he was to give.
“Where two parties enter into a contract for the exchange of land and the payment of money, and afterward one of them without sufficient reason refuses to perform on his part, and the property which he was to give is of greater value than the property which he was to receive, and the other party sues him for damages, held, that the measure of damages is the difference in value between the property which the plaintiff was to receive and that which he was to give in consideration therefor.” (Bierer v. Fretz, 32 Kan. 329, syl. ¶ 8.)
What the remedies of a vendor may be under circumstances other than those here presented need not be discussed. The instruction given the jury relating to the measure of damages, and upon which the verdict rests, was erroneous.
Ordinarily a vendee should make all his objections to the title disclosed by the abstract furnished him when he returns it with his requirements, but the law does not put him into a straight j acket and absolutely forbid him to take any other course, irrespective of the attitude of the vendor. If the defendant’s testimony be true (and that was a matter for the jury), when he returned the abstracts with certain written requirements he verbally questioned the title because of the oil-and-gas leases, and reserved the right to satisfy himself at a later time regarding them. The plaintiff made no complaint of the proposed course of conduct, but said he was going to give a perfect title, and proceeded to make preparation accordingly, uninfluenced by what the defendant said and did. In virtually withdrawing this evidence from the jury and binding the defendant by the arbitrary rule stated in the instructions the court erred.
Since the judgment must be reversed, the question arises as to what the direction to the trial court shall be.
The oil-and-gas leases constitute a cloud on the plain tiff’s title. The affidavit attached to the abstract does not remove this cloud from the record. Who Miller is or where he resides does not appear, and he might not be available as a witness for the defendant if the latter were obliged to resist a claim made under the leases. Some of the limitations upon the force of affidavits used in connection with abstracts of title are stated by Warvelle as follow:
“There is, however, another class of affidavits that are resorted to by conveyancers under a choice of difficulties, and which frequently figure on the records and in the abstract These are the ex parte sworn statements of individuals respecting some question raised -by the instruments, usually relating to deaths, marriages, births, etc., concerning which no other or better evidence can be found. Family records are not universal, nor even where, as is the custom of many of the states, a record of births, deaths and marriages is kept by proper officers, can the requisite information be always obtained.. When such is the case resort must be had to the next best and most available testimony, which is usually supplied by the affidavit of some person setting forth his knowledge of the nature of the matters under inquiry. Such an instrument, it is true, possesses no legal validity, and, not being made under the sanction of a court or in any legal proceeding, is not strictly evidence for any purpose, yet, being usually all that can be adduced, it has been, as it were, by common consent of the profession, adopted as evidence in the examination of titles and the testimony taken as corroborative evidence of general reputation, concurrent possession, etc.” (Warv. Abstr. p. 318.)
Except in cases of the kind indicated, a vendee can not be compelled to accept a title depending for its validity upon parol evidence which he may not be able to command when needed.
“It has been frequently held that if parol evidence should be necessary to remove any doubt as to the Validity and sufficiency of the vendor’s title, the purchaser can not be compelled to complete the contract. He can not be required to take a doubtful title which he must fortify, if impugned, by resorting to evidence perishable in its nature, and possibly unavailable to him when the necessity for it occurs. It must be observed, however, that a title is not necessarily doubtful simply because it requires to be supported by parol testimony. As a general rule, for example, title by inheritance depends principally upon matters in pais, or facts resting in the knowledge of witnesses. If those facts be clearly sufficient to establish the right of the vendor as heir, it is apprehended that the purchaser could not object to the title simply because it could not be established by record evidence. But a different case is presented where the fact of inheritance itself is in doubt. There may be circumstances to show that the ancestor is not dead, or that he has left a will, or that the vendor is not sole heir. Then it is that the title becomes unmarketable from the necessity of parol proof to remove the doubts which surround it.” (Maupin Mafk. Tit. Real Estate, 2d ed., § 289.)
The plaintiff claims that the defendant is trying to “mend his hold” by objections to the title not specified in the written requirements, and that he is estopped from so doing upon well-known principles illustrated in numerous decisions. The difficulty with this position as that certain indispensable elements of estoppel are wanting. The defendant’s conduct was not relied on, the plaintiff did not change his own situation because ■of it, and he has suffered nothing in consequence of it. He did not even incur the expense of this litigation upon the strength of it. No estoppel is pleaded as a ground of recovery. Although the petition refers to the making of the written requirements, it does not •declare that the plaintiff regarded those requirements ■as final and shaped his course accordingly. On the •other hand, the theory of the petition is that the plaintiff has a perfect title, that he made his abstracts show a perfect title, that his deed will convey a perfect title, .and that the fault of the defendant lies in not accepting and paying for a perfect title according to his contract so to do. Under these circumstances the plaintiff is the.one who is really trying to mend his hold, and this for the purpose of obtaining full compensation for what is in fact a clouded title.
The court desires to say here that the equities in favor of a vendor must be very strong before it will compel a vendee to take or pay for an unmarketable title under a contract for a perfect title. The plaintiff in the present case does not want damages for the loss of his bargain. In effect he seeks specific performance of the contract, and should he recover the defendant will be forced to accept a clouded title. In such cases the course pursued by Lord Chief Baron Alexander in the case of Warren v. Richardson, (Court of Exchequer in Equity) Younge’s Rep., appears to be just. The suit was brought to compel a lessee to accept a lease. By his conduct he had waived the right to object to the lessor’s title, and specific performance was decreed. On reference to a master to settle the terms of the lease it was discovered that the lessor could not make title. The opinion reads:
“This is a suit for a specific performance. The court was of opinion that the defendant had' waived what he would otherwise most clearly have had a right to, an inquiry into the plaintiff’s title; that is, into his power to make a valid lease, according to his agreement; in other words, to put upon the plaintiff the burden of showing his title, and proving it to be a safe one. Though the court thought the defendant had by his conduct waived that right, it has now come out collaterally, but I think clearly, that the plaintiff can not make a title according to his contract. It would be a. great hardship upon a party to force him to accept a title which is ascertained to be defective. It would be contrary to all the rules which prevail upon the subj ect of specific performance. The principles upon which courts of equity have proceeded on the subject of specific performance do not make a decree for a specific performance the necessary consequence, under all circumstances, of an agreement. Circumstances of hardship often prevent it. They recollect that the party is not without remedy, for, though he should be refused a specific performance, he has left to him his action upon the agreement. What creates the difficulty in this case is that the conduct of the party had barred his right to the usual investigation into the title; and this defect is a defect of title. If the objection had been to the conveyance merely, the defendant would have had the full benefit of it without any doubt. But the objection is of another description. It is an objection to the title. It stands decided upon this record that the defendant had waived his right to call upon the plaintiff for the production of his title; on the other hand, it is clear that the plaintiff can make no good title, and, if the defendant took it, it would be defective.
“I have somewhat hesitated as to the fit course to be pursued under these circumstances. As I have stated, I have not met with any authority exactly in point to conduct me. I think that the most just course, and the best supported by the rules prevailing on this subject of specific performance, and which is sustained by the greatest variety of analogies, is, in consequence of its appearing that the plaintiff can not make the defendant a good title, to refuse a decree for a specific performance. A waiver of the defendant’s right to make the plaintiff produce his title does not seem necessarily to import that he will accept the title, though it should manifestly appear to be bad. I am of opinion, therefore, that I ought not to decree the execution of the lease settled by the master, or any other lease, but that the bill should be dismissed.” (p. 7.)
The dispute regarding the sufficiency of the plaintiff’s title is one of law only. The facts which defeat the plaintiff’s claim of estoppel were found specially by the jury. It is almost three years since the contract was made. Considerable time would be required to perfect the plaintiff’s title, if he seemed inclined to do so, and it is not probable that the contract would then represent to either party anything like what it did when they engaged themselves. Therefore the court has concluded to leave each one in the possession of what he has.
The judgment of the district court is reversed and the cause is remanded, with direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
West, J.:
This appeal involves only the construction of original section 137 of chapter 34 of the Laws of 1876, entitled “An act to provide for the assessment and collection, of taxes” (Gen. Stat. 1901, § 7671),. which required the county treasurer to state in the redemption notice “the amount of taxes charged, and interest calculated to the last day of redemption.”
It is urged that the legislature intended by this provision that the treasurer should state “the amount of taxes, charges, and interest”; that this was shown by the change in the statute made by the legislature (Laws 1905, ch. 499, Gen. Stat. 1909, § 9474), and that Casner v. Gahlman, 6 Kan. App. 295, 60 Kan. 857, and Shinkle v. Meek, 69 Kan. 368, should be overruled.The language of the original section is of itself entirely free from ambiguity, and with its wisdom we have no concern. The argument that' the legislature, having used the expression “taxes, charges, and interest” frequently in the original act, and the words under consideration but once, which words could be made to correspond with the other expressions by placing a comma and changing “d” to “s,” is plausible, but not sufficient to overturn the doctrine of stare clecisis. The ruling of the trial court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The appellant contracted with the Carey Salt Company to furnish an evaporator system for manufacturing salt, guaranteeing, among other things, that it should have a certain salt-making capacity when working with ten pounds’ pressure. The price was $23,200, f. o. b. Hutchinson, including the services of a skilled mechanic to superintend the erection of the ap paratus, the foundations to be supplied by the salt company, “all other labor to be furnished by the owners” (the salt company). Twenty-five per cent was to be paid down and seventy-five per cent thirty days after the completion of a six-days’ test, in ease such test should show a fulfillment of the guaranty, and in case it should not so show the salt company should be at liberty to refuse to accept the apparatus and should have refunded the twenty-five per cent paid, and the appellant should remove the apparatus at its own expense. The only mention of help to be furnished by the salt company was the one quoted — “all other labor to be furnished by the owners.”
The apparatus consists in part of a system of four steam cylinders, or boilers, called “effects,” A, B, C and D, into which exhaust steam from the salt company’s plant was to be introduced, provision also being made for the introduction of live steam now and then when needed. These “effects,” or boilers, could be worked in conjunction, in part or separate, by a valve system so that the pressure on each would be equal.
The amended petition charged, in substance, that on May 29, 1908, the boilers and apparatus had been placed and installed in the salt plant for experiment and trial and demonstration; that the connection between boilers A and B was broken and out of repair, so that A could not be used, and the apparatus would have to be changed in order to operate it upon “the triple effect,” and appellee was instructed by the expert in charge to close a valve which permitted the steam to pass from A into the other boilers, and was informed that the expert would open the pipe and allow the exhaust steam' to pass first into boiler D, which would thus permit such steam to operate under B, C and D only; that after he had obeyed this instruction the three boilers were thus operated through the night; that immediately before the injury, and eight or ten hours after the triple effect had thus been put in opera tion, the expert wantonly and unnecessarily opened the live-steam valve, thereby permitting an “unusually, dangerous and excessive” head of steam to be turned into boiler A, which was cold, and disconnected; that the boiler, being constructed of cast iron, was wholly incapable of withstanding the pressure .and immediately “exploded and bursted,” the entire south end thereof, being the end nearest appellee, blew out with great force, breaking the cast-iron end into many pieces and causing a great quantity of live steam to escape upon appellee, throwing him violently to the floor and against the wall of the building, and that the force, thereof was so strong that he was unable to rise; that the explosion blew the pieces of the boiler end against the water pipes above appellee’s head, bursting the pipes and permitting the water to escape with great force upon him, so that he was unable to rise until the expert-succeeded in turning off the steam and stopping the flow of live steam; that broken pieces of the casting struck appellee on each side of his forehead and on top of his head, and bruised and cut his head, the steam severely scalding him and burning him on his hands, arms, head, back and legs, -permanently injuring him, damaging and shocking his entire nervous system, he suffering thereby great physical and mental pain and anguish and becoming thereby premanently nervous, and would be unable in the future permanently to regain his health and physical strength; that appellant knew that the boilers were made of cast iron and that such castings were likely, to be defective and improperly cast and their strength not uniform throughout, and knew that they were not intended for, or capable of, holding a head of live steam; that they were defective and improperly made, and insufficient for a head of live steam, all of which could have been discovered by the appellant by reasonable care.
The answer was a general denial and a plea of contributory negligence.
The alleged negligence in turning in the live steam was eliminated by the findings returned by the jury, the result being a finding, in substance, that the appellant was negligent in respect to the casting which burst — that it was imperfectly constructed and that the appellant so knew; that the casting had become weakened by repeated expansion and contraction, due to heating and cooling, and that the cause of the casting exploding was turning live steam into effect A, but that it would not have exploded had it not been imperfectly constructed.
A general verdict was returned in favor of appellee and against the appellant only, other parties having heen joined as defendants.
Complaint is made with reference to giving and refusing certain instructions, but owing to the circumscribed elements of negligence to which the jury’s ■findings confine the case it is incumbent upon us to consider only two. After telling the jury that appellant’s duty was to exercise reasonable care and diligence to provide appellee with a reasonably safe place to work and with reasonably safe tools, machinery and appliances to work with, and to exercise reasonable care and diligence to keep such tools, machinery and appliances in a reasonably safe condition, for the protection of appellee, the court added:
“(6) This duty is continuing in its nature and iii its performances; it was the duty of the defendants to make such inspection of the machinery and apparatus as a reasonably prudent person ordinarily would under the circumstances,, taking into consideration the nature of the machinery and apparatus, its conditions and the manner of its use.”
Instruction No. 7 was to the effect that if the boiler Read was defective, and unsafe by reason thereof, and -the defect was known to appellant or would have been discovered by it by reasonably careful inspection and -vigilance, the law would charge appellant with knowl •edge of such defect. It is insisted that these instructions, taken together, go too far as to the duty of inspection, in view of the fact that the evidence shows that boiler A had been tested by hydraulic and steam pressure, and shows also that no other kind of inspection is ever made of boilers after they are shipped by the manufacturers. But it can hardly be said that the evidence shows that no other kind of inspection ought to have been made, and doubtless the court and jury had this in mind, and we regard the language used in these instructions as correct and fair.
The appellant requested certain instructions to the ■effect that if appellee knew as much about the danger ■of the situation as the expert he could not recover. These were properly refused for the reason that appellee was sent to the place' for the express purpose of learning all about the apparatus and its operation from the expert, who undertook to teach him what he came there to learn, and as the expert was a man of long experience in such work, and the appellee had been there only six days, we see no error or impropriety in refusing thus to instruct.
■ An officer of the salt company testified as to his experience in handling boilers, and was asked whether, “‘after having examined the door of this boiler A, and the door after this accident, you can say from your ■knowledge and experience in the handling and using of boilers if a man- in the exercise of reasonable and ordinary precaution could have told this boiler was defective in any way?” to which an objection was sustained. He had testified that it was not customary to inspect boilers which came from reputable manufacturers, but the question involves two elements of weakness; it was for the jury to say whether such custom was proper and a sufficient exercise of reasonable care or whether such care would call for inspection after receiving a boiler from the manufacturers, and as a portion of the boiler head was in evidence the jury could tell as well what conclusion to reach by examining it after the explosion as the witness could. In other words, the question does not call for expert evidence save in the slight degree furnished by witness’s experience in handling boilers, and we think the objection was properly sustained. (Dow, Assignee, v. Julien, 32 Kan. 576; St. L. & S. F. Rly. Co. v. Ritz, 33 Kan. 404; Railroad Co. v. Chance, 57 Kan. 40.)
In K. P. Rly. Co. v. Peavey, 29 Kan. 169, after quoting from Morrigan’s Appeal, 29 Mich. 5, that “the experience of courts with testimony of experts has not been such as to impress them with the conviction that the scope of such proofs should be extended. Such, testimony is not admissible in any case when the jury can get along without it, and it is only admitted from necessity, and then only when it is likely to be of some-value,” this court held that “the matters upon which the opinions were given in the evidence objected to-were on questions which could have been decided by the jury on the facts; and of the facts, after a full hearing thereof, they were the competent judges.”' (P. 179.)
Two matters remain for consideration: What duty did appellant owe to appellee? Were the findings of' the jury properly sustained? It is clear that appellant had constructed the apparatus for the salt company for its own profit and advantage, and to its advantage and profit a successful installation and test would redound. The appellee was employed and directed by the salt company to go to the place and learn the nature- and operation of the evaporator apparatus, so he could become sufficiently proficient to operate it after it should be finally accepted. The expert who was to give-him this knowledge was in charge of the apparatus,, had had fourteen years’ experience in erecting vacuum and evaporator processes and in. constructing steam fittings. The appellee was brought to the expert, who was told that appellee was going to learn to operate the machinery. The appellee began work May 23 and was injured May 29, having done in the meantime whatever he was directed to do by the expert in charge. The expert told him about what to do. The appellee testified:
“He told me to open and close valves in different ■parts of the machinery. . , . - I was instructed to ■see that certain valves were closed and one valve was the exhaust line into the A boiler. ... I had taken records of pressure an evening or two before when Mr. Applin [the expert] went to lunch about midnight. ... I never assisted anyone else about it than Mr. Applin. . . . One of my duties was to go upstairs and see how much salt was making, and to oil the machinery up there, and I oiled the machinery in the vacuum room.”
The salt company was purchasing this apparatus for the purpose of economizing in the manufacture of salt, and it was to its advantage, no doubt, to have it prop■erly installed upon foundations supplied by itself and by labor furnished by it, and also to have the appellee .so'instructed by the appellant, through and by its expert in charge, that upon acceptance he might be able to operate the apparatus for the salt company.
The enterprise of installing the plant so as to meet the required test was one in which appellant and the salt company were jointly interested. The appellee was employed and paid by the salt company for helping in the joint enterprise to the extent of doing whatever he was directed to do by the appellant’s expert. He was not a mere licensee, nor was he a fellow servant with the expert. He was practically the same as an ■employee, following the instructions and obeying the directions given by the man in charge. In principle his relationship to appellant was that of servant, within the meaning of Fliege v. Railway Co., 82 Kan. 147, and appellant, as well as the salt company, owed him ordinary care. In Atlantic Transport Co. v. Coneys, 82 Fed. 177, it was held by the circuit court of appeals of the second circuit that men working for a firm of jobbing carpenters employed by a steamship company to make repairs and alterations in their vessels, such jobbing firm charging for work by the hour and lumber by the foot, such employees being under a foreman of the jobbing company, were servants of the steamship company, its superintendents and captains having- the right to direct the manner and extent of the repairs and alterations. The court said:
“The tendency of modern decisions is not to regard as essential or controlling the mere incidentals of the contract, such as the. mode and manner of payment (Corbin v. American Mills, 27 Conn. 274), or whether the owner can discharge the subordinate workman, and not to regard as essential, or an absolute test, so much what the owner actually did when the work was being done as what he had a right to do.” (p. 178.)
(See, also, Coughlan v. Cambridge, 166 Mass. 268; Consolidated Fireworks Co. v. Koehl, 190 Ill. 145; Grace & Hyde Co. v. Probst, 208 Ill. 147; Hannegan v. Union Warehouse Co., 38 N. Y. Supp. 272; Alabama Great Southern R. R. Co. v. Burks, 148 Ala. 113.)
In volume 1 of Dresser’s Employers’ Liability it is said:
“The unfailing test of the existence of the relation is the power of direction or control. It must be possessed by a master, though it may not be exercised, or exercised through the hands of an agent. The right of direction covers not only the general objects- or method of the. work, but extends to every detail of it. The discretion of the servant is constantly subject to this control- — -a test which stamps him as a servant and not as an independent contractor.
“A volunteer may become a servant, and subject himself to the duties and the rights attending the relationship, if his services are accepted by the master, who personally, or through his duly authorized agent, acquiesces in the employment.” (p. 54.) -
It is urged that two of the findings in particular are not supported by the evidence. These are numbered 8 and 22, and by one the jury decided that the appellant knew of a defect in the casting that burst, before it did burst, and by the other that appellee’s injury was. such as to prevent him from performing regular labor such as he performed before the injury. He was allowed $1000 for permanent injury. Of course the only explanation of finding No. 8 is that the jury, having been instructed that means of knowledge is equivalent to knowledge, found the existence thereof, and the only trouble with the finding is that it confuses the effect with the means — the actual condition with the legal result thereof. Had the finding been that appellant, by the exercise of reasonable care, could have discovered and known of the defect, no just fault could have been found. But there was the evidence and there was the instruction, and the jury, in substantial compliance with both, not being composed of lawyers or logicians, reached a conclusion which, while technically susceptible of criticism, is substantially sound, and no reversible error was committed by permitting such finding to stand. The other finding is said to be invalidated by appellee’s testimony that he had gone back to work at his former task in a mill and was earning the same wages as before. But, considering the general verdict in his favor, his testimony as to pain and suffering, itching and nervousness, and the testimony of his physician that the itching might or might not disappear, and would make him nervous, we think the necessary task of reconciling, if possible, this finding with the general verdict must result in holding that, taken together, they mean that appellee, though at the time of trial earning his former wages, was earning them less easily than before, and may later on be unable to earn, them at all or to earn as much. It is difficult to understand how one could undergo the injury detailed by him and not be permanently disabled.
A portion of the broken boiler head is in evidence. It shows that in its molding a cold shut or cold shot occurred, that is, the molten metal failed at one place to unite and blend perfectly, leaving a sort of seam, which made its strength less than one of equal thickness perfectly molded. The jury found, in substance, that this casting, being imperfect and too thin, became weakened by expansion and contraction, and that the proper introduction of live steam caused the explosion. The contract with the company which furnished this •casting to the appellant, from specifications and drawings furnished by appellant, called for a casting three-fourths of an inch in thickness. The fragment in evidence is by actual measurement materially less than three-fourths of an inch thick at the thickest place where the seam appears, and is a scant three-eighths of an inch thick in the greater portions thereof. The testimony shows that the boiler head was not examined •or tested save by hydraulic and steam pressure, appellant assuming that the old-established and reputable concern which furnished it would not supply a defective casting. The appellant had by its engineer carefully made drawings and specifications, assuming in the calculations a large factor of safety, and “took it for granted that the apparatus would be constructed according to the drawings.”
While the defective boiler head was painted, still the jury evidently believed, and we think justly so, that by the exercise of reasonable care in actually examining into the sufficiency of the casting, instead of assuming it, the appellant might have ascertained its •defects and prevented the injury.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The first count of the information charges: that the appellee “did then and there unlawfully and' willfully practice medicine and surgery . . . by then and there attempting to treat for a fee one William Mershon, sr., who was then and there afflicted with bodily infirmities and who was then and there sick, the-nature and extent of said sickness and bodily infirmities being to informant unknown, by then and there-pretending to adjust the vertebrae of the said William Mershon, sr.” A motion to quash was sustained, and', the state appeals.
The second, third, fourth and fifth counts are similar to the first, except that they omit “pretending to adjust, the vertebrae.” The sixth count charges the appellee; with advertising in a newspaper:
“Chiropractic. P. W. Johnson, D. C., the chiropractor of Hutchinson, Kan., will be in Stafford, at Hotel’ Brinkman, Tuesday and Friday, 9 A. M. to 1 P. M. If' you are afflicted in any way, or have tried everything-else without results, try chiropractic spinal adjustment.”
The cause has been so presented and argued that we-deem it proper to consider the first and sixth counts-only. The record shows that the trial court sustained, the motion to quash “for the reason that it is agreed by both sides that said P. W. Johnson is a chiropractic- and practicing his profession as such, and is a graduate-of some school which teaches chiropractic and stands-ready to take an examination in chiropractic before the state board of medical registration, but that the statutes, of the state make no provision for granting a license to one practicing chiropractic, and has applied to take-such examinations before said board, but it has refused to examine him or grant him a license to practice in Kansas.”
The appellant contends that the appellee comes: clearly within the well-known and well-defined meaning of the term “practice of medicine”; that the legislature may define the meaning, extend it, broaden it, make it more comprehensive; that chiropractic is an unknown word which can not be found in the dictionaries and which has been manufactured by a faker for use as a sham; that “he [appellee] does not belong in the class with physicians or surgeons, nor with any other class of men that are learned or have any knowledge of science.”
The appellee insists that, being a graduate of a school which teaches chiropractic and standing ready to take an examination therein, he is not a physician, surgeon or osteopathist,- and is not in any sense “practicing medicine and surgery”; and that the statute can not be extended to cover his case without violating. the constitution in various ways.
We have no doubt whatever that the legislature may prescribe reasonable restrictions and qualifications touching the healing art in any of its departments without impairing any constitutional rights. (The State v. Creditor, 44 Kan. 565; The State v. Wilcox, 64 Kan. 789; Meffert v. Medical Board, 66 Kan. 710.) While the power does not exist to give one particular school of medicine a monopoly or to prohibit the citizen from using or employing the ordinary home remedies and neighborly ministrations, still, when one holds himself out to the public as a healer of disease by the use of means or methods vouched for by him, and for which he receives pay, the legislature may, for the protection of the citizen from quackery or imposture, require such person to possess and show certain qualifications for doing properly what he does and what he receives pay for doing.
It is essential to ascertain whether or not the legislature has made provision for a case of this kind. In 1870 chapter 68 was enacted, the title reading as fol lows: “A bill to protect the people of Kansas from empiricism, and to elevate the standing of the medical profession.” Under this title provision was made with reference only to one “who shall practice or attempt to practice medicine in any of its departments, or perform or attempt to perform any surgical operations.” (§2.) This was before the days of osteopathy, and certainly before chiropractic had become familiar. In 1901 chapter'254 of the laws of that year (Gen. Stat. 1909, §§ 8085-8089, 8091, 8092) was enacted with the following title:
“An act to create a state board of medical registration and examination, and to regulate the practice of medicine, surgery and osteopathy in the state of Kansas, prescribing penalties for the violation thereof, and repealing chapter 68 of the Session Laws of 1870.”
Chapter 63 of the Laws of 1908 is entitled:
“An act amending chapter 254 of the Laws of 1901, the same being an act entitled ‘An act to create a state board of medical registration and examination, and to regulate the practice of medicine, surgery and osteopathy in the state of Kansas, to provide penalties for the violation thereof, and repealing chapter 68 ,of the'Session Laws of 1870,’ and repealing section 6 of chapter 254 of the Laws of 1901.”
This, it will be seen, leaves the title substantially as it was in 1901, so that the legislation now in force is to “regulate the practice of medicine, surgery and osteopathy.” It is earnestly insisted that the act can be no broader than its title, and that chiropractic is not medicine or surgery or osteopathy, and therefore is left untouched by these provisions; that the rule of noscitur a sociis restricts the words found in the act of 1908 to their associates, medicine, surgery and osteopathy, and that this language can by no fair intendment be given sufficient elasticity to reach chiropractic. The language as amended is that anyone shall be “regarded as practicing medicine and surgery within the meaning of this act who shall prescribe, or who shall recommend for a fee, for like use, any drug or medicine, or perform any surgical operation of whatsoever nature for the cure or relief of any wounds, fracture or bodily injury, infirmity or disease of another person, or who shall use the words or letters ‘Dr.,’ ‘Doctor,’ ‘M. D.,’ or any other title, in connection with his name, which in any way represents him as engaged- in the practice of medicine or surgery, or any person attempting to treat the sick or others afflicted with bodily or mental infirmities, or any person representing or advertising himself by any means or through any medium whatsoever, or in any manner whatsoever, so as to indicate he is authorized to or does practice medicine or surgery in this state, or that he is authorized to or does treat the sick or others afflicted with bodily infirmities, but nothing in this act shall be construed as interfering with any religious beliefs in the treatment of diseases; provided, that quarantine regulations relating to contagious diseases are not infringed upon. All persons who practice osteopathy shall be registered and licensed as doctors of osteopathy, as hereinbefore provided, but they shall not administer drugs or medicine of any kind nor perform operations in surgery.” (Laws 1908, ch„ 63, § 1, Gen. Stat. 1909, § 8090.)
The words italicized are the ones inserted by the act of 1908.
Webster’s New International Dictionary defines chiropractic as “a system of healing that treats disease by manipulation of the spinal column.” Counsel for appellee advises us that “the chiropractor claims that all the diseases which are in any way affected by his adjustments are caused by the partial displacement of the vertebrae, thus causing the nerves which pass through the openings in the vertebrae to press against the sides of the openings and prevent the life fluid from flowing freely through the nerve to the part of the human sys tem to which the particular nerve reaches. Diseases not caused by the pressing of the nerves against the sides of these openings the chiropractor does not in any way treat. The chiropractor claims that the only treatment, so-called, which he uses is not a treatment, but merely an adjustment of the vertebrae, which restores the vertebrae and the nerves to their normal position and thus removes the cause of the disease. He does not practice surgery or medicine, and does not use any other manipulations whatever than the adjustment of the vertebrae.” But the language of the 1908 amendment is very broad, and even under the foregoing description of chiropractic it may well be said that one whose vertebrae are partially displaced, causing .impairment of nerve function, is one afflicted with bodily infirmity,- and that one who restores the functional activity of the nerve on which the maladjusted vertebra had formerly pressed is treating or attempting to treat such afflicted person.
It may be argued that, giving the entire language a ■close, critical and discriminating meaning and construction, this 'method of so-called treatment is in no sense the product of medicine or surgery, and would, indeed, come more nearly under the term osteopathy. But the manifest object and intent of the legislature was to protect the public from ignorance and imposition in the healing art. Osteopathy is carved out as a separate department, and registration and license are required, while its practitioners are prohibited from giving medicine and performing surgical operations — that is, from practicing medicine and surgery as distinguished from osteopathy. But medicine and surgery, which the appellee is charged with attempting to- practice, by common use and adjudged meaning, cover a wide portion of the domain of. healing, and may and should be held to cover the case of one who, not claiming to be a physician or surgeon, really practices osteopathy under another guise without possessing the qualifications required of the osteopath. Osteopathy is defined as “a system of treatment based on the theory that diseases are chiefly due to deranged mechanism of the bones, nerves, blood vessels, and other tissues, and can be remedied by manipulations of these parts.” (Webster’s New Inter. Diet.) It has been judicially defined as “a method of treating diseases of the human body without the use of drugs, by means of manipulations applied to various nerve centers— chiefly those along the spine — with a view to inducing free circulation of the blood and lymph, and an equal distribution of the nerve forces. Special attention is given to the readjustment of any bones, muscles, or ligaments not in the normal position.” (6 Words & Ph. Jud. Def. p. 5070.) Medicine is defined as “the science and art dealing with the prevention, cure, or alleviation of disease; in a narrower sense, that part of the science and art of restoring and preserving health which is the province of the physician as distinguished from the surgeon and obstetrician.” (Webster’s New Inter. Diet.) The same authority defines surgery as the “art or practice of healing by manual operation; that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities, or injuries.”
In State v. Miller, (Iowa, 1910) 124 N. W. 167, the supreme court of Iowa sustained a conviction and held an indictment good which charged that the defendant “did wrongfully and unlawfully publicly profess to be a physician, . . . and to cure and heal diseases, nervous disorders, displacements, injuries, and ailments by means of a certain system and treatment known as chiropractic” (p. 167), under a statute which was formerly entitled “An act to regulate the practice of medicine and surgery in the state of Iowa” (p. 168), and which, in the code, was entitled “Of the practice of medicine” (p. 168). The court said:
“He gave no medicine, nor did he prescribe medicine. His system consisted of certain mechanical appliances which were used in connection with hand manipulations and an electric vibrator.” (p. 168.)
But that the case fell squarely within the ruling in State v. Heath, 125 Iowa, 585, which held that the Iowa statute referred to includes magnetic healers, and State v. Edmunds, 127 Iowa, 333, which held that the statute includes one who attempts to cure by prescribing diet and eyeglasses. In The People v. Arendt, 60 Ill. App. 89, midwifery was held to be included within the provisions of an act regulating the practice of “medicine in any of its departments” (p. 91) without possessing certain qualifications. In Benham v. The State, 116 Ind. 112, one who held himself out as a physician and advertised that he treated and cured persons afflicted with the opi¿im habit was held to violate “An act regulating the practice of medicine, surgery and obstetrics,” etc. (p. 113.) In Parks v. State, 159 Ind. 211, substantially the same statute was held to include a “professor” who held himself out as a magnetic healer and who treated a lame ankle by holding and rubbing the afflicted parts. In The People v. Gordon, 194 Ill. 560, a magnetic healer who gave treatment in the nature of osteopathic treatment by “rubbing or kneading the body, for the purpose.of freeing the nerve force” (syl. ¶2), was held to be included in the expression “who shall treat or profess to treat, operate on or prescribe for any physical ailment or any physical injury or deformity of another.” (Syl. ¶ 1.) The practice of obstetrics'was, in State v. Welch, 129 N. C. 579, held to be the practice of medicine, following and approving State v. Van Doran, 109 N. C. 864. Osteopathy was held to be within the practice of medicine in Eastman v. The People, 71 Ill. App. 236. The Missouri court of appeals, in State v. Blumenthal, 141 Mo. App. 502, held that the practice of medicine includes the practice of ophthalmology. The court said:
“That term seems to signify some disease or diseases of the eye and we can see no reason why one who prescribes medicine for such diseases would not be as guilty as by any other name. It is the act committed, and not its designation, which constitutes the offense.” (p.-505.)
In Bragg v. The State, 134 Ala. 165, it was held that osteopathy is within “the practice of medicine in any of its branches or departments” (p. 170), and that the term “practicing medicine” includes not simply those who prescribe drugs or other medicinal substances as remedial agents, but those also “who diagnose disease and prescribe or apply any therapeutic agent for its cure.” (Syl. ¶2.) The supreme court of Nebraska,, in State v. Buswell, 40 Neb. 158, held that an act to establish a state board of health to regulate the practice of medicine, surgery and obstetrics must be construed to include the practice of so-called Christian Science, which appeared to be .both drugless and successful, for one witness testified that after being bitten by a rattlesnake he at once sought the defendant and the pain ceased after his treatment, and that during the second treatment the patient “felt it come right through” (p. 162) him and from that time on he had no more pain. In State v. Bresee, 137 Iowa, 673, one who did not assume to be a physician, but who after-diagnosing a case prescribed and sold a tissue food, was held to be practicing medicine, and in People v. Allcutt, 102 N. Y. Supp. 678, one was- held to be practicing medicine who advertised himself as a doctor-practicing mechano-neural therapy and diagnosed cases, and prescribed diet, conduct and simple remedies. In Witty v. State, (Ind. 1910) 25 L. R. A., n. s., 1297, one who held himself out as a doctor able to cure disease-by suggestive therapeutics and who treated disease by suggestion and laying on of hands was held to be practicing medicine.
The foregoing authorities, among many others, are sufficient, we think, to support the contention of the ■state that the first and sixth counts of the indictment were erroneously quashed. The legislature has, by the ■statutes referred to, treated osteopathy as a separate -department, and covered all the other branches of the healing art by the term medicine and surgery. As .new schools of practice come into favor their followers must possess the requirements for the practice of medicine or surgery, or prevail upon the legislature to make separate provision for them as it has done for ■‘the osteopath.
The ruling of the trial court is reversed. | [
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The opinion- of the court was delivered by
Burch, J.:
The Fredonia Brick Company, the'appellee, manufactures brick from shale taken from the earth by means of a steam shovel. The steam shovel is operated on a track built for the purpose. Beside this track, and elevated somewhat above it, is another track, on which are operated small cars which receive-the shale from the steam shovel. These cars run down into the shale pit by force of gravity, are stopped beside-the steam shovel by an employee who rides them for that purpose, and after they are loaded are drawn up-to the manufactory by a cable. Over the shale bed is a layer of clay and top dirt, in which there is rock. As-the steam shovel moves forward in the work of excavating the shale a rough and ragged wall is- left behind, extending parallel with the tracks and rising to the-height of twenty-four or twenty-five feet above the-steam-shovel track and twenty or twenty-one feet above the car track. The principle governing the operation of the steam shovel causes it somewhat to undermine-the bank.
Loren E. Griffin, a minor, and unmarried, was employed by the appellee to ride cars down into the pit. In the forenoon of November 30, 1907, he was killed by a mass of clay and rock which fell from the bank just-as the car in which he was riding approached the steam-shovel. His parents, the appellants, sued for damages. A demurrer was sustained to their evidence, on the-ground that no negligence was shown, and they appeal.
The -law applicable to the case is clear. It was the-duty of the appellee to use reasonable care to put the-bank in a condition and keep it in a condition which. would render the operation of cars on the car track reasonably safe from all caving naturally to be anticipated in consequence of the steam shovel’s work; and this duty required that the bank be inspected with the •care and frequency which reasonable prudence demanded, under all the conditions presented.
The appellee quotes from the opinion in Brick Co. v. Shanks, 69 Kan. 306, as follows:
“The risk of danger from the spontaneous caving of banks, from the falling of blocks of shale loosened by natural agencies, and from other similar causes, was doubtless assumed. Such perils inhered in the work and could be foreseen by the men as well as by the master.” (p. 309.)
The contingencies there referred to are those which arise after the master has used due diligence to make the place where work is performed reasonably safe. Such diligence extends to guarding against all perils within the range of reasonable foresight. After that ■diligence has been exercised the workmen assume the hazards inhering in and naturally incident to the employment. They have the same foresight respecting .such matters that the master possesses, and are just .as able as he to protect against them.
Such being the law, the question is whether there was evidence sufficient to go to the jury that the master failed in the performance of its duty.
Thomas Shay was charged with the duty of looking after the bank. After noon of the day preceding the casualty he went to the top and pushed down, as he thought, whatever loose stuff he could that seemed, likely to fall. His tools were a pinch bar and a big gas pipe, sharpened. He worked until he got tired, then went back into the pit, and did not return to the top of the bank. While engaged in this work he saw a boulder, or lump, sticking out from the wall at a place some three or four feet below the top, which he could not get down with the tools he was using. He says he thought the wall was safe, and he worked under the projection after he returned to the pit. But, while he-made no further inspection of the wall, he-says he “watched it close.” It was this projection which fell.. It contained a rock weighing probably one hundred pounds, which struck the car boy on the head. Shay says the projection must have broken at the top first,, because it did not simply slip down, but it pitched out. from the wall and over the car the boy was riding.. The bank was likely to crack open at the top and pitch forward, and inspections once a day, anyhow, and sometimes oftener, were made to discover these indications-of -danger. Cracks were usually visible for some time before the loosened portions of the bank would fall,, and the only place to make a proper examination for them was at the top of the bank.. Watching from below was not sufficient. The caving did not in this instance extend from the very top, but the lump stuck out in a way. to cause it to act the same as the top of the bank. Shay had worked at the pit some three or four years and was fully aware that the bank would crack open and pitch forward. It would do this as far back as thirty feet behind the steam shovel.
From this evidence the jury might well have concluded that the lump, or boulder, was a menace from the time the steam shovel left it projecting from the wall; that Shay was cognizant of the danger, made an insufficient attempt to remove it, and continued in a state of apprehénsion concerning it; that he did not display reasonable prudence in merely watching from the bottom of the pit and taking chances, as he did; that he ought to have made a further attempt, with appropriate tools, to throw the projection down; and that in any event he ought to have gone to the top the next morning to see if cracks, the usual premonition of caving, had appeared. It is true that there was much in other portions of the evidence to indicate that Shay was not at fault, but the court is not permitted on a demurrer to the evidence 'to weigh fact against fact and inference against inference. That is the province of the jury.
The judgment of the district court is reversed, and the cause is remanded for a new trial. | [
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The opinion of the court was delivered by
Burch, J.:
In an action brought by the state for that purpose John D. Myers was appointed receiver to close up the affairs of the State Bank of Circleville. The National Bank of Commerce of Kansas City, Missouri, held certain assets of the defunct bank as collateral security. These assets, consisting of promissory notes, were turned over to Myers personally by the National Bank of Commerce, to be collected by him as its agent. Out of collections which he made he paid a note of $1600, for which the collateral paper had been held. Thereafter Myers considered that the remainder of the notes belonged to him as receiver. In that capacity he collected those which were collectable, disposed of the remainder, paid out the proceeds upon the debts of the bank, and returned an account accord ingly, which was approved. The National Bank of Commerce, however, claimed a further lien upon the residue of the notes, for certain advancements it had made to the Cireleville bank, and demanded a return of them from its agent. The demand was refused, Myers was sued personally by the National Bank of Commerce, in Missouri, and judgment was rendered against him for conversion. At the time the suit was instituted in Missouri all the creditors of the Circle-ville bank had been paid, and its stockholders were the parties interested in the result. Myers consulted them freely, employed counsel to assist him, and defended the suit on the ground, among others, that the notes in question were the property of the receiver of the Cireleville bank. The judgment against him was rendered in October, 1908, and was for a sum considerably less than that which the National Bank of Commérce claimed. In January, 1909, the receiver reported his conduct to the court and asked an allowance for the .judgment in favor of the National Bank of Commerce, and interest, and for costs, expenses and attorney fees incurred in. defending the action. The stockholders objected to the report and demanded that Myers in his personal capacity bring an independent action against the receiver to establish the claim. This being refused, the stockholders denied' in various ways the propriety of the different items of the receiver’s report, invoked the three-year statute of limitations against them, and demanded a jury trial. A jury was refused, the court heard the evidence, approved the report, made the allowances asked for, and entered an order that they be paid out of the assets in the receiver’s hands. The stockholders appeal.
By the order appointing the receiver the court took complete control over the whole subject of winding up the bank’s affairs. The receiver became the arm of the court for the accomplishment of its purpose. He was independent of parties, creditors and all others con cerned, but was a conservator of the true interests of each one, and the funds and property in his care were in custodia legis. His appointment determined no conflicting rights, fixed no liabilities and had no tendency to enlarge or diminish the claims, whether legal or equitable, of anybody. (Howell v. Hough, 46 Kan. 152; Railway Co. v. Love, 61 Kan. 433; Cramer v. Iler, 63 Kan. 579.) He took the assets of the bank subject to all liens and equities existing against them at the time he was appointed. (Reeves v. Pierce, 64 Kan. 502.) But by virtue of the appointment the court secured to itself jurisdiction to adjust all rights, interests, claims or demands, legal or equitable, relating to the estate or growing out of its administration, and to control at its discretion all controversies affecting the subject matter of the receivership. (Savings Bank v. Simpson, 22 Kan. 414; St. Jos. & D. C. Rld. Co. v. Smith, Treasurer, 19 Kan. 225.)
These elementary principles governing the procedure in receivership cases meet all the assignments of error. The collateral notes, whether in the possession of the National Bank of Commerce, of Myers personally, or of Myers as receiver, were burdened with a lien to the extent of all sums for which the National Bank of Commerce had the right to hold them. The court at all times possessed plenary power to determine the true interest of the receiver in the paper and the funds which it produced, and to adjust the rights of the parties accordingly. That was one of the things which the receivership was instituted to accomplish. The court and the cause were open for that very purpose. If for any reason an independent action will afford a better means of settling claims against the assets under the control of the court it has a discretion to remit the interested parties to that form of remedy, but it is not obliged to do so.
“There is nothing in the procedure, with reference to special proceedings involving the liquidation of insolvent banking corporations, which limits or constrains the exercise of the ample legal and equitable powers of the superior court, so that one making such a claim, as the petitioner does here, against the receiver, as to the assets of the corporation, can not have his claim as fully and fairly determined by intervention therein as by bringing an independent action. For the purposes of present consideration it must be assumed that the money to which the petitioner asserts his right came into the possession of the receiver and is held by him under claim that it is a part of the assets of the insolvent corporation. While the court in the special proceeding for liquidation takes charge of the assets of an insolvent bank and holds them through its officer, the receiver,-it only does so to conserve the interests of those who are properly entitled to share in them. It assumes the administration of the entire estate; controls the conduct of the receiver, who is its officer, and whose possession of the assets is the possession of the court; it holds the property and administers the insolvent estate through the receiver in the interest and for the benefit of those who it may ultimately determine are entitled to it. The receiver is under the control of the court, as is the property of which he is the custodian, and while the court will not permit any interference with such property without its leave, neither will it withhold such property from one who shows he is entitled to it. But whether the court will' permit, upon application, an independent suit to be brought relative to the property in the hands of the receiver, or will compel intervention in the proceedings in which the receiver is appointed, is a matter for its discretion.” (De Forrest v. Coffey, 154 Cal. 444, 449, and authorities cited on the succeeding pages.)
If the National Bank of Commerce had chosen to proceed against the receiver, the court would have had the right to compel it to intervene. Much less reason existed for compelling the parties now contending to go through all the forms of an independent action to settle their differences.
When the court assumed full charge of- all the affairs of the Circleville bank and undertook to wind them up for the benefit of creditors, stockholders and all others concerned, the right to secure the payment of claims by the usual processes of the law was suspended. The receivership suit itself was one pending for the benefit of everybody interested. The statute of limitations against ordinary actions has no application, and lapse of time before proceeding against funds in the receiver’s hands is important only as it tends to show laches or unreasonable delay. (Kirkpatrick v. McElroy, 41 N. J. Eq. 539, 555, and authorities there cited.)
The same fundamental considerations dispose of the demand for a jury trial. In order to accomplish full justice to all persons concerned the court may take cognizance of all classes of claims to the funds of the estate in its custody, ’ determine their validity and extent, and make orders respecting the time and manner of their payment. (Shedd v. Seefeld, 230 Ill. 118, 127.) The power to do this is one of the incidents attaching to the equitable administration of the estate of an insolvent concern in a court of chancery. As already shown, it extends to forbidding altogether actions against the receiver. In the exercise of such power the court may, if it see fit, award a trial by jury of all matters of fact or damages, or it may refer those matters to a master or commissioner, or it may determine them for itself. But an application for a trial by jury is addressed entirely to the discretion of the courts (High, Receiv., 4th ed., § 2546.)
In this case Myers had no cause of action for the recovery of money in the sense of the statute providing-for a jury trial, and it would have been impossible to-cast the application for allowances into any form' which would make that statute pertinent. The subject, was one peculiarly of equitable cognizance, and the court was entirely within its right when it determined' the controversy itself.
The judgment rendered by the Missouri court in favor of the National Bank of Commerce was not res judicata, because the receiver was not a party to the suit in his official capacity, but the record in that suit supplied important evidence bearing upon the question whether the allowances asked for should be made.
The Missouri suit was in fact defended for the benefit of the estate in process of administration through the receivership, and the estate was in fact benefited by the defense made. The receiver’s conduct was irregular in that he did not first obtain authority from the court itself to defend. Even though he consulted the stockholders he took the chance of securing reimbursement for costs, expenses and attorney fees when he acted without a previous order. The court, however, still had the power to pass upon the propriety of his conduct and to make such allowances as justice required.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
West, J.:
In August, 1907, the parties entered into the following agreement:
“Holton, Kan.
“I hereby confirm sale to S. J. Thompson of 10,000 bushels (ten thousand bushels), No. 3 or better corn with the privilege of delivering 14,000 bushels (fourteen thousand bushels), optional with me.
“The price to be paid 36% cents per bushel (thirty-six and one-half cents per bushel).
“The corn to be delivered on or before December 31, 1907, at S. J. Thompson’s elevator at Mayetta.
C. J. Seek,
S. J. Thompson.”
On March 3, 1908, Thompson sued Seek for damages for failure to deliver the corn. Seek answered that he began delivering the corn but that Thompson refused to pay therefor according to contract.
The jury found that Seek took two loads of corn to Mayetta and there offered to deliver them to Thompson ; that Seek stated then that he would require payment in cash; that in response Thompson proposed to give a check, which Seek refused; that no cash was tendered and Seek refused to deliver the two loads of corn for that reason; that he thereupon notified Thompson in substance that the contract was rescinded; that no cash was at any time tendered; and that Thompson was unable to pay cash in November and December, 1907, and subsequently for the 10,000 bushels of corn mentioned in the contract.
A verdict was returned for Seek. On September 19, 1908, a motion for a new trial was filed setting up various grounds, but not newly discovered evidence; September 24, 1908, a motion for a new trial •on the ground of newly discovered evidence was filed, and on January 6, 1909, the “motion for new trial” came on to be heard. “The plaintiff offers evidence in support of said motion and rests. Defendant also rests.” The motion was allowed and this is alleged as error.
Counsel for Thompson insists that the record does not show that the motion was allowed on the sole ground of newly discovered evidence, and he sets out in his counter abstract a journal entry worded as above quoted, and showing that he took ninety days to make and serve a case. Counsel for Seek refer us to a journal entry or statement said to be found in the case-made, showing in express terms that the motion was sustained “solely upon the ground of newly discovered evidence-set forth in said affidavits of Robert L. Miller and Si J. Thompson.” As the only excuse for offering evidence would be for the purpose of supporting the later motion, and as the language of the supposed journal entry found in Thompson’s counter abstract indicates a ruling on the one motion only, we shall assume that the new trial was granted only on the ground laid in the later motion.
The findings and verdict were supported by the evidence, which, in brief, showed that Seek offered to deliver the two loads of corn which he appears to have purchased of his father, and on learning from Thompson that payment would be made by check only advised him that it took cash to get the corn and that he (Thompson) might consider the deal off. This was during the financial stringency when all the banks were paying out but little cash, and this doubtless accounts for Thompson’s desire to pay by check.
The evidence in support of the motion for a new trial was to the effect that one Robert L. Miller would testify that on or about September 12, 1907, Seek sold him about two hundred acres of corn in the field, and that afterward Miller learned of the contract with Thompson and asked Seek about it, and Seek replied that “he would fix that all right with him,” and that the sale to Miller was made long prior to the time the corn was ready to be gathered, and while standing in the field. It would seem from this that Seek sold certain corn to Miller in September, after selling the same or other ■corn to Thompson in August. The record does not show whether it was the same corn, but it appears that Seek “bought the two loads in question of his father. He testified that he told Thompson he “had to have the money to get more corn. ... I bought corn and ■corn was ready to be taken in and I expected the money for it.” His father testified, “Chauncey had bought it from me and paid [for] part of it.” The contract does not specify any particular corn, and it is not clear what ■effect the sale to another of a certain field of standing ■corn could have on Seek’s rights or liabilities.
It is argued that Miller’s evidence would be material as touching the disputed question whether or not Seek really delivered or intended to deliver the corn to Thompson. But it is manifest that Thompson was not prepared to pay cash, even if the corn were delivered, and we can not assume that payment other than cash was contemplated by the parties when they entered into the contract. No one claims that any different medium of payment was contemplated by either party, and no argument is advanced that one entitled to cash can be compelled to accept checks, and this at a time when banks will not honor good checks by paying cash. While it is true, as counsel for Thompson argues, that new trials are favored, and orders therefor are not generally set aside unless in respect to an unmixed question of law, still it will not do to prolong litigation on a mere showing of evidence cumulative to one point in issue, when its full effect if received would still leave the moving party without right to recover. (Building Assn. v. McMullen, 59 Kan. 498.)
'“If it clearly appeared that the ruling rested upon, or rather raised, a pure, unmixed question of law, and that it was erroneously made, we would be warranted in reversing the order.” (Ireton v. Ireton, 62 Kan. 358, 360.)
(See, also, Lindh v. Crowley, 29 Kan. 756; A. T. & S. F. Rld. Co. v. Brown, 51 Kan. 6; Sovereign Camp v. Thiebaud, 65 Kan. 332; and Sutter v. Harvester Co., 81 Kan. 452.)
Finding, therefore, no sufficient ground for granting a new trial, the judgment is reversed. | [
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The opinion of the court was delivered by
Mason, J.:
William B. Sutton brought action in Wyandotte county, Kansas, against Martin Heinzle, a resident of Kansas City, Mo., for an attorney’s fee,' •serving garnishment summons upon the Metropolitan Street Railway' Company, a Missouri corporation engaged in business in this state and amenable to process here. The garnishee answered stating in effect that Heinzle had obtained a judgment against it in Missouri for $10,000, on account of a claim for personal injury; that all but $1200 of the judgment had been paid; and that Richard J. Smith and others claimed an interest in or lien upon this balance. The plaintiff elected to take issue with the answer of the garnishee, and caused Smith and the other claimants to be made parties. Smith appeared specially and contested the jurisdiction of the court, and later the plaintiff’s claim on the merits. The other defendants defaulted. The court upon oral evidence, which is not preserved in the record, found that the defendant owed the plaintiff, that the garnishee owed the defendant, and that the interpleaded defendants, including Smith, had no interest in the fund. Judgment was rendered ordering the garnishee to pay the plaintiff’s demand. Smith appeals. He did not appear at the trial. He contends that this was due to a misunderstanding on his part and that he should on that account have been granted a new trial. This matter, however, seems to be one in which the decision of the trial court must be final. In view.of this situation the only questions on which the appellant can be heard are those arising on the pleadings, the principal one of which is whether, in view of the residence of the parties and character of the debt garnished, the court acquired jurisdiction of the fund. In a note in 69 Am. St. Rep. 112 it is said:
“We believe it to be a rule of law, sound in principle, and amply supported by the appended authorities, that corporations are properly subject to garnishment only in the states either-of their domiciles or of the residence of their creditors, and that a corporation, by going into another state, qualifying under its laws, transacting business there, and establishing an agent upon whom process may be served in suits against the corporation, does not thereby transfer to such other state the situs of debts which it owes to nonresidents thereof, nor subject such debts to seizure in such state under process of garnishment.” (p. 122.)
The contrary is held in the well-considered case of Baltimore & Ohio Railroad Co. v. Allen, 58 W. Va. 388, which fully reviews the authorities, and which is annotated in 3 L. R. A., n. s., 608, and 112 Am. St. Rep. 975, 995. The question can not be regarded as an open one in this state, having been decided in B. & M. R. Rld. Co. v. Thompson, 31 Kan. 180, a paragraph of the syllabus reading:
“A foreign corporation coming into this state, and leasing property and doing business here, may be garnished for a debt due to one of its employees, although such employee is not a resident of this state, and although the- debt was contracted outside of the state.” (Syl. ¶ 3.)
In the opinion it was said:
“A mere debt is transitory, and may be enforced wherever the debtor or his property can be found, and if the creditor can enforce the collection of his debt in the courts of this state, a creditor of such creditor should have, equal facilities.” (p. 196.)
As the court obtained jurisdiction of the indebtedness by the service of the summons in garnishment, it could determine upon substituted service whether a nonresident claimant had any interest in the fund. (Civ. Code, § 241; 20 Cyc. 1132.)
If the indebtedness garnished had actually been in the form of a judgment, by the weight of authority it would not have been subject to garnishment in the courts of another state. (20 Cyc. 1010; 14 A. & E. Encycl. of L. 777; Wabash Railroad Co. v. Tourville, 179 U. S. 322.) But the plaintiff claimed, and the court must be deemed to have found upon sufficient evidence, that after Heinzle’s claim against the railway company had been reduced to judgment a part of the amount was paid and the balance satisfied, the creditor thereafter looking to the company to pay the difference, thus converting it into an ordinary contract debt.
The appellant seeks to question the sufficiency of the plaintiff’s petition and the regularity of the garnish ment proceedings. Ordinarily these ■ are not matters upon which an interpleaded claimant of a garnished fund can be heard. (20 Cyc. 1135; 14 A. & E. Encycl. of L. 910.) This general rule may be changed by our statute, which provides that the garnishee may defend the principal action, and that a claimant of the fund upon being made a party may in his answer set forth any defense which the garnishee might have made. (Civ. Code, §§ 238, 241.) We find no substantial defect in the garnishment proceedings. The appellant filed a motion to make the plaintiff’s petition more definite and certain, a demurrer, and an answer. The motion merely appealed to the discretion of the court. The only serious question raised by the demurrer grows out of the fact that the plaintiff’s action was for services rendered as an attorney in prosecuting the claim of a minor for compensation for personal injuries — the claim upon which the judgment was rendered against the railway company. Martin Heinzle acted as the next friend of the minor, and the minor was joined with him as a defendant in this action. The appellant’s contention is that the plaintiff’s contract with the minor, or with the next friend for the minor, was void. Whether or not an express contract as to the attorney’s compensation was enforceable according to its terms, the services having been rendered and having been beneficial to the minor, a liability exists to pay for them on the ground that they are classed as “necessaries.” (3 A. & E. Encycl. of L. 416, 417; 5 A. & E. Ann. Cas. 131, note; 96 Am. St. Rep. 731, note.) As already stated, the questions arising upon the trial of the issues raised by the answer are not so presented as to be reviewable.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.;
The plaintiff secured an injunction restraining the collection of a special assessment levied to defray the cost of building a sidewalk in front of his lots in the -city of Eureka. The defendant appeals. The principal question is whether municipal power was wrongfully delegated to the street' commissioner who caused the walk to be built. That the city had power to build the walk is not disputed.
Ordinance No. 337 required the plaintiff to construct a sidewalk in front of his lots out of stone, brick or cement, not less than four feet in width. A general ordinance of the city relating to the building of sidewalks specifies the necessary length and thickness of stone when that material is used, the character of base when brick or artificial stone is used, and other details to be observed. Ordinance No. 337 further stated that if the plaintiff should neglect or refuse to build the walk within fifteen days from the passage of the ordinance the street commissioner was ordered and directed to have the walk constructed according to the ordinances of the city and report the cost to the city clerk, to be by him certified to the county clerk for extension on the tax rolls. A general ordinance of the city, authorizing the street commissioner to build or cause to be built sidewalks which property owners fail to construct, provides for an estimate by the city engineer. In other respects the general provisions of this ordinance were superseded in respect to the particular walk in question by the special provisions of ordinance No. 337. The plaintiff neglected to build his walk. The city engineer made amestimate of the cost and gave the street commissioner the grade of the street. The street commissioner let a contract for the construction of a concrete walk at a cost within the estimate, the walk was built, the cost was duly reported, a city warrant was issued to pay it and the amount was certified by the city clerk to the county clerk, who extended it upon the tax rolls.
It is the law that the mayor and council may not delegate to others the judgment and discretion which is committed to them to be exercised for the public welfare. They may, however, delegate the execution of ministerial details. The judgment and discretion which can not be surrendered were exercised through the ordinances recited. The production of a sidewalk according to the specifications of those ordinances was a ministerial act, which could be delegated to the street commissioner.
In the case of Barfield, &c., v. Gleason, &c., 111 Ky. 491, paragraph 8 of the headnote, which accurately summarizes the ruling of the court, reads as follows:
“A statute providing for the construction of streets at the cost of abutting property owners is not unconstitutional because it does not require the contract for such construction to be approved by the city council, as that is a ministerial act, and may be intrusted to an executive board.”
In the case of Harrisonburg v. Roller, 97 Va. 582, it was held that it is not an- undue delegation of power for a municipal corporation to confide to the street committee the execution of work where the work has been ordered and the manner of its execution has been prescribed by the council. In the opinion is was said:
“It was argued in support of the injunction and decree that the council had delegated to the discretion of its street committee the work of raising the sidewalk in front of the residence of the appellee, which discretionary power was vested in the council alone, and was incapable of being delegated by it. The evidence in the cause refutes the contention. The evidence shows that the work of raising the pavement on the west side of South Main street had been completed from Masonic corner to Cochran’s shop, which brought it to the line of appellee’s lot. At this stage, as appears from the minutes of the council, upon a report made to it by the street committee, it ordered that 'the sidewalk on the west side of Main street, from shop occupied by James Cochran to Bruce street, be raised to the proper level as soon as practicable — estimated cost, $60.’ The effect of this order was to direct that the sidewalk in front of the residence of the appellee be raised, and by 'proper level’ was plainly meant that it be raised to correspond with the level of the work that had been completed from Masonic corner to Cochran’s shop. The council ordered the work to be done, prescribed how it should be done, and left its execution to the street committee. This was no undue delegation of power.” (p. 585.)
In the case of Hitchcock v. Galveston, 96 U. S. 341, it was decided that where a city council is vested with power to cause sidewalks to be constructed it may authorize the mayor and the chairman of the committee on streets and alleys to make, in its behalf, and according to its directions, a contract for doing the work. In the opinion it was said:
“If the city council had lawful authority to construct the sidewalks, involved in it was the right to direct the mayor and the chairman of the committee on streets and alleys to make a contract on behalf of the city for doing the work. We spend no time in vindicating this proposition. It is true the council could not delegate all the power conferred upon it by the legislature, but, like every other corporation, it could do its ministerial work by agents. Nothing more was done in this case. The council directed the pavements, ordering them to be. constructed of one or the other of several materials, but giving to the owners of abutting lots the privilege of selecting which, and reserving to the chairman of their committee authority to select, in case the lot owners failed. The council also directed how the preparatory work should be done. There was, therefore, no unlawful delegation of power.” (p. 348.)
It is argued that the mayor and council, in designating several kinds, did not exercise their judgment respecting the material to be used in constructing the .sidewalk, and that the choice left to the plaintiff and in fact exercised by the street commissioner constituted a delegation of power. In such cases it is held that the mayor and council designate all the kinds of material specified, in effect declare that there is no choice between them, and authorize the use of any of them. (Richardson v. City of Omaha, 74 Neb. 297; Gallaher v. Smith, 55 Mo. App. 116; Baltimore City v. Stewart, 92 Md. 535.)
It is said that the special assessment was levied against the plaintiff’s property by the street commissioner and city clerk. The ordinance providing for the construction of the improvement, the report of its cost and its certification to the county clerk constituted the legislative act of levying the assessment. The report cf the proper amount to the city clerk and its certification to the county clerk were mere ministerial matters.
The statement in the record of the council proceedings that ordinance No. 337 “was taken up for consideration and was read section by section” shows with ■sufficient certainty that the ordinance was properly considered. The fact that the city engineer’s estimate was not properly itemized is a mere irregularity which does not expose the proceedings to collateral attack as being void. This case is a companion of Manning v. Cable, 83 Kan. 787, and as there held the penalty added by the city clerk was unauthorized and might have been avoided if the amount of the tax justly due had been paid.
The judgment of the district court is reversed and the injunction granted is vacated, at the cost of the plaintiff. | [
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The opinion of the court was delivered by
Mason, J.:
By ordinance passed January 28, 1907,. the Missouri & Kansas Interurban Railway Company was granted a franchise to occupy certain portions of the streets of the city of Olathe, in consideration of which it agreed to pay $9000. In October, 1908, the city brought action for that sum. It recovered a judgment, from which the company appeals. The question presented is whether the payment had become due.
The ordinance contained these provisions, among others:
“The location of the tracks, turnouts, Ys, passing tracks and power house and all poles and wires shall be subject to the approval of the city council. . . . All the work and improvements of the said railway company of said city shall be constructed under the supervision of the mayor and the city council. . . . Before doing any work of construction in said city of Olathe the grantee shall file with the city clerk plans and specifications of said work to be approved by the city council.”
On February 4, 1907, the company filed specifications of the work to be done under the franchise, making-reference to an accompanying plat which showed a “turnout” or passing track not otherwise referred to. These specifications were approved by the city council on the same date. With the exception of this turnout, the work was completed according to the specifications sometime in August, 1907, and since that time the road has been in actual operation over the full length of the line. On August 28, 1907, the city began an action against the company to enjoin the construction of the turnout in question, and procured a temporary injunctiofi, which is still in force, no final judgment having yet been rendered. On March 21, 1910, the city council adopted a resolution undertaking to set aside the approval of the specifications so far as they related to the turnout.
In brief the question involved is whether the work to be done by the company under the franchise can be regarded as having been completed in such sense as to make the payment of the $9000 due, in view of the fact that the city has prevented the construction of the turnout. The company maintains that upon the acceptance of its specifications it acquired a contract right to build the turnout, which can not be affected by any subsequent action of the city. The city contends that it can not by contract devest itself of the power to control the use of the streets for the benefit of the public, and that the turnout, if constructed at the point designated, would unreasonably interfere with the use of the street as a highway. These matters need not be determined in this case. They are proper subjects for consideration in the injunction suit. In whatever way they may be determined, we think the judgment here appealed from must be affirmed, upon the ground that the work of the company authorized by the franchise has long since been substantially completed. The location of the turnout is a mere detail. The right of the company to construct it at the place selected can be determined in the injunction action. A final judgment for the city in that proceeding will demonstrate that the stopping of work on the turnout was rightful and therefore could not be a just ground for the company’s refusing to make the promised payment. If, on the other hand, it develops that the injunction was wrongfully issued, the company’s remedy for any consequent injury lies in seeking damages therefor, not in delaying payment of the amount agreed upon as the consideration for the granting of the franchise.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The appellants, Martha Overly and Sarah E. Overly, asked the trial court to adjudge them to be the equitable owners of the estate left by Martha. B. Smith at her death, and to put them into possession of it.
It appears that William B. Smith and his wife, Martha B. Smith, resided in Illinois, and that he died testate in 1885, leaving all his property to his wife. She sold her property in Illinois and moved to Kansas, where she remained until her death, in 1909. By good business management she had increased the value of her estate, making it double what it was when her husband died. After she died a search for a will was made; but none was found, and upon application an administrator of her estate was appointed and proceedings for the distribution of the estate as the law provides was begun. Subsequently a carpet was taken up in the house she occupied, and it is claimed that among old newspapers, which had been placed under the carpet, the following paper was found:
“Mrs. Buck.
“Mrs. Buck and I went to Virginia and I see our property is all given to me — and at my death I want my brother david angel to have two thousand dollars and my sister mary Wenger to have two thousand dollars and one hundred dollars for any of the relation that claims it and all the rest of my property and money I want Mattie Overly and Lizzie Overly to have at my death equally. Mr. and Mrs. Driver and Mrs. Buck know that I want it to go that way.
her
Martha B. x Smith.”
mark
The appellants were the daughters of a brother of Martha B. Smith, who had died when the children were young. William B. Smith and his wife gave them a home for a time and sent them to school. Afterward they married and established homes of their own, and so far as appears they sustained friendly relations with their aunt, Mrs. Smith. The appellants alleged and undertook to prove that William B. Smith entered into an agreement with his wife that he would execute a will giving all his property to her, on condition that she should devise and bequeath all the property to appellants, except such provisions as she should see fit to make for their mother and her brother. It was also alleged that William B. Smith carried out his part of -the agreement, and that Martha B. Smith was endeavoring to comply with the agreement when she signed the paper above quoted and supposed it to be a good will.
There was considerable testimony offered in regard to whether there was such an agreement between the Smiths as to the disposition of their property, whether there had been part performance of it, and finally whether the Smiths intended by their agreement and acts ultimately to vest the property in appellants. It is true, as appellants contend, that it was competent for the Smiths to make a binding contract for the disposition of their property and to fasten a trust upon it in favor of appellants. In Anderson v. Anderson, 75 Kan. 117, it was said:
“When a definite contract to leave property by will has been clearly and certainly established, and there has been performance on the part of the promisee, equity will grant relief, provided the case is free from objection on account of inadequacy of consideration and there are no circumstances or conditions which render the claim inequitable.” (p. 128.)
The trial court, which heard the evidence and had a decided advantage over this court in measuring its force, has in effect found that no such agreement was made or trust created. There was some testimony that William B. Smith was attached to appellants and had expressed a desire that the property should ultimately be given to them. It was testified that in the last sickness of Smith he told a witness that he had willed all his property to his wife and that he wanted a part of it to go to appellants, and that he said to his wife, “If I don’t live to get it done you’ll do as I want you?” and she said, “Yes, dear, I will.” The same witness testified at another time and gave a' different version, saying in substance that Mr. Smith stated that he had willed everything to his wife to do as she pleased with it, but that if anything was left he wanted it to go to appellants ; that he desired to make a codicil to his will, and if he did not get it done he wanted his wife to remember his wish, and that she said she would remember; that he had sent for a certain man to prepare a codicil, but that he was not found until after Smith became unconscious, and the will was therefore not changed. There were inconsistencies and contradictions in the testimony of this witness, as well as that of his wife, due in part to-the fact that they were old and were attempting to repeat statements made twenty-five years before their testimony was given. There was an attempt to show that Mrs. Smith recognized an agreement to give the property to appellants, and witnesses did testify that she had said that provision had been or would be made by which appellants would get a part of her property, but it was of a vague and uncertain character. The paper which it was said was found in the trash under a tacked-down carpet lacked the essential features of a will, and, besides, there was no satisfactory evidence that it was signed by Mrs. Smith or even that she had ever seen it.. The contention is, not that this paper is a will, but rather that it is some evidence of an agreement with her husband to give the property to appellants and of an intention to carry out that agreement. The character of the paper and the circumstances under which it was found leave its origin, genuineness and purpose in great doubt, and it adds little, if anything, to the proof of the alleged agreement between the Smiths, the existence of which must be clearly and certainly established before it can be said that Mrs. Smith took and held the property impressed with a trust in favor of appellants. The will of William B. Smith gave the property absolutely to his wife, and while witnesses said that he desired to change the will and desired to add a codicil, no change or addition was in fact made. The statement of the Smiths offered as proof of an agreement that the property should go to appellants was not made in connection with the execution of the will, but some time after it had been executed. It therefore could not have had any influence on the making of the will. The attempt to have a codicil added to the will, if made, would tend to show that no agreement had been made as to the disposition of his property, or at least was not relied on, by Mr. Smith. There is nothing to show that Mrs. Smith did anything to induce her husband to make the will, nor to prevent him from changing the will which had béen executed. It does not appear that any promise was made by her that if the property was left to her she-would carry out any wish or direction of his. No proof is offered of anything approaching fraud on the part of Mrs. Smith in the making of the will.
The ordinary rule is that, where an estate is absolutely devised, any repugnant conditions in the will must yield (McNutt v. McComb, 61 Kan. 25), but in the will of Smith there were no restrictions and no requests, precatory or otherwise. The conversation said to have occurred shortly before his death is hardly such as would create a trust or operate to cut down an unequivocal disposition of property. Whether considered with or apart from the will, the words used ap•pear to be advisory in their nature and not such as evidenced a purpose to engraft any conditions upon the will, and they certainly lack the elements necessary to the creation of a trust.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
In 1904 Stinson Smith, thirteen years of age, was employed in the factory of the Marion Fruit Jar and Bottle Company. His hand was lacerated by a power fan, and his death resulted. His father recovered a judgment against the company, from which it appeals.
The child labor statute (Laws 1905, ch. 278; amended by Laws 1909, ch. 65, Gen. Stat. 1909, §§ 5094-5098) is not involved, as it was not enacted until 1905. The factory act (Laws 1903, ch. 356, Gen. Stat. 1909, §§ 4676-4683) does not apply, because the deceased was not injured while engaged in the duties of his employment. (Brick Co. v. Fisher, 79 Kan. 576.) The case was tried and determined upon the theory that the defendant was liable under the principle of the “turntable cases,” its negligence consisting in maintaining in an open and exposed position a dangerous piece of machinery which was likely to attract children.
The evidence, as interpreted by the verdict and findings of the jury, must be deemed to have established these facts: The fan was used for forcing air into the factory. It was located under a shed, in an open space between two of the buildings, to which there was free access through one of them and also from the outside. It was five or six feet in diameter, and was set upon a cement base so that the highest part was about four or five feet above the ground. It was covered with a sheet-iron hood, in the center of which there was an opening about eighteen inches across. It revolved so rapidly that its blades were invisible. It made a buzzing noise, and created a strong suction. The place was considerably frequented by children, some of whom were employed at the factory, and some of whom attended a school near by.' They would sometimes stand and listen to the noise made by thé fan. They were not forbidden to play there, and were not warned of any danger. There was no rail or barrier about the fan at the time of the injury, but a fence was built around it shortly afterward. Stinson Smith voluntarily placed his hand in the fan. He said, immediately after being hurt, that he had been seeing.where the wind came from.
Under these circumstances the jury were obviously justified in finding that the defendant could have reasonably anticipated such an accident, and was negligent in failing to take reasonable precautions against it. The Kansas cases on the subject are collected in Kansas City v. Siese, 71 Kan. 283, and Price v. Water Co., 58 Kan. 551. In this view of the matter it is immaterial whether the injury occurred in the course of the duties of the deceased under his employment, inasmuch as if he had not been an employee at all the defendant’s liability would have been the same, the protection of the “turntable” doctrine being extended even to trespassers.
The defendant maintains that the plaintiff was guilty of contributory negligence in that he consented to his son’s employment in the factory, thereby violating the statute (Laws 1908, • ch. 423, § 1, Gen. Stat. 1909, § 7736) requiring parents of children between eight and fifteen years of age to send them to school. The relation is too remote. The fact that the deceased/,, was not at school was not.the proximate cause of his injury; it at most merely produced a condition that made the accident possible. (29 Cyc. 529; 7 A. & E. Encycl. of L. 382.) The defendant’s argument is substantially the same as that upon which a few courts have held that a passenger traveling upon Sunday in violation of the law can not recover for an injury resulting from the negligence of the carrier. That argument has already been repudiated in this state (Kansas City v. Orr, 62 Kan. 61, 66), as well as in most others where it has been considered (27 A. & E. Encycl. of L. 411; 2 L. R. A. 521, note).
The plaintiff’s consent to his son’s employment did not involve the assumption of any risk resulting from the company’s negligence. (29 Cyc, 1640.)
The defendant complains that, notwithstanding two uncontradicted witnesses testified that Stinson Smith had been warned to keep away from the fan, a special finding was made to the contrary. The question of the credibility of the testimony, however, was for the jury and the trial court.
The judgment is affirmed. | [
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Per Curiam:
In a petition for a rehearing it is insisted that the statement in the opinion (Worth v. Butler, 83 Kan. 513) “that George E. Butler testified that he found the deeds in a box in his mother’s room after her death” (p. 518), is based upon a misapprehension of testimony of that witness, quoted in the opinion (p. 516). It is said that the question “After your mother’s death, did you find these papers among her effects?” related to other papers and not the deeds in question, and a certificate of the trial judge has been presented to that effect. Conceding the misapprehension as claimed, the facts upon which delivery is asserted rest on the testimony of Mrs. George E. Butler, quoted at page 517, which, as stated in the opinion is insufficient to show a delivery.
The petition ’for a rehearing is denied. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The appellees, Michael Aaron and Jeanette Aaron, recovered a judgment for $10,000 against the appellant, the Missouri and Kansas Telephone Company, for the violation of its duty to their son, Walter, through which he lost his life. The action was brought against the appellant and the Delaware Mutual Telephone Company, of Lansing, but before the case was submitted to the jury the Delaware Mutual Telephone Company was dismissed from the case.' In the petition it was alleged that Walter Aaron was an employee of the Delaware company, which, under contract with appellant, had two wires upon the poles of appellant, and that it was the duty of appellant to have proper poles and maintain them in a safe condition for its own operatives as well as those of the Delaware company who found it necessary to climb and work upon them; that appellant had planted new poles along the line and had removed its own wires from the old and attached them to the new poles; that Walter Aaron came along afterward and was transferring the two wires of the Delaware company from the old to the new poles, and that when he had climbed an old pole for that purpose and had stripped the wires from that pole, to which he was strapped, it broke and fell, crushing and killing him. It was further alleged that the pole was in a low, wet place, had rotted below the surface of the ground and was unsafe for use, and that if appellant, who knew or should have known of its unsafe condition, had done its duty by substituting a-sound pole for the defective one, or by bracing it so as to make it secure, the injury would not have been in flieted. It was also alleged that the pole rotted from the center, and that there was nothing on the outside to indicate to the deceased that the pole was defective and that no warning or notice of its condition came to his • knowledge.
The answer of the appellant was a . general denial, and a special denial that appellant was under any obligation to the Delaware company to maintain its poles' in a condition to be safe for the operatives of that company; and it further alleged that the deceased came to his death through his own want of care.
After the evidence of appellees had been introduced they dismissed the action as to the Delaware company without prejudice.
The testimony included two written contracts between appellant and the Delaware company relating to an interchange of business, the connections to be made, the use of telephones and switchboards, the maintenance of lines, the placing of the wires of one on the poles of the other and fixing the compensation for such use, a provision releasing one from loss or damage caused by wires or fixtures, and containing other stipulations as to the duties of each company and its obligations to the other.
In submitting the case to the jury the court instructed “that if you believe from the evidence in this case that it was the duty of the Missouri and Kansas Telephone Company, under a contract with the Delaware Mutual Telephone Company, to maintain the line of poles in question, including the particular pole in question, in a reasonably safe condition for the linemen- of the Delaware Mutual Telephone Company to climb and operate upon; that it failed so to do, and because thereof the death of Walter Aaron was caused, without fault on his part, then I instruct you shall find for the plaintiffs,” etc. In, another instruction the jury were told, in effect, that if they found it was the duty of the appellant to maintain the poles in a rea sonably safe condition for the operatives of the Delaware company, and also found that the deceased was working for the Delaware company, and if the appellant did not maintain the poles in a reasonably safe condition for such operatives, by reason of which the deceased lost his life, the appellant was guilty of negligence. Another instruction of like import left the jury to interpret the contracts and to determine from them what the duty of appellant was and whether it had been violated.
The duty of appellant to the Delaware company in respect to the maintenance of the poles, including the one which fell, depended mainly upon the terms of the contracts between these companies. The contracts were in writing, and their meaning and effect were questions of law, exclusively within the province of the court. To send the jury to a written contract to find the respective duties and obligations of the contracting parties was to leave the jury to decide the law as well as the facts. It was the province of the jury to determine all questions of fact involved in the case, after the court had advised them as to the governing rules of law and instructed them how to apply those rules to the facts brought out in the testimony. To impose on the jury the task of interpreting a contract and of determining the duty and responsibility of appellant under the contract is to require them to perform a function which belongs to the court alone — a duty which it can not surrender or evade. In Bell v. Keepers, 87 Kan. 64, it was ruled that “when a written instrument is admitted in evidence, it then becomes the duty of the court to construe and determine its legal effect, the relation of the parties thereto, and to include such determination in the instructions to the jury.” (Syl. ¶ 2; see, also, Brown v. Trust Co., 71 Kan. 134.)
The duty of appellant to one employed by and working for another company is not only a matter of law, but it is one of vital consequence in the action. The instruction was little less objectionable than would have been one that if the jury believed the appellant was responsible for the injury and death the plaintiffs were entitled to recover. The instructions required the jury to cover the entire field, including the province of the court, and left them to determine both the law and the facts. It has been held that the failure of the court to define the issues in a case and state them to the jury is error, and likewise it has been decided that to send the jury to the pleadings to learn the issues or contentions of the parties is reversible error. (Railroad Co. v. Eagan, 64 Kan. 421; Stevens v. Maxwell, 65 Kan. 835; Railroad Co. v. Dalton, 66 Kan. 799.) The duty of the court to define to the jury the issues made by the pleadings is no more imperative than to determine the questions of law arising in the case and to state them to the jury. It is in fact a greater departure from good practice to leave the jury to interpret written contracts and determine their effect on the relations and obligations of the parties than to leave them to ascertain the effect of the pleadings or the issues which they present.
Another instruction complained of is:
“You are further instructed that it is the duty of the master to his servant to exercise ordinary care, having regard to the hazards of the service, to provide the servant with reasonably safe working places, machinery, tools and appliances, and to exercise ordinary care to maintain them in a reasonably safe condition of repair.”
As the Delaware company, the employer of the deceased, had been dismissed from the case, and the relation of master and servant did not exist between appellant and the deceased, this instruction was inappropriate and may have been misleading. In answer to special questions the jury found that deceased was working for the Delaware company, and that the wires he was removing from the poles were owned by that company. It was also found that he was not in the employ of the appellant, and was not receiving any part of his wages from appellant. There was no basis in the evidence for treating the appellant as the master of the deceased, and no reason for laying down the rule of liability that obtains between master and servant. The instruction would naturally suggest to the jury that the relation of master and servant did exist between appellant and the deceased, and, if not, that appellant owed the same duty to the employees of the Delaware company that it owed to its own employees. Since the duty of appellant to deceased was not stated to the jury, and since a rule of duty applicable to other parties and not applicable to appellant was stated as if it did apply, the instruction can not be regarded as harmless.
For the error of the court in submitting the case to the jury the case is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
West, J.:
The appellants contracted with the appellees to purchase about 1000 head of steers located in Finney county, Kansas. A cash payment of $3000 was made, and the contract contained the following:
“Party of the second part [the appellants] hereby agrees and binds itself to receive said cattle at the time, place and on the terms and conditions herein set forth,, and herewith agrees to make final and balance of payment on said cattle to said second party at time of delivery of said cattle, and failure on the part of the party of the second part shall cause the forfeiture of the advance payment of $3000 this day made. The party of the first part hereby acknowledges receipt from the party of the second part of $3000, as partial or advance-payment on said cattle, which sum shall be returned to said party of the second part in the event of the party of the first part failing to comply with the terms and conditions of this contract, and same shall be paid by said first party in addition to any and all sums which shall become payable to said party of the second part by reason of any shortage in numbers of head of cattle as hereinafter provided.”
The appellants were sued for damages for refusal to accept the cattle, and the jury awarded $7000, less the $3000, and $248.66 interest, making $4248.66, and found that the appellants notified the appellees that they would not carry out the contract, but that the appellees offered to deliver the cattle, and that there was a market at Garden City for such cattle. The appellants urge error as to the tender of the cattle, the amount of damages, the market, the refusal of certain special questions, and the allowance of interest.
The finding of the jury as to the tender of the cattle was supported by portions of conflicting evidence, and is therefore controlling.
It is insisted that the contract itself fixed the measure of damages at $3000, and that this sum could not be exceeded in the' award to the appellees. There is no branch of the law on which a unanimity of decision is more difficult to find or on which more illogical and inconsistent holdings may be found. One theory is that the law abhors a forfeiture, as nature abhors a vacuum, and that the courts ought to frown with equal displeasure on anything which may be considered a forfeiture. Another theory is that close heed should be paid to the language used, distinguishing carefully between penalty and liquidated damages, with constant partiality toward a construction which favors the former; a third, that parties competent to contract and dealing at arm’s length should be held to the plain meaning of their contracts into which they have deliberately entered. It is exceedingly difficult to deduce from the decisions a rule which affords sure guidance to the contracting parties or to the courts, but a workable approximation to such a rule may possibly be reached. In Van Buren v. Digges, 11 How. (52 U. S.) 461, the court said :
“The term ‘forfeiture’ imports a penalty; it has no necessary or natural connection with the measure or degree of injury which may result from a breach of contract, or from an imperfect performance. It implies an absolute infliction, regardless of the nature and extent of the causes by which it is superinduced. Unless, therefore, it shall have been expressly adopted and declared by the parties to.be a measure of injury or compensation, it is never taken as such by courts of justice, who leave it to be enforced where this can be done in its real character, viz., that of a penalty.” (p. 477.)
In Chicago House-Wrecking Co. v. United States, 106 Fed. 385, the court of appeals of the seventh circuit held a provision in a contract to be one for a penalty and not for liquidated damages, by which the parties bound themselves in the sum of $20,000, “computed and agreed upon by and between the United States of America and ourselves as liquidated damages, and not as a penalty, to be immediately due to the United States of America on the first day of■ April, 1897” (syl.), although this ruling was based in part on a statute directing the national courts in such cases to “render judgment for the plaintiff to recover so much as is due according to equity.” (Syl.) This would seem to be one instance where the parties made their meaning plain beyond all cavil, but the court, by an elaborate review of authorities, reached the conclusion that these parties could not have really meant what they said, and that, even if they did, such a liquidated sum would be unjust and inequitable. In Sun Printing & Publishing Assn. v. Moore, 188 U. S. 642, the court, speaking through Mr. Justice White, held that the naming of a stipulated sum is conclusive upon the parties in the absence of fraud or mutual mistake, and that they may stipulate for such sum where the damages are of an uncertain nature. The Sun company chartered a yacht to be used in gathering news during the late war with Spain. The yacht was wrecked and lost, and the owner sued for the stipulated damages of $75,000, the language of the charter party being, “for the purpose of this charter the value of the yacht shall be considered and taken at the sum of $75,000. And the said hirer shall procure security or guarantee to and for the owner,” in the sum stated, “to secure any and all loss and damage which may occur to said boat or its belongings, which may be sustained by the owner by reason of such loss or damage and by reason of the breach of any of the terms or conditions of this contract.” (p. 656.) The court said that it was pressed with much earnestness and sought to be supported by copious reference to authority “that the intent of the contracting parties should not be given effect to, because it is our duty to disregard the contract and substitute our will or our conception of what the parties should have done for that which they did plainly do.” (p. 659.) Then, after a most exhaustive review of the decisions, the learned justice reached this conclusion:
“It may, we think, fairly be stated that when a claimed disproportion has been asserted in actions at law, it has usually been an excessive disproportion between the stipulated sum and the possible damages resulting from a trivial breach apparent on the face of the contract, and the question of disproportion has been simply an element entering into the consideration of the question of what was the intent of the parties, whether bona ficle to fix the damages or to stipulate the payment of an arbitrary sum as a penalty, by way of security. . . . The law does not limit an owner of property, in his dealings with private individuals respecting such property, from affixing his own estimate of its value upon a sale thereof, or on being solicited to place the property at hazard by delivering it into the custody of another for employment in a perilous adventure. If the would-be buyer or lessee is of the opinion that the value affixed to the property is exorbitant, he is at liberty to refuse to enter into a contract for its acquisition. But if he does contract, and has induced the owner to part with his property on the face of stipulations as to value, the purchaser or hirer, in the absence of fraud, should not have the aid of a court of equity or of law to reduce the agreed value to a sum which others may deem is the actual value.” (pp. 672, 673.)
Turning now to our own decisions, it may be observed that in Heatwole v. Gorrell, 35 Kan. 692, one who had sold his business and good will, and bound himself in the sum of $500 not to engage in such business at the same place for five years, was held liable for actual damages only, the obligation being construed as one for a penalty and not for liquidated damages. It was held that whenever one binds himself in a fixed sum for the performance or nonperformance of something, “without stating whether such fixed sum is intended as a penalty or as liquidated damages, and without regard to the magnitude or the number of any breaches that may occur, or the amount of the damages that may ensue, and the contract is such that it may be partially performed and partially violated, such fixed sum must be considered as a _ penalty, and not as liquidated damages.” (Syl. ¶ 2.)
In Condon v. Kemper, 47 Kan. 126, the agreement was to build a wall or remove a certain house three feet and put it in as good condition as before, and the contract stipulated that a failure to perform these obligations by Condon should entitle Kemper to recover from him “the sum of five hundred dollars as liquidated and ascertained damages for the breach of this contract.” (p. 135.) It was held that this was a penalty, and not liquidated damages; that as the cost of making the breach good was shown by the evidence to be only $100, the parties “could not have had in contemplation actual compensatory damages.” (Syl.) In the opinion Mr. Justice Valentine said:
“Of course, the words of the parties with respect to damages, losses, penalties, forfeitures, or any sum of money to be paid, received or recovered, must be given due consideration; and, in the absence of anything to. the contrary, must be held to have controlling force; but when it may be seen from the entire contract, and the circumstances under which the contract was made, that the parties did not have in contemplation actual damages or actual compensation, and did not attempt to stipulate with reference to the payment or recovery of actual damages or actual compensation, then the amount stipulated to be paid on the one side, or to be received or recovered on the other side, can not be considered as liquidated damages, but must be considered in the nature of a penalty, and this even if the parties should name such amount ‘liquidated damages.’ ” (p. 130.)
He then closed a most thorough and illuminating quotation of authorities (p. 135) with the following from Myer v. Hart, 40 Mich. 517:
“Just compensation for the injury sustained is the principle at which the law aims, and the parties will not be permitted, by express stipulation, to set this principle aside.” (p. 523.)
He closed the opinion itself, however, after referring to the smallness of the actual damage's, with this sentence :
“All this shows that the parties did not have in contemplation the matter of actual compensatory damages when they stipulated that Kemper might recover five hundred dollars from Condon as liquidated and ascertained damages in case of a breach of the contract, but shows that in fact, though not in words, they fixed the sum of five hundred dollars as a penalty to cover all or any damages which might result from a breach of the contract.” (47 Kan. 135.)
(To the same effect is Davidson v. Hughes, 76 Kan. 247.)
In Railroad Co. v. Gaba, 78 Kan. 432, it was held:
“The extent of a possible future loss to be paid in the event of a breach of contract may be agreed upon in advance, where there is difficulty in determining the extent of the loss and the resulting damages are uncertain. In such a case the amount so fixed, if reasonable, will be allowed when the default occurs.” (Syl. ¶ 2.)
It was further held that the use of the words “forfeiture,” “penalty,” and “liquidated damages,” is not controlling, “although due weight should be given to such expressions, in connection with other parts of the agreement, the subject matter, and other facts and circumstances.” (Syl. ¶ 4.)
In Bank v., Burlington, 79 Kan. 797, it was held:
“Where damages provided for in a contract are uncertain in their nature and can not well be ascertained by any pecuniary standard, and where the parties themselves, understanding the peculiar circumstances surrounding the transaction, are better able to estimate the loss that may be sustained by delay or failure of performance, they are permitted to fix the amount of damages to be recovered.” (Syl. ¶ 4.)
There the matter contracted about involved the loss to the city arising from failure to supply water, and of necessity such loss would be exceedingly difficult to estimate, and the parties to the contract were supposed to compute and consider the amount carefully in advance.
We think it may fairly be said that while ordinarily parties are bound by the terms of their contracts, still the courts have an idea that they are constituted to do justice, and unless it appears that the parties bona fide and actually intended to stipulate for liquidated damages — which damages would often be grossly inequitable and unjust — they will be presumed by the courts to have intended that which is just and equitable, a mere penalty, and especially so where the language used is susceptible of either construction or where it is plain that actual damages might, without serious difficulty, have been estimated in advance, or where the sum agreed upon would be recoverable alike for a partial or for a total breach. Here about a thousand head of cattle were to be delivered in a certain condition, at a certain time and place, for about $40,000. The parties, without serious difficulty, could have estimated in advance the loss which might arise from a total or partial failure to deliver. Notwithstanding the language used in the contract, it is difficult if not impossible to believe that the parties really intended that •'$3000 should be forfeited or recovered alike for a total -failure or for a failure to deliver twenty or forty head of the cattle. Indeed, if men dealing in cattle to the ■extent indicated by this contract actually intended to foreclose all question as to the damages to be recovered for a partial or total breach, they could have used language far more perspicuous and free from ambiguity. As it is practically impossible to discover from the wording employed by them that they intended a payment of $3000 for a partial breach, so it is equally ■difficult to find therefrom that they intended that sum to cover the loss arising from a total breach. We hold, therefore, that the trial court correctly construed the .stipulation as one for a penalty only.
There' was testimony to the . effect, and the jury found, that there was a market at Garden City for cattle such as those contracted for. The court excluded ■evidence of prices at Kansas City, and this is complained of as material error. While the general rule in cases of this kind confines the evidence, of the value to the contemplated place of delivery, still the testimony shows that the Garden City market for stock ■cattle is largely governed by the Kansas City market, and we know what everybody else knows — that the price of such cattle at Garden City is practically fixed by the Kansas City market price, less the freight from the one place to the other. The appellants offered to show the Kansas City price, which differed materially from the Garden City price testified to by witnesses for the appellee, and we think the trial court should have permitted the introduction of this evidence. As was said in McCarty, Adm’r, v. Quimby, 12 Kan. 494, 498, it is a fundamental rule of evidence that the best evidence of which the case is susceptible must be produced. (See, also, Hanson v. Lawson, 19 Kan. 201.) In section 1290 ■of volume 2 of Wharton’s Law of Evidence it is said:
“Distant markets can not be consulted in proof of value; though it is otherwise if the markets be in anyway interdependent, or sympathetic.”
In Sisson v. Cleveland and Toledo Railroad Co., 14 Mich. 489, in holding that newspaper market reports were a proper source of knowledge, Mr. Justice Cooley said:
“As a matter of fact, such reports, which are based 'upon a general survey of the whole market, and are constantly received and acted upon by dealers, are far more satisfactory and reliable than individual entries, ■or individual sales or inquiries; and courts would justly be the subject of ridicule if they should deliberately shut their eyes to the sources of information which the rest of the world relies upon, and demand evidence of a less certain and satisfactory character.” (p. 497.)
In Siegbert and others v. Stiles, 39 Wis. 533, it was held that the market price of hogs at Prairie du Chien could be shown by evidence of the market price at Mc-Gregor. Although these two towns are separated only by the Mississippi river, the court in the opinion said:'
“As a matter of course, the market price of any staple in the interior towns, where such staple is gathered directly from the producers and shipped to some great market, is governed by the prices therefor which prevail at such market.” (p. 537.)
(See, also, Jones v. Railway, 53 Ark. 27.)
The jury answered nine special questions, but the appellants complain that the trial court refused to submit six others. One related to an offer to deliver the cattle and a tender of an inspection certificate. As the jury found that the appellants had notified the appellees that they would not take the cattle, and that the appellees had offered to deliver them with a certificate of inspection, this question, and two others with reference to inspection, were immaterial and largely repetitions of other questions answered by the jury. Another was with reference to the Garden City market, and was a duplicate of one submitted to and answered by the j ury. The two remaining questions concerned the Kansas City-market, and in view of what we have said they should have been submitted. It is suggested by the appellants that the trial court assumes the right in all cases to refuse or modify special questions prepared by counsel and to substitute its own. The testimony does not so-show, but the .exercise of a sound discretion in this respect would meet and merit our approval. The use of special questions has often been permitted to-an extent uncalled for and unjustifiable. The trial court is not an automaton nor a mere umpire. Its duty and dignity require it to restrict the statutory right to the use of special questions to what in each case is a sane and fair administration of justice, and not to cumber the record and waste the time of the court in “vain repetitions” or irrelevant or trap questions. Mr. Justice Brewer, in City of Wyandotte v. Gibson, Adm’x, 25 Kan. 236, in speaking, of counsel’s right to submit instructions and special questions, said:
“He may present any number of questions for submission, as any number of instructions, but it is- the duty of the court to determine what in the one case shall be submitted, as in the other what shall be given, (p. 243.)
And in Mo. Paec. Rly. Co. v. Holley, 30 Kan. 465, he said:
The court is not a mere mouthpiece through which the party interrogates the jury. The jury is not, as it were, placed on the witness stand to be cross-examined by counsel. It is the duty of the court to supervise the-questions presented — to select the most important, and arrange them in a clear and natural manner, (p.. 473.)
(See, also, Elliott v. Reynolds, 38 Kan. 274; Waggoner v. Oursler, 54 Kan. 141; Railway Co. v. Lycan, 57 Kan. 635, 646.)
The jury were erroneously permitted to include interest in their award of damages, the rule in this state being that interest is not recoverable on awards for unliquidated damages, before judgment.. (Milling Co. v. Buoy, 71 Kan. 298, and cases cited; Latham v. Harrod, 83 Kan. 323.)
The judgment is reversed, and the cause remanded for a new trial as to the amount of damages only. | [
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|
Lorentz, J.:
Andrew Veal appeals the ruling of the district court granting summary judgment in favor of Continental Casualty Company (Continental).
Veal was involved in an accident while driving a car rented by Jeanne Patton, his sister, from Avis Rent A Car System, Inc. (Avis).
Following the filing of a lawsuit, a jury found Veal negligent and awarded damages to Sandy Knoffloch and Linda Guffey. This will be referred to as the “underlying suit.” Knoffloch, through her mother, Sandra Decker, filed suit against Avis and American Family Mutual Insurance Company, her uninsured motorist insurance carrier, to recover the judgment in the underlying suit. Guffey intervened in the suit against Avis to recover her judgment in the underlying suit, and Veal also intervened in the suit against Avis, claiming his cost of defense in the underlying suit. Decker s and Guffeys claims were dismissed following settlement. Veal later filed an amended intervention petition adding Avis’ insurance carrier, Continental, as a defendant. The only claim remaining was Veal’s claim for his cost of defense.
At the time of rental of the car, Patton signed a rental agreement in her name. The rental agreement provided:
"WHO ELSE MAY DRIVE THE CAR, ONLY MY SPOUSE. MY EMPLOYER OR A REGULAR FELLOW EMPLOYEE INCIDENTAL TO BUSINESS DUTIES OR SOMEONE WHO APPEARS AT THE TIME OF RENTAL AND SIGNS AN ADDITIONAL DRIVER FORM, MAY DRIVE THE CAR BUT ONLY WITH MY PRIOR PERMISSION.”
Immediately above Patton’s signature, the contract states: “I have read and agree to the terms on both sides of this agreement.” The contract also provides that only those persons permitted to drive the vehicle according to the agreement are afforded liability insurance. Veal was not listed as an additional driver and did not complete an additional driver form.
The “omnibus clause” of the automobile liability insurance policy issued to Avis by Continental provided:
“1. You [Avis] are an insured for any covered auto.
“2. Anyone else is an insured while using with your permission a covered auto you own, hire or borrow . . . .”
The policy provided Continental had a duty to defend an insured.
Prior to trial, Avis and Continental filed a motion in limine to exclude evidence of any oral communications prior to or contemporaneous with the signing of the Avis rental contract. Veal proffered the following evidence after the trial court granted the motion in limine.
Veal called Avis to find out the requirements for renting a car. Avis told him he had to have a credit card to rent a car or that he could rent a car if he got someone with a credit card. Patton agreed to help him and made a reservation to rent a car.
Veal and Patton went to Avis to get the car. The Avis agent found the reservation on the computer and asked if a four-door would be okay. Veal responded affirmatively. The agent then asked Patton if she wanted certain insurance. Patton turned to Veal, and Veal responded he did not. The agent then asked Veal about another type of insurance, and Veal told her he did not want that kind either. The agent then asked Patton to initial the contract to indicate she declined the additional insurance. Veal asked the agent if a fee would be charged if the car was late. After learning there was a late fee, Veal asked if he could drop the car off Sunday night and come in Monday night to pay the bill. The agent told him he could and explained what to do with the keys. The agent laid the keys on the counter near Patton and Veal. Veal picked up the keys and asked the agent where the car was as he was leaving. Veal had the keys in his hand as he left, and the agent saw him pick up the keys.
At the time of rental, the agent never asked who would be driving the car, the relationship between Veal and Patton, to see a driver s license, or for Veal to sign an additional driver form. The agent did not advise Veal or Patton that not listing an additional driver would affect liability protection. Veal alleged the agent was aware he would be driving the car. Patton and Veal testified Veal was using the car for his own purposes.
The trial court granted summary judgment in favor of Avis and Continental.
Veal contends the trial court erred in finding Continental did not have a duty to defend him. He argues the contract at issue in this case is the insurance policy, not the rental contract, and he is, therefore, an insured under the insurance policy because he had implied consent from Avis to drive the car. He further argues the rental agreement was not the only way to get permission to drive the car and he had implied permission because Avis allowed him to pick up the keys, told him where the car was, explained where to return the car, and arranged for payment at a later time.
The trial court refused to allow evidence of oral communications made prior to or contemporaneous with execution of the rental contract because the evidence would alter its terms. After excluding parol evidence, the trial court held Veal was not operating the vehicle with the insured’s permission and was not, therefore, covered under the omnibus clause of the liability insurance policy.
We must determine whether Veal was a permissive driver under the omnibus clause based on alleged implied permission from Avis, notwithstanding the express prohibition in die rental agreement.
“The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by the court on appeal.” Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438, 455, 827 P.2d 24 (1992).
For public policy reasons, the omnibus clause of an automobile liability insurance policy is to be liberally construed. Alliance Mutual Cas. Co. v. Hartford Accident & Indemnity Co., 210 Kan. 769, Syl. ¶ 2, 504 P.2d 161 (1972). The permission referred to in the omnibus clause “may be express or implied and may be established by facts and circumstances showing a course of conduct signifying acquiescence or consent on the part of the named insured.” Gangel v. Benson, 215 Kan. 118, Syl. ¶ 1, 523 P.2d 330 (1974).
This rule tightens, however, where the named insured expressly prohibits the first permittee from letting other persons use the car. The Gangel court adopted the general rule that “ 'a second permittee using the automobile solely for his own purposes is not entitled to protection under the omnibus clause where the named insured expressly prohibited the initial permittee from allowing other persons to use or operate the car.’ ” 215 Kan. at 123-24 (quoting Annot., 4 A.L.R.3d 10).
Because of the harshness of this rule, the Gangel court recognized that an express prohibition may not prevent application of the omnibus clause where (1) the first permittee is actually in the car, (2) the car is being used for the benefit of the first permittee or of the named insured, (3) the first permittee has an equivalent of equitable title and has unfettered control over the daily use of the car outside of the surveillance of the named insured, (4) the named insured is aware of past violations of instructions but allows the permittee to retain possession, or (5) an emergency arises. 215 Kan. at 124-25. The court specifically noted this list of factors is comprehensive. 215 Kan. at 125.
Veal argues this case is distinguishable from Gangel because Avis knew he was going to be driving. He concedes that none of the exceptions enumerated in Gangel specifically apply to this case. He asks that another exception be recognized. Based on the fourth exception, Veal asserts it is clear that consent should be implied where the named insured (Avis) is aware of a current or an intended violation of use restrictions by a second permittee (Veal) but, nevertheless, allowed the initial permittee (Patton) to have possession.
Even accepting the evidence proffered by Veal as true, Veal presents absolutely no evidence that Avis knew of a current or intended violation of the rental agreement. The communications with the agent did not reveal the relationship between Patton and Veal. As far as the agent knew, Veal was Patton’s spouse or coworker and was expressly permitted to drive in the rental agreement. Veal’s argument to establish a new exception under the facts of this case is not persuasive.
Veal argues he had “at least” implied permission from Avis. Gangel, however, appears to be controlling. Both Veal and Patton conceded Veal was using the car for his own purposes. In the rental agreement, Avis expressly prohibited anyone from driving the car except those persons named in the agreement. Veal was not named in the agreement. Based on Gangel, Veal (a second permittee), using the car for his own purposes, is not entitled to protection under the omnibus clause because Avis (the named insured) expressly prohibited Patton (the initial permittee) from allowing other persons, including Veal, to use or operate the car.
Veal relies on Krupp v. Pan Air Corporation, 183 So. 2d 403 (La. App. 1966). In Krupp, on at least 16 occasions, a Hertz vehicle was rented for visiting air crews from Brazil. The usual procedure was for Hertz to deliver a car to the Pan Air hangar and obtain a Brazilian officer’s signature on the rental agreement. When no one at Hertz was available to deliver a car, a Pan Air employee would pick up the car from Hertz and sign the rental agreement. The rental agreement prohibited use by any person other than the lessee or the lessee’s immediate family, employer, or employee. On one occasion, a Pan Air employee signed the contract, provided his own driver’s license, and informed the Hertz agent that the automobile was being rented for the Brazilian crew. A Brazilian officer driving the car then had an accident. 183 So. 2d at 408-09. The court found Hertz had impliedly consented to use of the car by members of the Brazilian crew and that the driver of the car was covered by the liability policy.
Krupp is distinguishable from this case. The court in Krupp based its holding on Hertz’ acquiescence and prior course of conduct in renting cars to the Brazilian air crew. These facts are not present in this case. Furthermore, Krupp falls within the fourth exception listed in Gangel. It is also important to note the Louisiana court later held that where the rental agreement provides that additional drivers must be listed, a driver operating the vehicle with permission of the lessee but not listed on the rental agreement was not a second permittee and thus not insured under the lessor’s liability policy. See Colston v. Liberty Mutual Insurance Company, 210 So. 2d 152 (La. App. 1968).
Based on Gangel, the summary judgment entered in favor of Continental was proper as Veal was not an insured and, therefore, not covered under the omnibus clause of the liability insurance policy. Because Veal was not an insured, Continental had no duty to provide a defense for him. “Before the duty to defend applies, it must be shown that the person was in fact an insured under the policy.” Murphy v. Silver Creek Oil & Gas, Inc., 17 Kan. App. 2d 213, 217, 837 P.2d 1319, rev. denied 251 Kan. 939 (1992).
Although Veal contends the' trial court erred in not allowing the admission of parol evidence to show that he had implied permission to use the car, that issue is how moot in that even if he had implied permission from Avis, based on Gangel, he was not an insured.
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|
Rulon, J.:
This is an appeal from the summary denial of a motion pursuant to K.S.A. 60-1507.
Jimmy Garrett, petitioner, argues that the district court erred .in finding it did not have jurisdiction to consider his claim because it was a collateral attack on a guilty plea. Petitioner claims his sentence is illegal pursuant to State v. Williams, 250 Kan. 730, 829 P.2d 892 (1992), and that his guilty plea was not voluntary because of ineffective assistance of counsel.
The facts in this case are not in dispute. Petitioner was originally charged with three counts of indecent liberties with three different children in violation of K.S.A. 21-3503. Pursuant to a plea bargain, the State combined the charges in Counts One and Two into a single count of indecent liberties, and petitioner then entered a plea of guilty to Counts One and Three. The second count of indecent liberties was dismissed. According to the plea agreement, the State recommended sentences of 4 to 15 years of imprisonment on Count One and 3 to 15 years on Count Three. Both sentences were to run consecutively for a controlling sentence of 7 to 30 years.
In his K.S.A. 60-1507 motion, petitioner attacks the sentence imposed on Count One, claiming the sentence is illegal because one of the two victims listed in Count One was his stepdaughter. Petitioner cites Williams as authority for his argument that he should not have been charged with indecent liberties with his stepdaughter and thus should only have been charged with aggravated incest pursuant to K.S.A. 21-3603. Petitioner claims that had his attorney informed him that one of the charges was illegal, he would not have entered into the plea agreement, and thus his guilty plea was not knowingly and voluntarily made and should not be binding.
To set aside a guilty plea because of ineffective assistance of counsel based on an allegation that counsel’s conduct rendered the plea involuntary, a defendant must show counsel’s performance fell below the standard of reasonableness and there is a reasonable probability that, but for counsel’s ineffectiveness, the results would have been different. See State v. Aleman, 16 Kan. App. 2d 784, 790-91, 830 P.2d 64, rev. denied 251 Kan. 940 (1992). “ ‘A court deciding an . . . ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.’ ” Baker v. State, 243 Kan. 1, 7, 755 P.2d 493 (1988) (quoting Strickland v. Washington, 466 U.S. 668, 690, 80 L. Ed. 2d 674, 104 S. Ct. 2052 [1984]).
“Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985).
Here, petitioner entered into the plea agreement in October 1990. At that time, case law indicated that it was permissible to charge a defendant with either indecent liberties or aggravated incest, even when the defendant was related to the victim in the degree set out in K.S.A. 21-3603. See State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987), overruled in part State v. Williams, 250 Kan. 730. Williams was not decided until April 10, 1992. Realistically, petitioner s counsel could not have known or had reason to know that the State could only properly charge him with aggravated incest for molesting his stepdaughter.
Petitioner relies primarily on Morrow v. State, 219 Kan. 442, 548 P.2d 727 (1976). In Morrow, the defendant entered a plea of guilty to aggravated robbery in exchange for the State dropping charges of aggravated battery, aggravated assault, and theft. Morrow alleged that his counsel had advised him to accept the plea because of the lengthy sentence he could receive if convicted for all four charges. 219 Kan. at 443-44. The problem was that all three of the counts which were dismissed were lesser included crimes of the aggravated robbery charge, and, under the facts of the case, Morrow could only have been convicted of one of the four offenses. 219 Kan. at 444. Our Supreme Court held that if Morrow’s allegations were true, defense counsel had failed to fulfill his obligation to advise Morrow of the range of permissible penalties which could be imposed and of Morrow’s possible choices, which in turn could call into question the voluntariness of the guilty plea.
However, Morrow is distinguishable from the facts of this case. In Morrow, the law was well settled that the defendant could not be found guilty of and sentenced for all four of the crimes charged. Both the prosecution and defense counsel should have been aware that Morrow was being threatened with sentences that would have been illegal. In the instant case, the law at the time of petitioner’s guilty plea indicated that the State had the option of charging those similarly situated with either aggravated incest or indecent -liberties. Therefore, unlike Morrow’s counsel, peti tioner’s counsel would not have realistically had any reason to believe petitioner could not be charged with indecent liberties with his stepdaughter.
As stated above, petitioner’s first obstacle is to show that his counsel’s performance fell below the objective standard of reasonableness. We must necessarily view counsel’s performance in light of the posture of the law at that time, with the strong presumption that counsel’s performance was effective. Based on the state of the law at the time petitioner entered into the plea negotiations, we cannot conclude that his counsel’s performance fell below an objective standard of reasonableness.
We also note that the charge in Count One of the amended complaint listed two victims, only one of which was petitioner’s stepdaughter. Therefore, even if we were inclined to conclude that counsel’s performance was lacking, petitioner would not be entitled to relief because his guilty plea as to the other victim would remain intact.
The record shows that the district court denied petitioner’s claim because, unlike the defendant in Williams, petitioner entered a plea of guilty and did not subject himself to a trial as did Williams. The district court’s reasoning is supported by our Supreme Court’s recent decision in LaBona v. State, 255 Kan. 66, 872 P.2d 271 (1994). However, LaBona did not specifically address the issue of ineffective assistance of counsel. We are convinced a criminal defendant may, under the facts shown here, challenge his or her guilty plea based on a claim of ineffective assistance of counsel by a 1507 motion.
It is well settled in this state that a district court’s decision that reaches the correct result will be upheld even though the court may have assigned erroneous reasons for its decision. State v. Wilburn, 249 Kan. 678, Syl. ¶ 5, 822 P.2d 609 (1991). Under the facts of this case, even though the district court was incorrect in ruling that it did not have jurisdiction, denial of petitioner’s motion was correct because, as a matter of law, his counsel’s conduct did not represent ineffective assistance of counsel.
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Larson, J.:
The National Federation of State High School Associations (NFSHS), Kansas State High School Activities Association (KSHSAA), Unified School District #428 (USD #428), Great Bend High School (GBHS) (collectively defendants or appellants), appeal the trial court’s construction of a 1985 settlement agreement to impose joint and several liability of all defendants for the failed payment by their insurance carrier.
In 1985, Philip Boos (Boos), then a minor, by his natural guardians and next friends Thomas L. Boos and Joyce L. Boos (plaintiffs) and NFSHSA, KSHAA, USD #428, and GBHS (defendants) together with the defendants’ insurance carrier, the Fund Company Limited (the Company), entered into a settlement agreement which became the journal entry in a friendly suit seeking damages for negligence for injuries Boos suffered when he dove into the GBHS swimming pool during a physical education class. The agreement was entitled “Journal Entry and Settlement Agreement” and provided in relevant part:
“The Court finds that in consideration of payment by defendants to plaintiffs of the sum and amount of $3,811.57 together with the sum of $1,000.00 for their attorney’s fees . . . plaintiffs agree to release and forever discharge defendants and their insurance carriers from any and all liability as a result of an accident which injured the above-named minor plaintiff .... Plaintiffs agree that said release and discharge shall be effective as to all of the named defendants, as well as their administrators, faculty, employees, officers, directors, and committees; together with defendant’s insurance carrier, The Fund Insurance Company, LTD. . . . which shall hereafter be referred to as the ‘Company.’
“In consideration of plaintiff’s release, waiver of liability, and discharge of defendants and the Company, plaintiffs, defendants and Company agree as follows:
“A. The Company will pay [certain medical, rehabilitation and work-loss expenses].
“B. The Company will reimburse [plaintiff for expenses in equipping his home to accommodate his disabilities].
“C. The Company will pay [costs of rehabilitation treatment and equipment].
“D. The Company will reimburse [for lost work due to hospitalization, rehabilitation and disability].
“E. The Company will reimburse [for certain work loss of the parents].
“The Court further finds that the parties understand and agree that said medical, rehabilitation and work loss payments are not to be construed as an admission of liability on the part of the defendants but that said payments are in compromise and settlement of any [and] all claims of the plaintiffs arising out of said accident and such claims are denied and disputed by said defendants. The Court further finds that this release and settlement was entered into by plaintiffs voluntarily after consultation with independent counsel of their choice and is not based upon any representation or statements of any kind made by the defendants or their representatives as to the merits, liability or value of their claim or any other matter relating thereto.
“The Court further finds that the parties have agreed that this release and settlement is intended to cover all actions, causes of action, claims and demands for, upon or by reason of any damage, loss or injuiy, known or unknown, monetary or nonmonetary, based on common law, statutoiy law or contract, which may be traced directly or indirectly to the aforesaid accident and defendants, as now appears or as may appear at any time in the future, no matter how remotely they may be related to the aforesaid accident.
“The Court further finds that this release and settlement has been entered into by plaintiffs with the full knowledge and understanding on the part of the plaintiffs that there may be more serious consequences, damages or injuries or separate or distinct consequences, damages or injuries as a result of the accident afore mentioned which are not now known and that more serious and permanent injuries or separate and distinct injuries, even to the extent of death, may result from the injuries sustained in said accident.
“The Court finds that the above is a fair and equitable and settlement of all the issues herein, and hereby approves the same and incorporates as its Order all of the findings together with the complete agreement as set out herein as the Order of this Court.”
In April of 1993, Boos, then an adult, filed a “motion for payment of funds.” Boos alleged the Company had failed to pay $106.75 in medical expenses as required under the agreement. Boos argued all the defendants were primarily liable under the agreement and the Company was simply the defendants’ agent for payment.
Boos also argued that if extrinsic evidence were admitted, it would show the parties intended to bind all of the defendants to make the payments required by the agreement and asked to introduce extrinsic evidence if the court found the agreement to be ambiguous. Additionally, Boos reasoned that if the agreement unambiguously supported the defendants’ contention that they had no obligation, it would be subject to rescission for failure of consideration, relief that Boos did not request.
The defendants contended the settlement agreement discharged and released them from all liability in connection with the accident. They argued that no language in the settlement agreement imposed any obligation upon the defendants. They also argued Boos was not entitled to the requested relief under K.S.A. 60-260(b)(6). They finally argued that Boos had not shown the Company was unable to pay or that he had pursued all available collection remedies.
The trial court granted Boos’ motion. It first held the agreement was not ambiguous and had to be interpreted without reference to parol evidence. The court determined the parties intended to fairly compensate Boos and release the defendants from liability but:
“[r]egardless of the fact that it states in the Journal Entry ‘the company’ will pay, it is the Court’s belief and finding the intent of the parties was die Defendants were obligated and responsible to see the payments were made to the Plaintiffs as set forth in the Journal Entry and Settlement Agreement. ‘The company’ was not even a named party but only a tool used by the Defendants to see that payment under the terms of the settlement were completed.”
The defendants appeal, contending: (1) The trial court erroneously amended the 1985 journal entry and settlement agreement to impose liability upon them; (2) the trial court lacks jurisdiction to amend the 1985 journal entry; (3) public policy dictates against holding the defendants/insureds liable for the obligation of their insurance carrier; and (4) the trial court erred in holding the defendants liable for future medical expenses in the absence of evidence that such expenses could not be paid by the insurance company as provided in the journal entry and settlement agreement.
We will reach each issue raised by the appellants but must first dispose of their contention that the trial court did not have jurisdiction to make the order entered. This determination is essential because “where the district court had no jurisdiction, the appellate court does not acquire jurisdiction over the subject matter on appeal.” City of Overland Park v. Barron, 234 Kan. 522, Syl. ¶ 1, 672 P.2d 1100 (1983).
Defendants argued to the trial court that because the journal entry of judgment was filed in 1985, it was a final order. Therefore, Boos’ 1993 “motion for payment of funds” was nothing more than a K.S.A. 60-260(b)(6) motion which was not made within a reasonable time. They contended a K.S.A. 60-260(b)(6) motion should not be available to grant Boos’ relief from the calculated and deliberate settlement which was made on his behalf.
This issue was not directly ruled upon by the trial court, but the court must have assumed that jurisdiction existed for making its order. Defendants cite no case authority on appeal but merely contend the petition was an improper K.S.A. 60-260 request and, under the guise of interpretation, the trial court’s order renders a totally different judgment from the one granted in 1985.
Defendants’ argument fails because the 1985 order is exactly what its own counsel denoted it to be — a “journal entry and set- demerit agreement.” Because it is a “settlement agreement” of the parties, which the law favors (see International Motor Rebuilding Co. v. United Motor Exchange, Inc., 193 Kan. 497, Syl. ¶ 1, 393 P.2d 992 [1964]), if it is unambiguous, it is to be construed in light of its language. See 15A Am. Jur. 2d, Compromise and Settlement § 23.
The “settlement agreement” entered into between the parties in 1985 is a written agreement, and this court is free to determine its construction and legal effect. Hall v. Mullen, 234 Kan. 1031, 1035, 678 P.2d 169 (1984). Regardless of the construction the trial court gave the agreement, we may independently construe the contract and determine its legal significance. NEA-Goodland v. USD No. 352, 13 Kan. App. 2d 558, 562, 775 P.2d 675, rev. denied 245 Kan. 785 (1989). In making our interpretation, we owe no deference to the trial court’s conclusion. Simon v. National Farmers Organization, Inc., 250 Kan. 676, Syl. ¶ 3, 829 P.2d 884 (1992); Utility Maintenance Contractors, Inc. v. West American Ins. Co., 19 Kan. App. 2d 229, Syl. ¶ 1, 866 P.2d 1093 (1994).
The defendants’ contention that the trial court erroneously amended the settlement agreement to impose liability upon them and the complementary contention that public policy prohibits holding them liable for the debts of their insurance carrier fail to address the central and governing issue of whether the original settlement agreement bound the defendants to pay Boos in the event the Company is unable to do so.
Before we answer that basic question, we note that both parties agree that the contract is unambiguous. The fact the parties are 180 degrees apart as to what the contract unambiguously states does not force a finding of ambiguity. Amoco Production Co. v. Kansas Power & Light Co., 505 F. Supp. 628, 635 (D. Kan. 1980). However, even though the contract’s ambiguity is not a contested point on appeal, we must consider it because it affects our review of the contract’s meaning.
Ambiguity in a written contract does not appear until the application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which of two or more meanings is the proper meaning. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 721 P.2d 741 (1987). A contract is not ambiguous merely because it does not address an issue. Duffin v. Patrick, 212 Kan. 772, Syl. ¶ 4, 512 P.2d 442 (1973). The failure of the agreement to directly address whether the defendants incur future liability does not mean the contract is ambiguous; the more logical conclusion is that the contract imposes no such obligation. We find no language in the agreement creating a genuine uncertainty as to which of multiple meanings is proper. Therefore, we hold the contract is not ambiguous.
It is a basic rule of contract law that courts will allow parties to choose the terms by which they will be bound under written agreements. Squires v. Woodbury, 5 Kan. App. 2d 596, 598, 621 P.2d 443 (1980), rev. denied 229 Kan. 671 (1981). If, in fact, the agreement states that defendants are responsible for their insurance company’s obligations, they became so voluntarily. Parties that define their relationship by contract leave no room to apply a legal theory that might exist but for an express agreement. Bank v. McIntosh, 72 Kan. 603, 84 Pac. 535 (1906). It is unnecessary for us to address the defendant’s argument that there was no evidence the Company could not pay Boos’ future medical expenses because our analysis of the express and unequivocal terms of the agreement shows defendants were under no obligation to make future payments to Boos.
A setdement agreement, by its nature, substitutes contractual performance for what was previously claimed to be due. 15A Am. Jur. 2d, Compromise and Setdement § 1. The petition alleged a classic claim of negligence for accidental injuries suffered in a physical education class at GBHS. It makes no sense for the two associations to be involved, but they have chosen to become parties to the contract and must therefore assume such obligations as the setdement agreement imposes upon them.
The settlement agreement is substituted for the underlying claim or right, and the rights and liabilities of the parties become measured and limited by the terms of the agreement. 15A Am. Jur. 2d, Compromise and Setdement § 24. The release provisions of a setdement agreement release the defendants from whatever liability the allegations of the petition might have raised but have no effect on any contractual obligations which were imposed by the settlement agreement. See Crawford v. Kelly Field Nat. Bank, 733 S.W.2d 624 (Tex. Civ. App. 1987). The core issue, as we have previously stated, is whether the terms of the settlement agreement bind the defendants to make the payments ordered by the court.
It is Boos’ burden to show the contract imposes the obligation he seeks to impose on the defendant. See Bishop & Babcock Sales Co. v. Brogan, 128 Kan. 779, 783, 280 Pac. 749 (1929). The plain and simple fact is that there is a complete absence of any language in the agreement which supports Boos’ contention and die burden he bears. The rule is clear that unambiguous contracts must be enforced according to their plain, general, and common meaning in order to ensure the intentions of the parties are enforced. Vanderpool v. Higgs, 10 Kan. App. 2d 1, Syl. ¶ 1, 690 P.2d 391 (1984); Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, Syl. ¶ 3, 738 P.2d 866 (1987). Because the settlement contract has been found to be unambiguous, we look only to the four comers of the agreement to determine the parties’ intent, harmonizing the language therein if possible. See Brown v. Lang, 234 Kan. 610, Syl. ¶¶ 1, 2, 675 P.2d 842 (1984); Wiles v. Wiles, 202 Kan. 613, 619, 452 P.2d 271 (1969).
The agreement does not purport to impose any duties on the defendants other than the payment of $3,811.57 and $1,000 in attorney fees. The wording of paragraph 3 imposes only on the Company the duty to perform the obligations set forth in sub-paragraphs A, B, C, D, E, and F and enumerated in subparagraphs G, H, I, and J. We will not debate Boos’ wisdom in accepting these obligations since the agreement is clear that he has done so. There are no provisions which could be constmed to impose liability on the defendants to make the payments under paragraph 3 if the Company is unable to do so.
The trial court found the parties must have intended the defendants to incur some obligation; otherwise there would be no consideration for the release. This totally ignores the monetary payment defendants made to Boos and his attorney and the de fendants’ providing the obligations of a third party, which the plaintiff accepted.
“Generally speaking, if consideration is sufficient for a contract in other respects, it does not matter from or to whom it moves. The consideration . . . may be given by the promisee or a third person. ... It is not essential to a recovery on a promise made for the benefit of several persons that consideration move from each of such persons.” 17A Am. Jur. 2d, Contracts § 125. There was adequate consideration for the agreement.
The court specifically found that “this release and settlement was entered into by the plaintiffs voluntarily after consultation with independent counsel of their choice and is not based upon any representation or statements of any kind made by the defendants or their representatives as to the merits, liability, or value of their claim or any other matter relating thereto.”
The trial court’s finding that the Company was merely an instrument (agent) of the defendants to pay Boos does not appear from the agreement.
“The rule that the surrounding circumstances should be considered in determining the meaning of a contract and the intention of the parties thereto, as of the time of entering into the contract, is limited to cases where resort to such circumstances is made necessary by reason of the ambiguity and uncertainty of the contract language, and the rule does not apply where the language of a written agreement is plain and is not susceptible of more than one meaning. If the language of the contract is perfectly plain and unambiguous, the expressed intent, and not necessarily the actual intent, controls.” 17A Am. Jur. 2d, Contracts § 356.
No matter how the Company was interjected into the agreement, Boos agreed to terms which clearly bound the Company to make the payments and did not bind the defendants herein to make any future payments.
Boos’ only claim is that the settlement agreement imposes liability on the defendants. He does not request rescission based upon a failure of consideration, damages based upon the insurance company’s breach, or an alteration in the original court order. Boos made a narrow claim for enforcement of the agreement and fails to show any wording which could justify the claim he makes. See 15 Am. Jur. 2d, Compromise & Settlement § 35.
There is no question but that this is a difficult decision. Courts cannot, however, under the guise of construction rewrite the terms of the contract. Quenzer v. Quenzer, 225 Kan. 83, 85, 587 P.2d 880 (1978). “It is a cardinal rule . . . that courts will not rewrite a contract by construction if it is clear and unambiguous.” Thomas v. Thomas, 250 Kan. 235, 244, 824 P.2d 971 (1992); Havens v. Safeway Stores, 235 Kan. 226, 231, 678 P.2d 625 (1984). The construction reached by the trial court cannot be justified. The clear and unambiguous wording must be enforced. The defendants did not by the agreement assume the obligation to insure and guarantee payment by the Company. The motion for payment should have been denied.
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|
Lewis, J.:
George Earl Rogers and Matthew Rogers were father and son. Matthew, at the time of his death, was employed by Omega Concrete Systems, Inc. (Omega). Since Matthew did not have a driver s license, George drove him to work nearly every day for several years. In order to deliver Matthew to the Omega job site, the parties had to travel over a private road on land owned by the Union Pacific Railroad Company (UP). This road was accessed by traveling down highway K-32 and then turning south. The private road also crossed the UP railroad tracks. On the tragic day which gave rise to these proceedings, George drove in front of a UP train, and both he and Matthew were killed. Blood tests performed on each man indicated that George had not been drinking prior to the accident but that Matthew had a blood alcohol concentration of .219. The heirs of George and Matthew brought this wrongful death action, seeking to recover damages from Omega, alleging that its negligence had caused or contributed to the accident. The plaintiffs previously settled with other named defendants, including UP, St. Louis Southwestern Railway, and the City of Kansas City, Kansas. The trial court granted summary judgment in favor of Omega, and the plaintiffs appeal.
The day of the fatal accident was bright and clear. At approximately 6:40 a.m., George turned off K-32 onto a private road leading to the Omega job site. This private road (hereafter road) ran across two UP railroad tracks; the crossing was within 145 feet of the entrance to the road, and the tracks had to be crossed to reach Omega.
There were eyewitnesses to the fatal accident. These witnesses observed the Rogers car turn onto the road at a speed of 15 to 20 miles per hour and proceed to the railroad crossing without stopping or slowing down. One witness observed George look to his left before reaching the crossing but testified that he never did look back to his right. The UP train was coming from the right side of the Rogers vehicle. The vehicle entered the crossing without slowing down or stopping and was struck by the train. Both men were killed instantly.
The focus of the cause of action against Omega is a “Private Road Agreement” (hereafter Agreement) signed by Omega in 1973.
The evidence indicates that the railroad tracks had been at the location in question since 1888. The crossing, at the time of the accident, was veiy busy with trains passing over it at regular intervals.
The predecessor of Omega was a company known as Stewart Sand and Material Company (Stewart). Apparently, access to Stewart was difficult, and no road was available to reach the area. The result was that, in 1957, Stewart and UP entered into an Agreement which granted to Stewart “the right to construct and thereafter, during the term hereof, to maintain and use said Private Road across said right of way and over said tracks located thereon.” In the agreement, Stewart is referred to as a “Licensee” and it is made apparent that Stewart “desire[d] the construction ... of a private road.” In 1974, Omega was made a party to the Agreement, and all references to obligations and duties under the Agreement will refer to Omega.
While Omega was to maintain the road under the terms of the Agreement, UP agreed to construct the crossing over the road at the expense of the licensee and agreed to install “traffic warning signs and whistling posts.” UP did, in fact, install the signs and whistling posts. The evidence further indicates that, since 1974, all maintenance on the crossing itself was performed by UP.
There are two key provisions in the Agreement which the plaintiffs contend were violated by Omega. These key provisions read as follows:
Private Road provision: “It is expressly stipulated that the Private Road is to be a strictly private one and that it is not intended for public use, and the use thereof shall be limited to the Licensee and its employees, agents and patrons.”
Gates provision: “The gates in the right of way fence affording access to the Private Road shall be kept closed by the Licensee at all times, except during the time of actual passage through them onto or from the Private Road.”
These sections and other pertinent language in the Agreement will be discussed later in this opinion.
The plaintiffs argue that the trial court erred in granting summary judgment to Omega.
STANDARD OF REVIEW — SUMMARY JUDGMENT
The sole issue on appeal is whether the trial court erred in granting summary judgment to Omega. Plaintiffs argue that Omega had premises liability as a result of its standing under the Agreement. They also argue that Omega breached its agreement to keep the road private and to keep the gates closed. The plaintiffs argue that they are third-party beneficiaries under the Agreement.
The standard for summary judgment is well known and often stated:
“Summary judgment is proper if no genuine issue of fact remains, giving the benefit of all inferences which may be drawn from the admitted facts to the party against whom judgment is sought. A trial court, in ruling on motions for summary judgment, should search the record to determine whether issues of material fact do exist. When summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party who defended against the motion for summary judgment. [Citation omitted.]” Finkbiner v. Clay County, 238 Kan. 856, 857-58, 714 P.2d 1380 (1986).
“Summary judgment may be granted when the evidence shows no liability as a matter of law and where the central facts are not in dispute. [Citation omitted.] When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. [Citation omitted.] In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. An issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact could not affect the judgment, it does not present a genuine issue of material fact. [Citation omitted.]” Knudsen v. Kansas Gas & Electric Co., 248 Kan. 469, 483, 807 P.2d 71 (1991).
“ ‘Summary judgment is proper where the only questions presented are questions of law. [Citation omitted.] To recover for negligence, the plaintiff must prove the existence of a duty, breach of that duty, injury, and a causal connection between the duty breached and the injury suffered. [Citation omitted.]’ McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991). ‘ “Whether a duty exists is a question of law. [Citations omitted.] Whether the duty has been breached is a question of fact.” [Citation omitted.]’ Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 668, 792 P.2d 993 (1990). ‘It was thus the obligation of the court in the first instance, and this court on appeal, to determine whether a duty existed. Without a duty, there could be no breach which would support plaintiff’s claim.’ Hackler v. U.S.D. No. 500, 245 Kan. 295, 297, 777 P.2d 839 (1989).” Honeycutt v. City of Wichita, 251 Kan. 451, 463, 836 P.2d 1128 (1992).
In its memorandum, Omega submitted some 158 uncontroverted facts. The plaintiffs controverted 18 of those facts. The facts involved were gleaned from 23 depositions, 3 affidavits, and numerous photographs and other exhibits marked and developed during discovery.
The trial court concluded that the uncontroverted facts in this case mandated a holding that Omega had no premises liability and violated no duty owed to the plaintiffs.
PREMISES LIABILITY
The plaintiffs first assert that Omega is liable under a theory of premises liability. That theory is satisfactorily explained in 62 Am. Jur. 2d, Premises Liability § 6, p. 353 as follows:
“Occupation, or possession, and control is usually one of the attributes that must be shown as a basis for liability on the part of an owner or occupant of premises for injuries resulting from the condition of the premises. The liability of an occupant of real estate for injuries caused by a dangerous or defective condition of the premises depends generally upon his control of the property, whether or not he has title thereto and whether or not he has a superior right to possession of property which is in the possession and control of another.” (Emphasis added).
Omega did not own any of the real estate on which the private road and crossing were located. The issue presented is one of control, not ownership. In a premises liability case, in order to be liable, the party charged must have had control over the premises in question. It is obvious that, without control, the responsibility for the dangerous or hazardous condition cannot exist. To put it another way, a party may not be held responsible for a condition which he or she did not cause and which he or she has no ability to remedy.
In this case, the trial court held that no premises liability could attach to Omega and stated:
“The accident did not occur on any premises owned or controlled by Omega. It occurred at a crossing over which Omega merely had a right to cross by virtue of its agreement with the railroad. Thus, any theories of premises liability advanced by plaintiffs can provide no basis for recovery against Omega. They simply don’t apply to this set of facts. Any discussion as to whether plaintiffs were invitees or licensees of Omega is irrelevant.”
We agree with the decision of the trial court as it applies to the crossing itself. We have examined the Agreement between Omega and UP and cannot find where it places any responsibility upon Omega to do anything with regard to the crossing. Omega simply has no right of control over the condition or safety of the crossing. The Agreement originally required Stewart to pay for the installation of the crossing but gave Stewart no further responsibility for the crossing. The element of control over the crossing, essential for premises liability, is lacking in this case. See Strauss v. Missouri Pacific Rld. Co., 175 Kan. 98, 259 P.2d 145 (1953).
The uncontroverted facts support the conclusion of the trial court. Omega became a signatory to the Agreement in 1974. Since that time, it has performed no maintenance of any kind on the crossing, nor has it been billed for maintenance performance by UP. Only UP employees have authorization to perform work in the railroad right-of-way and on the crossing. The duty to provide warning signals at the crossing was exclusively that of UP, as provided by the Agreement in question. There is a total lack of evidence indicating that Omega had any right of control over the railroad crossing. Indeed, the evidence indicates that, as to the crossing, Omega was nothing more than a licensee of UP. Omega had obtained the right for its employees to cross at the crossing but had no further rights in or control over the crossing in question. See, e.g., Strauss v. Missouri Pacific Rld. Co., 175 Kan. 98. The actions and intent of the parties are relevant in interpreting the contract. Fountain v. Se-Kan Asphalt Services, Inc., 17 Kan. App. 2d 323, 328, 837 P.2d 835, rev. denied 251 Kan. 937 (1992).
The trial court concluded that whether the crossing was hazardous was a question of fact. The plaintiffs1 expert testified that it was, and the expert for Omega testified that it was not. How ever, in the absence of evidence that Omega had control over the hazards alleged, they became irrelevant insofar as the liability of Omega is concerned. The trial court did not err in holding that Omega had no liability as an owner or possessor of the railroad crossing where the accident occurred.
Omega did, however, have considerable control over the private road which led to the railroad crossing. Unlike the crossing, Omega undertook the responsibility for the maintenance of the private road. The evidence shows that this road existed primarily for the benefit of Omega and its employees. Under these circumstances, it could hardly be argued that Omega was not responsible for keeping the road in a safe condition for the benefit of its employees. Omega had the right and the duty to remedy dangerous conditions in the road itself.
In theory, Omega could have been subjected to premises liability with regard to the road it agreed to maintain. However, in fact, the evidence does not reveal the existence of any road defects which caused or contributed to the accident in question. For the puiposes of our discussion, we treat the railroad crossing separate and apart from the private road. This is consistent with the Agreement, which requires Omega to maintain the private road but reserves the control over the railroad crossing in UP.
The expert witness employed by the plaintiffs executed an affidavit in which he set forth the conditions plaintiffs contended made the grade crossing extra hazardous:
“Based on my experience, personal inspection of the Private Road and crossing, and the 1986 FHWA Railroad-Highway Grade Crossing Handbook, the following conditions made the subject grade crossing extra hazardous:
(a) sight restrictions caused by trees and shrubs in three quadrants of the crossing;
(b) the relatively high-speed turns that are possible onto the Private Road from Route K-32;
(c) the closeness of the crossing to the K-32 intersection;
(d) the relatively high train speed and volume;
(e) die presence of multiple tracks;
(f) the lack of advance warning signs; and
(g) the lack of a positive control device.”
Assuming the conditions listed above were hazards, they were conditions over which Omega had no control. The trees which might have caused sight restrictions were not on land owned or controlled by Omega. There is no showing that Omega had any right to trim or cut down trees on land it did not own and could not enter. The relatively high speed turns from K-32 to the Private Road are clearly conditions over which the State, and not Omega, had control. The closeness of the crossing to the K-32 intersection was, again, not a hazard over which Omega had control. The crossing was located where the railroad wanted it, without regard to any desire on the part of Omega. The high train speed and volume and the presence of multiple tracks is, again, obviously nothing Omega could do anything about. The duty to post warning signs and the like was reserved to UP in the Agreement, and UP assumed and performed this duty. Under the circumstances shown, we conclude additional warning signs or devices were superfluous. The decedents traveled this road almost daily and knew of the existence of train tracks and traffic.
There are no road hazards associated with road maintenance alleged to be the cause of the accident. Thus, even assuming premises liability on Omega with regard to its duty to maintain the road, no violation of that duty is shown by the record.
CONTRACTUAL OBLIGATIONS
The plaintiffs argue that Omega breached the “private road” clause in the Agreement. Even assuming that to be true, we see nothing in the record which could link the public use of the road and the proximate cause of the accident. The decedents’ automobile was driven in front of a moving train and they were killed. That singular fact has no relationship to any public or private use of the road. We do not hesitate to affirm the trial court where the uncontroverted facts, on summary judgment, show no quesáon of fact as to the contribution of a particular condition to the proximate cause of the accident.
The trial court in this case held as a matter of law that “[n]either the lack of gates or the failure of Omega to keep the road private contributed to the cause of this accident.” We agree. There is nothing in this record which could support a finding that the failure to keep the private road private caused or contributed to this accident. Indeed, the facts clearly fail to show any linkage between the two.
Plaintiffs argue that if the road were treated as a public road, the duties of Omega with regard to the road would be increased beyond the scope of the Agreement. The trial court, however, held that the Agreement did not impose any affirmative duty on Omega to insure that the public never traveled on the road. We agree. The Agreement provides that the road was not intended for public use and should be limited to use only by Omega and its employees, agents, and patrons. It does not state or even imply that either party to the Agreement had an affirmative obligation to enforce this provision. The road was kept private in the sense that it was always privately funded and maintained and no public funds were expended for such purposes. We agree with the trial court that the “private road” provisions of the Agreement do not afford any basis for imposing liability for this accident on Omega. We will not write a new agreement for the parties under the guise of construction. We enforce the Agreement as written. See Fountain v. Se-Kan, 17 Kan. App. 2d at 327.
The plaintiffs next assert that the “gates” provision of the Agreement was breached by Omega and that this breach was a cause of the accident. The Agreement provided: “The gates in the right of way fence affording access to the Private Road shall be kept closed by the Licensee at all times.”
There is no question but that the gates were not closed immediately prior to the accident. In fact, no right-of-way fence or gates existed, having been tom down many years before Omega became a party to the Agreement. While Omega may have contractually undertaken a duty to keep the gates closed, it had no right or authority to build a right-of-way fence on real estate it did not own. The absence of any right or authority to build a new right-of-way fence made the “gates” provision of the Agreement impossible to perform. Under the circumstances, Omega was relieved of its obligation to keep the non-existent gates closed:
“The law has long since recognized that impossibility, or as stated by the more modem authorities, impracticability of performance may reheve a promisor of liability for breach of contract. Such impracticability may arise after the contract, in which case it is referred to as ‘supervening’ or may exist at the time of the contract, in which case it is referred to as ‘original’ or ‘existing.’ ” Sunflower Electric Coop., Inc. v. Tomlinson Oil Co., 7 Kan. App. 2d 131, 138, 638 P.2d 963 (1981), rev. denied 231 Kan. 802 (1982).
Under the circumstances, we hold that Omega cannot be held responsible for the breach of a provision in a contract which it could not perform. Omega had no authority to enter onto the property of another and rebuild the right-of-way fence. As a result, the provision in question was rendered impossible to perform. Omega cannot be responsible for closing the gate on a nonexistent fence it had no right to rebuild.
We hold the trial court did not err in granting summary judgment to Omega. The facts of this tragic accident are not complicated, and they are not in dispute. George Rogers drove in front of an oncoming locomotive, and he and his son, Matthew, were killed. The uncontroverted facts in this case do not create a question of fact as to the liability of Omega. The facts fail to show the breach of any duty owed by Omega to the decedents, and summary judgment is proper. Omega’s only exposure to liability is as a licensee of a private road with a duty to maintain the road only. The crossing remained under the exclusive control of UP. The uncontroverted facts show that Omega did nothing which caused or contributed to the accident. The hazards which plaintiffs contend existed were not created by Omega, which had neither the requisite authority or control to correct the specified problems. We are unable to discern who was at fault in this accident. However, we do conclude Omega was not. There is nothing in the record to justify a trial as to the liability of Omega.
The plaintiffs finally argue that the trial court erred in finding that Omega breached no tort or contractual duty to the plaintiffs.
In general, whether a duty exists is a question of law, and whether that duty has been breached is a question of fact. Gooch v. Bethel A.M.E. Church, 246 Kan. 663, 668, 792 P.2d 993 (1990). The application of this rule renders summary judgment generally inappropriate for the determination of whether a particular duty has been breached.
The general rule, as most rules, is subject to exceptions. In this case, the uncontroverted facts leave no room to predicate liability or causation upon any action of Omega. Under those circumstances, it is not error to grant summary judgment. We see no resolution of any disputed questions of fact by the trial court. The facts do not support the imposition of liability on Omega. The decision of the trial court is affirmed.
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Larson, J.:
G.F., the putative father, requested under the Kansas Parentage Act, K.S.A. 38-1110 et seq., a judicial determination of the paternity of D.B.S., a child bom during the marriage of his mother, P.S., to M.S. After a hearing required by In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1990), the trial court ruled it would not be in D.B.S.’s best interests for blood tests to be ordered for a determination of paternity.
G.F. appeals, contending (1) there was not substantial competent evidence to support the trial court’s finding, (2) the trial court erred, as a matter of law, in dismissing the paternity action in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and (3) the trial court’s ruling destroys the parental preference doctrine by allowing a third party to have custody of a minor child even though the natural parent is fit.
Several novel legal arguments are made which will be addressed, but the decision is essentially fact-driven, and we must first set the stage for this controversy.
The 1980 marriage of M.S. and P.S. resulted in the birth of R.S. in 1981 and D.B.S., the subject of this action, in July 1986. M.S. and P.S. lived together as husband and wife during the time of D.B.S.’s conception and birth. M.S. has at all times believed himself to be and acted as D.B.S.’s father.
G.F. and P.S. maintain that they had a single extramarital encounter, resulting in D.B.S.’s conception. P.S. apparently requested G.F. not to interfere with respect to D.B.S. so she could attempt to make her marriage to M.S. work. G.F. acquiesced in this request and, prior to a divorce action between M.S. and P.S., G.F.’s relationship with D.B.S. was minimal and distant.
The divorce between M.S. and P.S. in 1990 was acrimonious and hotly contested. P.S. first alleged that M.S. was not the biological father of D.B.S., but withdrew her motion for determination of D.B.S.’s parentage upon advice of counsel in hopes of attaining a better position in the custody proceedings and property division. The parties were granted joint custody with the primary residential custody of R.S. and D.B.S. with M.S. and specific visitation rights with P.S. Since the divorce, the parties have continued to be litigious concerning property and child custody issues. P.S. has continually attempted to undermine M.S.’s relationship with D.B.S. and make difficult D.B.S.’s return to M.S. following periods of visitation.
G.F. and P.S. began living together approximately one year before this paternity action was filed in May 1993. A daughter has been bom to the relationship of G.F. and P.S. and, during the time of their cohabitation, G.F. developed a “parent-like” relationship with D.B.S. as the result of D.B.S.’s visitation with P.S. Both P.S. and G.F. have told D.B.S. that G.F. is his biological father.
After the filing of the paternity request, the trial court appointed a guardian ad litem to represent D.B.S. M.S.’s motion to dismiss the paternity action was denied, but it was stipulated that Dr. Thomas Coleman would perform a psychological evaluation of all of the parties as a basis to evaluate D.B.S.’s best interests. The parties had previously received the evaluations during the divorce hearing from Drs. Lariy Peak, Helen Bontraeger Collins, Robert Sinnett, and Thomas Coleman. At the time of the divorce, G.F. was interviewed by Dr. Peak and reported minimal involvement with D.B.S. and admitted M.S. was functioning as D.B.S.’s father.
The testimony at the Ross hearing was conflicting and spirited. In his testimony, Dr. Coleman opined that D.B.S. was a pleasant and happy child who was doing well in school and got along with everyone. Dr. Coleman stated D.B.S sees both M.S. and G.F. as “dad” but has a close, supportive, and loving relationship with M.S., who supported D.B.S.’s relationship with P.S. and G.F. Dr. Coleman saw P.S.’s negativity and criticism of M.S. as detrimental and her involvement in the paternity action as a way to obtain sole custody of D.B.S. and remove M.S.’s involvement. Dr. Coleman’s opinion was that blood tests should not be taken because the test results might cause important relationships to be severed, sabotaged, or discouraged.
Evidence at the hearing indicated D.B.S. had a good relationship with M.S.’s parents. It was clear that D.B.S. desires to continue his excellent relationship with his older brother but has little interest in the adult-generated controversy in which he is minimally involved.
Testimony indicated D.B.S. has a good relationship with J.C., M.S.’s significant other, who along with her daughter has been harassed by P.S.
The guardian ad litem’s recommendation, although hesitant, was that since D.B.S. would at some time want to know who his biological father was, it should be determined at this time.
The trial court’s extensive factual findings, highly summarized, were as follows:
(1) M.S. has had physical custody of D.B.S. since birth for seven years and has financially and emotionally supported D.B.S. as his child.
(2) Although advised early of the potential parentage, G.F. stayed in the background and did nothing toward asserting his parental rights until his relationship with P.S. was reestablished after her divorce from M.S. and the filing of the present action.
(3) D.B.S. is a normal seven-year-old boy without anxiety or depressive symptoms who enjoys an excellent relationship with his brother and is a happy, friendly, quiet, and thoughtful child.
(4) Based upon substantial competent, professional, and other uncontroverted evidence, the paternity issue is of no consequence or significance to D.B.S.
(5) P.S. lacks sensitivity to her children’s needs, over interprets D.B.S.’s attachment to her, and refuses to recognize D.B.S.’s strong attachment to M.S. P.S. was found to have engaged in manipulative techniques and resisted reasonable visitation orders. This thread of noncooperation concerning custody and visitation has continued through the entire post-divorce proceedings, ultimately resulting in P.S. being found to be in indirect contempt.
(6) P.S.’s desire for D.B.S.’s custody was found to have influenced G.F.’s motivation, although the trial court did not find that G.F. was not sincere in his present request for blood testing.
(7) D.B.S. should not be separated from his older brother, although P.S. did not believe separation would be traumatic.
The trial court cited extensively from Ross as well as Jensen v. Runft, 252 Kan. 76, 843 P.2d 191 (1992), considered the matter from the view of the child, and reasoned that in the best interests of D.B.S., blood testing should not be ordered.
The trial court concluded there was substantial competent evidence to support Dr. Coleman’s written conclusion:
“I do not believe that P.S. could allow D.B.S. to continue to maintain or develop relationships outside of her realm and that she would have a great deal of influence on his choices in that regard. It would be highly probable that he would lose his contact with M.S., a man who has loved him, taught him and supported him and M.S.’s parents. His relationship with R.S. would become somewhat marginal.”
The trial judge adopted that view and found there was substantial evidence to support Dr. Coleman’s recommendation, stating: “[I]t is my belief that it would not be in the best interest of D.B.S. to conduct a blood test.”
Did the trial court err, as a matter of law, in dismissing the paternity action in violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution?
G.F.’s argument that he has a protected liberty interest under the Due Process Clause of the Fourteenth Amendment in his relationship with D.B.S., thereby compelling blood testing at his request, was presented to the trial court in briefs, although it was not extensively argued or ruled upon. M.S. suggests a finding of abandonment might be proper but invited us to deal with the issues so this entire matter might be finally decided.
This issue does not appear to have been raised previously in either Ross or Jensen. The trial court’s order was implicitly based upon a legal conclusion that its order was constitutional. Therefore, this is an issue of law over which our review is plenary. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
While it is well established in Kansas that “the parents’ rights of custody and control of their children are liberty interests protected by the Fourteenth Amendment Due Process Clause,” In re Cooper, 230 Kan. 57, Syl. ¶ 1, 631 P.2d 632 (1981), the issue for our determination is: Does G.F. have a constitutionally protected interest sufficient to compel a determination of parentage of D.B.S.?
The existing case law on this issue is found in a series of five United States Supreme Court decisions.
Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), is the landmark case recognizing the constitutionally protected rights of unwed fathers. In Stanley, an unwed father sought to prevent Illinois from removing his children from his custody after the death of their mother without a hearing as to his fitness as a parent. Stanley recognized that putative fathers have a right to notice and hearing in cases threatening their continued association with their children and held that a custodial unwed father is entitled to the same presumption of fitness as a married parent. 405 U.S. at 656-58. It is factually important that in Stanley both parents lived together and had a long-time relationship with their children and that the father had custody of the children.
Quilloin v. Walcott, 434 U.S. 246, 54 L. Ed. 2d 511, 98 S. Ct. 549 (1978), involved the claimed constitutional rights of a putative father who had not developed or sought to develop a relationship with his child for 11 years. The putative father challenged a Georgia statute that permitted the adoption of an illegitimate child with only the consent of the mother. It was held there was no need to show the putative father’s unfitness absent previous ef forts on his part to establish some parental relationship and he could not prevent the adoption of the child by the mother’s husband. It was deemed sufficient that the adoption be found to be in the best interests of the child. 434 U.S. at 255.
Quilloin established a limitation on the rights of a putative father recognized in Stanley and sets forth the rule that constitutionally protected rights of a putative father are adequately protected by the best interests of the child test when the putative father has not made any effort to develop a relationship with the child before another man does.
In Caban v. Mohammed, 441 U.S. 380, 60 L. Ed. 2d 297, 99 S. Ct. 1760 (1979), the United States Supreme Court considered a challenge to a New York statute that had the effect of preventing an unwed biological father from either adopting his children or preventing their adoption by the mother’s husband. In Caban, the biological father had lived with the children and their mother for several years. After the mother left the relationship and took the children with her, she married a man who sought to adopt the children. It was held the father had a constitutionally protected interest which could only be overcome by showing the State had an equally important interest. The decision was rendered on equal protection grounds based on the fact that the statute unjustifiably distinguished between mothers and fathers. 441 U.S. at 394.
The next case chronologically is Lehr v. Robertson, 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983), which clarified the rights of unwed fathers by considering when those rights attach and the scope of those rights. The Court determined that an unwed father has a constitutionally protected interest in the opportunity to develop a parent-child relationship with his offspring. That constitutional protection is significantly reduced if the father does not establish or seek to establish a relationship with the child. If the father does not act to develop a relationship with the child, he does not even retain a right to notice of pending adoption proceedings. 463 U.S. at 264-65.
Thus, in summary, in Stanley and Caban, the fathers had established a relationship with the children in question and the United States Supreme Court found the fathers’ constitutional rights had been violated. In the other two cases, QuiUoin and Lehr, because no relationship had been established, the Supreme Court found no constitutional violations.
The most recent United States Supreme Court decision is also the most factually similar to our case. Michael H. v. Gerald D., 491 U.S. 110, 105 L. Ed. 2d 91, 109 S. Ct. 2333 (1989), involved the question of whether a biological father of a child bom while the mother was married to another man has a constitutional due process right to establish that child’s paternity. The child was conceived and bom during a marriage that continued at the time the Supreme Court reviewed the case. The child and her mother visited the putative father briefly and had blood tests which showed a 98.07% probability of parentage. When the putative father was prevented from visiting the child, he filed an action in California to establish his paternity and right of visitation. The parties experienced an international lifestyle but the putative father lived with the mother and child briefly during the early period when the action was pending. The mother then reconciled with her husband, who intervened and was granted summary judgment because of California’s statutory conclusive presumption of paternity when there is a cohabiting husband who is neither impotent nor sterile. On appeal, the putative father claimed that he was denied his procedural and substantive due process rights.
The United States Supreme Court affirmed in a plurality opinion authored by Justice Scalia. Justice Stevens wrote a separate opinion concurring in the result. Four justices dissented in two separate opinions.
Justice Scalia rejected the notion that biological fatherhood plus an established parental relationship was sufficient to establish a liberty interest and held that the conclusive presumption of the husband’s paternity did not violate procedural due process rights of the father. 491 U.S. at 119-21. The opinion reasoned that the proper constitutional question was not the adequacy of the procedures but the adequacy of the fit between die governmental policies (maintaining family integrity and privacy) and the classification used to achieve it (husband of the mother presumed to be the father). 491 U.S. at 119-21. The plurality found that societal traditions had protected the marital family against claims such as those made by the putative father and concluded there was no procedural due process violation.
In reaching this conclusion, Justice Scalia starts with the proposition that the Due Process Clause “affords only those protections ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” 491 U.S. at 122 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 78 L. Ed. 674, 54 S. Ct. 330 [1934]). He rejects Stanley, Quilloin, Caban, and Lehr as standing for the broader principle that biological fatherhood plus an established parental relationship establish a constitutionally protected liberty interest in a putative father and limits those four cases to the principle that there is a “historic respect — indeed, sanctity would not be too strong a term — traditionally accorded to the relationships that develop within the unitary family.” 491 U.S. at 123. Justice Scalia then resolves the substantive due process issue by identifying and implementing the following approach:
“Thus, the legal issue in the present case reduces to whether die relationship between persons in the situation of Michael and Victoria has been treated as a protected family unit under the historic practices of our society, or whether on any other basis it has been accorded special protection. We think it impossible to find that it has. In fact, quite to the contrary, our traditions have protected the marital family.” 491 U.S. at 124.
Justice Scalia cites the following reasons for concluding that a putative father’s interest has not been historically protected: The presumption of legitimacy and rationale underlying it, the putative father’s lack of power to assert parental rights over a child bom during a woman’s marriage to another man, and the lack of standing of a putative father to claim paternity. 491 U.S. at 124-126. He then continues:
“Moreover, even if it were clear that one in Michael’s position generally possesses, and has generally always possessed, standing to challenge the marital child’s legitimacy, that would still not establish Michael’s case. As noted earlier, what is at issue here is not entitlement to a state pronouncement that Victoria was begotten by Michael. It is no conceivable denial of constitutional right for a State to decline to declare facts unless some legal consequence hinges upon the requested declaration. What Michael asserts here is a right to have himself declared the natural father and thereby to obtain parental prerogatives. What he must establish, therefore, is not that our society has traditionally allowed a natural father in his circumstances to establish paternity, but that it has traditionally accorded such a father parental rights, or at least not traditionally denied them.” 491 U.S. at 126.
Justice Scalia determines the lack of recognition of rights of a biological father of a child bom into an existing marriage precludes a constitutional right in such a father. The plurality’s conclusion, he notes, is limited to cases in which the husband and wife still reside together at the time of birth and wish to raise the child jointly as their own. 491 U.S. at 129. He notes that a biological father might have a constitutional interest in establishing a relationship with his child where the mother has no husband at the time of birth. “Where, however, the child is bom into an extant marital family, the natural father’s unique opportunity conflicts with the similarly unique opportunity of the husband of the marriage; and it is not unconstitutional for the State to give categorical preference to the latter.” 491 U.S. at 129.
If we were to apply this reasoning to the instant case, it would mandate a finding that G.F. had no liberty interest to be protected. D.B.S. was bom into an existing family, and M.S. and P.S. chose to raise him as their own child at the time of birth and for several years thereafter.
Justice Stevens, in his concurrence in Michael H., found that the California statutory presumption of paternity did not deny putative fathers any rights they might have because California allowed reasonable visitation rights "to any other person having an interest in the welfare of the child.” 491 U.S. at 133. Thus, although the putative father might be precluded from establishing that' he is a “parent,” he would not be precluded from exercising any constitutional rights because he could still prove that he was an other interested person. By this reasoning, Justice Stevens did not have to reach the issue of whether the putative father of a child bom to a woman married to another man has a protected constitutional interest. He wrote:
“I therefore would not foreclose the possibility that a constitutionally protected relationship between a natural father and his child might exist in a case like this. Indeed, I am -willing to assume for the purpose of deciding this case that Michael’s relationship with Victoria is strong enough to give him a constitutional right to try to convince a trial judge that Victoria’s best interest would be served by granting him visitation rights.” 491 U.S. at 133.
Although the statutory provisions of the Kansas Parentage Act and the California provisions differ materially, the reasoning of Justice Stevens’ concurring opinion would result in the conclusion that G.F.’s constitutional rights are not violated. He is not denied the right of visitation by virtue of being denied a proclamation of paternity. In fact, the record shows that G.F. has been able to develop a parent-like relationship with D.B.S. and sees him frequently when he is visiting P.S.
Subsequent to the United States Supreme Court’s decision in Michael H., other states have considered questions similar to the one before us. The Wisconsin Supreme Court in In re Paternity of C.A.S., 161 Wis. 2d 1015, 1026-28, 468 N.W.2d 719 (1991), concluded that a judicial determination of paternity in an action brought by the putative father was not in tire children’s best interest, and when the putative father appealed, contending that he had a liberty interest protected by the Due Process Clause of the Fourteenth Amendment in a relationship with the children, it was determined that Michael H. controlled the outcome of the case. Under the reasoning of Justice Scalia’s plurality opinion, the Wisconsin court determined there was no liberty interest “rooted in history and tradition” in the putative father of a child born to a woman married to another man. 161 Wis. 2d at 1030. The court proceeded to reason that even under the rationale of the dissenting justices, the putative father had no liberty interest.
“These justices did not foreclose the possibility that a putative father could never have a liberty interest in such a case, but instead concluded that the analysis should turn on the level of commitment to the responsibilities of parenthood the father demonstrates. Michael H., 109 S. Ct. at 2352 (Brennan, J., dissenting). The undisputed facts indicate that W.W.W. had only minimal contact with one of the children and did not have a relationship with either of them. We conclude that he did not have a liberty interest in determining his paternity of the children or in a parental relationship with them, as his existing relationship with them was not close to the type of relationship in which the Supreme Court had found a constitutionally protected interest to exist. [Citations omitted.]” 161 Wis. 2d at 1030.
The Wisconsin court concluded that “if a putative father of a child bom to the wife of another man has not established an actual relationship with that child, he does not have a constitutionally protected interest in establishing his parentage of the child, or in a relationship with that child.” 161 Wis. 2d at 1031-32.
Other courts have decided constitutional arguments in this type of case in other ways. For example, in Massachusetts the lack of statutory standing of a non-husband of a married woman to establish paternity was not a constitutional problem because the court held the putative father had a right to bring a paternity action in equity if he produced clear and convincing evidence of a substantial parent-child relationship at a preliminary hearing (thus showing he had preserved whatever constitutional rights he might have under Stanley and its progeny). C.C. v. A.B., 406 Mass. 679, 550 N.E.2d 365 (1990). The Supreme Court of Michigan refused to hear the constitutional concerns of a putative father of a child bom to a woman married to another man because they were not properly raised on appeal. Girard v. Wagenmaker, 437 Mich. 231, 234-35 n. 3, 470 N.W.2d 372 (1991). Texas courts have held that prohibiting a putative father from establishing paternity violates state constitutional provisions. Henderson v. Wietzikoski, 841 S.W.2d 101, 103 (Tex. App. 1992).
As we have earlier stated, the plurality opinion of Michael H. and Justice Stevens’ concurring opinion support the conclusion that G.F. has no constitutional violation of which to complain. Additionally, even if those opinions might be questioned for failing to state a common theory by a majority of the Court, G.F.’s constitutional rights are still not violated.
D.B.S. was bom in July 1986 and, according to P.S., G.F. became aware that he might be D.B.S.’s biological father either shortly before or shortly after the birth. Although P.S. and M.S. were divorced in 1990, it was not until P.S. and G.F. began to live together that G.F. established any kind of a relationship with D.B.S. Under the reasoning of Caban and Lehr, any constitutional rights that G.F. might have depend on the relationship he developed with D.B.S. See Weston, Putative Fathers’ Rights to Cus tody — A Rocky Road at Best, 10 Whittier L. Rev. 683, 684 (1989) (Lehr stands for the principle that “[i]f the father fails to seize the moment, the opportunity [to develop a parental relationship] could be lost, especially where someone else . . . voluntarily assumes the burden of meeting the child’s needs both emotionally and financially”); Michael M. v. Giovanna F., 5 Cal. App. 4th 1272, 7 Cal. Rptr. 2d 460 (1992) (where an unwed father fails to demonstrate any interest in forming a relationship with the child from the beginning, any rights conferred by the biological connections are lost).
The Massachusetts case of M.J.C. v. D.J., 472 Mass. 389, 390-94, 572 N.E.2d 562 (1991) is instructive and held:
“In August, 1988, the plaintiff told the mother that, if the baby was his, he would take care of her and the baby. The mother indicated that she preferred to allow her husband to assume that he was the father of the child, and the plaintiff went along with this plan. . . .
“. . . This is not a case where the putative father was prevented from developing a parent-child relationship primarily by the mother’s actions. Rather, the probate judge found that the plaintiff did not seek a substantial parent-child relationship with the child during the four and one-half months when he had an opportunity to do so. We reject the contention, at least in this case, that four and one-half months was not sufficient time for tire plaintiff to develop more of a relationship.” “The test on appellate review of whether the trial court abused its discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision. Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988).” 245 Kan. at 598.
The evidence at trial showed that G.F. had no involvement with D.B.S. during the first four years of his life and only developed a relationship with him in the last three years. P.S. and M.S. chose to raise D.B.S. together as their own child. G.F. chose not to pursue a relationship with D.B.S. prior to living with P.S., not because he was prevented from doing so, but because P.S. had asked him not to.
G.F. now argues the relationship he has developed with D.B.S. in the past three years is the type which is accorded constitutional protection. It is persuasive to argue that in agreeing to P.S.’s request to stay out of the picture, G.F. surrendered whatever constitutional opportunity he may have had to develop a protected relationship with D.B.S. There is no authority to support the proposition that having surrendered those rights he could later reclaim them by developing a step-father relationship after four years of providing no parental contact or support. We are justified, as the United States Supreme Court did in Lehr, to hold that G.F.’s interest in D.B.S. came too late to preserve any constitutional liberty interest. M.S. voluntarily assumed the duties of paternity long before G.F. acted to secure any rights. Therefore, without following the plurality opinion in Michael H., but relying on the total opinion of the United States Supreme Court therein, we hold the rights of G.F. herein do not amount to a liberty interest sufficient to require that he be granted the requested blood tests.
Further, even if G.F. has a constitutionally protected interest in his parental rights such that he is entitled to a determination of paternity, that interest is not absolute. In determining whether G.F.’s rights were actually violated, it is essential to weigh the State’s interest in denying a blood test against the interests of the putative father. The State’s interest which blocked the blood test in this case was in the best interests of the child. Therefore, the question of constitutional significance is whether this interest outweighs G.F.’s interests.
On one hand, it is clearly established that parental rights, not the child’s best interests, control in custody disputes between parents and non-parents where the parent is fit. See In re Guardianship of Williams, 254 Kan. 814, Syl. ¶¶ 2, 3, 869 P.2d 661 (1994). Similarly, the necessity of a custodial unwed father’s consent to an adoption is not eliminated by a finding that the adoption is in the best interests of the child. See Stanley v. Illinois, 405 U.S. 645; Caban v. Mohammed, 441 U.S. 380. A California case held that while the State’s interest in the best interests of the child controls, the nature of the relationship between the child and putative father must be considered and, in that case, the putative father’s interest in determining his paternity outweighed the State’s interest in blocking that determination based on the specific facts of the case. Michael M. v. Giovanna F., 5 Cal. App. 4th at 1285.
On the other hand, most courts that have considered the issue have found that the putative father’s interest is justifiably limited by the State’s interest in protecting the children who reside therein. Petitioner F. v. Respondent R., 430 A.2d 1075, 1079 (Del. 1981); Happel v. Mecklenburger, 101 Ill. App. 3d 107, 118, 427 N.E.2d 974 (1981); Markert v. Behm, 394 N.W.2d 239, 244 (Minn. App. 1986); A v. X, Y, and Z, 641 P.2d 1222, 1227 (Wyo. 1982).
It is clear that a bright line statement that the State’s interests in denying a determination of paternity outweigh the putative father’s interests is inappropriate. Instead, if G.F., in fact, has a liberty interest, which we do not hold herein, the proper procedure would be to identify with particularity what the State’s interests are so that they can be balanced against G.F.’s interests.
2 Schafkin, Disputed Paternity Proceedings § 27.02 (4th ed. rev. 1992), lists several possible State interests:
“The state, as generally reflected in its statutes, has a strong interest in protecting the integrity of the family; in maintaining stable family units, in preserving the emotionally supportive relationship between parent and child; in creating stable families by allowing swift and irrevocable adoption of children as early in their lives as possible; in safeguarding children from any stigma of being bom out of wedlock; and in keeping the state’s welfare rolls down.”
The Kansas Supreme Court has found State interests in providing stability to the lives of children and protecting their physical, mental, and emotional needs. “After the family unit fails to function because of legal dissolution, the child’s interests become a matter for the State’s intrusion.” In re Marriage of Ross, 245 Kan. 591, 602, 783 P.2d 331 (1990). The court has implied that the State’s interests might be minimized when the status of the child’s paternity is widely known in the community and where the child will be accepted into whichever family the blood tests shows to be biologically his. Jensen v. Runft, 252 Kan. 76, 79-80, 843 P.2d 191 (1992). However, whatever broad interest the State might claim in preventing a determination of parentage do not come into play here. The Jensen court has recently made it plain that the only State interest that justifies denying a blood test is its interest in the welfare of the particular child involved. 252 Kan. at 79 (“In determining the best interests of Luke, it is important to look at it from the child’s point of view.” Public policy requires courts to act in the best interests of the child.). Thus, if G.F. were determined to have preserved a protected liberty interest, the balancing test in this case would have to be between his interests and D.B.S.’s.
G.F.’s rights are minimized by the fact that he did not develop any meaningful relationship with D.B.S. until after M.S. and P.S. were divorced and D.B.S. was four years old. The United States Supreme Court has held that where the putative father has not developed a relationship, the best interests of the child test, as applied in this case, does not impermissibly infringe on his constitutional rights. While it is true that a natural parent must typically be declared unfit before the best interests of the child test can govern, no such determination is required when the biological father does not develop a parental relationship with the child from birth. Quilloin, 434 U.S. at 255. Thus, even if G.F. does have some degree of constitutionally protected rights, these rights are outweighed by the State’s interest in the welfare of D.B.S. and D.B.S.’s own best interests.
We hold that G.F. does not have, a constitutionally protected liberty interest; that G.F. did not develop a sufficient relationship with D.B.S. during his early childhood to justify the attachment of such an interest if one existed; and, finally, that when the State’s pursuit of the best interests of D.B.S. is tested against the minimal interest of G.F., no constitutionally protected rights were violated under the facts of this case.
Does the trial court’s ruling destroy the parental preference doctrine by allowing a third party to have custody of a minor child even though the natural parent is fit?
G.F. argues that because M.S. is permitted custody of D.B.S. without a determination that the biological parents, G.F. and P.S., are unfit, the dismissal of the paternity action violates the Due Process Clause of the Fourteenth Amendment. This is, in reality, just an alternative way of framing the constitutional argument which we have already thoroughly analyzed and rejected. The doctrine of parental preference is based on the due process rights inherent in parenthood as discussed above and is controlled by the same principles. See In re Guardianship of Williams, 254 Kan. 814, Syl. ¶¶ 1-3.
Sheppard v. Sheppard, 230 Kan. 146, 152, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982), explains: “It is clear under our decisions and those of the United States Supreme Court that a natural parent’s right to the custody of his or her children is a fundamental right which may not be disturbed by the State or by third persons, absent a showing that the natural parent is unfit.” Some right in G.F. might have existed had he taken responsibility for the child or attempted to develop a substantial relationship soon after the child’s birth, which might give rise to some basis for a parental preference argument. However, as we have previously stated, G.F. did not adequately secure whatever constitutional rights he may have, if any, to enjoy the protection of the parental preference doctrine. Not only did he fail to develop a relationship early on, but he also appeared unwilling to do so.
Furthermore, G.F.’s argument presupposes a fact and legal conclusion not before us: that M.S. is not the father of D.B.S. Kansas has a strong presumption of legitimacy and under the facts and ruling of this case, D.B.S. is in die custody of his parent.
Did the trial court err in determining that a blood test was not in the best interests of the child?
G.F. contends the trial court’s determination concerning the best interests of D.B.S. is not supported by substantial competent evidence. M.S. argues the correct standard of review is whether the trial court abused its discretion.
We will briefly discuss the differences and the similarities in the standards of review which the parties contend should be applied. However, it matters not which standard we utilize for there was substantial competent evidence upon which the trial court’s decision was based and a clear and proper exercise of its discretion in determining the best interests of D.B.S.
In reversing the trial court in Ross, the Kansas Supreme Court held: “Under the facts of this case, the district judge abused his discretion.” 245 Kan. at 602. The Ross ruling arose out of the putative father’s contention that it was an abuse of discretion for the trial court to have ordered blood tests. Under this scope of review, the test on appeal as stated in Ross is well known:
The standard of review applied by the Supreme Court in Jensen v. RunFt, 252 Kan. 76, is less clear. This was a four-to-three decision, with the majority seemingly applying a lack of substantial competent evidence standard: “Basically, all of the evidence, including the guardian ad litem’s recommendation, indicates that it would be in Luke’s best interests to know the identity of his father. The district court erred in holding otherwise.” 252 Kan. at 80.
The dissent in Jensen was trying to justify affirming the trial court and disagreed with the majority’s characterization of the dispositive issue as “what is in the best interests of Luke.” The minority opinion further states:
“In fact, the best interests of Luke was the standard applied by the trial court in the case at bar. The issue on appeal is whether the trial court abused its discretion when it found that a paternity test would not be in the best interests of Luke. The evidence before the trial court amply justifies the trial court’s decision. I find no abuse of discretion. I would affirm the trial court.” 252 Kan. at 80.
The Wisconsin Supreme Court in In re Paternity of C.A.S., 161 Wis. 2d 1015, 468 N.W.2d 719 (1991), in response to the claim of the putative father that the trial court erred in applying the best interests of the child test, opined:
“[W]e conclude that such was not the case. A determination of what is in the best interest of the child is a mixed question of fact and law. [Citation omitted.] The circuit court’s findings of fact are sustained unless they are found to be against the great weight and clear preponderance of this evidence. [Citation omitted.] In determining the best interests of the children, it is within the province of the circuit court to determine what weight is given to expert testimony, [Citation omitted.] The ultimate conclusion of the best interest of the child, however, is a matter of law which we review without deference to the circuit court. [Citation omitted.]” 161 Wis. 2d at 1036-37.
The Jensen majority’s standard of review more closely resembles that in C.A.S. than that of Ross, but the ultimate issue upon which all of the cases agree is that we must finally determine what is in the best interests of the child.
We recognize that a guardian ad litem is appointed whose duty it is to represent the child free of the dispute between adults harboring their own agendas. The role of the guardian ad litem in Ross was criticized by the court, 245 Kan. 597, was not discussed in Jensen, and here resulted in a guarded recommendation for blood testing so long as it did not disturb existing relationships. The guardian ad litem did not even appear in this appeal. In die final analysis, what courts really do is to act as parens patriae, see In re Turner, 94 Kan. 115, 145 Pac. 871 (1915), to determine if the child actually wants or needs to assert the right to identify his or her biological father, or whether the claim is brought for reasons not in the child’s best interests.
The best interests of the child test is multi-faceted and complex. The full scope of the factors to be considered varies from case to case. In general terms, it recognizes that “every child has an interest not only in obtaining support, but also in inheritance rights, family bonds, and accurate identification of [his or her] parentage.” Ross, 245 Kan. at 597. The court can properly consider such factors as the rights and relationships the child has through the presumed father that might be lost by a determination of parentage, the willingness of the biological father to assume the responsibilities of parentage, and whether there is a compelling medical need to determine paternity. Ross, 245 Kan. at 601. The motive of the party bringing the paternity action may be relevant, and indeed of critical importance, but only to the extent it affects the best interests of the child. Ross, 245 Kan. at 597; see Jensen, 252 Kan. at 79. Whether a child’s best interests will be served by a determination of paternity depends on such factors as the notoriety of the child’s situation in the community and the likely effect a determination of parentage will have on the child’s existing relationships. The court can also consider the child’s basic interest in simply knowing who his or her biological father is.
“It would be hard to justify telling Luke that because of the acts of Chris, Bruce, and Bob, he will never know with certainty the identify of his biological father, leaving him to ponder whether his ‘real’ father would have rejected him if the courts had ordered blood tests.” Jensen, 252 Kan. at 80.
The Washington Supreme Court, in a case cited in Ross, summarized the nature of the best interests of the child test:
“The criteria for determining the best interests of the child are varied and highly dependent on the facts and circumstances of the case at hand. [Citation omitted.] Yet continuity of established relationships is a key consideration. [Citations omitted.] In determining whether it is in the child’s best interests to allow a paternity action by one outside the present family, the trial court should consider the stability of the present home environment, the existence or lack thereof of an ongoing family unit, the extent to which uncertainty of parentage already exists in the child’s mind, and any other factors which may be relevant in assessing the potential benefit or detriment to the child.” McDaniels v. Carlson, 108 Wash. 2d 299, 312-13, 738 P.2d 254 (1987).
As one commentator has noted of the test:
“[T]he court will look to the set of circumstances which will afford the child the most positive environment possible under the circumstances. . . . [T]he review of die circumstances will be made from the perspective of the child: that that child, under the present and foreseeable circumstances, will need to maximize his or her opportunities for a successful life, even if such an approach is to the detriment of individuals who occupy the* status of natural parents.” Weston, Putative Fathers’ Rights to Custody — A Rocky Road at Best, 10 Whittier L. Rev. 683, 700 (1989).
The testimony in this case came from the principals, members of the extended family, counselors, and experts. As to practically all of the most relevant factors there was conflicting, but substantial competent, evidence which supported the trial court’s conclusions.
Although D.B.S. does not live in a traditional family unit, the structure in which he lives is stable and caring, and provides for all his physical and psychological needs.
Some evidence tended to show resolution of his parentage would reduce D.B.S.’s confusion and be helpful to him, but this was countered with more compelling testimony that the issue of who is D.B.S.’s biological father is utterly unimportant to him.
The principal fear for D.B.S.’s welfare among those testifying was that his relationships with M.S. and his family, which are currently close and stable, might be severed by the actions of P.S. A second concern was that D.B.S.’s close relationship with his brother, who would continue to reside with M.S., would be disturbed if D.B.S. is determined to be G.F.’s child and M.S. loses all parental rights. There was evidence that P.S. has difficulty respecting the parental rights M.S. currently has and has a great deal of hostility' toward him in general.
There was evidence that whatever the relationships among P.S., M.S., and G.F., D.B.S. is currently happy and well adjusted. He has had the financial and emotional support of M.S. and has developed a relationship with G.F.
The trial court specified negatives as to G.F. and P.S., which weighed upon its decision. G.F. had almost no contact with D.B.S. during the first four years of his life and did not assert paternity until some seven years after his birth. As to P.S., the trial court specifically found:
“I find that the position of [P.S.] on this Petition for Paternity is motivated not only as a bargaining chip but to provide her with the clear means to obtain the full custody and control of [D.B.S.] ... I am persuaded that [P.S.] has had a powerful influence on [G.F.] concerning his desire to go forward on this paternity action at this time.”
There was no evidence the ordering of blood testing was necessary for medical reasons, and G.F. specifically agreed to share his medical history regardless of whether a blood test was ordered.
There are many additional facts and findings by the trial court which could be enumerated to substantiate its conclusions, but we are at this point “carrying coals to Newcastle” (described in Bartlett’s Familiar Quotations p. a!20 [14th Ed. 1968], as being “[a]s crazy as hauling timber into the woods”).
In this case, the child’s present relationships are healthy and stable, the child is unconcerned with his parentage, and a blood test would threaten relationships which have supported the child from birth and promise to support him in the future. The movant’s motives are suspect, there are no health or financial benefits, and there is a plethora of substantial competent evidence to sustain the trial court’s decision. The decision rendered was not an abuse of the trial court’s discretion. The trial court’s decision was clearly in the best interests of D.B.S.
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|
Rulon, J.:
This is a subrogation claim for health benefits paid to a minor child under his father s insurance policy. Philip Oetinger, by and through his father, John Arnold Oetinger, plaintiff, appeals from the district court’s order of summary judgment in favor of the Mail Handlers Benefit Plan, intervenor. We affirm.
The facts are essentially undisputed and are as follows:
On October 9, 1991, Philip Oetinger was injured in an automobile collision. Plaintiff filed suit against various defendants, alleging the collision was the result of their negligence.
Philip was covered under the Mail Handlers Benefit Plan (Mail Handlers), his father’s health benefit plan. Mail Handlers is a federal employee health benefit plan pursuant to the Federal Employees Health Benefits Program. 5 U.S.C. § 8901 et seq. (1988). Plaintiff immediately notified Mail Handlers of the injury and his belief that other parties were responsible. Mail Handlers paid Philip’s hospital and medical expenses of $35,430.52.
The subrogation clause of the Mail Handlers contract provided:
“If damages are payable to you or any member of your family as a result of injury or illness for which a claim is made against a third party, the Plan, where cost effective, will take an assignment of the proceeds of the claim and will assert a lien against such proceeds to reimburse the Plan for the full amount of Plan benefits paid or payable to you or any member of your family. The Plan’s lien will apply to any and all recoveries for such claim whether by court order or out-of-court settlement. The Plan will provide the necessary forms and may insist on the assignment before paying any benefits on account of the injury or illness. Failure to notify the Plan promptly of a third party claim for damages on which the Plan has paid or may pay benefits may result in an overpayment by the Plan subject to recoupment.”
Ultimately, Mail Handlers notified Philip’s father of its subrogation interest in the benefits paid and enclosed a subrogation reimbursement agreement for his signature. When Mail Handlers received no response, a follow-up letter was sent, informing plaintiff that benefits would be withheld until the agreement was executed.
On July 28, 1992, Philip and his father signed a subrogation reimbursement agreement. They modified the agreement as follows:
“I (We), Phillip [sic] Ernest Oetinger, hereby agree to prommptly [sic] reimburse Continental Assurance Company (‘CNA’), the underwriter of the Mail Handlers Benefit Plan (‘MHBP’ or ‘Plan’) for the full amount of any benefits paid by CNA to me (us) or my (our) assignees for covered expenses which í (we) incurred as a result ef my any bills hereafter paid for my accident (describe the illness or injury) sustained on or about October 9, 1991 (date), the City of Clay Center, State of Kansas, out of any settlement, judgment or any other recovery which I (we) make for the above described illness or injury, in accordance with the subrogation provision contained in the applicable Mail Handlers Benefit Plan contract statement of benefits or ‘brochure’ and in consideration of the amounts paid by the Plan or CNA. I (we) agree that the amount to be reimbursed to CNA shall not be subject to reduction, deduction or offset of any sort for any reason unless approved in writing by the Plan. The applicable Plan brochure shall be the brochure in effect at the time the charges were incurred.”
Following execution of the subrogation agreement, Mail Handlers paid benefits of $959.38.
On July 16, 1993, the district court approved a settlement of plaintiff’s claim against one of the defendants for $80,000. Mail Handlers claimed a lien of $35,430.52 on the settlement proceeds. Plaintiff claimed Mail Handlers was entitled only to benefits paid since July 28, 1992, the date the subrogation agreement was signed.
Eventually, the district court entered summary judgment in favor of Mail Handlers.
THE SUBROGATION CLAUSE
Plaintiff argues the subrogation clause is ambiguous regarding when Mail Handlers’ subrogation rights may take effect. Plaintiff asserts Mail Handlers’ right of subrogation is dependent upon the insured executing a subrogation agreement. Plaintiff argues the only amounts Mail Handlers can claim as subrogation interests are those benefits paid after execution of the subrogation reimbursement agreement.
The district court entered summary judgment for Mail Handlers after finding: (1) the Mail Handlers contract was clear and unambiguous; (2) Mail Handlers was not required to immediately advise plaintiff it would seek subrogation; (3) the subrogation reimbursement agreement is not necessary under the contractual provisions; and (4) the right of subrogation cannot be unilaterally changed by plaintiff in executing the subrogation reimbursement agreement.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. K.S.A. 1993 Supp. 60-256(c). The parties do not assert any genuine issue of material fact exists. Summary judgment was, therefore, proper.
The benefit plan before us is a federally-authorized contract. The parties, however, agree the contract may be interpreted under Kansas law. Additionally, the parties acknowledge K.A.R. 40-1-20, which prohibits insurance companies from issuing health insurance contracts with certain types of subrogation clauses, is preempted by federal law.
The rules of construction for insurance contracts were recently reviewed in U.S.D. No. 259 v. Sloan, 19 Kan. App. 2d 445, 452-53, 871 P.2d 861 (1994):
“ ‘The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court.’ [Citation omitted.] “Whether an instrument is ambiguous is a matter of law to be decided by the court.’ [Citation omitted.] This court’s review of questions of law is unlimited. [Citation omitted.]
“The terms of an insurance policy are subject to construction by an appellate court only if the terms at issue can be deemed open to different interpretations. [Citation omitted.] However, courts should not strain to create an ambiguity where in common sense there is none. [Citation omitted.] The policy language must be given its plain, ordinary meaning. [Citation omitted.] ‘Policies must be construed according to the sense and meaning of the terms used, and if the language is clear and unambiguous, it must be taken in its plain, ordinary and popular sense.’ [Citation omitted.]
“To be ambiguous, a provision must contain language of conflicting or doubtful meaning, as gleaned from a natural and reasonable interpretation of its language. [Citation omitted.] . . .
“ ‘In construing an insurance policy a court should consider the instrument as a whole and endeavor to ascertain the intention of the parties from the language used, taking into account the situation of the parties, the nature of the subject matter and the purpose to be accomplished.’ [Citation omitted.]”
Plaintiff argues the subrogation clause is ambiguous as to when, if ever, Mail Handlers will begin asserting subrogation rights. Under the subrogation clause, Mail Handlers, where cost effective, will take an assignment and will assert a lien against proceeds from a claim against a third party. Mail Handlers will provide the forms and may insist on the assignment before paying any benefits.
Plaintiffs argument is not persuasive. The subrogation clause is not subject to conflicting interpretations as to when Mail Handlers’ subrogation rights take effect. Under the clause, Mail Handlers has an absolute right to subrogation. The right is not dependent on the insured’s consent, but subject to Mail Handlers’ discretion in pursuing its right. In order to protect its interest, Mail Handlers may insist on taking an assignment before paying any benefits.
The district court did not err in finding the contract was clear and unambiguous, did not require plaintiff to execute a subrogation reimbursement agreement, and could not be altered unilaterally by plaintiff.
ENFORCEABILITY OF THE SUBROGATION CLAUSE
Plaintiff argues that, prior to the time Philip executed the sub rogation reimbursement agreement, there was no enforceable contract between Philip and Mail Handlers. Plaintiff argues that, because Philip’s father was responsible for Philip’s medical expenses, Mail Handlers could “step into the shoes” of Philip’s father, and was subrogated to the right of Philip’s father to recover the expenses paid. Because Philip’s father could not recover from his son, plaintiff asserts Mail Handlers could not do so either and is bound by the subrogation reimbursement agreement between Philip and Mail Handlers.
Kansas courts have not directly addressed this issue. Other jurisdictions have held that where a minor receives payment for medical services from an insurer, the child is bound by the subrogation clause of the insurance contract, even though tire parent, rather than the child, signed the contract. Peck v. Dill, 581 So. 2d 800, 802-05 (Ala. 1991) (relying on Hamrick v. Hospital Service Corp., 110 R.I. 634, 296 A.2d 15 [1974]).
The reasoning stated in Peck is persuasive in this case:
“ ‘If a subrogation clause is a valid and reasonable provision in a medical service contract for adults, there appears to be no compelling reason why it should not be binding on children. Minors are allowed to disaffirm their own contracts because society has a paramount concern to protect a child from his own improvidence even if such protection results in hardship or economic loss to another. . . . However, enforcement of the subrogation provision does no harm to a minor; it simply prevents him from recovering a windfall.
‘. . . [T]he general rule requires a child who disaffirms a contract to return the consideration received if he can.
‘A child who obtained medical treatment under a [medical insurance] contract can not return the services he received, but if he has recovered the value of those services from a tort-feasor, he should be compelled to return that money upon disaffirmance of the contract. Another equitable principle is that a minor cannot take the benefits of a contract while disaffirming the burden. . . . Thus, a child should not be allowed to receive the medical benefits of a contract and disaffirm the subrogation clause.
‘. . . [T]o allow a minor who recovers from a tort-feasor for medical expenses paid under a medical insurance contract to keep those proceeds despite a subrogation clause requiring their return to the insurer simply because the parent and not the child entered into the contract, defies equity. The child, though not a subscriber to the contract is a beneficiary of it and, though perhaps not legally responsible for his own care, is the recipient of the medical services. Therefore, it seems reasonable and fair to bind him in a subrogation clause executed by his parent. Otherwise, he would receive a windfall. . . .”’ (Emphasis added.) 581 So. 2d at 804 (quoting Hamrick, 110 R.I. at 638-40).
See also Vachon v. Halford, 484 A.2d 1127, 1128-29 (N.H. 1984) (because parent, not child, is liable for medical expenses incurred on child’s behalf, insurer has no subrogation rights against minor, but is subrogated to parents’ right to recover medical expenses paid on child’s behalf).
Western Motor Co. v. Koehn, 12 Kan. App. 2d 215, 218, 738 P.2d 466 (1987), aff’d 242 Kan. 402, 748 P.2d 851 (1988), is also instructive. Western held that to determine whether an insurer is barred from claiming a right to subrogation from a particular person, the insurance contract must be examined to determine whether it was the intention of the parties to include the person within the scope of the policy’s coverage. 12 Kan. App. 2d at 218. Philip was covered under the benefit plan. Therefore, Mail Handlers may pursue its subrogation rights against him.
In light of the above discussion, we need not reach other issues raised.
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Rulon, J.:
The Kansas Employment Security Board of Review (KESB) appeals the district court’s judgment that Kansas City, Kansas, Unified School District No. 500’s (U.S.D. 500) experience rating account should not be charged because the claimants were not unemployed and, therefore, not eligible for unemployment benefits.
We must decide if the district court: (1) had jurisdiction to consider this matter and, (2) if the district court did have such jurisdiction, whether the court erred in reaching its judgment. We affirm.
Audra K. Womack, Yolanda J. Stewart, and Mary K. Bryant (claimants), were all employed by U.S.D. 500 on a part-time basis. Womack was employed as a substitute teacher; Steward was a substitute paraprofessional; and Bryant was a substitute secretary, substitute teacher’s aide, and substitute paraprofessional.
All three claimants filed applications for unemployment benefits. Subsequently, U.S.D. 500 was notified that its experience rating account could be charged for a portion of the claimants’ unemployment benefits. U.S.D. 500 requested the examiner to reconsider the rating charges pursuant to K.S.A. 44-710(c)(2)(F)(iii). In all three cases the examiner issued “Reconsidered Base Period Employer Determination^],” stating that the appropriate pro rata share of benefits paid would be charged to U.S.D. 500’s rating account. Two of the determinations stated that the claimants’ most recent employment with U.S.D. 500 was ended due to a reduction in work force and said the determinations were made pursuant to K.S.A. 44-710(c). The determination for Stewart found that each time she was called in to substitute was a separate period of employment and she was laid off due to lack of work. Her failure to accept a new assignment did not alter the reason for her separation from work.
U.S.D. 500 appealed the examiner’s decisions pursuant to K.S.A. 44-709(b)(3) and K.S.A. 44-709(c). Hearings were held in all three cases, with one referee hearing the Stewart and Womack cases and another referee hearing the Bryant case. The referees noted that under Kansas law, benefits would not be charged to a base period employer s account if the claimant was discharged for misconduct connected with the claimant’s work or if the claimant left work voluntarily without good cause attributable to the claimant’s work or employer.
In the Stewart and Womack cases, the referee noted that substitute teachers are not qualified for benefits if the unemployment falls between two successive academic terms when the claimant performed services in the first term and had reasonable assurance that he or she would be employed for the second term. The referee found that Womack and Stewart had been temporarily laid off because no work was available and had “left work voluntarily with good cause attributable to the work and the employer.” In the Bryant case, the referee ruled that because there was no evidence she was discharged for misconduct or left work voluntarily without good cause, the employer’s account should be charged. The referees affirmed the examiners’ decisions in all three cases.
U.S.D. 500 appealed the referees’ decisions to KESB pursuant to K.S.A. 44-709(c). KESB affirmed the referees’ decisions in all three cases.
U.S.D. 500 next appealed KESB’s decisions to the district court pursuant to K.S.A. 44-709(i). In the Womack and Stewart cases, the court ruled that the agency had misinterpreted the law and U.S.D. 500’s rating account should not be charged because the claimants were not unemployed at the time they sought benefits. In Bryant’s case, the court found that U.S.D. 500’s rating account should not be charged because Bryant was employed by an educational institution and was not entitled to benefits between terms since she had a reasonable assurance she would be employed by U.S.D. 500 the following term.
KESB then perfected this appeal.
Standard of Review
KESB first argues the district court should not have decided whether the claimants were eligible for benefits because the only issue decided by the referees was whether U.S.D. 500’s rating account should be charged for its pro rata share of any benefits paid to the claimants. U.S.D. 500 contends that if the claimants are not entitled to benefits, then the issue of whether U.S.D. 500’s rating account should be charged is moot. Further, U.S.D. 500 argues that the referee discussed the claimant’s eligibility to receive benefits in the Womack and Stewart cases and heard testimony concerning eligibility in the Bryant case. Consequently, U.S.D. 500 argues that the matter was properly before the referee and the district court, despite the referee’s apparent attempt to limit the scope of review.
The record shows that U.S.D. 500, in response to the notification of potential charge, noted that the claimants had not been terminated and that work was available. The records of all three cases show that U.S.D. 500 presented testimony to the referees indicating the claimants were either still employed or had not left their employment because of lack of work for any reason associated with the school district. However, the referees limited the scope of their decision to whether U.S.D. 500’s account should be charged.
In the Womack case, the referee’s decision found there was work available to the claimant at the time she filed for benefits but concluded she had been separated from her employment due to a reduction in work force “when work was not continuously available during the school term.” In the Stewart case, the referee found that the claimant was not offered continuous work but did receive offers for work on a sporadic basis. The referee further found that “although the claimant may be disqualified for benefits for refusing a suitable offer of employment the fundamental question is whether the claimant was unemployed through no fault of her own.” Finally, in the Bryant case, the referee found that the claimant had not been discharged for misconduct and had not left work voluntarily; there was simply no work for her during the summer session.
Generally, a party cannot raise an issue to the district court which has not been raised at the administrative level unless the issue falls within the provisions of K.S.A. 77-617. See State ex rel. Smith v. Miller, 239 Kan. 187, 190, 718 P.2d 1298 (1986). However, the record indicates that while the referee sought to limit the scope of the decision, U.S.D. 500 did raise the issue and present evidence sufficient to justify review. Neither party cites any regulation, statute, or case law which would require the scope of the examiner’s or the referee’s decision to be limited to the question of whether the employer’s experience rating account should be charged. Consequently, we conclude we have jurisdiction to determine this cause on the merits.
The Charging of U.S.D. 500’s Account
Next, we must decide if the district court erred in finding U.S.D. 500’s account should not be charged for the pro rata share of the claimants’ unemployment benefits.
Because the resolution of this issue involves the interpretation of Kansas employment security law, a review of the relevant statutory framework is helpful.
K.S.A. 44-702 reads in relevant part:
“As a guide to interpretation and application of this act, the public policy of this state is declared to be as follows: Economic insecurity, due to unemployment, is a serious menace to health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life.”
K.S.A. 44-705 reads in relevant part:
“[A]n unemployed individual shall be eligible to receive benefits with respect to any week only if the secretary, or a person or persons designated by the secretary, finds that:
"(a) The claimant has registered for work at and thereafter continued to report at an employment office ....
“(b) The claimant has made a claim for benefits with respect to such week ....
“(c) The claimant is able to perform the duties of such claimant’s customary occupation or duties of other occupations for which the claimant is reasonably fitted by training or experience, and is available for work ....
“(d) The claimant has been unemployed for a waiting period of one week . . . within the benefit year which included the week for which the claimant is claiming benefits.”
K.S.A. 44-703(m) states that a person is deemed
“ ‘unemployed’ with respect to any week during which such individual performs no services and with respect to which no wages are payable to such individual, or with respect to any week of less than full-time work if die wages payable to such individual with respect to such week are less than such individual’s weekly benefit amount.”
K.S.A. 44-706 reads in relevant part:
“An individual shall be disqualified for benefits:
“(a) If the individual left work voluntarily widiout good cause attributable to the work or the employer, subject to the other provisions of this subsection (a)----
“(b) If the individual has been discharged for misconduct connected with the individual’s work. . . .
“(i) For any week of unemployment on the basis of service in an instructional, research or principal administrative capacity for an educational institution as defined in subsection (v) of K.S.A. 44-703 . . ., if such week begins during the period between two successive academic years or terms or, ... if the individual performs such services in the first of such academic years or terms and there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.
“(j) For any week of unemployment on the basis of service in any capacity other than service in an instructional, research, or administrative capacity in an educational institution, as defined in subsection (v) of K.S.A. 44-703 . . ., if such week begins during the period between two successive academic years or terms if the individual performs such services in the first of such academic years or terms and there is a reasonable assurance that the individual will perform such services in the second of such academic years or terms . . . .”
K.S.A. 44-703(v) reads in relevant part:
“ ‘Educational institution’ means any institution of higher education ... or any institution, except private for profit institutions, in which participants, trainees or students are offered an organized course of study or training designed to transfer to them knowledge, skills, information, doctrines, attitudes or abilities from, by or under the guidance of an instructor or teacher and which is approved, licensed or issued a permit to operate as a school by the state department of education or other government agency . . . .”
Pursuant to K.S.A. 44-710, employer contributions shall accrue and become payable by each contributing employer for each cal endar year that the employer is subject to the employment security law with respect to wages paid for employment.
“Benefits paid in benefit years established by valid new claims shall not be charged to the account of a contributing employer or rated governmental employer who is a base period employer if the examiner finds that the claimant was separated from the claimant’s most recent employment with such employer under any of the following conditions: (i) Discharged for misconduct or gross misconduct connected with the individual’s work; or (ii) leaving work voluntarily without good cause attributable to the claimant’s work or the employer.” K.S.A. 44-710(c)(2)(A).
“Where base period wage credits of a contributing employer or rated governmental employer represent part-time employment and the claimant continues in that part-time employment with the employer during the period for which benefits are paid, then that employers’ account shall not be charged with any part of the benefits paid if the employer provides the secretary with the information as required by rules and regulations. For the purposes of this subsection (c)(2)(B), ‘part-time employment’ means any employment when an individual works concurrently for two or more employers and also works less than full-time for at least one of those employers because the individual’s services are not required for the customary, scheduled full-time hours prevailing at the work place or the individual does not customarily work the regularly scheduled full-time hours due to personal choice or circumstances.” K.S.A. 44-710(c)(2)(B).
The ruling of an administrative agency on questions of law, while not conclusive, is nonetheless persuasive and is given weight, and may carry with it a strong presumption of correctness, especially if the agency is one of special competence and experience. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 246, 834 P.2d 368 (1992). However, the final construction of a statute rests with the courts. National Collegiate Realty Corp. v. Board of Johnson County Comm’rs, 236 Kan. 394, 404, 690 P.2d 1366 (1984).
“ ‘[T]he legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ [Citation omitted.]
“ ‘In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part or parts of an act, but are required to consider and construe together all parts thereof in pari materia.’ ” Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).
Womack & Stewart
In Womack’s and Stewart’s cases, the district court ruled that the claimants were not entitled to benefits because they were not unemployed. The court reversed the administrative agency’s determination that U.S.D. 500’s account should be charged because the agency had erroneously interpreted or applied the law.
In Mogren v. State Employment Security Bd. of Review, 15 Kan. App. 2d 12, 14, 801 P.2d 64 (1990), this court, interpreting 44-706(i), noted that a vast majority of jurisdictions had concluded that substitute teachers, with a written or oral agreement to provide substitute services during the upcoming fall term, were not eligible to receive unemployment compensation during the summer months. Based on this conclusion, we are satisfied a logical inference could be drawn that if a substitute teacher is either unemployed during the school term or unemployed during the period between terms with no reasonable assurance of work the following term, he or she would be eligible for unemployment benefits.
Clearly, if Womack or Stewart applied for benefits for the period between two successive school terms when they had a reasonable assurance of continued employment the following term, they would not be qualified to receive benefits pursuant to K.S.A. 44-706(i). If so, because claimants would be disqualified, U.S.D. 500’s experience rating account could not be charged. The question in this case is whether U.S.D. 500’s account should be charged for the days that the claimant substitute teachers did not work during the school term when those claimants continue to be carried on the school district’s list of teachers approved for substitute work.
We believe this case is closely analogous to Manpower, Inc. v. Kansas Employment Security Bd. of Review, 11 Kan. App. 2d 382, 724 P.2d 690, rev. denied 240 Kan. 804 (1986). In Manpower, this court considered the issue of whether a temporary employment service’s experience rating account should be charged when an employee, who had applied for unemployment benefits, had failed to report to Manpower for further work after completion of a prior assignment.
Interestingly, in Manpower, the referee found that assignment to various locations with different customer/employers could not be construed as continuous employment but were different periods of employment and, therefore, each time an assignment was completed, the Manpower employee was laid off of work until a new assignment was accepted. 11 Kan. App. 2d at 384. In the present case, specifically the Stewart case, the referee found that each assignment as a substitute was a separate term of employment and each time the assignment ended, the substitute teacher was laid off for lack of work. According to the referee, the substitute’s failure or refusal to accept a new assignment did not alter the reason for separation.
This court noted that the Manpower employees accepted employment without a guarantee of 40 hours a week of work, but with the understanding that work would be available. We held that, in the case of a temporary employment agency, completion of one work assignment did not amount to a termination of the claimant’s employment and that failure to report for further work assignments when such assignments were available constituted voluntarily leaving work without good cause. 11 Kan. App. 2d at 388-89.
The situation of the part-time substitute teacher and the employees of a firm like Manpower are almost identical. The claimant substitute teachers accepted employment with U.S.D. 500 with full knowledge that full-time work was not available but that work would be available on a sporadic basis. Both parties agree that substitute teachers’ names are kept on a list and the teachers are contacted on a rotating basis. The record shows that at the time all three claimants applied for benefits, their names were still on the substitute teachers list and work was available. The record also shows that both Womack and Stewart refused some assignments offered to them. Womack continued to work for the school district as a substitute for a short period after she filed for benefits. Stewart was still considered by U.S.D. 500 to be one of their substitutes on the day of the hearing before the referee.
Another case which is closely analogous is McCall Pattern Co. v. Kansas Employment Security Bd. of Review, 238 Kan. 608, 712 P.2d 1266 (1986). In McCall, certain permanent part-time employees filed for unemployment benefits for a period of two months in which there was no work. The McCall employees were hired to work 8 to 10 days each month except in May and November of each year. The fact that no regular work would be available during those two months was disclosed to the employees at hiring. The employees could sign up for extra work which was available on a sporadic basis. At no time during the year was there a termination of the employer-employee relationship. 238 Kan. at 610-11.
In McCall, our Supreme Court affirmed the district court’s decision that the claimants were not entitled to benefits because they were not unemployed. The court found that because the claimants remained employees of McCall throughout the calendar year; had regular work hours; were eligible for unscheduled work during May and November; and were fully aware of the idiosyncrasies of their employment when they accepted the job, they were not involuntarily unemployed as contemplated by the Kansas employment security law. 238 Kan. at 612-13.
In the present case, all the claimants were employed by U.S.D. 500 for the entire school year, both fall and spring terms. Work was made available to them on a rotating basis, and they were free to accept or refuse any assignment without fear of being terminated. Each claimant was aware of the nature of their employment at the time of acceptance. None of the claimants’ positions on the substitute teachers list had been terminated at the time they applied for benefits. It is true that, unlike the McCall employees, the substitute teachers did not receive benefits as did full-time teachers; however, like the McCall employees, the substitute teachers are not involuntarily unemployed within the meaning of the Kansas employment security law.
Here, the district court also relied on Palm Beach Cty. Sch. Bd. v. Unempl. App. Com’n, 504 So. 2d 505 (Fla. Dist. App. 1987) (Palm Beach 1). In Palm Beach 1, a substitute teacher was initially found to be unemployed by the agency based on a finding that each day the substitute worked constituted an employment period and she would be entitled to benefits in any week in which she earned less than her weekly benefit amount as calculated by the statutory formula. The school district appealed the agency’s decision. It was undisputed that substitute teachers had no obligation to work if called and were not promised any particular number of calls in a given period. Each teacher’s name was placed on a list and he or she was contacted for work on a rotating basis. The teachers were not regular employees of the school district and received no benefits. In Palm Beach I, the claimant’s name had not been removed from the list, nor had she been terminated. She was found to have substituted for the district the day before the unemployment review hearing. 504 So. 2d at 507.
The Palm Beach 1 court ruled that the claimant was not unemployed as contemplated by the Florida unemployment statute and found that the unemployment compensation law was not designed to provide coverage to substitute workers who are called in from time to time as the need arises. The agency’s decision was reversed, and the case was remanded with instructions that the claims be denied. 504 So. 2d at 507-08.
The Florida unemployment statute construed in the Palm Beach I case (see Fla. Stat. § 443:036[32][a] [1994 Supp.]) defined “unemployed” in terms of totally or partially unemployed. The wording of the Kansas definition of “unemployed” is identical except for the use of the terms “totally unemployed” and “partially unemployed.” 504 So. 2d at 507.
KESB cites several authorities from other states for its position that the claimants are entitled to benefits and that U.S.D. 500’s account is properly chargeable. In Cleveland City Schools v. Conn, 703 S.W.2d 164 (Tenn. App. 1985), the court found that a substitute teacher was unemployed and eligible for benefits when the teacher had been used on a regular basis but had not been contacted for work for some time. Cleveland is distinguishable from the instant case in that the substitute teacher was told it was doubtful he would be used because of his lack of certification.
Another case cited by KESB is Agsalud v. Blalack, 67 Hawaii 588, 699 P.2d 17 (1985). That case is not relevant because it holds that a full-time United Airlines employee who is laid off subject to recall is eligible for unemployment benefits. The mere fact that the employee could be recalled did not mean that the employer-employee relationship was continued. Similarly, in Palm Beach Sch. Bd. v. Unemp. App. Com’n, 576 So. 2d 362 (Fla. Dist. App. 1991) (Palm Beach II), the Florida court distinguished the earlier Palm Beach I case when it concluded that a full-time computer sales clerk who had been laid off, then accepted substitute teaching work and found other full-time employment and was again laid off, was eligible for unemployment benefits from the full-time job despite the fact she was still substitute teaching. She was not seeking benefits because the school was not giving her enough assignments, but was seeking unemployment benefits for loss of her full-time employment. Neither case is instructive in the instant set of circumstances.
One case cited by KESB which is analogous is Claim of Curto, 132 App. Div. 2d 751, 517 N.Y.S.2d 107 (1987). In that case a soccer coach employed by Siena College was hired to coach a season which lasted from August to November, depending on the team’s performance. After the season was over, he applied for and was granted unemployment benefits for the remainder of the school year despite the fact he had accepted the college’s offer of coaching employment for the following year. The New York court interpreted the statute strictly and concluded that because the period for which benefits were sought was not in between school terms and because nothing in the statute otherwise disqualified the coach, he was entitled to benefits.
The New York court’s interpretation does support KESB’s position and appears irreconcilable with the prior decisions of Kansas courts in McCall and Manpower.
U.S.D. 500 also cites cases from other jurisdictions supporting its view. In Employment Com’n v. Southside School D., 775 S.W.2d 733 (Tex. App. 1989), the Texas court interpreted the term “unemployed” for purposes of the Texas unemployment compensation act. There, the court concluded that an on-call substitute teacher, who had no expectation of further employment from the school district until receiving a call for assignment and who was not required to accept all assignments, was not unemployed for the periods between assignments.
“[W]e conclude that the term unemployed, for the purposes of the Texas Unemployment Compensation Act, means that the employer-employee relationship is terminated. It does not include instances in which the employee is merely idle during the existence of the employment relationship.
“[T]o hold otherwise would be an absurdity, which would open the door to mischief and abuse of the statute, contrary to the intent of the legislature.” 775 S.W.2d at 735.
Another case cited by U.S.D. 500 is Des Moines Ind. Comm. v. Dept. of Job Service, 376 N.W.2d 605 (Iowa 1985). In Des Moines a substitute teacher worked for several school districts in the area. At the conclusion of the 1982-83 academic year, the school district sent a letter indicating the district would have substitute work available to him in the following term. According to school policy, it sends two such letters requesting confirmation that the teacher would be available. If the teacher does not respond after the second letter, the school assumes the teacher is no longer available. 376 N.W.2d at 607. The substitute teacher in that case did not respond to the letters and moved to a different town. He subsequently filed for unemployment benefits.
On appeal from the agency’s determination that the substitute teacher was entitled to benefits, the Iowa Supreme Court ruled that the substitute teacher who had failed to report as being available for work in response to the district’s letters had voluntarily quit without good cause attributable to his work. He simply moved for his own financial reasons and did not wish to commute, and was therefore not entitled to benefits. 376 N.W.2d at 612. The court noted:
“ ‘Substitute teaching is by its nature inherently indefinite depending as it does on the occurrence of unforeseen vacancies in the teaching faculty; however, the employment possibilities of a substitute teacher remains reasonably assured so long as the claimant intends to do the work and the district expects to offer the work as it becomes available.’ Guth v. Unemployment Compensation Board of Review, 81 Pa. Cmwlth. 79, 473 A.2d 228, 231 (1984).” 376 N.W.2d at 609.
We are satisfied the district court here was correct when it found that neither Womack nor Stewart were unemployed as contemplated by Kansas employment security law. In Clark v. Board of Review Employment Security Division, 187 Kan. 695, 698, 359 P.2d 856 (1961), our Supreme Court interpreted G.S. 1949, 44- 701 et seq., the predecessor to K.S.A. 44-701, et seq. as establishing a public policy to protect against “involuntary unemployment.” The language in K.S.A. 44-701 et seq. suggests this policy continues. However, a person must necessarily be unemployed to be entitled to the benefits conferred by statute and based on the Kansas appellate courts’ interpretation of “unemployment” as established in McCall and Manpower, neither Womack nor Stewart were unemployed. The finding that a substitute teacher’s employment begins and ends with each assignment is analogous to, and is as untenable as, the premise that was rejected in Manpower.
Bryant
Although the analysis above is relevant, Bryant’s case presents slightly different facts. The record shows that Bryant filed for unemployment benefits during the period between school terms in 1993. She was subsequently called back to work in August 1993, when the fall semester began. Bryant testified that she knew she would be reemployed at the beginning of the school year, so there was no question but that she had reasonable assurance of being employed in the fall term.
The record shows that on July 12, 1993, the agency sent a notice of potential charge to U.S.D. 500 with a benefits year begins (BYB) date of July 4, 1993. Next on July 14, 1993, U.S.D. 500 mailed an examiner’s determination with a BYB date of July 4, stating that the claimant’s wage credits from an educational institution were removed pursuant to K.S.A. 44-706. Then on July 19, 1993, U.S.D. 500 was mailed an examiner’s reconsidered base period employer determination saying that a pro rata share of benefits paid on Biyant’s claim would be charged to its account. Finally, on July 22, 1993, the agency mailed the school district an examiner’s determination saying Bryant was disqualified for benefits because she worked for an educational institution, the period of unemployment occurred between semesters, and she was reasonably assured of employment the following term. The referee’s decision states, “There was simply no work for the claimant for that summer session.”
We are uncertain if Bryant is receiving, or ever has received, any benefits.
K.S.A. 44-706, as interpreted by Mogren v. State Employment Security Bd. of Review, 15 Kan. App. 2d 12, 801 P.2d 64 (1990), is clear that substitute teachers are not eligible to receive unemployment compensation for the period between academic terms if they worked for the school district the previous term and have a reasonable assurance of performing such services in the following term. In the instant case KESB does not dispute that Bryant was not eligible for unemployment benefits for the summer of 1993; however, it claims U.S.D. 500’s account should be charged for any benefits due Bryant for the term or terms prior to the end of the spring 1993 school term. As we understand, KESB’s position is that it may determine if the employer’s account is chargeable prior to or separate from determining if the claimant is eligible for benefits. However, until a claimant is determined to be unemployed and eligible pursuant to K.S.A. 44-705 and not disqualified for any of the reasons in K.S.A. 44-706, it is realistically impossible to make a determination of whether the employer’s account may be charged pursuant to K.S.A. 44-710. The district court’s judgment found there must be a valid entitlement to benefits prior to making the determination that the employer’s account should be charged. We agree.
Each substitute teaching assignment does not constitute a separate term of employment, and a substitute teacher is not deemed terminated or laid off at the conclusion of each assignment if there is a reasonable assurance the substitute will continue to be contacted for further assignments during the school year.
In summary, a substitute teacher is not unemployed as contemplated by the Kansas employment security law for days during the school year which he or she does not work when the teacher’s name remains on the school district’s list of approved substitute teachers and there is reasonable assurance he or she will be called to work during the school year. Under the facts of this case, because the claimants had reasonable assurance they would continue to be contacted for teaching assignments during the year and had no indication their names had been removed from the list of ap proved substitute teachers, they were not unemployed as contemplated by the Kansas employment security law.
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Brazil, J;
Dorothy Morrison appeals from the district court’s award of summary judgment in favor of L. Earl Watkins, Jr.; Watkins, Calcara, Rondeau & Friedman, P.A.; James F. Adams; and Adams, Brown, Beran & Ball, Chartered, former trustees of the Morrison Trust. Morrison argues that the district court erred in finding that the statute of limitations had run on her claims.
L. Earl Watkins, Jr., et al., cross-appeal, arguing that the district court erred in not awarding them attorney fees from the trust corpus.
We affirm in part, reverse in part, and remand for further proceedings.
The Dorothy M. Morrison Revocable Trust No. 1 (Trust) was established in December 1979. At the time of creation, Dorothy M. Morrison was the grantor, a beneficiary, and a co-trustee of the Trust, and James Adams and L. Earl Watkins, Jr., were named co-trustees. Watkins was a partner in the law firm that drew up the Trust, and Adams was a C.P.A. who had done accounting work for the Morrison family in the past. At the time the Trust was created, Morrison was 67 years old and had a net worth in excess of $4 million.
Watkins advised Morrison that one advantage of the Trust was that she would not have to participate in the day-to-day management of her assets. On May 30, 1980, the Trust was amended to authorize any two of the three trustees to exercise all the powers of the Trust without the signature of the third trustee.
The main controversy in this case centers around several investments made by the Trust between 1979 and 1986. Soon after the formation of the Trust, the Trust entered into an agreement with Flexweight Corporation. Flexweight already owned an oil drilling equipment manufacturing facility and an office building on land which it leased from the Trust. This land came into the Trust through inheritance.
Under the agreement, the Trust participated with the City of Great Bend in an industrial revenue bond issue. The bonds were purchased by a local bank, and the Trust used the bond proceeds to build a new manufacturing facility on the property which the Trust then leased to Flexweight. Unfortunately, Flexweight later filed for bankruptcy, and the Trust was forced to make debt service payments while the building stood empty.
On October 18, 1979, before the creation of the Trust, a lot on South McKinley Street in Great Bend was purchased for Morrison. This lot was subsequently included in the Trust.
From 1979 to 1986, the Trust invested in oil and gas working interests. These working interests were not profitable, and in 1983, oil prices declined. Nevertheless, the Trust continued to invest in working interests, investing $246,729 in 1984 and $164,399 in 1985.
In 1983, the Trust invested in the newly formed Grady Bolding Oil Corporation in order to “spread the risk” from on-site investments to corporate investments.
Also in 1983, the Trust purchased a 5% interest in Mohawk Drilling Company for $120,000. Mohawk took bankruptcy in 1988.
The Trust also invested in Crossroads, a general partnership which owned two apartment buildings in Great Bend. The other five general partners in Crossroads included Watkins and Watkins’ brother-in-law, as well as Morrison’s son, Clayton. All of the partners were clients of appellee Adams’ accounting firm.
Finally, the Trust purchased Parsons Roofing Company, intending to sell the company back over time to one of the company’s employees, Brian Harris. Harris had been unable to obtain conventional bank financing and so discussed his idea for buying the company with Clayton Morrison. Clayton presented the idea to Adams and Watkins.
The total price of Parsons Roofing Company was $300,000. The Trust invested $200,000, and Harris invested $50,000. The Trust also loaned Harris and Bob Simmons, another employee, $50,000 so that they could also purchase part of the company. Unfortunately, Harris and Simmons were unable to repay the loan, and the Trust bought them out, taking their shares in Parsons as repayment and further paying Harris $34,931 for the shares he had purchased with his own money. In order to purchase Parsons, the Trust was forced to borrow $259,000, which it later repaid with approximately $50,000 in interest.
There is a question as to how much Morrison knew about her financial state of affairs. According to Watkins and Adams, Morrison was provided with financial statements every six months, and she would review thém. Watkins and Adams assert that Morrison was aware of all the investments, except the Crossroads investment, either before or soon after they were made.
Morrison, on the other hand, claims that while she received financial statements twice yearly, they were hard to understand and Watkins and Adams did not review them with her. Furthermore, Morrison stated that she did not learn of the complained of investments until after the fact.
In 1986, Morrison entered into a lawyer-client relationship with Hemy McFadyen, a lawyer in Dallas. On February 24, 1987, Morrison and McFadyen had a meeting in which the Trust was discussed. Morrison and McFadyen discussed the possibility of replacing Adams and Watkins as trustees and discussed the possibility of adopting a new investment philosophy for the Trust.
McFadyen requested a meeting with Morrison, Watkins, and Adams in which he planned to discuss, among other things, the trust investments. Following the meeting, McFadyen recommended to Morrison that Watkins and Adams be discharged as trustees. On April 11, 1987, Morrison told him that she did not want to replace Watkins and Adams as trustees because she depended on them for help in many ways and would miss their good will. McFadyen continued to investigate the possibility of obtaining a corporate trustee for the Trust.
In the fall of 1987, Morrison discharged Adams as trustee and replaced him with her son, Clayton. She also wrote a letter directing the trustees to sell the complained-of investments and invest in more standard investments. Watkins continued to be a trustee, and in 1990, Morrison discharged McFadyen, indicating that she was satisfied with the management of the Trust.
In June 1990, Morrison terminated the Trust. On October 18, 1991, Morrison filed a petition against Watkins, Adams, and their firms (hereinafter referred to simply as Watkins and Adams), alleging that Watkins and Adams had breached their fiduciary duties by carelessly and negligently handling trust assets and making investments in bad faith and making investments in which they had a conflict of interest.
All parties filed motions for summary judgment. For reasons hereafter discussed, the district court awarded summary judgment in favor of Watkins and Adams. Watkins and Adams then filed motions for unpaid fees and expenses which were denied.
Morrison first argues that the district court erred in awarding summary judgment in favor of Watkins. Morrison claims that the continuous representation rule should operate to toll the running of the statute of limitations until Watkins was dismissed from his position of trustee by the revocation of the Trust.
This court’s standard of review for a district court’s award of summary judgment has been often stated. Summary judgment is proper when the pleadings, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. When a summary judgment is challenged on appeal, an appellate court must read the record in the light most favorable to the party defending against the motion. Patterson v. Brouhard, 246 Kan. 700, 702-03, 792 P.2d 983 (1990). To defeat a properly supported motion for summary judgment, the non-moving party must come forward with specific facts showing a genuine issue for trial. Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, 762, 863 P.2d 355 (1992).
The district court held that Morrison’s claims against Watkins were barred by the two-year statute of limitations found in K.S.A. 1993 Supp. 60-513(a). Morrison, however, argues that the continuous representation rule should be applied to her dealings with Watkins, and that this rule should toll the running of the statute of limitations.
The continuous representation rule applies to fix the time when the accrual of a cause of action occurs and the statute of limi tations begins to run and is generally applied to attorney malpractice. Pancake House, Inc. v. Redmond, 239 Kan. 83, 87, 716 P.2d 575 (1986). Under the continuous representation rule, the client’s cause of action does not accrue until the attorney-client relationship is terminated. 239 Kan. at 87.
In Pittman v. McDowell, Rice & Smith, Chtd., 12 Kan. App. 2d 603, 609, 752 P.2d 711, rev. denied 243. Kan. 780 (1988), this court applied the continuous representation rule to a situation where an attorney failed to file a journal entry but continued to represent to his client that he would take care of the matter. This court held that the continuous representation rule tolled the statute of limitations until the attorney was fired by the client. In analyzing the reason for the continuous representation rule, the court quoted Mallen and Levit, Legal Malpractice § 391, pp. 460-61 (2d ed. 1981):
“ ‘The premise of the continuous representation rule is to avoid unnecessarily disrupting- the attorney-client relationship. Adoption of this rule was a direct reaction to the abs.urd requirement of the occurrence rule which requires the client to sue his attorney even though the relationship continues and there has not been and may never be any damage. The rule, limited to the context of continuous representation, is consistent with the purpose of the statute of limitations which is to prevent stale claims and enable the defendant to preserve evidence. Where the attorney continues to represent the client in the subject matter in which the error has occurred, all such objectives are achieved and preserved. The attorney-client relationship is maintained and speculative malpractice litigation is avoided.
“ ‘The rule of continuous representation is equally available and appropriate in those jurisdictions adopting the damage and discovery rules. The policy reasons are as compelling for permitting an attorney to continue his efforts to remedy a bad result, even if some damages have occurred and even if the client is fully aware of the attorney’s error. The doctrine is fair to all parties concerned. The attorney has the opportunity to remedy, avoid or establish that there was no error or attempt to mitigate the damages. The client is not forced to terminate this relationship, although the option exists. This result is consistent with any expressed policy basis for the statute of limitations.’ ” 12 Kan. App. 2d at 608-09.
Morrison argues that Watkins served as an attorney both for her personally and for the Trust until 1990. She contends, therefore, that it was Watkins’ duty to keep her informed of her causes of action against Adams and himself for mismanagement of the Trust. According to Morrison, Watkins continually breached this duty until the date of the termination of his employment with the Trust.
Morrison’s case does not fit neatly within the framework of the continuous representation doctrine, which usually contemplates an attorney-client relationship on one particular matter rather than an ongoing relationship where the attorney is a trustee. However, the continuous representation doctrine has been employed in an attorney as trustee relationship. In Greene v. Greene, 56 N.Y.2d 85, 94, 451 N.Y.S.2d 46, 436 N.E.2d 496 (1982), the court stated that a client who entrusts his assets to an attorney for professional assistance faces the same dilemma as the client who entrusts his case to an attorney for litigation. In neither instance can the client be expected to supervise the attorney’s handling of the matter, and therefore the right of action is not accrued before the attorney-client relationship is terminated. 56 N.Y.2d at 94-95.
At least one court has held that the continuous representation rule is not applicable when the client learns of the attorney’s negligence before the termination of the relationship. See Economy Housing Co. v. Rosenberg, 239 Neb. 267, 269, 475 N.W.2d 899 (1991). However, this runs counter to the rationale for the rule cited in Pittman, which allows the client to work with the attorney to correct the error even though the client knows the error exists. See Pittman, 12 Kan. App. 2d at 609.
Applying the rationale of the continuous representation rule as stated in Pittman to the case before us, it would be irrational to require Morrison to file suit against the trustees for every investment as soon as she learned about it. Instead, Morrison should rightly be able to work with the other trustees in an attempt to recoup her losses and set straight the trust management. Construing the facts in the light most favorable to Morrison, Watkins remained as trustee and attorney for both Morrison and the Trust until 1990. Therefore, under the continuous representation rule, the statute of limitations would not apply. The question that remains to be answered is whether Morrison’s hiring of McFadyen in 1987 interrupted the continuous representation rule. The dis trict court found that the hiring of McFadyen interrupted the rule because McFadyen advised Morrison of any claims she would have against Watkins and Adams and advised Morrison to fire Watkins and Adams.
Morrison first argues that the district court improperly predicated its judgment on a disputed issue of material fact. Morrison argues that McFadyen never advised her to fire Watkins and Adams, but instead merely suggested the addition of another trustee. Unfortunately, Morrison ignores her admission, in her response to Watkins’ motion for summary judgment, that McFadyen advised her to fire Watkins and Adams. Therefore, no disputed issue of fact existed on this point.
Watkins argues that when Morrison established an attorney-client relationship with McFadyen and had him look over the Trust’s investments, the continuous representation rule was terminated. In support of this contention, Watkins cites Cantu v. St. Paul Cos., 401 Mass. 53, 58, 514 N.E.2d 666 (1987). In Cantu, the court held that where the client retained a second attorney to advise him of legal options he might have as the result of his first attorney’s malpractice, the “innocent reliance” on which the continuous representation doctrine is based was not present, and the doctrine was not applicable. 401 Mass, at 58. Also, in Lazzaro v. Kelly, 87 App. Div. 2d 975, 976, 450 N.Y.S.2d 102 (1982), the court held that where the plaintiff hired another attorney to file a malpractice suit against his first attorney, the continuous representation rule did not apply because the trust and confidence on which the rule is based had come to an end, notwithstanding the fact that the first attorney continued to work for the plaintiff as an escrow agent.
However, in Bass & Ullman v. Chanes, 185 App. Div. 2d 750, 586 N.Y.S.2d 610 (1992), the court ruled that where a law firm continued to represent a plaintiff on related matters and worked to help correct the problems caused by its malpractice, the continuing representation rule applied, although the plaintiff hired independent counsel to represent her in the criminal case caused by the law firm’s negligence.
In Morrison’s case, she established an attorney-client relationship with McFadyen, and after he reviewed her investments, he advised her to fire Watkins and Adams as trustees. This activity would tend to show the loss of faith which would terminate the continuous representation rule. However, Morrison decided not to fire Watkins and Adams and continued to rely upon them as trustees. McFadyen continued to work with the trustees and advise them concerning investments until he himself was fired. This activity shows that Morrison continued to rely on Watkins and Adams.
Morrison contends that because Watkins and Adams continued in their positions as trustees and worked with McFadyen, the continuous representation rule still applies. She cites Lima v. Schmidt, 595 So. 2d 624, 630 (La. 1992), and Bass & Ullman, 185 App. Div. 2d 750, for this proposition. However, both Lima and Bass & Ullman are distinguishable from the case at hand.
In Lima, the court held that the hiring of a new attorney did not terminate the continuous representation rule. However, the new attorney was retained by the law firm, and was hired merely to represent the plaintiff in litigation caused by the law firm’s negligence. However, when the plaintiff hired independent counsel of her own to instigate suit against the law firm, the continuous representation ended. 595 So. 2d at 630. Likewise, in Bass & Ullman the new attorney was hired by the plaintiff in order to handle the criminal case arising as a result of the law firm’s negligence. The new attorney was not hired to instigate suit against or investigate the dealings of the law firm. 185 App. Div. 2d at 750.
A synthesis of cases dealing with the continuous representation rule reveals that its purpose is to benefit both the client and at-, tomey by allowing the attorney to attempt to correct or mitigate damages caused by the attorney’s error and allowing the client to refrain from discharging the attorney upon discovery of the error. Pittman, 12 Kan. App. 2d at 609. A client is entitled to rely on the attorney and need not hire another attorney to continually check up on her first attorney’s every action. See Greene, 56 N.Y.2d at 94-95. Where the client does bire another attorney, and assumes an adversarial stance to her first attorney, the continuous representation terminates, even if the client does not formally fire the first attorney. See Cantu, 401 Mass, at 58.
In this case, Morrison was not obliged to hire counsel to look at the investments made by Watkins and Adams. She decided to do so, however, and was advised by her independent counsel that she should fire Watkins and Adams. However, she chose not to do this and attempted to work with them to mitigate damages and correct their mistakes. Because she never actually assumed an adversarial stance against Watkins and Adams, the continuous representation rule applies and Morrison’s cause of action accrues from the time that she dismissed Watkins and Adams. Therefore, the district court erred in determining that the statute of limitations barred Morrison’s claims against Watkins.
Although the continuous representation rule applies to toll the statute of limitations, there is still a question of whether Morrison’s claims against Adams are barred by the statute of limitations. The undisputed evidence shows that Morrison discharged Adams from his position of trustee in 1987. Therefore, it would appear that the statute of limitations would bar Morrison’s claim against Adams.
Morrison, however, argues that even after his formal dismissal as trustee, Adams continued to be a de facto trustee and continued to advise the Trust from a fiduciary position. Therefore, she claims that the continuous representation rule should apply to him also, or at the very least, there is a fact question as to when his fiduciary activities ceased.
Kansas has so far only recognized the continuous representation rule in legal malpractice actions. Other states, however, have adopted the rule for other types of professional malpractice. See Northern Mont. Hosp. v. Knight, 248 Mont. 310, 811 P.2d 1276 (1991) (applying continuous representation rule to architects). In Lincoln Grain v. Coopers & Lybrand, 215 Neb. 289, 294-96, 338 N.W.2d 594 (1983), the court addressed the question of whether the rule applies to accountants but did not decide the question because it determined that, under the facts of the case, application of the rule would not affect the outcome.
Arguably, it would be reasonable to apply the continuous representation rule to those situations in which the professional owes a fiduciary duty to the client. The client should not be expected to supervise every action of his or her fiduciary, and the fiduciary should have the chance to correct mistakes or mitigate damages. Morrison does not complain that Adams committed professional malpractice in his duties as an accountant, but rather that he continued to operate as a de facto trustee even after he had been terminated from his trustee position.
There are two types of fiduciary relationships, those created by contract and those implied by law from the surrounding facts and the relationship of the parties. Daniels v. Army National Bank, 249 Kan. 654, 656, 822 P.2d 39 (1991). Morrison contends that after the contractual fiduciary relationship ended, Adams was still a fiduciary due to the surrounding facts and the relationship between Morrison and Adams. Some indicia of a fiduciary relationship include the acting of one party for another, the exercising of influence by one party over another, the reposing of confidence by one party in another, the inequality of the parties, and the dependence of one party on another. First Bank of WaKeeney v. Moden, 235 Kan. 260, 262, 681 P.2d 11 (1984).
Construing the facts in the light most favorable to Morrison, we find that Adams continued to sit in on all trustee meetings, which were held in his office. He also received copies of correspondence relating to trust decisions. However, Morrison knew of no investments which he made for her, and there were no allegations that Adams acted on behalf of the Trust after his termination as trustee. There were also no allegations that Adams acted on Morrison s behalf or exercised influence over her or that she reposed any special confidence in him. Therefore, Adams is not as a matter of law an implied fiduciary, even construing the facts in the light most favorable to Morrison, and the district court did not err in holding that the statute of limitations had run as to his liability.
Morrison also argues that the district court erred in finding that K.S.A. 1993 Supp. 60-513(b) barred her claims for damages arising out of investments which were made more than 10 years prior to the filing of the case. Morrison contends that the continuous representation rule should toll the running of the 10-year time limit found in K.S.A. 1993 Supp. 60-513(b).
Under K.S.A. 1993 Supp. 60-513(b), causes of action for negligence shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury or, if the injury is not readily ascertainable, when it becomes ascertainable; but in no event shall an action be commenced more than 10 years beyond the act giving rise to the cause of action. The district court found that this 10-year provision provided an absolute bar to liability for investments made 10 years prior to the filing of this action.
Morrison asserts that the continuous representation rule tolls the statute of limitations. However, K.S.A. 1993 Supp. 60-513(b) establishes a statute of repose rather than a statute of limitations. See Dobson v. Larkin Homes, Inc., 251 Kan. 50, 52, 832 P.2d 345 (1992). Statutes of repose are generally substantive and abolish a cause of action after a specific time period, even if the cause of action may not have accrued yet. Harding v. K.C. Wall Products, Inc., 250 Kan. 655, 668, 831 P.2d 958 (1992). In Harding, the Kansas Supreme Court quoted Menne v. Celotex Corp., 722 F. Supp. 662 (D. Kan. 1989), which stated that statutes of repose “ ‘generally lack tolling provisions.’ ” 250 Kan. at 662.
Because K.S.A. 1993 Supp. 60-513(b) is a statute of repose rather than a statute of limitations, the continuous representation rule does not toll the time for those complained-of actions which occurred more than 10 years before filing of the suit. The district court did not specify which of the actions of Watkins and Adams were specifically barred. However, at the very least, some of the oil and gas leases, most of the Flexweight transaction, the investment in the lot on South McKinley Street, and some of the Crossroads investment would be subject to the statute of repose. On remand, the district court should factually determine when the events giving rise to the complained-of causes of actions occurred for purposes of the statute of repose.
The district court alternatively found that even if the statute of limitations did not bar Morrison’s claims, her refusal to discharge Watkins and Adams after being advised to do so by McFadyen constituted a waiver of any claims she may have had for their earlier conduct. The policy behind the continuous rep resentation rule is that a client does not have to discharge his or her attorney, even if the client is fully aware of the mistakes. See Pittman, 12 Kan. App. 2d at 608-09. Therefore, waiver would be inapplicable to situations where the continuous representation rule applies.
Watkins and Adams cross-appeal, contending that the district court erred in finding that they were not entitled to reimbursement from the Trust for all attorney fees and expenses incurred in defending this suit. Watkins and Adams first state that under K.S.A. 59-1717, which provides that a fiduciaiy may recover his necessary expenses incurred in the execution of the trust, they are entitled to their expenses in defending this action. They also cite the Restatement (Second) of Trusts § 244 (1935), and Saulsbury v. Denton Nat’l Bank, 25 Md. App. 669, 335 A.2d 199 (1975), which provide that trustees are entitled to reimbursement for all attorney fees and expenses even if they successfully defend the case other than on the merits.
We must first decide whether K.S.A. 59-1717 applies only when the expenses are incurred during the administration of the trust rather than after the trustees’ dismissals. While Kansas has not addressed the issue of whether former trustees should be allowed their expenses for litigation that occurred as the result of their actions as trustees, at least one court has so ruled. See Preston Corp. v. Reeves, 762 F. Supp. 948 (N.D. Ga. 1991) (holding that a former trustee’s defense of its actions as trustee are chargeable to the trust). A trustee should be able to recover expenses regardless of whether the trustee was sitting at the time the suit was instigated as long as the reason for the suit was an action which occurred while the trustee was a trustee. We therefore conclude that under K.S.A. 59-1717, a trustee is entitled to expenses necessarily incurred in successfully defending the trustee’s actions as trustee even when those expenses are incurred after the trustee’s termination as trustee.
The district court adopted Morrison’s response to Watkins and Adams’ motion for attorney fees as its rationale for denying the fees. Unfortunately, the district court did not make clear which of Morrison’s arguments it adopted. The district court might have denied compensation based on the fact that there was no statutory basis for Watkins and Adams’ claim, as suggested by Morrison. However, as noted above, K.S.A. 59-1717 does provide such a statutoiy basis. A more likely basis for the district court’s ruling is that it found that the litigation conferred no benefit to the trust as was also suggested by Morrison.
In Burch v. Dodge, 4 Kan. App. 2d 503, 510, 608 P.2d 1032 (1980), this court denied attorney fees to a trustee in connection with his appeal of a surcharge. The court reasoned that the appeal was of no benefit to the trust but arose from the trustee’s admitted failure to carry out his duty. 4 Kan. App. 2d at 510. However, the case before us is distinguishable from Burch in that Watkins and Adams have not admitted nor been found guilty of any wrongdoing. They are the prevailing parties in this litigation, although no determination has been made as to the propriety of their actions.
The award of costs in K.S.A. 59-1717 is mandatory, conditioned upon the good faith of the trustee. McClary v. Harbaugh, 231 Kan. 564, 570, 646 P.2d 498 (1982). Therefore, absent any wrongdoing, the trustees should be reimbursed from the trust for their attorney fees. The district court may have decided that Watkins and Adams were guilty of bad faith in their dealings with the Trust; however, it is impossible to tell and cannot be presumed from the court’s holding that the litigation did not benefit the Trust.
This issue is remanded to the district court for a determination of whether Watkins and Adams acted in good faith and should therefore be entitled to their attorney fees.
Watkins and Adams also assert that the district court erred in failing to award them expenses which they incurred after the termination of the Trust and prior to the commencement of litigation.
The district court implicitly found, in adopting Morrison’s response to Watkins’ and Adams’ motions for attorney fees, that Watkins and Adams had failed to show that they were authorized to conduct their alleged services on behalf of the Trust or that their services they claimed to have performed were on behalf of the Trust. This failure represents a negative finding of fact, as Watkins and Adams had the burden to prove that their services were authorized and conducted on behalf of the trust.
A negative finding indicates that the party upon whom the burden of proof was cast did not sustain the burden. EF Hutton & Co. v. Heim, 236 Kan. 603, 610, 694 P.2d 445 (1985). A negative finding will not be disturbed absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466 (1989).
A review of the attachments offered by Watkins and Adams reveals that while the services for which they claim compensation were billed to the Trust, there is no evidence that the Trust authorized such work to be done. At the time Watkins and Adams claim to have performed these services, neither one of them was a fiduciary for the Trust. Therefore, it cannot be presumed that the work they did was done on behalf of the Trust. The district court did not err in refusing to award attorney fees for this work.
In his cross-appeal, Watkins also raises the issues of whether Morrison’s claim is barred by estoppel, the doctrine of laches, or application of the prudent man rule. Adams also raises the issues of laches and estoppel in his appellee’s brief. The problem with raising these issues at this juncture is that because of the district court’s ruling on the statute of limitations, the district court did not reach these issues.
Also, as in the case of waiver, both estoppel and laches conflicts with the intent of the continuous representation rule, which encourages the client to work with the fiduciary in attempting to rectify the situation or to mitigate damages. Although Morrison knew of the investments and knew that some damage had occurred, she is not charged with the duty to fire the trustees or instigate proceedings against them immediately. Neither laches nor estoppel are particularly applicable in this case, and the district court did not err in failing to award summary judgment on this issue.
Watkins also argues that the district court erred in not finding that the prudent man rule entitled him to summary judgment for any actions taken after October 1, 1987. He claims that the undisputed facts showed that he followed the prudent man rule and Morrison’s written instructions after that point. Unfortunately, there appears to be a dispute about this fact in that the uncontroverted facts do not show whether Watkins complied with the prudent man rule after 1987. Watkins offers no evidence to support this assertion, and Morrison does not come forward with any evidence that Watkins breached the prudent man rule. Therefore the district court did not err in failing to award summary judgment on this issue.
The district court’s award of summary judgment to Adams is affirmed, the award of summary judgment to Watkins is reversed, and this matter is remanded for further proceedings with directions for the court to determine which investments made by Watkins are subject to summary judgment based on the statute of repose.
On the cross-appeal, the district court’s refusal to award attorney fees to Watkins and Adams in connection with this litigation is reversed and the case is remanded so that the district court can consider the question of good faith. The district court’s refusal to award expenses arising after the firing of Watkins and Adams but before this litigation commenced is affirmed.
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|
Malone, J.:
George S. Fifer appeals the sentencing court’s classification of attempted burglary of a dwelling as a person felony, for criminal history purposes, pursuant to the Kansas Sentencing Guidelines.
The facts of this case are not in dispute. Fifer pled guilty to two counts of felony theft in violation of K.S.A. 21-3701. He received a controlling sentence of two to five years. Fifer’s crimes were committed prior to the effective date of the sentencing guidelines, but the sentencing did not take place until July 21, 1993. Therefore, pursuant to K.S.A. 1993 Supp. 21-4724, the district court imposed sentence under the guidelines as well as under the old law.
At sentencing, Fifer objected to the criminal history classification of one of his prior felonies. He claimed that his prior conviction of attempted burglary of a dwelling was incorrectly listed as a person felony. The district court disagreed and found that the prior attempted burglary of a dwelling should be classified as a person felony. Fifer then perfected this appeal.
This is a matter of first impression in Kansas. Both parties agree this is a question of statutory interpretation and thus a question of law, and this court’s scope of review is unlimited. State v. Williams, 18 Kan. App. 2d 424, 425, 856 P.2d 158 (1993).
We are aware that in 1994 the legislature amended K.S.A. 1993 Supp. 21-4711 to read in relevant part, as follows:
“(g) A prior felony conviction of an attempt, a conspiracy or a solicitation as provided in K.S.A. 21-3301, 21-3302 or 21-3303 and amendments thereto, to commit a crime shall be treated as a person or nonperson crime in accordance with the designation assigned to the underlying crime.” L. 1994, ch. 291, § 55.
This amendment is subsequent to Fifer’s sentencing and does not affect his particular case. Furthermore, there is no evidence of the legislative intent of this amendment outside the language of the statute.
The criminal history classification of burglary is found at K.S.A. 1993 Supp. 21-4711(d), which reads as follows:
“Prior burglary adult convictions and juvenile adjudications will be scored for criminal history purposes as follows:
“(1) As a prior person felony if the prior conviction or adjudication was classified as burglary as described in subsection (a) of K.S.A. 21-3715 and amendments thereto.
“(2) As a prior nonperson felony if the prior conviction or adjudication was classified as a burglary as described in subsection (b) or (c) of K.S.A. 21-3715 and amendments thereto.”
The statute, however, failed to address the criminal history classification of attempted burglary until the 1994 amendment.
The crux of Fifer s argument is that because the legislature did not expressly direct that an attempted burglary of a dwelling is a person felony, this court must strictly construe the statute against the State and find that an attempted burglary of a dwelling is a nonperson felony for criminal history purposes. The defendant correctly notes that K.S.A. 1993 Supp. 21-3301(e) states that an attempt to commit a Class A person misdemeanor is a Class B person misdemeanor and an attempt to commit a Class A nonperson misdemeanor is a Class B nonperson misdemeanor. Employing the maxim expressio unius est exclusio alterius (the inclusion of one thing implies the exclusion of another) by including language concerning attempted misdemeanors and remaining silent as to attempted felonies, it is arguable the legislature meant to apply a different rule to felony cases. See State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977).
The defendant’s argument has merit. However,
“[t]he fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases, or clauses at some places in the statute must be omitted or inserted.” State v. Gonzales, 255 Kan. 243, Syl. ¶ 2, 874 P.2d 612 (1994).
“In determining legislative intent, courts are not limited to a mere consideration of the language used but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.” 255 Kan. 243, Syl. ¶ 3.
In order to ascertain legislative intent, courts are not restricted to consider only isolated parts of an act but are required to consider and construe together all parts thereof in pari materia. The entire act should be construed according to its spirit and reason. 255 Kan. 243, Syl. ¶ 4.
While criminal statutes are generally strictly construed against the State, this principle is subordinate to die rule that judicial interpretations must be reasonable and sensible to effectuate the legislative design and the true intent of the legislature. State v. Schlein, 253 Kan. 205, Syl. ¶ 2, 854 P.2d 296 (1993). Also, the rule of exclusio unius est exclusio alterius should not be employed to override or defeat a contrary legislative intention. State v. Luginbill, 223 Kan. at 20. Finally, the legislature is presumed to intend that a statute be construed reasonably so as to avoid absurd or unreasonable results. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
The sentencing guidelines are based on two controlling factors: crime severity and criminal history of the defendant. In scoring criminal history, a distinction is made between person crimes and nonperson crimes. Generally, person crimes are weighed more heavily than nonperson crimes. Kansas Sentencing Guidelines, Desk Reference Manual, p. 13 (1994); Coates, Summary of the Recommendations of the Sentencing Commission, p. 8 (Report to House Committee on Judiciary, March 16, 1992). Designation of a crime as person or nonperson depends upon the nature of the offense. Crimes which inflict, or could inflict, physical or emotional harm to another are generally designated as person crimes. Crimes which inflict, or could inflict, damage to property are generally designated as nonperson crimes. Kansas Sentencing Guidelines, Desk Reference Manual, p. 14 (1994).
A conviction of burglary of a dwelling is designated as a person crime. An attempt to commit burglary of a dwelling does not completely change the nature of the offense. Since an attempt to commit burglary of a dwelling inflicts, or could inflict, physical or emotional harm to another, it is logical to make such an attempt a person crime for criminal history purposes. Likewise, it is logical that an attempt to commit any crime should be designated person or nonperson depending on the designation assigned to the underlying crime. This is consistent with the manner of classifying crimes based upon the nature of the offense.
Probably the most compelling reason to adopt the State’s argument is that to adopt the defendant’s argument would mean that attempted murder, attempted rape, and other similar crimes would be deemed nonperson felonies for criminal history purposes. We find this result to be clearly unreasonable and one which was never intended by the legislature.
We conclude that even prior to the 1994 amendment to K.S.A. 1993 Supp. 21-4711, the legislature intended that an attempt to commit a crime should be treated as a person or nonperson crime in accordance with the designation assigned to the underlying crime. Accordingly, we hold that the defendant’s attempted burglary of a dwelling should be designated as a person felony for criminal history purposes under the guidelines.
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Briscoe, C.J.:
Edward L. Harris, petitioner in a divorce proceeding, appeals from the district court’s ruling that it had no jurisdiction under the Uniform Child Custody Jurisdiction Act (UCCJA), K.S.A. 38-1301 et seq., to determine who should have custody of the parties’ two minor children.
Edward and Brukentta Harris were married in Georgia in 1989. They have two minor children, Zachariah bom in 1989, and Kelsey bom in 1992. Since their birth, the children have lived with their parents in Georgia, Nevada, Indiana, and again in Georgia. The parties and their children resided together in Georgia from January 1993 until March 1993, when the parents separated and the father returned to his family home in Kansas. The mother and the children remained in Georgia. The father continued to support the family, but in August 1993, the mother began denying him telephone contact with the children.
On September 25, 1993, the father visited the family in Georgia. The parties have stipulated that he took the children back to Kansas without the mother’s knowledge or consent. According to a police report on the incident, he told the mother he was taking the children to McDonald’s for Zachariah’s birthday. At that time, there was no court order granting custody to either parent, and no child custody proceedings were pending anywhere.
On September 27, 1993, the father filed a petition for divorce in Kansas, seeking custody of the children. The trial court entered an ex parte order granting the father temporary custody of the children. On October 12, the mother filed for divorce in Georgia, seeking custody of the children. Three days later, she filed a motion in Kansas seeking modification of the temporary custody order, arguing that under the UCCJA, custody should be determined in Georgia. She raised the same issue in her answer to the divorce petition.
Although the children had not resided in Kansas until the father brought them to his family home, and the parents had never resided in Kansas while they were married, the parties have stipulated that the children have a significant connection to both Georgia and Kansas, and that substantial evidence concerning their present and future care, protection, training, and personal relationships is available in both states.
The trial court ruled that it had no jurisdiction under the UCCJA to determine child custody. The court concluded that Georgia was the children’s home state, where they had more significant connections, and that it would not be in their best interests to determine custody in Kansas. The court also ruled that if it had jurisdiction, it should be declined under K.S.A. 38-1308(a) because the father’s conduct in taking the children to Kansas and obtaining an ex parte order for temporaiy custody constituted wrongful or reprehensible conduct. After denying the father’s motion to alter or amend, the court rescinded the temporary custody order and ordered the father to turn the children .■ over to the mother. In the divorce decree, the trial court repeated its ruling that it lacked jurisdiction to determine child custody.
The father contends the UCCJA is inapplicable to an initial determination of child custody in a divorce proceeding under K.S.A. 1993 Supp. 60-1610. He argues that the UCCJA is limited to proceedings for change or modification of prior custody orders. These arguments are without merit.
The issue is one of statutory construction, which is a question of law, and the appellate court is not bound by the decision of the trial court. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
The UCCJA expressly applies to an initial determination of custody in a divorce proceeding. K.S.A. 38-1303(a) provides that a district court “has jurisdiction to make a child custody determination by initial or modification decree” if one of four sets of circumstances are present. K.S.A. 38-1302(d) defines a “[d]ecree” or “custody decree” as “a custody determination contained in a judicial decree or order made in a custody proceeding, and includes an initial decree and a modification decree.” Subsection (b) defines a “[c]ustody determination” as “a court decision and court orders and instructions providing for the custody of a child.” Subsection (c) defines a “[cjustody proceeding” to include proceedings “in which a custody determination is one of several issues, such as an action for divorce or separation.” Subsection (f) defines an “[i]nitial decree” as “the first custody decree concerning a particular child.” The Comment to § 3 of the UCCJA, 9 U.L.A. 145 (1988), states: “This section governs jurisdiction to make an initial decree as well as a modification decree.” See In re Marriage of Mosier, 251 Kan. 490, 494-95, 836 P.2d 1158 (1992).
The father’s argument is based on the legislative history of 60-1610. When the legislature adopted the UCCJA in 1978, it amended K.S.A. 60-1610(a) to provide: “The court shall make provision for the custody of the minor children only when the court has jurisdiction to make a child custody decree under the provisions of the uniform child custody jurisdiction act.” See L. 1978, ch. 231, § 30.
In 1982, the legislature amended 60-1610 extensively. L. 1982, ch. 152. As amended, the statutory provisions on change of custody provided: “Subject to the provisions of the uniform child custody jurisdiction act (K.S.A. 38-1301 et seq. and amendments thereto), the court may change or modify any prior order of custody when a material change of circumstances is shown.” (Emphasis added.) By contrast, the provisions on the criteria for child custody determinations made no reference to the UCCJA. L. 1982, ch. 152, § 9. These provisions have not been substantially changed. See K.S.A. 1993 Supp. 60-1610(a)(2) and (3).
Viewed alone, this change in the statutory language tends to support the father’s argument that the UCCJA is limited to proceedings to change or modify prior custody orders and is inapplicable to an initial determination of custody in a divorce proceeding under 60-1610. However, any presumption that the 1982 amendment to 60-1610 was intended to change the scope of the UCCJA is weak, because it was not an isolated, independent amendment, but part of a general revision of the divorce statutes in L. 1982, ch. 152. See Board of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982).
In effect, the father argues that the provisions of the UCCJA relating to initial determinations of custody in divorce proceedings were repealed by implication by the 1982 amendment to 60-1610. However, repeal by implication is not favored. A statute will not be held to have been repealed by implication unless the later enactment is so repugnant to the first that both cannot be given force and effect. City of Salina v. Jaggers, 228 Kan. 155, 169, 612 P.2d 618 (1980).
Thus, we must construe both statutes together to determine the intent of the legislature because they concern the same subject matter. See Martindale v. Tenny, 250 Kan. 621, 631-32, 829 P.2d 561 (1992). The legislative intention should be determined from a general consideration of the entire act. Effect should be given to every part of the act, if possible, and the court should construe the different provisions in a consistent, harmonious, and sensible manner. When literal interpretation of one section of an act would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason. See Todd v. Kelly, 251 Kan. at 516.
The language of 60-1610(a)(3) is not inconsistent with application of the UCCJA to initial determinations of custody in divorce proceedings. Child custody determinations under 60-1610(a)(3) must be made “in accordance with the best interests of the child.” The express goal of the UCCJA is for custody decrees to be entered by the courts of the state “which can best decide the case in the interest of the child.” K.S.A. 38-1301(a)(2); see 38-1303(a)(2) through (4); K.S.A. 38-1307(c). Under 60- 1610(a)(3), a court could determine that it is in the best interests of the children that custody be determined in another state with closer connections to the children in accordance with the UCCJA. See Bills v. Murdock, 232 Kan. 237, 654 P.2d 406 (1982). Moreover, if the father’s argument were correct, the express provisions in the UCCJA for child custody determinations by initial decree in divorce proceedings would be of no effect.
The construction urged by the father would be contrary to the express purposes of the UCCJA set out in 38-1301(a), which are to:
“(1) Avoid jurisdictional competition and conflict with courts of other states in matters of child custody which have in the past resulted in the shifting of children from state to state with harmful effects on their well-being;
(2) promote cooperation with the courts of other states to the end that a custody decree is rendered in that state which can best decide the case in the interest of the child;
(3) assure that litigation concerning the custody of a child take place ordinarily in the state with which the child and the child’s family have the closest connection and where significant evidence concerning the child’s care, protection, training, and personal relationships is most readily available, and that courts of this state decline the exercise of jurisdiction when the child and the child’s family have a closer connection with another state;
(4) discourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child;
(5) deter abductions and other unilateral removals of children undertaken to obtain custody awards;
(6) avoid re-litigation of custody decisions of other states in this state insofar as feasible;
(7) facilitate the enforcement of custody decrees of other states;
(8) promote and expand the exchange of information and other forms of mutual assistance between the courts of this state and those of other states concerned with the same child; and
(9) make uniform the law of those states which enact it.”
The father’s construction would permit the courts of this state to make initial custody decrees that did not conform to the UCCJA. Under his theory, a court could make an initial decree in a divorce proceeding although none of the four alternative jurisdictional prerequisites of 38-1303(a) were satisfied. Under § 13 of the UCCJA, other states would not be required to recognize or enforce such decrees because they would not meet the jurisdictional standards of the uniform act. 9 U.L.A. 276 (1988). Moreover, under the Parental Kidnapping Prevention Act of 1980 (PKPA), 28 U.S.C. § 1738A (1988), such decrees would not be entitled to full faith and credit in other states. The Kansas decrees could be ignored in child custody proceedings commenced in other states. See 1 Elrod, Kansas Family Law Handbook §§ 12.021A 2, 12.022B 1 and 2 (rev. ed. 1990). This result would permit continuing competition and conflict with courts of other states, contrary to 38-1301(a)(l) and (4).
The father’s construction therefore would permit custody litigation to take place in this state even though other states with closer connections to the child and the family would be in a better position to determine the child’s best interests, contrary to 38-1301(a)(2) and (3). See Bills v. Murdock, 232 Kan. 237. It would also encourage rather than deter parental kidnappings and other unilateral removals of children undertaken to obtain custody awards, contrary to 38-1301(a)(5). Finally, the father’s construction limiting the UCCJA to modification of prior decrees would be contrary to 38-1301(a)(9), by making the child custody jurisdiction law of this state distinctly different from that of the other states that have adopted the UCCJA. See Comment to § 3, 9 U.L.A. 144.
We conclude that the 1982 amendment to 60-1610 did not repeal or amend the provisions of the UCCJA relating to initial determinations of custody in divorce proceedings. The legislature did not intend to make the UCCJA inapplicable to initial child custody determinations in divorce proceedings.
The father also contends that application of the UCCJA to an initial custody determination in a divorce proceeding violates Article 15, § 6 of the Kansas Constitution. He first argues the UCCJA is unconstitutional on its face. We disagree.
Kan. Const, art. 15, § 6 provides: “The legislature shall provide for the protection of the rights of women, in acquiring and possessing property, real, personal and mixed, separate and apart from the husband; and shall also provide for their equal rights in the possession of their children.” Under this constitutional pro vision, “in the absence of a court order both parents have an equal right to the custody of their minor children.” State v. Al-Turck, 220 Kan. 557, 558, 552 P.2d 1375 (1976).
Throughout his arguments, the father appears to confuse a court’s ultimate ruling on custody with a court’s preliminary ruling on jurisdiction. Application of the jurisdictional standards of the UCCJA to initial determinations of custody in divorce proceedings does not violate parents’ equal constitutional rights to custody of their children. Under the UCCJA, all parents seeking an initial determination of custody in a Kansas divorce proceeding are subject to the same jurisdictional rules. General rules that apply evenhandedly to all persons similarly situated do not violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Carlson v. Carlson, 8 Kan. App. 2d 564, 567, 661 P.2d 833 (1983). In In re Wicks, 10 Kan. App. 2d 124, 128, 693 P.2d 481 (1985), the court rejected a mother’s argument that the UCCJA denied her equal protection because she failed to show how the UCCJA treated her any differently than other parents involved in custody disputes. Similarly, here, the father has failed to show how the UCCJA treated him any differently than other similarly situated parents; the UCCJA does not on its face violate his equal right to custody under Kan. Const, art. 15, § 6.
The father also contends that as applied in this case, the UCCJA violated his constitutional equal right to custody. He argues that by declining jurisdiction for wrongful or reprehensible conduct under 38-1308(a), the court penalized him for exercising his equal right to custody. We need not address this issue because declining jurisdiction under 38-1308(a) was an alternative ground for the trial court’s order. The court also ruled that it had no jurisdiction under the UCCJA because it concluded it was not in the children’s best interests for a Kansas court to determine custody when the children had a closer connection to Georgia, which was their home state under 38-1302(e). This conclusion was correct and provided a valid basis for declining jurisdiction in favor of Georgia.
The only possible basis for jurisdiction under the UCCJA in this case was 38-1303(a)(2), which provides that a court has jurisdiction if
“it is in the best interest of the child that a court of this state assume jurisdiction because (A) the child and the child’s parents, or the child and at least one contestant, have a significant connection with this state, and (B) there is available in this state substantial evidence concerning die child’s present or future care, protection, training, and personal relationships.”
The purpose of the UCCJA is to limit jurisdiction rather than to proliferate it. Jurisdiction under the UCCJA requires maximum rather than minimum contacts between the child and the forum state. Accordingly, 38-1303(a)(2) must be construed narrowly so that, ordinarily, child custody litigation takes place in the state with which the child and the child’s parents have the closest connections. In most cases this will be the child’s home state under 38-1302(e). Bills v. Murdock, 232 Kan. at 241-43. See Hart v. Hart, 236 Kan. 856, 859, 695 P.2d 1285 (1985). The presence of one parent in the state and occasional visits to the state by a child are not sufficient to establish a significant connection under 38-1303(a)(2). Hart v. Hart, 236 Kan. at 860-61; Bills v. Murdock, 232 Kan. at 243.
Here, the record shows that the children had not lived in this state until the day before the father filed his divorce petition, and there is no indication that they ever visited Kansas. The children could not have a significant connection to Kansas. However, the parties stipulated that the father’s evidence, if presented, would make out a prima facie case that the children had a significant connection to Kansas and that substantial evidence relevant to custody was available in Kansas. The validity of this stipulation is questionable because it can be characterized as a stipulation to a conclusion of law. Although stipulations of fact are binding on the courts, stipulations of law are not. See State v. Young, 228 Kan. 355, 357, 614 P.2d 441 (1980). Moreover, the stipulation may represent an attempt by the father to confer jurisdiction. Ordinarily, parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel. See In re Marriage of Mosier, 251 Kan. at 493.
We need not decide whether the stipulation was valid because the stipulation did not establish that it was in the best interests of the children that custody be decided in Kansas, one of the requirements for jurisdiction under 38-1303(a)(2). A child’s best interests are served when a custody determination is made in the state that has the closest connection to the child, which is ordinarily the child’s home state. Bills v. Murdock, 232 Kan. at 241-42. Here, the trial court found the children had closer connections to Georgia.
Kansas was not the children’s home state under 38-1302(e) because they had not lived in Kansas for six months “immediately preceding the time involved.” As the trial court concluded, Georgia was their home state. They had lived in Georgia for more than six months immediately prior to being removed to Kansas. Georgia could assert home state jurisdiction under § 3(a) of the UCCJA for six months after their removal. Ga. Code Ann. § 19-9-43(a)(l) (1991). The mother invoked that jurisdiction within one month after removal of the children by filing her petition for divorce in Georgia and seeking custody. The father’s assertion that the trial court improperly departed from the stipulated facts by finding that Georgia was the children’s home state is without merit. That was a legal conclusion properly drawn from the stipulated facts.
It would not be in the best interests of the children for custody to be determined in Kansas when Georgia is their home state because a Kansas custody determination under these circumstances would not be binding in other states under the PKPA. It should be noted that despite the title, the PKPA applies to interstate custody disputes whether or not there has been a parental kidnapping or other misconduct. Under subsections (a) and (c)(2) of the PKPA, a custody determination by one state based on significant connection jurisdiction when another state has home state jurisdiction is not entitled to full faith and credit in other states. See, e.g., Atkins v. Atkins, 308 Ark. 1, 823 S.W.2d 816 (1992). See 1 Elrod, §§ 12.021A2, 12.022B 1 and 2. Here, exercise of jurisdiction would only have resulted in a custody decree that could be ignored in other states, encouraging further custody litigation contrary to the children’s best interests. See K.S.A. 38-1301.
Larsen v. Larsen, 5 Kan. App. 2d 284, 615 P.2d 806, rev. denied 228 Kan. 807 (1980), does not require a different result. In Larsen, the court concluded Kansas had jurisdiction under the UCCJA although it was not the children’s home state and that the trial court was not required to decline jurisdiction under the inconvenient forum provisions of K.S.A. 38-1307. However, Larsen may no longer be good , law because it was decided before the PKPA took effect. Before enactment of the PKPA, a child custody determination based on the significant connection provisions of 38-1303(a)(2) would be entitled to recognition and enforcement by other states even though another state was the home state. See UCCJA § 13, 9 U.L.A. 276. Under the PKPA, such a determination would not be entitled to full faith and credit in other states. Moreover, Larsen is distinguishable because the children there had very strong connections to the state as they were bom in Kansas and had lived in . Kansas most of their lives.
We agree with the trial court’s conclusion that it was not in the best interests of the children that custody be determined in Kansas when they had closer connections to Georgia, their home state. Jurisdiction could not be based on a “significant connection” of the children with Kansas because 38-1303(a)(2) applies only when “it is in the best interest of the child that a court of this state assume jurisdiction.” Even if Kansas had significant connection jurisdiction under 38-1303(a)(2), when another state is the child’s home state a court of this state would be required to decline jurisdiction under 38-1307(a). It is inherently an abuse of discretion to make a custody determination that can be freely ignored by other states under the PKPA.
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Pierron, J.:
Michael A. Miller appeals an order revoking his probation. He contends he was denied his right of confrontation because the only evidence presented to establish a violation of the conditions of his probation was in the form of sworn affidavits and attached memoranda. In addition, he contends the State failed to lay an adequate foundation for the admission of the af fidavits. He also alleges the trial court showed partiality, prejudice, or corrupt motive in revoking his probation.
After a jury trial, defendant was convicted of possession of cocaine, a class C felony, and possession of marijuana and drug paraphernalia, class A misdemeanors. He was on probation at the time of these offenses. He was sentenced to concurrent sentences of 4 to 10 years for possession of cocaine, 1 year for possession of marijuana, and 6 months for possession of drug paraphernalia.
The trial court heard defendant’s motion to modify sentence and, based on the recommendation of the State Reception and Diagnostic Center, placed him on probation with community corrections for a period of three years. The court imposed the standard conditions of probation, including an order that defendant report to a community corrections officer as directed.
The court also imposed several special conditions. Among them was that defendant was not to consume alcohol or illegal drugs. Furthermore, he was ordered to “submit to blood, urine or breath tests as requested by his probation officer or any law enforcement officer to detect the use of illegal drugs or alcohol.” The probation order contained a warning to him that “probation will be revoked if any illegal drugs or alcohol are discovered.” The court permitted defendant to transfer his probation to Johnson County Community Corrections:
Five weeks later, the State filed a motion to revoke his probation. In support of its motion, the State submitted two affidavits. The first affidavit was that of Ted VanDonge, a Lyon County Community Corrections Officer, alleging defendant had violated three conditions of his probation. VanDonge’s affidavit offered no details regarding the alleged violations; however, it referred to an affidavit submitted by Fred Decker, a Johnson County Community Corrections Officer.
Decker’s affidavit alleged defendant had violated “special condition #1” of his probation, which prohibited the consumption or possession of alcohol or illegal drugs. According to Decker, “[o]n June 20, 1993, [defendant] tested positive for cannabinoids, and on August 16, 1993, tested positive [for] cannabinoids and cocaine.” He further alleged that defendant had not complied with “special condition #8,” which required him to submit to urinalysis tests when requested by his probation officer. Decker s affidavit stated that “[o]n August 13, 1993, [defendant] did not complete UA test as directed.” Finally, Decker alleged defendant failed to report to community corrections officers on August 23, 1993, and August 25, 1993, as directed, in violation of “condition #3.” In support of each of the alleged violations, Decker referred the attention of the reader to other documents attached to his affidavit, i.e., the State’s exhibits Nos. 5 and 6.
Based on the affidavits of VanDonge and Decker, the trial court issued an arrest warrant on September 16, 1993. On November 9, 1993, the State’s motion to revoke probation was heard by the District Court of Lyon County. The State’s evidence consisted of the testimony of VanDonge and six exhibits. The exhibits included four affidavits and two attached memoranda. Defendant did not present any evidence in his defense.
VanDonge was the only witness called by the State. He testified he had been assigned to the case after it was transferred to Johnson County and he had not had any contact with defendant since being assigned. However, VanDonge had maintained contact with the authorities from Johnson County regarding defendant’s case and had received information regarding defendant from Decker.
VanDonge identified exhibits Nos. 1 through 6 as documents forwarded to him by Decker. Defense counsel objected to the admission of all of the State’s exhibits. In particular, he objected to the admission of exhibit No. 4, Decker’s affidavit alleging the violations, as lacking any foundation. Defense counsel also objected to exhibits Nos. 1 through 6 as being hearsay and not properly offered as business records.
The State responded to defendant’s objection by citing State v. Yura, 250 Kan. 198, 825 P.2d 523 (1992), as authority for admitting the documents. Defense counsel again objected to the admission of the exhibits, particularly Decker’s affidavit alleging the probation violations. Among the violations, Decker alleged that “[o]n June 20, 1993, [defendant] tested positive for cannabinoids.” Defense counsel argued that defendant was still in jail on June 20, 1993, and that such a test result was impossible. Based on this alleged error, defendant questioned the reliability of the other exhibits.
The trial court overruled defendant’s objections, stating:
“I’m familiar with the decision that’s been cited. The documents have met the foundation tests for admissibility. In my opinion the objection goes to the weight of the credit that may be given to the weight of the documents, and not to their admissibility. Accordingly, Plaintiff’s exhibits 1 through 6 inclusive are admitted.”
Aside from Decker’s affidavit, three other affidavits were admitted. All three related to the collection and testing of defendant’s urine specimen on August 16, 1993. Exhibit No. 1 was an affidavit of Cliff Group, an employee of Health Productivity Systems, Inc., in Kansas City, Missouri. Group’s affidavit stated he was personally present during the collection of a urine sample from defendant on August 16, 1993.
Exhibit No. 2 was an affidavit of a toxicological chemist, Suzanne Fischer. Fischer’s affidavit stated she was employed at Physician Reference Laboratory. Further, a specimen of defendant’s urine was received by the laboratory and tested on August 18, 1993. The specimen “tested positive for the presence of cocaine metabolites (benzoylecgonine) by gas chromatography/mass spectrometry.”
Exhibit No. 3 was an affidavit of Philip Cravens, owner, president, and chief technologist of Health Productivity Systems, Inc. In his affidavit, Cravens, a certified medical technologist, stated he had analyzed defendant’s urine specimen, dated August 16, 1993. The specimen indicated the presence of cocaine metabolites (benzoylecgonine) and cannabinoids (marijuana).
The remaining exhibits, Nos. 5 and 6, were memoranda written by Decker and directed to Peggy Brown, Deputy Director, 5th Judicial District Community Corrections. In each of the memoranda, Decker indicated defendant “may have violated special conditions #1 and #8 of the Order of Probation.” Conditions No. 1 and No. 8 prohibited defendant from consuming alcohol or illegal drugs and directed him to submit to urinalysis, respectively. The memoranda further explained the details of the alleged violátions.
After the introduction of the exhibits, the State argued defendant’s probation should be revoked and he should be incarcerated for the remainder of the original sentence. After noting the standard of proof necessary to revoke probation is a preponderance of the evidence, the trial court found the six exhibits substantiated the allegations made in the affidavit of Decker. The trial court stated:
"Despite the assertions of the Defendant in this case that the information is not correct, there is no evidence to indicate to die contrary here today. There’s simply been no evidence offered by the Defendant whatsoever. Under those circumstances, I think die preponderance of evidence test has been well met. Therefore, it is . . . my finding that diere have been violations of die terms and conditions of the assignment to Community Corrections. Number one, special condition number one, there was positive testing for die presence of both cannabinoids and cocaine on August 16, 1993. Secondly, there is evidence to indicate a violation of special condition number 8, that being the failure to complete as directed a urinalysis examination on August 13. Finally, there is a violation of the third special condition, diat being failure to report as directed on at least two occasions.”
After concluding defendant had violated the conditions of his probation, the trial court considered its options. After recounting defendant’s criminal history and his prior conduct while on probation, the court stated: “It is apparent, however, that Mr. Miller under his present assignment is not capable of operating under the supervision level expected by this Court. Mr. Miller, your assignment and granted probation is therefore revoked.”
Defendant raises two issues on appeal.
The first issue involves the relationship between defendant’s right to confront adverse witnesses and the State’s use of affidavits to establish a violation of probation. Defendant argues his Sixth Amendment right to confront and cross-examine the witnesses against him was violated because the affidavits and attached memoranda upon which his revocation was based were constitutionally insufficient.
In Kansas, “the determination of whether an order of probation should be revoked is a matter within the trial court’s discretion.” State v. Duke, 10 Kan. App. 2d 392, 394, 699 P.2d 576 (1985). On appeal, the trial court’s order revoking probation will only be disturbed if this court finds an abuse of that discretion.
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” State v. Baker, 255 Kan. 680, Syl. ¶ 9, 877 P.2d 946 (1994).
K.S.A. 1993 Supp. 22-3716(b) governs the procedure to be followed in probation revocation hearings. In State v. Rasler, 216 Kan. 292, 296, 532 P.2d 1077 (1975), the Kansas Supreme Court held that 22-3716 “meets all constitutional requirements in such proceedings.” K.S.A. 1993 Supp. 22-3716(b) provides in relevant part:
“The hearing shall be in open court and the state shall have the burden of establishing the violation. The defendant shall have the right to be represented by counsel and shall be informed by tire judge that, if the defendant is financially unable to obtain counsel, an attorney will be appointed to represent the defendant. The defendant shall have the right to present the testimony of witnesses and other evidence on the defendant’s behalf. Relevant written statements made under oath may be admitted and considered by the court along with other evidence presented at the hearing.”
In Rosier, the court found that proof beyond a reasonable doubt is not required to establish a violation of a condition of probation. Rather, a preponderance of the evidence is sufficient. 216 Kan. at 295.
In State v. Yura, 250 Kan. 198, the Kansas Supreme Court addressed the relationship between the admissibility of affidavits at a probation revocation hearing and a defendant’s right to confront adverse witnesses. In determining whether affidavits were admissible at a revocation hearing, the court employed a two-part analysis. First, the court concluded that affidavits were technically admissible under our rules of evidence. The court stated:
“K.S.A. 1990 Supp. 60-460(b) provides that affidavits, to the extent admissible by the statutes of this State, are an exception to the inadmissibility of hearsay. Because relevant written statements made under oath are admissible under K.S.A. 1990 Supp. 22-3716(2) in probation revocation hearings, such statements are a K.S.A. 1990 Supp. 60-460(b) exception to tire inadmissibility of hearsay. The trial court is vested with discretion in admitting such statements under K.S.A. 1990 Supp. 22-3716(2).” 250 Kan. at 206-07.
After concluding that our rules of evidence authorize the admission of sworn statements at a probation revocation hearing, the Yura court addressed the more difficult question regarding the constitutionality of admitting such evidence. In its analysis, the Kansas Supreme Court relied on Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972), and United States v. Bell, 785 F.2d 640 (8th Cir. 1986).
In Morrissey, the United States Supreme Court found that “revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” 408 U.S. at 480. Nevertheless, a probationer has a limited liberty interest and is entitled to minimal due process rights. See Gagnon v. Scarpelli, 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973). In Morrissey, 408 U.S. at 488-89, the Supreme Court outlined the minimum requirements of due process as applied to parole revocation hearings. Probationers enjoy the same procedural rights accorded parolees. Gagnon, 411 U.S. at 782.
The minimum requirements of due process in a parole or probation revocation hearing include “the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).” 408 U.S. at 489. The Morrissey Court, however, emphasized:
“[T]here is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.” 408 U.S. at 489.
In Yura, the Kansas Supreme Court concluded that “Morrissey provides that affidavits may be admitted for good cause shown without violating the probationer’s right to confront witnesses.” Yura, 250 Kan. at 207. The court then adopted the rationale of United States v. Bell, 785 F.2d 640, for determining what the government must show to establish “good cause.”
“The Bell court stated that in a probation revocation proceeding the trial court must balance the probationer’s right to confront a witness against the grounds asserted by the government for not requiring confrontation. [Citations omitted.] Bell listed two factors to be evaluated in examining the government’s basis for dispensing with confrontation: (1) the explanation the government offers of why confrontation is undesirable or impractical, and (2) the reliability of the evidence which the government offers in place of live testimony,” Yura, 250 Kan. at 208.
In Yura, the court noted that “the trial court must balance the probationer s right to confront an adverse witness against the grounds asserted by the government for not requiring confrontation.” 250 Kan. at 208. A review of the revocation transcript in this case, however, reveals that the State did not offer an explanation of why confrontation was undesirable or impractical. The only evidence offered by the State that can be roughly construed as grounds for dispensing with defendant’s right of confrontation was the testimony of VanDonge.
VanDonge testified that Decker, the affiant of exhibit No. 4, worked in Kansas City, Missouri. VanDonge was not sure where the other affiants worked. At least one of the labs that tested defendant’s urine specimen was located in Kansas City, Kansas. The State did not present any other evidence showing the affiants could not be present at the hearing or that procuring their appearance would involve an unjustifiable expense. Furthermore; the State did not offer an explanation of why confrontation would be undesirable or impractical. See Bell, 785 F.2d at 643. Thus, the trial court had no basis for the conclusion that there was “good cause for not allowing confrontation.” Morrissey, 408 U.S. at 489.
At the revocation hearing, the State argued the exhibits were admissible under Yura. On appeal, the State contends that “[b]y reference to the Yura decision, the State was adopting the arguments made by the prosecution in that case.” The State then goes on to offer an explanation of why confrontation is undesirable or impractical. This argument ignores the fact that the State failed to provide such an explanation at the hearing. Furthermore, the trial court was required to balance the State’s explanation against defendant’s right of confrontation prior to admitting the evidence. An explanation offered on appeal is not sufficient.
In Morrissey, the Supreme Court stated that in a revocation proceeding a defendant has the right to confront and cross-examine adverse witnesses, “unless the hearing officer specifically finds good cause for not allowing confrontation.” (Emphasis added.) 408 U.S. at 489. After reviewing the record in this case, it is clear the trial court made no such finding. During the revocation hearing, the trial court stated: “I’m familiar with the decision [Yura] that’s been cited. The documents have met the foundation tests for admissibility. In my opinion the objection goes to the weight of the credit that may be given to the weight of the documents, and not to their admissibility.”
The trial court failed to make a specific finding that good cause existed for not allowing confrontation. Thus, the threshold requirement for admitting the affidavits, and dispensing with defendant’s right of confrontation, was not satisfied. The trial court abused its discretion by improperly denying defendant his right to confront the witnesses against him. See Gaze v. State, 521 A.2d 125, 128 (R.I. 1987) (where the record contains no evidence to establish that the hearing officer ever made such a good-cause determination, defendant was denied the commensurate due-process protection).
On remand, if the trial court finds that good cause has been shown, the affidavits may properly be admitted. We note defendant’s concern that admitting this type of evidence too easily could “reduce the hearing to a battle of affidavits.” However, the requirement that good cause be shown by the State will prevent unjustifiable dispensing with defendant’s right to confrontation. In Mason v. State, 631 P.2d 1051, 1056 (Wyo. 1981), the Wyoming Supreme Court noted that “the State must make a good-faith attempt to produce the witnesses at a probation- or parole-revocation hearing or else show cause why they cannot appear.” This approach will insure that defendant’s right of confrontation is not lightly discarded.
The trial court should engage in this balancing test for each affidavit before they are admitted. In Delaware v. Van Arsdall, 475 U.S. 673, 680, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986), the United States Supreme Court found that “[wjhile some constitutional claims by their nature require a showing of prejudice with respect to the trial as a whole, [citation omitted] the focus of the Confrontation Clause is on individual witnesses.”
Although it is necessary to remand this case, defendant raises an argument that is not dispensed with by application of Yura and Bell and is likely to recur on remand. Defendant argues the State is required to submit other evidence, beyond sworn statements, to establish a violation of the conditions of probation; otherwise, a defendant’s constitutional right to confront adverse witnesses is meaningless.
The courts of this state have never direcdy addressed the issue of whether admissible hearsay evidence can be the sole basis for revoking probation. In State v. Carter, 5 Kan. App. 2d 201, 614 P.2d 1007 (1980), this court commented on the issue, but did not resolve the question. The court stated:
"Some states have held that hearsay alone or an unreasonable abundance thereof is insufficient to sustain the prosecution’s burden to establish the violation of a probation. [Citations omitted.] Other jurisdictions allow the use of hearsay in probation revocation proceedings whenever the fact finder has made an express order finding good cause for not allowing confrontation of witnesses. This requirement is derived directly from one of the minimum requirements of due process outlined in Morrissey v. Brewer, 408 U.S. 471.” 5 Kan. App. 2d at 206-07.
Defendant erroneously relies on Carter as support for his position. In Carter, this court held that “ [inadmissible hearsay testimony alone will not establish a probation violation to support a revocation of probation.” 5 Kan. App. 2d 201, Syl. ¶ 2. A review of the fact of that case, however, reveals that it presented an entirely different issue and is not controlling. In Carter, this court found the only evidence which was presented to establish a violation of the conditions of probation was improperly admitted. Thus, the court concluded:
“[T]he defendant’s motion for dismissal of the proceedings should have been granted as Barber’s hearsay testimony was improperly admitted. As this constituted the only evidence introduced by the State, it was unable to demonstrate by a preponderance of the evidence that defendant had violated the terms and conditions of his probation.” 5 Kan. App. 2d at 207.
On remand, if the trial court determines the evidence is admissible after applying the two-factor test announced in Bell, there would be admissible evidence to establish the violation. Therefore, this case is factually different from Carter.
As noted in Carter, there is authority from other states for defendant’s position that hearsay evidence alone is insufficient to establish a violation of probation. For example, in Colina v. State, 629 So. 2d 274, 275 (Fla. Dist. App. 1993), the court held that “[although hearsay evidence is admissible in a probation revocation hearing, proving a violation of probation solely by hearsay evidence is improper.” See also Stanley v. State, 587 So. 2d 1258, 1259 (Ala. Crim. App. 1991) (holding that revocation of a defendant’s probation based solely on hearsay testimony of probation officer was error); State v. Carey, 30 Conn. App. 346, 354, 620 A.2d 201 (1993) (finding that “[h] ear say evidence cannot be the basis of probation revocation if it is wholly unsupported by corroborative evidence”); People v. Krzykowski, 121 App. Div. 2d 831, 832, 504 N.Y.S.2d 262 (1986) (concluding that hearsay may be received in probation revocation hearing, but will not alone satisfy standard of proving violation by preponderance of evidence).
However, there is also support for the position that reliable hearsay evidence alone is a sufficient basis to support probation revocation. In an exceptionally well-reasoned opinion, Commonwealth v. Durling, 407 Mass. 108, 551 N.E.2d 1193 (1990), the Supreme Judicial Court of Massachusetts concluded that probation could be revoked based solely on reliable hearsay evidence without infringing upon defendant’s due process right to confront witnesses. After noting that “the requirements of the due process clause have, at their base, the goal of providing an accurate determination whether revocation is proper,” 407 Mass, at 116, the court explained:
“In situations where the Commonwealth seeks to rely on evidence not subject to cross-examination, the due process touchstone of an accurate and reliable determination still remains. The proper focus of inquiry in such situations is the reliability of the evidence presented. Even though standard evidentiary rules do not apply to probation revocation hearings, the first step is to determine whether the evidence would be admissible under those rules, including the exceptions to the hearsay rule. Evidence which would be admissible under standard evidentiary rules is presumptively reliable. [Citation omitted.] If the proffered evidence is not admissible under standard evidentiary rules, then a court must independently look to the reliability of that evidence. Unsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation. When hearsay is reliable however, then it can be the basis of a revocation. In our view, a showing that the proffered evidence bears substantial indicia of reliability and is substantially trustworthy is a showing of good cause obviating the need for confrontation. We agree with the observation of tlie United States Court of Appeals for die Seventh Circuit on this point that ‘if the proffered evidence itself bears substantial guarantees of trustworthiness, then the need to show good cause vanishes. Egerstaffer v. Israel, 726 F.2d 1231, 1234 (7th Cir. 1984). We caution, however, that when hearsay is offered as the only evidence of the alleged violation, the indicia of reliability must be substantial [citation omitted] because the probationer’s interest in cross-examining die actual source (and hence testing its reliability) is greater when the hearsay is the only evidence offered. Thus, die hearsay must be substantially reliable to overcome diat interest.” 407 Mass, at 117-18.
In Yura, our Supreme Court chose not to go as far as the Seventh Circuit in concluding that the need to show good cause vanishes if the evidence bears substantial guarantees of reliability. Nevertheless, we are convinced that after a finding of good cause, admissible hearsay evidence that possesses a substantial indicia of reliability may be the sole basis for concluding that a defendant violated the conditions of probation without infringing upon his or her right of confrontation.
At the revocation hearing in this case, the trial court stated:
“Despite the assertions of the Defendant in this case that the information is not correct, diere is no evidence to indicate to the contrary here today. There’s simply been no evidence offered by the Defendant whatsoever. Under diose circumstances, I tiiink the preponderance of evidence test has been well met.”
On appeal, defendant argues the trial court improperly shifted the burden to him. This argument lacks merit. In State v. Guhl, 3 Kan. App. 2d 59, 62, 588 P.2d 957, rev. denied 255 Kan. 846 (1979), this court noted that once the State presented prima facie proof of a violation of a condition of probation, “[defendant had the burden of coming forward with evidence to meet and overcome this prima facie proof.” As in Guhl, defendant must present evidence in his defense once the State has presented prima facie proof of a violation. Defendant failed to sustain this burden. This court has previously held that the “right against self-incrimination [does] not extend to the probation revocation hearing.” State v. Aldape, 14 Kan. App. 2d 521, 526, 794 P.2d 672, rev. denied 247 Kan. 705 (1990). Thus, it is not improper for the court to rec ognize defendant’s silence in concluding that the evidence presented by the State established a violation by a preponderance of the evidence.
Finally, defendant contends the State failed to lay a proper foundation for the admission of the sworn statements and memoranda. As support for this proposition, defendant relies on K.S.A. 1993 Supp. 22-3716(b), which provides in part: “Relevant written statements made under oath may be admitted and considered by the court along with other evidence presented at the hearing.” (Emphasis added.) In his brief, defendant states that “[i]f the State wanted to get this information in, it needed more than a messenger. This is what the requirement of ‘other evidence’ means.” Defendant construes the language “along with other evidence” in K.S.A. 1993 Supp. 22-3716(b) to impose a restriction on the admissibility of the affidavits.
Interpretation of a statute is a question of law. State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). Therefore, our review is de novo. We find defendant’s interpretation lacks merit.
There is a presumption that the legislature does not intend to enact useless or meaningless legislation. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). The purpose of the relevant language in 22-3716(b) is to allow the presentation of sworn statements in a revocation hearing. Under defendant’s interpretation, this section would actually restrict the presentation of such sworn statements by requiring the State to present additional evidence as a precondition to presenting the affidavits. This would defeat the purpose of this portion of the statute. We conclude the language “along with other evidence” merely authorizes the trial court to consider the sworn statements, as it would any other evidence that may have been presented at the hearing.
The case cited by defendant, State v. Guhl, 3 Kan. App. 2d 59, deals with the foundation requirements for admitting business records under K.S.A. 1993 Supp. 60-460(m). In this case, the exhibits were admitted under K.S.A. 1993 Supp. 60-460(b) and K.S.A. 1993 Supp. 22-3716(b), not K.S.A. 1993 Supp. 60-460(m). The foundation requirements for admitting affidavits would appear to differ substantially from the foundation necessary for ad mitting business records. Thus, Quhl is not controlling. The State met its burden of laying an adequate foundation.
In United States v. Burton, 866 F.2d 1057 (8th Cir. 1989), the Eighth Circuit considered whether a defendant’s confrontation rights were violated by admitting written reports at a probation revocation hearing, absent live witness testimony on foundation. 866 F.2d at 1058-59. The Eighth Circuit, relying on United States v. Bell, 785 F.2d 640, found that admitting such reports without foundation was not a violation of a defendant’s right to confront adverse witnesses. 866 F.2d at 1059.
Defendant also contends the trial court showed partiality, prejudice, or corrupt motive in revoking his probation. According to defendant, the trial court showed prejudice against him because of his race. Defendant acknowledges, however, that there is no direct proof of this.
“Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding the alleged misconduct. The conduct complained of must be examined and a determination made as to whether it was prejudicial to substantial rights.” State v. Thomas, 252 Kan. 564, 570, 847 P.2d 1219 (1993). Defendant bears the burden to prove error in the judge’s conduct. See 252 Kan. at 567-68; State v. Stoops, 4 Kan. App. 2d 130, 133, 603 P.2d 221 (1979).
A review of defendant’s argument reveals that he is restating the issues raised regarding the trial court’s decision to admit the exhibits. Defendant merely reframes the arguments to equate the trial court’s erroneous application of Yura to partiality or prejudice. As we have previously addressed defendant’s due process arguments, we need not address them again. Suffice it to say, erroneous rulings of the trial court do not require the conclusion that the trial court showed partiality or prejudice. Defendant bears the burden of proving judicial misconduct. As defendant notes, there is no direct proof of misconduct. Thus, defendant has not met his burden.
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Shepherd, J.;
John Hall, lessor, and JFW, Inc., lessee, entered into an oil and gas lease on August 3, 1990. The lease provided in pertinent part:
“If no well be commenced on said land on or before August 3rd, 1991, this lease shall terminate as to both parties ....
“If the lessee shall commence to drill a well within the term of this lease . . . the lessee shall have the right to drill such well to completion with reasonable diligence and dispatch.”
The lease was altered after it was recorded. The altered lease stated it was entered into on August 13, 1990, and stated the well must be commenced on or before August 13, 1991.
The lease also contained a delay rental clause, but JFW did not timely tender payment.
JFW performed the following activities on the Hall lease:
10-22-90: Title opinion
3-30-91: Measured and staked location for well
4- 2-91: Surveyed elevation of site
6-25-91: Received KCC approval of intent to drill
June/July 1991:
Talked with geologist
7-18-91: Received bid for drilling mud
7-20-91: Reached verbal agreement with Duke Drilling to drill well; tentative date set for late July or early August
7-24-91: Restaked location for well
More than three days before 8-6-91:
Told Duke Drilling to get rig on lease.
8-10-91: Signed written contract with Duke Drilling Agent of Duke Drilling dug drilling pits and leveled location
8-11-91: Drilled water supply well
8-12-91: Prepared rotary hold and run-around
8-12-91: Duke Drilling picked up surface casing
8-14-91: Duke Drilling moved drilling rig onto lease and spudded well
8-14-91 to 8-20-91:
Well dug to 3,000 feet; production casing installed and cemented
8-20-91 to 9-3-91:
Cement allowed to cure
9- 3-91: Ready to move completion rig onto lease.
Prior to completion of the well, Hall sought a determination that the lease had terminated and requested a temporary restraining order preventing JFW from entering the lease. On September 3, 1991, a temporary restraining order was issued. The trial court later denied a temporary injunction and determined the well had been commenced by August 3, 1991. This court reversed the judgment after finding the trial court prematurely had decided the merits of the case.
Upon remand, the parties completed discovery and filed motions for summary judgment. The trial court found JFW had a “firm commitment” from Duke Drilling prior to the commencement deadline and therefore determined JFW had commenced the well prior to expiration of the lease, and entered summary judgment for JFW.
Hall argues the trial court erred in finding a well had been commenced prior to the lease termination date. He argues the preliminary steps taken in anticipation of drilling were not sufficient to constitute commencement of the well under the terms of the lease. We agree.
Summary judgment is proper when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. When considering a motion for summary judgment, the trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the nonmoving party. The same standard is applied on appeal, and summary judgment must be denied where reasonable minds could differ as to the conclusions drawn from the evidence. See K.S.A. 60-256(c); C.J.W. v. State, 253 Kan. 1, 16, 853 P.2d 4 (1993).
This court is not bound by the trial court’s interpretation of the written contract. Simon v. National Farmers Organization, Inc., 250 Kan. 676, 680, 829 P.2d 884 (1992). The rules of construction for oil and gas leases are well established and mirror the rules for construction of contracts generally.
“[T]he intent of the parties is the primary question; meaning should be ascertained by examining the document from all four comers and by considering all of the pertinent provisions, rather than by critical analysis of a single or isolated provision; reasonable rather than unreasonable interpretations are favored; a practical and equitable construction must be given to ambiguous terms; and any ambiguities in a lease should be construed in favor of the lessor and against the lessee, since it is the lessee who usually provides the lease form or dictates the terms thereof.” Jackson v. Farmer, 225 Kan. 732, 739, 594 P.2d 177 (1979).
Unambiguous contracts are enforced according to their plain, general, and common meaning in order to ensure the intentions of the parties are enforced. See Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, Syl. ¶ 3, 738 P.2d 866 (1987). The intent of the parties is determined from the four comers of an unambiguous instrument, harmonizing the language therein if possible. See Brown v. Lang, 234 Kan. 610, Syl. ¶¶ 1, 2, 675 P.2d 842 (1984); Wiles v. Wiles, 202 Kan. 613, 619, 452 P.2d 271 (1969). Ambiguity does not appear until the application of the pertinent mies of interpretation to the face of the instru xnent leaves it genuinely uncertain which of two or more meanings is the proper meaning. Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 713, 732 P.2d 741 (1987).
When analyzing whether a lease has terminated because the lessee has not timely commenced a well, our Supreme Court has looked to the language of the controlling instrument, reading it as a whole, to determine the nature and extent of the lessee’s obligation. See Shoup v. First Nat’l Bank, 145 Kan. 971, 976, 67 P.2d 569 (1937) (an escrow agreement required not only timely commencement but continued operations with due diligence to completion).
Our courts have considered clauses which require the lessee to commence operations for drilling in a number of instances. Most recently in A & M Oil, Inc. v. Miller, 11 Kan. App. 2d 152, 154-55, 715 P.2d 1295 (1986), another panel of this court held that commencement of actual drilling of a slant well that had not yet penetrated the lessors’ property line prior to the date required for the commencement of drilling operations was sufficient to preserve the lease. We held that the leases were unambiguous and did not require physical entry on the leased premises. The start of a well bore with a preplanned destination on the leased land was, by the discernible intent of the parties from the four comers of the instrument, the commencement of operations for drilling.
In Herl v. Legleiter, 9 Kan. App. 2d 15, 668 P.2d 200 (1983), the court considered a lease termination provision identical to the provision in this case. By the termination date, an access road had been built, the location staked, pits constructed, mud delivered to the well site, and stem and casing pipe delivered to a location accessible to the well site. Although the lessee had entered into preliminary negotiations with a drilling company, he had no firm commitment from them and no written contract as required by their policy. The trial court found making preparations to drill did not constitute commencement of drilling where the lessee neither owned a drilling rig nor had one under contract. The Herl court agreed with the trial court’s finding that lessees failed to timely commence the well. The Herl court also found the lessees failed to complete the well with due diligence. 9 Kan. App. 2d at 18.
In Phillips v. Berg, 120 Kan. 446, 243 Pac. 1054 (1926), hauling sand and cement to a job site was held to be insufficient to preserve a lease. Our Supreme Court further held that the commencement of operations clause required operations related to the well which was completed to be timely commenced and that beginning unrelated operations within the time limit was insufficient when the well that was begun was not completed.
Hennig v. Gas Co., 100 Kan. 255, 257, 164 Pac. 297 (1917), also dealt with a lease clause which required the lessee to commence “operations to drill on said land.” 100 Kan. 255, Syl. ¶ 3. The court found that driving a stake locating a gas well and another marking the location for a boiler to drive drill machinery did not constitute the commencement of operations to drill under the terms of the lease. 100 Kan. 255, Syl. ¶ 4.
The court did find drilling operations had been timely commenced and the operations pursued with reasonable diligence in Baughman v. Ault, 115 Kan. 553, 223 Pac. 815 (1924). In Baughman, drilling was commenced within the lease term, but it was later discovered a different type of rig was needed. Another rig was brought in and the well completed. 115 Kan. at 554.
There is authority in Kansas which hints that something less that actual drilling might satisfy a requirement of the “commencement of drilling.” See Herl v. Legleiter, 9 Kan. App. 2d at 18. The Supreme Court has apparently assumed something less than spudding might constitute commencement of drilling operations. However, the lease in this case at hand required that the lessee actually “commence to drill” before the expiration of the lease in order to avoid termination. See also Shoup, 145 Kan. at 979 (“It may be doubted that the dumping of some usable and useful equipment on a location by one who has no intention of drilling a well himself, but expects it to be used by some one with whom he may contract thereafter for drilling of a well constitutes, in any sense, a commencement of operations for drilling of the well.”); Hennig, 100 Kan. at 258 (the driving of stakes to indicate the location of a well and of a boiler to run a drilling rig cannot be said to be a commencement of operations to drill).
Professor David Pierce offers the following analysis based on the limited authority implying that something less that actual drilling might be sufficient under some leases:
“In Herl v. Legleiter the Kansas Court of Appeals suggests something less than actual drilling may be sufficient to satisfy a commencement clause. However, it appears where something less than actual drilling is being relied upon, the lessee should be required to demonstrate what amounts to an irrevocable commitment to conduct operations, to completion, on the leased land. The best evidence of this, absent actual drilling on the premises, is an enforceable contract with a third party to drill a well on the leased land. However, the lessee runs a risk when something less than an appropriate rig is in place on the lease.” 1 Pierce, Kansas Oil and Gas Handbook § 9.34 (1991).
Allowing an irrevocable commitment to conduct operations to completion to satisfy a lease requiring the commencement of drilling, and not merely operations for drilling, too broadly states the law of Kansas. Here, actual drilling had not been commenced by the lease anniversary date, whether August 3 or 13. The only actions taken on the leased property prior to August 13 were the staking of the well location, an elevation survey, the signing of a written contract with Duke Drilling, an agent of Duke Drilling digging drilling pits and leveling the location, and the drilling of a water supply well.
An analysis of the plain terms of the lease reveals that the trial court erred in granting summary judgment for JFW. The lease provides that the lessee must “commence to drill a well within the term of this lease.” (Emphasis added.) Under the plain terms of the lease, actual drilling was required prior to the termination date.
“American courts have traditionally taken the view that competent adults may make contracts on their own terms, provided they are neither illegal nor contrary to public policy and, in the absence of fraud, mistake, or duress, that a party who has fairly and voluntarily entered into such a contract is bound thereby, notwithstanding it was unwise or disadvantageous to that party. [Citation omitted.]” Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 670-71, 876 P.2d 1362 (1994).
JFW alleges no fraud, mistake, or duress and was free to contract on its own terms. JFW is now bound by those terms.
JFW argues that its activities up until September 3, 1991, were sufficient to extend the lease. The problem with JFW’s argument is that JFW fails to distinguish the activities performed prior to the lease termination date from those occurring after that date, which are relevant only in determining if the lessee used due diligence in completing the well and not in determining whether the well was timely commenced. See A & M Oil, 11 Kan. App. 2d at 154.
JFW extensively reviews cases from other jurisdictions which would support its position that minimal activities on the leased property are sufficient to constitute commencement. These cases, however, are not persuasive, given current Kansas law. Significantly, the Shoup court declined the lessee’s invitation to adopt a more liberal interpretation of the commencement clause in conformance with other jurisdictions. See Shoup, 145 Kan. at 977.
JFW also argues a finding that the well had not been timely commenced would be grossly inequitable and would not constir tute a reasonable interpretation of the lease. Kansas courts have refused to apply equity in cases involving commencement. See 1 Pierce, Kansas Oil & Gas Handbook § 9.32 (1991); Shoup, 145 Kan. at 980 (Allen, J., dissenting.).
The case is reversed and remanded for entry of judgment in favor of Hall. | [
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Prager, C.J.
Retired: Walter A. McClure appeals from the district court’s determination that it lacked jurisdiction to conduct a judicial review of his workers compensation case after the workers compensation Director (Director) set aside an award of the administrative law judge (ALJ). The basis of the district court’s decision was that as a result of statutory amendments in 1993, it lacked jurisdiction to review any order of the Director entered after October 1, 1993.
For purposes of this appeal, the facts in the case are not in dispute and are as follows: McClure was an employee of Richard Furman, a subcontractor. Furman was hired to do carpentry work for Hulbert Construction Company (Hulbert), a residential home construction business. On September 23, 1992, Furman took McClure and another employee to a residential building to assist Rex Potts, a subcontractor for Ken Rodricks Homes (Rodricks), in raising a second-story wall. While working, McClure fell and broke his right foot. At the time of the accident, Furman had no workers compensation insurance and has since left the state of Kansas. Hulbert had no workers compensation insurance but still builds houses in Johnson County. Potts also had no workers compensation insurance but Rodricks did have coverage for Potts and his employees.
McClure initially filed a workers compensation claim against Rodricks. The claim was later amended by adding Hulbert as a respondent and by impleading the Kansas Workers Compensation Fund (Fund). Hulbert was given notice of the pending claim but never entered an appearance in the case.
On April 23, 1993, a hearing on McClure’s claim for compensation was held before the ALJ. The parties stipulated as to the extent of McClure’s permanent partial disability to his leg. The primary issue at the hearing was which party should be responsible for payment of any award given to McClure.
The ALJ entered an award on July 13, 1993, in favor of McClure and against the Fund. The award was filed with the Director on July 14, 1993. A request for a Director’s review of the award was filed by the Fund on July 15, 1993. On November 5, 1993, an order approved by the Director was filed, setting aside the award of the ALJ. McClure filed a timely petition for judicial review in the District Court of Johnson County on November 22, 1993, seeking either reinstatement of the ALJ award or that an award be entered against Rodricks or his insurer, Hartford Insurance Company (Hartford).
On March 3, 1994, the district court issued a memorandum decision dismissing McClure’s appeal on the basis that, in light of changes in the Workers Compensation Act enacted by the 1993 legislature, there was no jurisdiction for the district court to conduct a review of an order of the Director entered on or after October 1, 1993. The district court relied upon the enactment of K.S.A. 44-555b and changes in K.S.A. 44-556. McClure filed a timely appeal to this court.
K.S.A. 44-555b(a) provides: “There is hereby established the Workers Compensation Board. The board shall have exclusive jurisdiction to review all decisions, findings, orders and awards of compensation of administrative law judges under the Workers Compensation Act.”
K.S.A. 44-556(c) now provides:
“If review is sought on any order entered under the Workers Compensation Act prior to October 1, 1993, such review shall be in accordance with the provisions of K.S.A. 44-551 and this section, and any other applicable procedural provisions of tire Workers Compensation Act, as all such provisions existed prior to amendments by this act on July 1, 1993.” (Emphasis added.)
Prior to these amendments, awards and decisions of ALJs were reviewed by the Director, who could approve, modify, or set aside the award. The effect of the new act was to empower only the Workers Compensation Board to review ALJ decisions. The legislature recognized, however, that until the act became effective and the new board was appointed, there would be review cases in the pipeline which should be disposed of under the old law. In Hall v. Roadway Express, Inc., 19 Kan. App. 2d 935, 878 P.2d 846 (1994), it was held that judicial review of orders entered under the Workers Compensation Act prior to October 1, 1993, shall be in accordance with the provisions of K.S.A. 1992 Supp. 44-551 and K.S.A. 1992 Supp. 44-556, which were in effect prior to July 1, 1993.
The district court in this case interpreted 44-556(c) to mean that workers compensation appeals are to be processed under the old system, through the Director and district court, only where the petition for judicial review of the Directors order has been filed prior to October 1, 1993. No previous appellate decisions have considered the precise interpretation of the statutory language. Hence, we have an issue of first impression in Kansas.
The obligation of this court is to determine and give effect to the intent of the legislature. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
In this case, we have concluded that the district court misinterpreted the legislative intent in 44-556(c). The statute states, in substance, that if review is sought on “any order” entered under the Workers Compensation Act prior to October 1, 1993, the provisions of the old act shall be followed.
For this statutory provision to be applicable, there must be an order entered prior to October 1, 1993, and one of the parties involved who disagrees with the order must seek a review of that order. We must first determine what is an “order.” K.S.A. 77-602(e) of the Act for Judicial Review and Civil Enforcement of Agency Actions defines an “order” to mean an agency action of particular applicability that determines the legal rights, duties, privileges, immunities, or other legal interests of one or more specific persons.
The same definition is found in K.S.A. 77-502(d) of the Kansas Administrative Procedure Act. An order of an ALJ which awards workers compensation in a case falls within this definition. In referring to the finality of ALJ decisions, the legislature in K.S.A. 44-549 states: “The award, finding, decision or order of an administrative law judge when filed in the office of the Director shall be deemed to be the final award, finding, decision or order of the administrative law judge.” (Emphasis added.)
In this case, the ALJ’s award made on July 13, 1993, and filed on July 14, 1993, determined the rights of the parties and obviously was an order within the meaning of 44-556(c).
We must next determine whether there was a “review” sought on an order under the Workers Compensation Act prior to October 1, 1993. As noted heretofore, the order of the ALJ was made on July 13, 1993, and filed with the Director on July 14, 1993. It is undisputed that on July 15, 1993, a review by the Director was requested by the Fund.
Under the district court’s approach, McClure would be precluded from any further review of his compensation claim. The ALJ’s order was filed on July 14, 1993. The Fund sought review by the Director on July 15, 1993. At that time there was no other way of taking an appeal. The order of the Director did not become effective until approved on November 5, 1993. According to the district court, it was then too late to carry on the appeal process to district court.
The suggestion of the district court that the Workers Compensation Board has exclusive jurisdiction to take an appeal in this case would duplicate a review already made by the Director, thus thwarting the legislative puipose to eliminate unnecessary steps in the workers compensation appeal process and to provide a more efficient review process.
We hold that under 44-556(c), it is the date the order of the ALJ is filed that determines whether a workers compensation claim should be reviewed by the Director and then the district court or should be submitted to the Workers Compensation Board and then to the Kansas Court of Appeals.
If the order of the ALJ is filed prior to October 1, 1993, the former statutes govern and the review is by the Director and then the district court. If the order of the ALJ is filed on October 1, 1993, or later, then the review should be taken to the Workers Compensation Board and then to the Kansas Court of Appeals in accordance with the 1993 amendments.
The judgment of the district court dismissing the case for want of jurisdiction is reversed, and the case is remanded to the district court to consider and determine the issued raised by the parties. | [
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Larson, J.:
Leonadas Duane Sidders appeals the trial court’s denial of his motion to convert his sentence under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 1993 Supp. 21-4701 et seq.
Sidders contends his severity level classification and criminal histoiy ranking make him eligible for conversion under K.S.A. 1993 Supp. 21-4724. He claims the KSGA does not preclude from conversion sentences of individuals who have committed aggravated assault of a law enforcement officer and used a firearm in the commission of a crime.
In 1992, a jury convicted Sidders on three counts of aggravated assault of a law enforcement officer. Sidders used a firearm in the commission of the crime. In July 1992, Sidders was sentenced to a controlling term of 3 to 10 years and incarcerated. On November 30, 1993, the Department of Corrections (DOC) issued a sentencing guidelines report. Sidders’ aggravated assault on a law enforcement officer was classified as a severity level 6 offense. The DOC report listed no criminal history and assigned no criminal history classification. Sidders, however, was not deemed eligible for retroactivity.
Sidders moved for sentence conversion because his 6-1 sentence classification warranted retroactive conversion under the KSGA. The trial court denied the motion to convert for the following reasons:
“Normally, a 6-1 sentence would carry presumptive probation and retroactive application of the sentencing guidelines would apply; however, because a firearm was used in the commission of the crimes presumptive probation does not apply pursuant to K.S.A. 1993 Supp. 21-4704(g). Accordingly, defendant is not entided to retroactive application of the sentencing guidelines.”
Sidders appeals. We reverse.
The issue presented requires this court to construe language within the relevant provisions of the KSGA. Interpretation of the KSGA is a question of law. State v. Williams, 19 Kan. App. 2d 903, 878 P.2d 854 (1994). We apply a de novo standard of review to questions of law. See State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993). We are not bound by the decision of the trial court. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
K.S.A. 1993 Supp. 21-4724(b)(l) controlled Sidders’ eligibility for conversion to a guidelines sentence and states:
“Except as provided in subsection (d), persons who committed crimes which would be classified in a presumptive nonimprisonment grid block on either sentencing grid, in grid blocks 5-H, 5-1 or 6-G of die nondrug grid or in grid blocks 3-H or 3-1 of the drug grid, pursuant to the provisions of subsection (c) of K.S.A. 1993 Supp. 21-4705 and amendments thereto, if sentenced pursuant to die Kansas sentencing guidelines act, and were sentenced prior to July 1, 1993, shall have their sentences modified according to the provisions specified in the Kansas sentencing guidelines act.” (Emphasis added.)
In denying conversion because a handgun was used by Sidders, the trial court cited K.S.A. 1993 Supp. 21-4704(g) to support its holding. K.S.A. 1993 Supp. 21-4704(g), however, indicates that presumed imprisonment applies to an offense of aggravated assault of a law enforcement officer within a presumed nonimprisonment grid block, 6-H or 6-1. K.S.A. 1993 Supp. 21-4704(h) dictates that a crime committed with a firearm shall carry a presumed imprisonment sentence regardless of the grid block. Nevertheless, both statutory provisions apply to the facts of this case. The language in each provision changes the status of a sentence from presumed nonimprisonment to presumed imprisonment. A nonimprisonment sentence can be ordered based upon community safety interests and offender reformation.
K.S.A. 1993 Supp. 21-4704 directs:
“(g) The sentence for the violation of K.S.A. 21-3411, aggravated assault against a law enforcement officer or K.S.A. 21-3415, aggravated battery against a law enforcement officer and amendments thereto which places the defendant’s sentence in grid block 6-H or 6-1 shall be presumed imprisonment. The court may impose an optional nonprison sentence upon making a finding on the record that the nonprison sanction will serve community safety interests by promoting offender reformation. Any decision made by the court regarding the imposition of the optional nonprison sentence, if the offense is classified in grid block 6-H or 6-1, shall not be considered departure and shall not be subject to appeal.
“(h) When a firearm is used to commit a violation of K.S.A. 21-3410, aggravated assault, or K.S.A. 21-3414, aggravated battery, and amendments thereto, the offender’s sentence shall be presumed imprisonment. The court may impose an optional nonprison sentence upon making a finding on the record that the nonprison sanction will serve community safety interests by promoting offender reformation. Any decision made by the court regarding the imposition of the optional nonprison sentence, if the offense is classified in grid block 7-C, 7-D, 7-E, 7-F, 7-G, 7-H, 7-1, 8-C, 8-D, 8-E, 8-F, 8-G, 8-H, or 8-1, shall not be considered a departure and shall not be subject to appeal.”
Sidders committed a crime that would have fallen into a presumptive nonimprisonment grid block. Hi's sentence, however, would have been presumptive imprisonment due to the operation of both K.S.A. 1993 Supp. 21-4704(g) and K.S.A. 1993 Supp. 21-4704(h). The issue for our determination is whether we apply the directive of K.S.A. 1993 Supp. 21-4724 or read into its provisions the language of 21-4704(g) and (h).
The fundamental rule of statutory construction is that the intent of the legislature controls when that intent is evident. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993). This court is bound to give effect to legislative intent that is expressed in the plain meaning of the statute as written. See Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). The plain language of K.S.A. 1993 Supp. 21-4724(b)(l) fails to specifically address the conversion status of individuals who forfeit their presumptive nonimprisonment classification by using a firearm or committing an aggravated act against a law enforcement officer. Additional rules of statutory construction must be applied in resolving this dilemma.
One relevant rule is that criminal statutes are construed strictly against the State. See State v. JC Sports Bar, Inc., 253 Kan. 815, 818, 861 P.2d 1334 (1993). This rule of strict construction against the State, however, is subordinate to the judiciary’s duty to follow the intent and design of the legislature. State v. Schlein, 253 Kan. 205, 215, 854 P.2d 296 (1993).
The Kansas Supreme Court applied rules of statutory construction to the guidelines in State v. Gonzales, 255 Kan. 243, 874 P.2d 612 (1994). In Gonzales, the court noted that the several provisions of an act must be construed together and reconciled in order to make them harmonious. A statute should be construed according to the spirit and purpose of the law and reasoning behind its creation. 255 Kan. at 249. In Gonzales, the court looked to the circumstances surrounding enactment of the KSGA and the purpose to be served by the legislation. The KSGA was stated to be the product of the legislature’s desire to standardize sentencing and reduce the prison population by granting nonprison sanctions or shorter sentences to less serious offenders. 255 Kan. at 249.
When we review the statutory language, consider the purposes behind the KSGA, and examine the differences in the statutory provisions, we conclude Sidders’ sentence should have been converted.
First, the KSGA states that conversion shall apply to sentences of “persons who committed crimes which would be classified in a presumptive nonimprisonment grid block.” K.S.A. 1993 Supp. 21-4724(b)(l). Sidders was classified in a presumptive nonimpri sonment grid block. Operation of K.S.A. 1993 Supp. 21-4704(g) and (h) changed Sidders’ sentence to presumed imprisonment, but his applicable grid block remained within the presumed non-imprisonment area of the grid. There is not any language within K.S.A. 1993 Supp. 21-4704(g) or (h) which dictates that an individual is ineligible for conversion.
Second, K.S.A. 1993 Supp. 21-4704(b)(l) mandates that retroactive conversion apply to individuals who are classified within “border boxes.” A border box classification means the grid block is neither a presumed imprisonment box nor a presumed non-imprisonment box. The trial court may impose a nonimprisonment sentence if it finds that a reasonably available treatment program would be more appropriate than prison or nonimprisonment would serve community interests and promote offender reformation. K.S.A. 1993 Supp. 21-4704(f)(l)-(3). A decision to impose a nonimprisonment sentence for a border box crime is not appealable. K.S.A. 1993 Supp. 21-4704(f). A crime committed prior to July 1, 1993, within a border box classification would, under the KSGA, be a crime of imprisonment absent the appropriate findings by a court. Nevertheless, K.S.A. 1993 Supp. 21-4724(b)(l) requires that a sentence within a border box be converted.
The wording and directives of K.S.A. 1993 Supp. 21-4704(g) and (h) are analogous to those applicable to border box crimes. An imprisonment sentence may be changed to nonimprisonment status upon the same findings of community safety and offender reformation applicable to a border box crime. As with a border box classification, the decision to impose a nonimprisonment sentence is not appealable. See, e.g., K.S.A. 1993 Supp. 21-4704(h).
Application of K.S.A. 1993 Supp. 21-4704(g) and (h) changed the presumed nonimprisonment classification of appellant’s sentence to one that paralleled a border box classification. K.S.A. 1993 Supp. 21-4724(b)(l) clearly demonstrates that the legislature intended border box sentences be converted under the retroactivity provisions of the guidelines. We should reach the same result in either instance.
The legislature obviously considered the use of a firearm in the commission of a crime and an aggravated attack of a law en forcement officer to be deserving of special attention when sentencing. This consideration is reflected in the dispositional treatment found within K.S.A. 1993 Supp. 21-4704. The legislature did not, however, remove such crimes from placement in grid boxes that warrant retroactive sentence conversion. A reasonable construction and harmonious reading of the relevant KSGA provisions indicate the trial court was required to convert Sidders’ sentence pursuant to K.S.A. 1993 Supp. 21-4724(b)(l). Absent specific statutory direction to the contrary, K.S.A. 1993 Supp. 21-4704(g) and (h) do not preclude conversion of a 6-1 sentence classification under K.S.A. 1993 Supp. 21-4724(b)(l).
Reversed and remanded for a conversion hearing consistent with this opinion. | [
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Green, J.:
Having been convicted twice of driving while under the influence of alcohol (DUI) within the past five years, Richard Webb, Jr., pled no contest and was convicted for the third time of DUI. Instead of sentencing Webb under the Kansas Sentencing Guidelines Act (KSGA), as the State requested, the trial court chose to sentence Webb to 120 days under K.S.A. 1993 Supp. 8-1567(f). The State appeals, contending the trial court should have sentenced Webb under the KSGA. We disagree and dismiss for lack of jurisdiction.
First, because the appeal was filed after the 10 day limitation of K.S.A. 1993 Supp. 22-3608(c), we asked the parties to brief whether we have jurisdiction to consider this appeal. Citing K.S.A. 22-3504(1), the State argues that because the sentence imposed was illegal, contrary to the provisions of the KSGA, we have jurisdiction to correct the illegal sentence. In defining an illegal sentence, our Supreme Court stated:
“An ‘illegal sentence’ is either a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provisions, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.” State v. Thomas, 239 Kan, 457, Syl. ¶ 4, 720 P.2d 1059 (1986) (Emphasis added.)
Under the KSGA, Webb’s criminal history category was A, and, as a third time offender, he was guilty of a severity level 9, nonperson felony. For his offense, Webb could be sentenced from 15 to 17 months’ imprisonment. K.S.A. 1993 Supp. 21-4704(a). But the trial court specifically rejected sentencing Webb under the KSGA. Consequently, if we determine the trial court erred in failing to sentence Webb under the KSGA, Webb’s previous sentence would be illegal, and, accordingly, we would have jurisdiction to correct the illegal sentence.
According to the KSGA, the presumptive sentence for a severity level 9 offense is nonimprisonment, unless the person’s criminal history is A or B, in which case the sentence could range from 15 to 17 months. On the other hand, a person’s third con viction of DUI requires a mandatory term of imprisonment of between 90 days and one year, according to K.S.A. 1993 Supp. 8-1567(f). Determining under which statute to sentence Webb requires statutory interpretation, which is a question of law. State v. Donlay, 253 Kan. 132, Syl ¶ 1, 853 P.2d 680 (1993). As a question of law, our review of the trial court’s decision is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Contrary to the State’s assertion, a conflict exists between the KSGA and K.S.A. 1993 Supp. 8-1567(f). The State contends the apparent conflict can be reconciled and the statutes harmonized to give effect to both. The State maintains the legislature intended the sentencing provisions of K.S.A. 1993 Supp. 8-1567(f) to apply only when an individual’s criminal history falls outside a presumptive term of imprisonment (criminal histories C through I). But this contention is neither supported by the statutory language nor legislative history. For example, the 1993 amendments added the following language to K.S.A. 8-1567(f): “On the third or a subsequent conviction of a violation of this section, a person shall be guilty of a severity level 9, nonperson felony and sentenced to not less than 90 days nor more than one year’s imprisonment.”
The amendment did not change the requirement that upon a person’s third DUI conviction, the person must be sentenced to not less than 90 days’ imprisonment. Moreover, it seems the purpose of the amendment was to classify third or later convictions of DUI as nonperson felonies in determining a person’s criminal history. Before this amendment, a DUI conviction was a misdemeanor. See K.S.A. 8-1567(d).
Having determined the two statues are irreconcilable, we must decide which statutory scheme controls. In State v. Williams, 250 Kan. 730, 736, 829 P.2d 892 (1992), our Supreme Court held: “When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears that the legislature intended to make the general act controlling.”
In examining both statutes, we believe K.S.A. 1993 Supp. 8-1567(f) is a more specific statute than K.S.A. 1993 Supp. 21- 4704(a). K.S.A. 1993 Supp. 8-1567(f) deals only with those persons convicted of the specific crime of felony DUI, while K.S.A. 1993 Supp. 21-4704(a) deals with all criminals convicted of non-drug felonies. Thus, for the specific crime of felony DUI, K.S.A, 1993 Supp. 8-1567(f) should apply absent some indication that the legislature intended to make K.S.A. 1993 Supp. 21-4704(a) controlling. The State has offered no evidence nor has our research furnished us with any evidence of such a legislative intent. Indeed, if the legislature intended to make the KSGA controlling, the legislature would not have retained the separate penalty provisions for third or a later conviction.of DUI under K.S.A. 1993 Supp. 8-1567(f). Finally, although not controlling, the legislature has since amended K.S.A. 1993 Supp. 8-1567(0 to remove the language relating to the severity level of felony DUI. See L. 1994, ch. 291, § 2. Now felony DUI is simply a nonperson felony, punishable as indicated in K.S.A. 1994 Supp. 8-1567(f).
Because the trial court co.rrectly sentenced Webb under the provisions of K.S.A. 1993 Supp. 8-1567(f), we lack jurisdiction to hear the State’s appeal.
Appeal dismissed. | [
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Walker, J.:
The warden of the Ellsworth Correctional Facility, appeals from an Ellsworth County District Court order which ordered that the petitioner, Leslie Safarik, be released from custody. We reverse and remand with directions.
Petitioner is an inmate at the Ellsworth Correctional Facility serving a sentence imposed by the Sedgwick District Court of not less than 5 nor more than 20 years for aggravated battery. On October 13, 1993, petitioner received a copy of his Kansas Department of Corrections (KDOC) sentencing guidelines report, which concluded that he was not eligible for the retroactive application of the sentencing guidelines based upon his conviction of a severity level 7 offense and his prior criminal history of two person felonies.
On October 28, 1993, petitioner filed a motion in Sedgwick County District Court objecting to the KDOC report’s criminal history classification and requesting an evidentiary hearing regarding conversion of his sentence. The Sedgwick County District Court conducted a hearing on the motion via telephone on December 1, 1993, and subsequently denied petitioner’s motion for conversion on the grounds that the court had not received a sentencing guidelines report from the KDOC. The court concluded that absent receipt of the KDOC report, petitioner’s motion to convert was not properly before the court.
Petitioner filed this action, a petition for writ of habeas corpus, in Ellsworth County District Court on January 3, 1994. A hearing was held on petitioner’s petition at the Ellsworth Correctional Facility on February 3, 1994. The Ellsworth County District Court granted petitioner’s request for a writ of habeas corpus, finding that petitioner
“did attempt to appeal his determination that he was not eligible for the retroactive provisions of the Sentencing Guidelines because of his criminal history and that the Appeal was denied because the Department of Corrections failed to send the Report to the Sentencing Court as required under the law.”
The court further found that
“because of this failure of the Department of Corrections to comply with the requirements of the law, the Plaintiff was denied his opportunity to challenge the criminal history and thus, the criminal history should be disallowed and with the disallowance of the criminal history, the Plaintiff is eligible for immediate release under the Retroactivity Provisions of the Sentencing Guidelines Act."
The Ellsworth County District Court’s February 3, 1994, journal entry concluded that petitioner should be released from custody immediately. Later, that same court issued an amended journal entry setting petitioner’s release date as February 18, 1994.
KDOC filed a motion for reconsideration and a motion for stay of execution in the Ellsworth County District Court. Shortly thereafter, on February 9, 1994, a hearing was held in Sedgwick County District Court in response to an oral request by an assistant district attorney. Neither petitioner nor his attorney of record in his underlying criminal case was notified of this hearing, but the journal entry indicates that petitioner was represented by a deputy public defender. As a result of this hearing, die Sedgwick County District Court issued the following order:
“That the defendant Leslie J. Safarik is not eligible for retroactive application of the Kansas Sentencing Guidelines Act in this matter based on the severity level of the offense of Aggravated Kidnapping, severity level one (1); and Aggravated Battery, a severity level four (4), and based on his criminal history category B.”
On February 11, 1994, the Ellsworth County District Court conducted a hearing on KDOC’s motion for reconsideration in which KDOC introduced Sedgwick County District Court’s February 9 order finding that petitioner was not eligible for conversion. After examining the Sedgwick County order, the Ellsworth County District Court found that the Sedgwick County District Court journal entry was a nullity because Ron Svaty, the attorney for petitioner, was neither notified nor present. The Ellsworth County District Court further ordered petitioner to be released on February 18, 1994, as scheduled.
Here, KDOC appeals the Ellsworth County District Court’s denial of its motion for reconsideration. This court previously stayed the execution of the Ellsworth County District Court order pending resolution of this appeal.
In reaching its decision, the Ellsworth County District Court interpreted and applied the Kansas Sentencing Guidelines Act, K.S.A. 1993 Supp. 21-4701 et seq., and the Kansas habeas corpus statutes, K.S.A. 60-1501 et seq. Interpretation of statutes is a question of law, and this court’s review of questions of law is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988); see State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993).
K.S.A. 1993 Supp. 21-4724(b)(l) allows for retroactive application of the Sentencing Guidelines Act to incarcerated individuals who would have been considered presumptive probation candidates had they been sentenced under the Sentencing Guidelines Act as well as to those who would have been placed in grid blocks 5-H, 5-1, or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-H or 3-1 of the sentencing guidelines grid for drug crimes, had they been sentenced under the Sentencing Guidelines Act.
K.S.A. 1993 Supp. 21-4724(c)(l) requires KDOC to review and determine inmate placement on the sentencing guidelines grid. The language of that provision is quite clear:
“Except as provided in subsection (f), the department of corrections shall conduct a review of all persons who committed crimes and were sentenced prior to July 1, 1993, and are imprisoned in the custody of the secretary of corrections as of that date. The department shall prepare a sentencing guidelines report on all such imprisoned inmates except those who have convictions for crimes which, if committed on or after July 1, 1993, would constitute a severity level 1, 2, 3 or 4 felony on the sentencing guidelines grid for nondrug crimes or a severity level 1, 2 or 3 felony on the sentencing guidelines grid for drug crimes, but, including those in grid blocks 3-H or 3-1 of the drug grid, pursuant to the provisions of subsection (c) of K.S.A. 1993 Supp. 21-4705 and amendments thereto, which shall review and determine what the person’s sentence as provided by the crime severity and criminal history grid matrix established by the Kansas sentencing commission guidelines act would be as if the crime were committed on or after July 1, 1993. A copy of the report shall be transmitted to tire inmate, the county or district attorney for the county from which tire inmate was sentenced, and the sentencing court.”
In the present case, KDOC prepared such a report on petitioner because it determined that his crime of aggravated batteiy was severity level 7. Due to petitioner’s criminal history of one prior conviction for rape and one prior conviction for kidnapping, however, KDOC concluded that petitioner was not eligible for retroactive conversion. of his sentence under the Sentencing Guidelines Act.
As noted earlier, within 30 days of receiving a copy of this report, petitioner filed a motion in Sedgwick County District Court (the sentencing court) requesting an evidentiaiy hearing in order to challenge KDOC’s criminal history classifications. Such motion was in accordance with K.S.A. 1993 Supp. 21-4724(c)(4), which states:
“The criminal history classification as determined by the department of corrections shall be deemed to be correct unless objection thereto is filed by either the person or the prosecution officer within the 30-day period provided to request a hearing. If an objection is filed, the sentencing court shall determine the person’s criminal history classification. The burden of proof shall be on the prosecution officer regarding disputed criminal history issues.”
The procedure for a hearing on a KDOC sentencing guidelines report is set forth in K.S.A. 1993 Supp. 21-4724(d), which provides in pertinent part:
“(1) Within 30 days of the issuance of such report, the person who committed the crime and the prosecution officer shall have the right to request a hearing by filing a motion with the sentencing court, regarding conversion to a sentence under fire Kansas sentencing guidelines act to be held in the jurisdiction where the original criminal case was filed. . . .
“(2) In the event a hearing is requested and held, the court shall determine the applicable sentence as prescribed by the Kansas sentencing guidelines act.
“(3) In the event a hearing is requested, the court shall schedule and hold the hearing within 60 days after it was requested and shall rule on the issues raised by the parties within 30 days after the hearing.
“(4) Such offender shall be represented by appointed counsel pursuant to the provisions of K.S.A. 22-4501 et seq. and amendments thereto.”
The Sedgwick County District Court held a hearing on petitioner’s motion for hearing within 60 days of his request. However, instead of determining petitioner’s criminal history classification as required under K.S.A. 1993 Supp. 21-4724(c)(4), the • Sedgwick County District Court denied petitioner’s request for a hearing based upon its finding that KDOC never transmitted its report to the court.
The Sentencing Guidelines Act provides for no clear remedy when KDOC fails to transmit a copy of its sentencing guidelines report to the sentencing court as required by K.S.A. 1993 Supp. 21-4724(d). Petitioner sought relief through the filing of a habeas corpus petition in Ellsworth County, the county of his confinement.
K.S.A. 60-1501 provides:
"Subject to the provisions of K.S.A. 60-1507 any person in this state who is detained, confined, or restrained of liberty on any pretense whatsoever, and any parent, guardian, or next friend for the protection of infants or allegedly incapacitated or incompetent persons, physically present in this state may prosecute a writ of habeas corpus in the supreme court, court of appeals, or die district court of die county in which such restraint is taking place.”
K.S.A. 60-1507(a) provides:
“A prisoner in custody under sentence of a court of general jurisdiction claiming die right to be released upon die ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution of laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.”
The distinction between K.S.A. 60-1501 and K.S.A. 60-1507 has generally been held to be that a 1507 petition is a procedure by which a prisoner may challenge his or her conviction or sentence, while a 1501 petition is a procedural means through which a prisoner may challenge the mode or conditions of his or her confinement, including administrative actions of the penal institution. See State ex rel. Stephan v. Clark, 243 Kan. 561, 568, 759 P.2d 119 (1988); Foster v. Maynard, 222 Kan. 506, 513, 565 P.2d 285 (1977); Hamrick v. Hazelet, 209 Kan. 383, 385, 497 P.2d 273 (1972). A 1507 petition is properly filed in the sentencing court, while a 1501 petition is properly filed in the county of confinement. Anderson v. Anderson, 214 Kan. 387, 391, 520 P.2d 1239 (1974).
The most troublesome aspect of the present case is that through his petition, petitioner was challenging both an alleged administrative failure of KDOC to transmit his sentencing guidelines report to the Sedgwick County District Court and the failure of the sentencing court to retroactively convert his sentence. If KDOC failed to comply with the sentencing guidelines statutory mandate, such is an administrative act restraining petitioner’s liberty interest in having a sentencing guidelines report transmitted to the sentencing court. Such action is reviewable in the county of petitioner’s confinement through a petition seeking a writ of mandamus. The determination of petitioner’s criminal history classification and crime severity level, however, is a sentencing matter within the jurisdiction of the sentencing court under both K.S.A. 60-1507 and the Sentencing Guidelines Act.
Consequently, petitioner cannot ask the Ellsworth County District Court to convert his sentence. In other words, the Ellsworth County District Court had jurisdiction only to compel KDOC to transmit a report to the Sedgwick County District Court, but the Ellsworth County District Court did not have jurisdiction to conclude that because no report was transmitted, petitioner’s sentence should be converted.
There is no question that petitioner is being lawfully held by KDOC under a valid pre-guidelines sentence. Thus, only two possibilities exist: either petitioner is eligible for conversion of his sentence under the retroactive provision of the Sentencing Guidelines Act or he is not so eligible. The question as to which of these alternatives applies can be resolved solely by the sentencing court, in this case Sedgwick County District Court.
If petitioner seeks to challenge his or her criminal history classification, the proper forum for that argument is the sentencing court.
K.S.A. 1993 Supp. 21-4724(c)(4) states that after an inmate properly objects to his or her criminal history, the sentencing court shall determine that person’s criminal history classification. The statute does not provide that the district court need only make such a determination if it has received the KDOC report. The statute states that the burden of proof shall be on the prosecution regarding disputed criminal history. If KDOC has not submitted a sentencing guidelines report to the sentencing court in the time allowed by statute, then the prosecution has only the district court files and its own research to rely upon in presenting its case. The court must determine the inmate’s criminal history based upon the severity level of the inmate’s crime and upon the criminal history classification as determined from the court records and evidence presented by the prosecutor and the inmate.
Petitioner did not file a direct appeal of the Sedgwick County District Court order. Therefore, the question of what remedy the sentencing court can afford an inmate when KDOC fails to comply with its statutory mandate need not be decided here. Petitioner may need to consider filing a K.S.A. 60-1507 petition in the Sedgwick County District Court in order to raise that issue.
In summary, ’ we conclude the jurisdiction of the Ellsworth County District Court was limited to compelling KDOC to transmit a copy of petitioner’s sentencing guidelines report to the Sedgwick County District Court. The Ellsworth County District Court did not have jurisdiction to determine that petitioner was eligible for sentence conversion. Because the Ellsworth County District Court was without jurisdiction to order the release of petitioner, such court’s writ of habeas corpus is ordered to be vacated.
The judgment of the Ellsworth County District Court is reversed, and the cause is remanded with directions to vacate such judgment forthwith. | [
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|
Lewis, J.:
D.L.C. is the natural mother of J.L. and D.L. Her parental rights to these children were terminated by the trial court. She appeals from that decision.
The facts on which the trial court based its severance of D.L.C.’s parental rights are not extensive. On February 6, 1986, D.L.C.’s parental rights to another child were terminated. The 1986 severance took place in the same trial court and before the same judge who presided in the instant matter. As its only proof in these proceedings, the State introduced a certified copy of the 1986 order terminating D.L.C.’s parental rights. The State offered no other evidence. The State argued that the evidence entitled it to a presumption of unfitness under K.S.A. 1994 Supp. 38-1585(a)(1). The trial court agreed and additionally took judicial notice of “several cases” in which at least two other children of D.L.C. had been found to be children in need of care. The “several cases” referred to by the court are not identified by case number, and apparently no formal proof was made concerning those proceedings. In any event, the trial court concluded the State was entitled to a presumption of unfitness under K.S.A. 1994 Supp. 38-1585(a)(1) and (3). It found that as a result of the presumption of unfitness provided by the statute, “the burden of proof is on the respondent, [D.L.C.], to present evidence to rebut the presumption that she is an unfit parent.” D.L.C. did attempt to rebut that presumption and presented evidence in support of her position. The trial court held that D.L.C. had failed to rebut the presumption and terminated her parental rights to the children in question. Thus, D.L.C/s parental rights were terminated upon a showing that her parental rights to another child were terminated eight years previously.
SEVERANCE AS TO D.L.
For reasons which are not relevant, D.L.C/s rights to D.L. were terminated before D.L. had been adjudged to be a child in need of care. All parties to this appeal agree that D.L. has never been adjudicated a child in need of care. This failure requires that we reverse the termination as to D.L.
K.S.A. 1994 Supp. 38-1583 provides in part: “(a) When the child has been adjudicated to be a child in need of care, the court may terminate parental rights.” This court has held that “a child in need of care adjudication is required to terminate parental rights.” In re D.V., 17 Kan. App. 2d 788, 790, 844 P.2d 752, rev. denied 252 Kan. 1092 (1993).
The State concedes that the failure to determine D.L. to be a child in need of care is fatal to the termination order as to D.L. The guardian ad litem asks us to declare that a child in need of care determination is not necessary but cites no authority to support his position. The position of the guardian ad litem is without merit.
The order terminating D.L.C/s parental rights is reversed, and this matter is remanded as to D.L. for appropriate action to determine if she is a child in need of care.
CONSTITUTIONALITY OF K.S.A. 38-1585(a)(l) and (3)
D.L.C. argues that the presumption of unfitness provided for in K.S.A. 1994 Supp. 38-1585(a)(l) and (3) is an unconstitutional violation of her due process rights under the Fourteenth Amendment to the United States Constitution. We agree that the statute as construed and applied in this case violated the procedural due process rights of the natural mother.
K.S.A. 1994 Supp. 38-1585 provides in relevant part:
“(a) It is presumed in the manner provided in K.S.A. 60-414 and amendments thereto that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes by clear and convincing evidence that:
(1) A parent has previously been found to be an unfit parent in proceedings under K.S.A. 38-1581 et seq. and amendments thereto, or comparable proceedings under the laws of another state, or the federal government;
(3) on two or more prior occasions a child in the physical custody of the parent has been adjudicated a child in need of care as defined by subsection (a)(3) of K.S.A 38-1502 and amendments thereto;
“(b) The burden of proof is on the parent to rebut tire presumption. In the absence of proof that the parent is presently fit and able to care for the child or that the parent will be fit and able to care for the child in the foreseeable future, the court shall now terminate the parent’s parental rights in proceedings pursuant to K.S.A. 38-1581 et seq. and amendments thereto.”
Ultimately, we believe that the reference to K.S.A. 60-414 is of vital importance, and that analysis will follow. For the time being, we focus only on the manner in which the presumption was applied by the trial court. This case presents a factual situation wherein D.L.C. was declared to be unfit in 1994 because she was declared to be unfit in 1986. The question presented to this court is whether an eight-year-old adjudication may constitutionally shift the burden of proof from the State to the mother. We have examined the record, and there was no effort in this case to compare the 1986 facts with the 1994 facts. No consideration was given to the fact that the 1986 proceeding did not involve the same children who were the subject of the 1994 proceeding. In fact, the State was permitted to carry its entire burden of proof simply by introducing a certified copy of the termination journal entry from 1986.
The question involved in this case is whether the procedural due process rights of the natural mother were violated. The term procedural due process is defined by the United States Supreme Court in Mathews v. Eldridge, 424 U.S. 319, 332, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976): “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.”
The Supreme Court in Mathews went on to describe the process by which courts may judge whether an individual’s right to procedural due process has been violated:
“These decisions underscore the truism that “ ‘[d]ue process,” unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.’ Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961). ‘[D]ue process is flexible and calls for such procedural protections as the particular situation demands.’ Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Accordingly, resolution of the issue whether the administrative procedures provided here are constitutionally sufficient requires analysis of the governmental and private interests that are affected. [Citations omitted.] More precisely, our prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.’’ (Emphasis added.) 424 U.S. at 334-35.
The Mathews test has been adopted, approved, and applied by the appellate courts of this state. See In re Cooper, 230 Kan. 57, 67, 631 P.2d 632 (1981); In re J.L.D., 14 Kan. App. 2d 487, 490, 794 P.2d 319, rev. denied 247 Kan. 704 (1990).
Procedural due process operates to place restraints on governmental actions which deprive individuals of “liberty” or “property” interests. The first question we must determine is whether the interest involved in this case is a liberty or property interest.
Our appellate decisions place the issue beyond question: “Kansas recognizes that the parent’s rights of custody and control of their children are liberty interests protected by the Fourteenth Amendment Due Process Clause.” In re J.J.B., 16 Kan. App. 2d 69, Syl. ¶ 1, 818 P.2d 1179 (1991). See In re Cooper, 237 Kan. 57, Syl ¶ 1.
“A natural parent’s right to the custody of his or her children is a fundamental right protected by the Fourteenth Amendment to the Constitution of the United States which may not be disturbed by the State or by third persons absent a showing the natural parent is unfit.” (Emphasis added.) In re Guardianship of Williams, 254 Kan. 814, Syl. ¶ 1, 869 P.2d 661 (1994).
“When the State seeks to terminate the relationship between a parent and child, it must do so by fundamentally fair procedures that meet the requisites of due process.” In re J.L.D., 14 Kan. App. 2d at 490. See Santosky v. Kramer, 455 U.S. 745, 752-54, 71 L. Ed. 2d 599, 102 S. Ct. 1388 (1982). Procedural due process certainly is required in parental termination cases. The question is whether the presumption of unfitness, as applied in this case, violates the concept of procedural due process. In reaching that decision, we must apply the Mathews balancing test. Our Supreme Court has provided guidance in In re Cooper, 230 Kan. 57, Syl. ¶ 2: “A determination of the safeguards necessary to afford constitutional due process must be evaluated in the light of the nature of the proceeding and of the interests affected.”
The court went on to say:
“In deprived child cases, the State possesses its parens patriae interest in protecting its minor children and providing them with proper care. State ex rel. O'Sullivan v. Heart Ministries, Inc., 227 Kan. 244, 253, 607 P.2d 1102 (1980). The parents’ interest is in the maintenance of the integrity of tire family unit (Beebe v. Chavez, 226 Kan. 591, 597, 602 P.2d 1279 [1979]), and the preservation of the parent-child relationship (In re Brehm, 3 Kan. App. 2d at 327-28). In deprived child proceedings, the parent is subjected to the possibilities of temporary or permanent deprivation of the custody of the child and destruction of the family unit.” 230 Kan. at 61.
Later, the court said:
“In interpreting the due process clause of the Constitution, the United States Supreme Court has established that certain interests cannot be foreclosed without meeting certain procedural safeguards. A determination of the safeguards necessary to afford constitutional due process must be evaluated in the light of the nature of the proceeding and of the interests affected, Mathews v. Eldridge, 424 U.S. 319, 334-35, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976).
‘‘The extent to which procedural due process must be afforded a person is influenced by the extent to which the person affected may be ‘condemned to suffer grievous loss’ and depends upon whether the person’s interest in avoiding that loss outweighs the governmental interest in summary adjudication. Goldberg v. Kelly, 397 U.S. 254, 262-63, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970)” 230 Kan. at 67.
Whether process is due under a certain circumstance is a question of law (Jones v. Marquez, 526 F. Supp. 871, 878 [D. Kan. 1981]) over which this court’s review is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
The first factor in applying the Mathews balancing test is to consider the private interests that will be affected by the official action. In this case, the private interest affected is the parent’s right to the custody and control of her natural children. This is a right which is well protected under our system of government. The legislature has recognized this fact in requiring that proof of unfitness in parental termination cases must be made by evidence that is clear and convincing. K.S.A. 1994 Supp. 38-1583(a). Our Supreme Court has decided that the right of a parent to the custody and control of his or her children takes precedence over the “best interests” of the child where the dispute is between a parent and a third party. In re Guardianship of Williams, 254 Kan. at 826-27. Indeed, other than the right to personal freedom, there may be no private right valued more highly or protected more zealously by the courts than the right of a parent to the custody and control of his or her children. It follows that in the balancing test, the private rights affected by governmental action are very significant and are entitled to the highest protection from unwarranted governmental action.
The next issue in the Mathews balancing test is the risk of error from the procedures employed and the probable value of substitute procedural safeguards. In our judgment, this case presents a question of the risk of error inherent in employing an uncontrolled presumption of unfitness versus the standard procedure of requiring the State to prove that unfitness. We consider the risk of error in employing the presumption of unfitness, as it was used in this case, to be much too high.
The rule of law and the function of the judiciary exists, in many instances, to protect citizens from unwarranted governmental intrusion into their personal lives. If we value and protect the right of a parent to the control and custody of his or her children, we should not make it too easy for the government to intervene and terminate the parent/child relationship. To permit the government to terminate that relationship by relying on a journal entiy filed in an eight-year-old termination procedure makes the process much too easy on the part of the government. We see no good reason to excuse the government from the task of proving unfitness by clear and convincing evidence. To do so will not place the children at risk since the government has available a rather summary procedure to remove the children from an abusive home pending the ultimate determination of parental unfitness.
The statutory presumption as employed in this case was apparently not weakened or reduced by the passage of time. There is no time limit stated in the statute, and no concession to that element appears to have been considered by the trial court. In essence, we have a result which says that because D.L.C. was adjudged unfit eight years ago, she remains unfit today. There was no effort to determine what conditions existed in 1986 and whether they still existed in 1994. We can imagine termination caused by the effects of drug and alcohol abuse which would become irrelevant if the mother and/or father or both are, eight years later, clean and sober. However, the presumption as it was employed in this case assumes that conditions have not changed in eight years. If they have changed, the burden of proving such a change is placed on the mother. We do not believe presumptions derived from eight-year-old lawsuits should shift the burden of proof in parental termination cases.
A comparison of the resources available to the State and to the parent places the parent at an extreme disadvantage. To allow a presumption of unfitness to be employed as it was in this case only magnifies that disadvantage. The net result is an unacceptable risk that a parent judged unfit many years ago will erro neously be adjudged unfit today for no other reason than a presumption based on the result in a case which has become irrelevant.
In this state, we do not allow a defendant to be convicted of burglaiy upon proof that he was convicted of that crime eight years ago. We would not permit a finding of negligence to stand if it were based on nothing more than an eight-year-old prior adjudication of negligence. In neither instance would we permit a showing of a prior conviction of a crime or a prior adjudication of negligence to shift or change the burden of proof. Why should the issue of unfitness be treated any differently?
As a general rule, if we are going to use a prior adjudication to someone’s disadvantage, we restrict that adjudication to an event which occurred in a stated number of years. For instance, we restrict prior DUI convictions to those occurring within the past five years before increasing the penalty for a similar conviction. Convictions occurring more than five years ago are irrelevant in DUI cases. K.S.A. 1994 Supp. 8-1567(k)(3). Certain criminal convictions can be expunged in three or five years, depending on the crime involved, and disappear from one’s record. K.S.A. 1994 Supp. 21-4619. Possession of a firearm is a crime if one is convicted of a felony within five years preceding that violation. However, if the felony conviction is more than five years old, it is not a crime to possess a weapon, notwithstanding a prior felony conviction. K.S.A. 1994 Supp. 21-4204. It is unlawful to possess or sell explosives to a person who has been convicted of a felony in the past five years. K.S.A. 1994 Supp. 21-4209; K.S.A. 1994 Supp. 21-4209a. These are but a few examples of statutes which place limits on how long a past indiscretion or crime will affect a citizen. In the face of these examples, the presumption of unfitness will spring into being upon proof of a prior termination that is 8, 10, or even 20 years old. There is no statutory time limit on how old a prior termination must be before it becomes irrelevant. A prior termination is relevant and raises a presumption of unfitness for as far back as we can find records to prove it. It does so regardless of how irrelevant it may have become with the passage of time.
The risk of erroneous action posed by this presumption, as it was employed in this case, is significant. For all the rhetoric which may be used to prove that such a presumption does not change the burden of proof, as a practical matter it does. The State may not deprive a citizen of liberty by doing nothing more than filing proof of a prior conviction. The State may, however, terminate parental rights by doing nothing more than filing proof of a prior termination. Once this is done, parental rights will be terminated unless the unfortunate parent can convince the trial court that he or she is no longer unfit. In the context in which this presumption operates, it may just as well change the burden of proof because that burden is shifted from the State with all of its resources to a parent who has little, if any, resources in comparison.
In 1983, we said:
“It was likewise error for the court to cast upon respondent the duty to prove her fitness. This the court effectively did when it erroneously admitted the final report, for without that report in evidence the only proof of respondent’s unfitness would be earlier reports and orders. As stated previously, the earlier findings were conclusive of the conditions at those earlier times, but they would not relieve the State of the burden of proving that such earlier conditions still existed on May 28, 1982.” In re Reed, 8 Kan. App. 2d 602, 608, 663 P.2d 675 (1983).
To paraphrase the decision in In re Reed, the termination of February 1986 was conclusive of the conditions existing at that earlier time. In this case, unlike Reed, that presumption did relieve the State of the burden of proving that such earlier conditions still existed in April 1994. The burden was shifted to D.L.C. to prove that the earlier conditions no longer existed.
The substitute procedural safeguards which can be employed to eliminate the possibility of error are relatively simple. We could require the State to prove its case without the benefit of the presumption as employed in this case. This procedure would reduce the risk of error, readjust the parties' relative resources, and ensure that the State cannot terminate a parental relationship without proving by clear and convincing evidence that the parent is currentiy unfit as to the child involved in the termination proceedings. It would eliminate a presumption which rests on the premise that since a mother was unfit as to a different child eight years ago, she remains unfit as to another child today.
Finally, Mathews requires that we consider the government’s interest and the burdens the substitute procedural safeguards might impose. There is no question but that the government’s parens patriae interest in protecting minor children is substantial and of great importance. State ex rel. O’Sullivan v. Heart Ministries, Inc., 227 Kan. 244, 253, 607 P.2d 1102 (1980). We also have no doubt that this power may be adequately exercised and protected without the benefit of an unfettered presumption of unfitness. It does not place an unacceptable administrative or fiscal burden on the government to require that it prove unfitness by real, relevant, and recent facts to terminate a parent/child relationship.
“The extent to which procedural due process must be afforded a person is influenced by the extent to which die person affected may be ‘condemned to suffer grievous loss’ and depends upon whedier the person’s interest in avoiding diat loss outweighs the governmental interest in summary adjudication. Goldberg v. Kelly, 397 U.S. 254, 262-63, 25 L. Ed. 2d 287, 90 S. Ct. 1011 (1970).” In re Cooper, 230 Kan. at 67.
In the context with which we deal, we conclude, without hesitation, that the grievous loss suffered by a parent from the termination of the parent/child relationship greatly outweighs the government’s interest in a summary adjudication.
It seems clear to us that the balancing test of Mathews demonstrates that as applied in this case, the presumption of unfitness, provided by K.S.A. 1994 Supp. 38-1585(a)(l) and (3), violated the procedural due process rights of the mother of J.L. and D.L.
In Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), the Supreme Court of the United States dealt with an Illinois statutory presumption that declared all unwed fathers to be unfit without providing for a hearing on that issue. In declaring the procedure unconstitutional, the court said:
“Despite Bell and Carrington, it may be argued that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case, including Stanley’s. The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution rec ognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.
“Procedure by presumption is always cheaper and easier than individualized determination. But when, as here, the procedure forecloses the determinative issues of competence and care, when it explicitly disdains present realities in deference to past formalities, it needlessly risks running roughshod over the important interests of both parent and child. It therefore cannot stand.
“Bell v. Burson held that the State could not, while purporting to be concerned widr fault in suspending a driver’s license, deprive a citizen of his license without a hearing that would assess fault. Absent fault, the State’s declared interest was so attenuated that administrative convenience was insufficient to excuse a hearing where evidence of fault could be considered. That drivers involved in accidents, as a statistical matter, might be very likely to have been wholly or partially at fault did not foreclose hearing and proof in specific cases before licenses were suspended.
“We think the Due Process Clause mandates a similar result here. The State’s interest in caring for Stanley’s children is de minimis if Stanley is shown to be a fit father. It insists on presuming rather than proving Stanley’s unfitness solely because it is more convenient to presume than to prove. Under the Due Process Clause that advantage is insufficient to justify refusing a father a hearing when the issue at stake is die dismemberment of his family.” 405 U.S. at 656-58.
In this action, the State has insisted on “presuming rather than proving” unfitness. The mere fact that such a procedure may be more convenient and less burdensome does not justify the existence of the presumption.
We hold that the presumption as applied in this case was a violation of the procedural due process rights of the natural mother.
K.S.A. 60-414
We have indicated that we believe that 38-1585(a)(l) and (3) is unconstitutional as applied in the instant matter. We emphasize the terminology that it is unconstitutional as it was applied in this case. We do not hold the statute itself is unconstitutional.
Our standard of review in cases involving the constitutionality of a statute has been often quoted:
“[A] statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down.” Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 243, 834 P.2d 368 (1992).
“This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.” State v. Durrant, 244 Kan. 522, 534, 769 P.2d 1174, cert. denied 492 U.S. 923 (1989).
We concede that our duty is to construe the statute in such a manner that it is constitutional. The question is whether we can do so with K.S.A. 1994 Supp. 38-1585. We believe that we can, and, in approaching that issue, we depart from our usual procedure on appeal. The issue which will be discussed in this portion of our opinion was not raised by either party to this appeal. This court is duty bound to raise it on our own to comply with our above-quoted standards of review.
In this case, the trial court appears to have overlooked that portion of K.S.A. 1994 Supp. 38-1585(a) which provides: “It is presumed in the manner provided in KS.A. 60-414 and amendments thereto.” (Emphasis added.) We believe that K.S.A. 60-414, if construed properly, provides a basis on which the presumption may be constitutionally applied. K.S.A. 60-414 provides as follows:
Subject to K.S.A. 60-416, and except for presumptions which are conclusive or irrefutable under the rules of law from which they arise, (a) if the facts from which the presumption is derived have any probative value as evidence of the existence of the presumed fact, the presumption continues to exist and the burden of establishing the nonexistence of the presumed fact is upon the party against whom the presumption operates; (b) if the facts from which the presumption arises have no probative value as evidence of the presumed fact, the presumption does not exist when evidence is introduced which would support a finding of the nonexistence of the presumed fact, and the fact which would otherwise be presumed shall be determined from tire evidence exactly as if no presumption was or had ever been involved.”
If the presumption provided for by K.S.A. 1994 Supp. 38-1585 is employed in conjunction with K.S.A. 60-414, it can be applied in a manner consistent with due process. 60-414 provides for two presumptions. A subsection (a) presumption is derived from facts which have probative value as proof of the presumed facts. A subsection (a) presumption places the burden of proving the nonexistence of the presumed fact on the party against whom it operates. In this case, the presumption of unfitness was treated as a subsection (a) presumption, and the burden was placed upon D.L.C. to prove she was no longer unfit. Under the facts of this case, that presumption violated her procedural due process rights.
A subsection (b) presumption arises from facts which have no probative value as evidence of the presumed fact. When any evidence of the nonexistence of the presumed fact is introduced, the subsection (b) presumption evaporates and the case proceeds as if it had never existed. In this case, for instance, if D.L.C. had taken the stand and given her uncorroborated testimony that she was no longer unfit, the presumption would have disappeared, and the burden of proving unfitness would have reverted to the State.
We discussed K.S.A. 60-414 in the case of State v. 1978 Chevrolet Automobile, 17 Kan. App. 2d 144, 150-52, 835 P.2d 1376 (1992):
“K.S.A. 1991 Supp. 65-4135(a)(6) states that the presumption raised in that statute is governed by K.S.A. 60-414 and amendments thereto. K.S.A. 60-414 has in the past proven to be somewhat of an enigma. See McMurry v. Crawford, 3 Kan. App. 2d 329, 594 P.2d 1109 (1979). Under the facts of this case, we find no mystery in the application of the statute. . . .
“In this case, claimants argue that the trial court erroneously applied 60-414(a), whereas it should have applied 60-414(b). Such error, claimants argue, caused the trial court to misapply the burden of proof to their detriment. We do not agree.
“We hold that K.S.A. 60-414(a) was applicable to tire facts shown by the record. The application of subsection (a) or subsection (b) depends on whether the facts from which tire presumption is derived have any ‘probative value as evidence of the existence of the presumed fact.’ If they do have probative value, subsection (a) applies. If they do not, then subsection (b) applies.
“ ‘Probative evidence is evidence that tends to prove an issue; it furnishes, establishes or contributes toward proof.’ State ex rel. Hausner v. Blackman, 7 Kan. App. 2d 693, 698, 648 P.2d 249 (1982), aff’d 233 Kan. 223 (1983). See Akin v. Estate of Hill, 201 Kan. 306, 311, 440 P.2d 585 (1968).
“In analyzing the issue raised by claimants, we first note the statute provides that subsection (a) applies if there is any probative evidence of the presumed fact. As a result, we are not required to consider the nature or weight of the evidence; our only question is whether the evidence is probative of the presumed fact. If the presence of a controlled substance in close proximity to the money is probative of the fact that the money is drug related, the presumption is a subsection (a) presumption. It is not relevant whether the evidence shows five pounds or 1.6 grams of the substance. The statute raises tire presumption on the showing of any probative evidence, and we are not required to quantify that evidence. We conclude that the statute is rather liberal in raising a presumption and that no particular amount of probative evidence is required to do so. The following comments are instructive:
“ ‘This court must assume that the Kansas Supreme Court is familiar with Kansas statutory law, and that it does not fashion its holdings in derogation to the intent of the Kansas elected branches. Fortuitously, the court need not accept defendant’s implicit invitation to reconsider the Wooderson decision for the Kansas Supreme Court, because it finds defendant’s argument to be based upon the erroneous assumption that this presumption comes within subsection (b) of the statute. Under subsection (a), a presumption derived from evidence that itself has any probative value is not eliminated simply because some evidence contrary to the presumed fact is introduced. Kansas as well as federal law provides that evidence having any tendency in reason to establish a material fact has probative value. [Citations omitted.] . . .
“ ‘The court finds that evidence of an inadequate warning easily meets the liberal test for probative value under the Kansas and federal rules. It must be borne in mind that evidence need not establish a fact, by any standard of proof, for it to have probative value. All that is required is that it have any tendency to make the existence of the fact more probable than it would be without the evidence. [Citation omitted.] And the clear language of K.S.A. § 60-414(a) directs that presumptions created by evidence having any probative value in establishing the presumed fact continue to exist notwithstanding the introduction of “some” contrary evidence.’ Mason v. Texaco Inc., 741 F. Supp 1472, 1506 (D. Kan. 1990).
“In the instant matter, evidence of a controlled substance in close proximity to the money is certainly some probative evidence of the presumed fact. The ‘close proximity’ evidence has a tendency to make the existence of the presumed fact more probable than it would be without such evidence. We are of the opinion that the Legislature, in enacting 65-4135(a)(6), intended that the close proximity of cash to a controlled substance is probative evidence that the cash is drug related. We reject the argument that a presumption would be raised based on evidence which is not probative of the presumed fact. Accordingly, we have no hesitation in concluding that the presumption raised by K.S.A. 1991 Supp. 65-4135(a)(6) is a subsection (a) presumption under K.S.A. 60-414.”
In this case, the trial court made no effort to determine whether the presumption provided by K.S.A. 1994 Supp. 38-1585 was a subsection (a) or subsection (b) presumption. This was reversible error and led to our conclusion that the presumption as applied was unconstitutional. It also fails to recognize the significance of K.S.A. 60-414, which is an integral part of the establishment of the statutory presumption in 38-1585.
Our decision that the statutory presumption as applied in this case was unconstitutional was largely based upon the fact that there is no time limitation stated in the statute. In this case, the presumption was based upon a conclusion which was eight years old and probably irrelevant. We do not believe and do not hold that evidence of a prior termination of parental rights can never raise a constitutional presumption. If, for instance, the presumption is based upon facts which still exist and involve a close sibling of the child involved in the current proceeding, it may indeed be based upon probative evidence of the presumed fact. In this case, it was based on facts that were eight years old; there was no showing that those eight-year-old facts were still relevant, and, in essence, the presumption was based upon another time and another family.
If we construe 38-1585 as requiring the trial court to determine whether the presumption is either a subsection (a) or subsection (b) presumption, then it may be constitutionally applied. A finding that the presumption is based on facts which are relevant and probative of current unfitness will allow the presumption to be employed in a constitutional manner. In State v. Haremza, 213 Kan. 201, 204, 515 P.2d 1217 (1973), our Supreme Court stated the rule governing the constitutionality of statutory presumptions:
“The general rule universally applied throughout the United States is that a statutory presumption will be upheld as constitutional if, in accordance with the experience of mankind, there is a natural and rational evidentiary relation between the fact proved and the one presumed; if the defendant has more convenient access to evidence relating to the fact to be presumed; and if, by requiring defendant to go forward with evidence to rebut the presumption, he is not thereby being subjected to unfairness or hardship. (Torcia, Wharton’s Criminal Evidence, 13th Ed., Vol. 1, § 94.)”
See State v. Price, 233 Kan. 706, 710, 664 P.2d 869 (1983); State v. Kriss, 232 Kan. 301, 303, 654 P.2d 942 (1982); State v. Smith, 223 Kan. 192, 194, 573 P.2d 985 (1977); State v. Nossaman, 107 Kan. 715, 721, 193 Pac. 347 (1920).
A subsection (a) presumption, in our judgment, is one which is not only based on facts which have probative value as evidence of the existence of unfitness, but it is a presumption which is consistent with the test stated in State v. Haremza. A presumption of this nature would comport with procedural due process.
We hold that in order for the presumption raised by K.S.A. 1994 Supp. 38-1585 to be applied in a constitutional fashion, the trial court must first determine whether it is a subsection (a) or subsection (b) presumption. If it is determined to be a subsection (b) presumption, any evidence which would support a finding of fitness, including the uncorroborated testimony of a parent, will result in the disappearance of the presumption, and the burden of proving unfitness will once again be upon the State. If it is determined by the trial court to be a subsection (a) presumption, it will operate in the fashion described in the statute.
The determination of whether the presumption is a subsection (a) or subsection (b) presumption is a question of law on which there is unlimited appellate review.
In determining whether a presumption is a subsection (a) or (b) presumption, we suggest the trial court consider the following factors: (1) the passage of time between the earlier order of termination and the current proceeding; (2) whether the same children or siblings of those children were involved in the earlier proceeding; (3) whether the father or fathers of the children involved are the same persons involved in the prior proceeding; (4) whether the facts on which the earlier presumption is based bear any resemblance to the current factual scenario; (5) whether the circumstances surrounding the presumption are such that, in accordance with the experience of mankind, there is a natural and rational evidentiary relation between the facts proven in the earlier action and the facts alleged to be true in the current action; (6) whether the parent has more convenient access to evidence relating to the unfitness to be presented; and (7) whether, by requiring the parent to go forward with the evidence to rebut the presumption, he or she is thereby being subjected to unfairness or hardship.
Trial courts are invited to consider other relevant factors since our list is not suggested nor intended to be exclusive. The court should give a detailed analysis of all the factors explaining the reasons for its decision. A conclusory determination that unfit once means unfit always will not be accepted.
We hold that if the statute is construed in the manner suggested, it will not violate procedural due process.
In this case, we hold that as a matter of law, D.L.C.’s due process rights were violated by the manner in which the presumption of unfitness was employed. We also conclude that, as a matter of law, an eight-year-old determination proceeding results in a subsection (b) presumption which was rebutted by D.L.C. We reverse the termination of D.L.C.’s parental rights to J.L. and remand for a new hearing consistent with this opinion. In the event D.L. is found to be a child in need of care, proceedings to terminate D.L.C.’s parental rights as to D.L. may also be conducted in the manner specified by this opinion.
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|
The opinion of the court was delivered by
Miller, J.:
The State of Kansas appeals in these drunken driving cases from orders of the trial courts declaring portions of K.S.A. 8-1001 and 8-1567 unconstitutional. The defendants, Joe N. Compton, Thomas A. Williams, Kelly R. Keenan and Jose Ramirez, were each charged with driving a motor vehicle while under the influence of alcohol (DUI) in violation of K.S.A. 8-1567. None of the cases has been tried. In Compton and Williams, the State appeals as a matter of right under K.S.A. 22-3602(fo)(l) from orders finding K.S.A. 8-1001(c) and K.S.A. 8-1567(c), (d), and (e) unconstitutional and dismissing the case. In Keenan, the State brings an interlocutory appeal under K.S.A. 22-3603 from an order suppressing evidence of the results of the blood alcohol test administered to the defendant, based upon a finding that K.S.A. 8-1001(c) is unconstitutional. In Ramirez, the State brings an interlocutory appeal, K.S.A. 22-3603, from an order suppressing evidence of defendant’s refusal to take a blood alcohol test, based on the trial court’s holding that K.S.A. 8-1001(c) is unconstitutional. Because of the identity of issues, the cases were consolidated for hearing on appeal.
Both K.S.A. 8-1001 and 8-1567 were amended by the legislature in 1982. See L. 1982, ch. 144, §§ 3, 5. The 1982 amendments are the versions of these statutes before us in this case. They read in pertinent part as follows:
“8-1001. ... (a) Any person who operates a motor vehicle upon a public highway in this state shall be deemed to have given consent to submit to a chemical test of breath or blood, to determine the alcoholic content of the person’s blood whenever the person is arrested or otherwise taken into custody for any offense involving operating a motor vehicle under the influence of alcohol in violation of a state statute or a city ordinance and the arresting officer has reasonable grounds to believe that prior to arrest the person was driving under the influence of alcohol. The test shall be administered at the direction-of the arresting officer.
“(c) If the person so arrested refuses a request to submit to a test of breath or blood, it shall not be given and the persons refusal to submit to the test shall be admissible in evidence against the person at any trial for driving under the influence of alcohol. . . . (Emphasis added.)
“8-1567. ... (a) No person shall operate any vehicle within this state while under the influence of alcohol.
“(c) Upon a first conviction of a violation of this section, a person shall be sentenced to not less than 48 hours’ imprisonment or 100 hours of public service nor more than 6 months’ imprisonment and fined not less than $200 nor more than $500, or by both such fine and imprisonment. The person convicted shall not be eligible for release on probation or suspension or reduction of sentence until the minimum sentence has been satisfied. In addition, the court shall enter an order which (1) restricts the person convicted to operating a motor vehicle on the highways of this state only in going to or returning from the person’s place of employment in the course of the person’s employment or during a medical emergency or in going to or returning from the place such person is required to go to attend an alcohol and drug safety action program as provided in K.S.A. 8-1008 or a treatment program as provided in K.S.A. 8-1008 for a period of time of at least 90 days and not to exceed one year and (2) requiring that the person enroll in and successfully complete an alcohol and drug safety action program as provided in K.S.A. 8-1008 or a treatment program as provided in K.S.A. 8-1008, or both such education and treatment programs. In the event the person convicted has a suspended or revoked driver’s license, the court shall not make the restricted license, provided under this subsection, applicable until any such suspension or revocation is terminated. No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or any ordinance of a city in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this subsection or the ordinance. For the purpose of this subsection, entering into a diversion agreement pursuant to K.S.A. 22-2906 et seq. shall not constitute plea bargaining.
“(d) On a second conviction of a violation of this section, a person shall be sentenced to not less than 90 days’ nor more than one year’s imprisonment and fined not less than $500 nor more than $1,000. The person convicted shall not be eligible for release on probation or suspension of sentence until the minimum sentence has been satisfied .... No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or any ordinance of a city in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this subsection or the ordinance.
“(e) On the third or subsequent conviction of a violation of this section, a person shall be sentenced to not less than 90 days’ nor more than one year’s imprisonment and fined not less than $1,000 nor more than $2,500. The person convicted shall not be eligible for release on probation or suspension or reduction of sentence. . . . No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or any ordinance of a city in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this subsection or the ordinance.” (Emphasis added.)
We turn first to the issue of the alleged unconstitutionality of K.S.A. 8-1001(c). All of the claims and all of the decisions of the trial courts were premised upon the claim that the admissibility of an accused’s refusal to take the test violated his or her Fifth Amendment privilege against self-incrimination.
At the time the cases were presented to and considered by the trial courts, a similar provision of a South Dakota statute had been held violative of an accused’s Fifth Amendment privilege by the South Dakota Supreme Court. State v. Neville, 312 N.W.2d 723 (S.D. 1981). The United States Supreme Court granted certiorari (456 U.S. 971) and on February 22, 1983, reversed the South Dakota ruling. South Dakota v. Neville, 459 U.S. __, 74 L.Ed.2d 748, 759-60, 103 S.Ct. 916 (1983). The court noted that the State has the right, under Schmerber v. California, 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826 (1966), to require a person suspected of driving while intoxicated to submit to a blood alcohol test; that the State did not compel the accused to refuse to take the test, but gave him a choice; and that the right of refusal is simply one granted by legislative grace and not a right of constitutional dimension. Thus, the court concluded that “a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.” It further concluded that a failure of the officer to warn the accused that the fact of refusal could be used against him was “not the sort of implicit promise to forego use of evidence that would unfairly ‘trick’ respondent if the evidence were later offered against him at trial.” It found that the use of the evidence of refusal does not interfere with the fundamental fairness required by due process.
Section 10 of the Kansas Bill of Rights is coextensive with the Fifth Amendment. State v. Faidley, 202 Kan. 517, 520, 450 P.2d 20 (1969). We have not previously held and do not now hold that Section 10 offers privileges more extensive than those of the Fifth Amendment. The Neville decision settles this issue. As the author concluded in a post-Neville article, Comment, The New Kansas Drunk Driving Law: A Closer Look, 31 Kan. L. Rev. 409, 422 (1983), “[T]he constitutionality of section 8-1001(c) — admitting a driver’s refusal to take the BAC test — is no longer open to dispute.” We agree.
The taking or the refusal to take the test is an option provided by the legislature. Both the results of the test, if taken, or the refusal to take it, if declined, are admissible in evidence, and the admission of such evidence does not offend the Fifth Amendment privilege against self-incrimination or the right to due process.
One further matter relating to K.S.A. 8~1001(c) deserves attention. In the Ramirez case the trial court held that before evidence of a refusal may be received in evidence, the State must establish that the accused’s decision not to take the test was made knowingly, voluntarily and intelligently. This was error. Since the refusal is not the exercise of a constitutional right, but merely a matter of grace bestowed by the legislature, we hold that there is no requirement that an explanation of the accused’s right to refuse the test or of the consequences of that refusal be given. The officer administering the test may not mislead the accused, but he or she need not explain the possible consequences of a refusal to take the test. This follows our ruling in Hazlett v. Motor Vehicle Department, 195 Kan. 439, 407 P.2d 551 (1965), where in Syl. ¶ 1 we said:
“Under the provisions of K.S.A. 8-1001 and related statutes, there is no duty placed on an arresting officer, making an arrest for the offense of driving while under the influence of intoxicating liquor, to explain the consequences of a refusal to submit to a blood alcohol chemical test.”
We turn next to consider the constitutional challenge to K.S.A. 8-1567(c), (d) and (e). That portion of all three subsections, emphasized above, was held in two of the cases to be violative of the separation of powers doctrine. All three subsections contain the same language:
“No plea bargaining agreement shall be entered into or shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section ... to avoid the mandatory penalties established by this subsection . . . .”
Let us consider what this provision does and what it does not do. It prohibits plea bargaining for the purpose of permitting one charged with DUI to avoid the mandatory penalties established by the act.
It does not prohibit plea bargaining in any other type of case,nor does it prohibit plea bargaining in cases where DUI is charged when the purpose of the plea bargain — and its ultimate effect — is not to permit the accused to avoid the mandatory DUI penalties. It does not interfere with or curtail the power of the prosecutor to review the evidence in good faith and determine what charges should be filed, or to amend or reduce the charges as initially filed, or to dismiss the prosecution.
As an example, assume that a defendant is charged with DUI, driving left of center, failing to signal and failing to stop at a stop sign. If the prosecutor reviews the evidence and concludes that the evidence is adequate to sustain convictions on all charges, the plea bargaining prohibition could work two different ways.
(1) Defense counsel offers to enter a plea of guilty to all charges except DUI if the State will dismiss (or reduce) that one. The prosecutor may not accept and the court may not approve such a plea bargain as it would permit the defendant to avoid the mandatory penalties established by the statute.
(2) Defense counsel offers to enter a plea of guilty to the DUI charge if the State will dismiss the remaining traffic charges. The prosecutor may, if he or she wishes, accept, and the court may approve such a plea bargain, since the accused would not thereby avoid the penalties established by the DUI law.
Let us assume that upon the filing of the same four charges, the prosecutor reviews the evidence and concludes that the evidence is not sufficient to sustain a conviction of DUI since the breath test results were negative and the arresting officer’s testimony alone is insufficient. A plea bargain is unnecessary because charges which cannot reasonably be proven should not be maintained or used for “leverage.” The prosecutor should voluntarily dismiss or reduce the DUI charge. Once this has been done, there is no prohibition upon plea bargaining as to the remaining traffic charges.
Now let us consider the separation of powers doctrine. The standards to be applied for determining whether a statute violates that doctrine were recently stated in State v. Greenlee, 228 Kan. 712, 715-16, 620 P.2d 1132 (1980):
“The basic meaning of the separation of powers doctrine is that the whole power of one department should not be exercised by the same hands which possess the whole power of either of the other departments. Dreyer v. Illinois, 187 U.S. 71, 47 L.Ed. 79, 23 S.Ct. 28 (1902); Van Sickle v. Shanahan, 212 Kan. 426. It does not necessarily follow, however, that an entire and complete separation is either desirable or was ever intended by the framers of the Constitution. The fact that the powers of one department may overlap with another department’s powers has long been a recognized fact. Throughout the judicial history of this state early decisions attempted to apply the doctrine strictly, refusing to tolerate any overlapping of powers. State v. Johnson, 61 Kan. 803, 60 Pac. 1068 (1900). The more recent cases have modified the doctrine, taking a more pragmatic, flexible and practical approach giving recognition to the fact there may be a certain degree of blending or admixture of the three powers of government and that absolute separation of powers is impossible. Leek v. Theis, 217 Kan. 784, 539 P.2d 304 (1975). See also Nixon v. Administrator of General Services, 433 U.S. 425, 53 L.Ed.2d 867, 97 S.Ct. 2777 (1977).
“There have been a number of cases in Kansas dealing with the separation of powers and in them the following general principles are established:
“(1) A statute is presumed to be constitutional. All doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution. Leek v. Theis, 217 Kan. 784.
“(2) When a statute is challenged under the constitutional doctrine of separation of powers, the court must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented. Leek v. Theis, 217 Kan. at 785; State, ex rel., v. Fadely, 180 Kan. 652, 308 P.2d 537 (1957).
“(3) A usurpation of powers exists when there is a significant interference by one department with operations of another department. State, ex rel., v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976).
“(4) In determining whether or not a usurpation of powers exists a court should consider (a) the essential nature of the power being exercised; (b) the degree of control by one department over another; (c) the objective sought to be attained by the legislature; and (d) the practical result of the blending of powers as shown by actual experience over a period of time. State, ex rel., v. Bennett, 219 Kan. 285.”
See also Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 32, 643 P.2d 87 (1982); State, ex rel., v. Bennett, 219 Kan. 285, 547 P.2d 786 (1976).
Also, we have recently discussed the nature of the powers exercised by a prosecutor in the separation of powers context. In State v. Dedman, 230 Kan. 793, 797, 640 P.2d 1266 (1982), we held that the doctrine prohibits a trial court from ordering the prosecutor to subject the victim of a crime to a polygraph examination. We said:
“ ‘Generally speaking . . . the executive power is the power to enforce the laws, and the judicial power is the power to interpret and apply the laws in actual controversies.’ Van Sickle v. Shanahan, 212 Kan. 426, Syl. ¶ 8, 511 P.2d 223 (1973). The prosecuting attorney is a member of the executive, not judicial, branch of government. Although the Kansas Constitution contains no express provision requiring the separation of powers, ‘separation is accomplished by the establishment of the three branches of government and the distribution of the various sovereign powers to each of them.’ 212 Kan. at 440. Allowing judicial oversight of what is essentially a function of the prosecutor’s office would erode that power.
“This same decision was reached recently by the Colorado Supreme Court in People v. Dist. Ct. In And For Tenth, Etc., 632 P.2d 1022 (Colo. 1981). There the district judge had ordered the district attorney to subject the victim of the crime to a polygraph examination. The court stated: “The district attorney belongs to the executive branch of the government. People v. District Court, 186 Colo. 335, 527 P.2d 50 (1974). As an executive officer charged with the duty to prosecute persons for violations of the criminal laws, he has a broad discretion in the performance of his duties. See 1 ABA Standards for Criminal Justice, The Prosecution Function, 3-3.9 (2d Ed. 1980). The scope of this discretion extends to the power to investigate and to determine who shall be prosecuted and what crimes shall be charged. . . .
“ ‘The district attorney’s broad discretion in determining whether a charge shall be filed involves the primary determination of whether the evidence of the crime is sufficient to warrant the filing of the charge. This obviously depends upon his evaluation of the reliability and credibility of the witnesses to the crime, including the complaining witness or victim of the crime, Whether this evidence shall be tested by ordinary means of interrogation or by other means, such as requiring a potential witness to submit to a polygraph examination, is a matter of prosecutorial discretion. This function is not subject to judicial control or direction. . . .
“ ‘It is clear from the record before us that the district attorney, in evaluating the reliability and credibility of the key witness, did not believe it necessary to subject the witness of the alleged burglary to a polygraph examination in preparation of the People’s case. For the court to order the district attorney to do so for the benefit of the defense, in our view, amounts to an impermissible judicial intrusion into the prosecutor’s function,’ 632 P.2d at 1024.”
The prosecutor has the power to enter into plea bargain agreements. This is an aspect of the prosecutor’s broad discretion in determining whether a particular charge should be filed or maintained. The discretion exercised in plea bargaining, however, is not unfettered; certain standards and guidelines are applicable. See ABA Standards Relating to the Prosecution Function § 3.11, p. 102 (1971), and State v. Byrd, 203 Kan. 45, 51, 453 P.2d 22 (1969). The trial judge, of course, is not bound by a plea agreement; he or she is charged with the responsibility of reaching an independent decision on whether to approve the charge or sentence concessions. The judge, however, may not refuse to permit the prosecutor to amend the charges if the prosecutor wishes to do so. See State v. Pruett, 213 Kan. 41, 47, 515 P.2d 1051 (1973), and ABA Standards Relating to the Prosecution Function there cited. Cox and Strole, in S. B. 699 — A Comment on Kansas’ New “Drunk Driving” Law, 51 J.K.B.A. 230, 235 (1982), characterize plea bargaining as “not solely prosecutorial, but rather more of a blending of powers.” True, the courts have an important part in plea bargaining, but plea discussions are primarily a part of the prosecutorial or executive power.
Thus the question before us is: Do the prohibitions against plea bargaining contained in K.S.A. 8-1567(c), (d) and (e) constitute a substantial legislative encroachment upon the executive powers of the prosecutor? We think not. Applying the Greenlee standards to the controversy before us, we start with the presumption that the challenged statute is constitutional. We then search for a usurpation by one department of the powers of another, mindful that a usurpation exists only when there is a significant interference by one department with the operations of another. The interference created here is quite limited, as we have previously observed, and the statute does not attempt to control prosecutorial discretion as to plea bargaining in any case except when DUI is charged. Nor does it attempt to control discretion as to charge, reduction or dismissal where a prosecutor may upon review of the available evidence determine in good faith the appropriateness of such action. There is, however, a usurpation, limited though it may be, and it is significant in the cases to which it applies.
To determine whether a significant usurpation of powers exists we must also consider the nature of the power being exercised. The essential nature of the prosecutorial power is executive, and the trial court, judicial. The legislature, by section 1567(c), (d) and (e), controls both prosecutorial and judicial discretion jn the limited area to which the statute applies.
The objective sought to be attained by the legislature is to deter drunken driving and thus to reduce the injuries, deaths and property damage attributable to it by making the penalties for DUI certain and severe. This objective is consistent with the legitimate aims of both the legislative and executive branches of government, and more particularly of the prosecutor. It is also an objective of the judiciary. Deterrence, the discouragement of potential offenders,- has long been recognized as one of the legitimate goals of sentencing. See Guides for Sentencing, published by the Council of Judges of the National Council on Crime and Delinquency, p. 3 (2d ed. 1974), and The State Trial Judge’s Book, pp. 288-89 (2d ed. 1969). That the problem is a serious one is well illustrated in the opening paragraph of a recent Note in the Washburn Law Journal, The New Kansas DUI law: Constitutional Issues and Practical Problems, 22 Wash-burn L.J. 340-41 (1983):
“More than half of all highway accidents are a direct result of drunk drivers. In 1980, the Kansas Highway Patrol arrested 2,733 people for driving while under the influence of alcohol (DUI) and attributed 195 deaths and 5,350 injuries to the abuse of alcohol, yet the judiciary has been reluctant to apply the maximum penalties in many DUI cases where the social drinker is concerned, because of the strictness of the penalties. Additionally, current sanctions imposed on offenders have not had an adequate impact on the serious problem drinker.”
The trial judge in Compton and Williams, as well as the appellees here, read section 1567(c), (d) and (e) to place all of the responsibility for charging a DUI offense in the hands of the arresting officer. They read the statute as prohibiting the prosecutor from reducing or dismissing the charge if it is later determined that the evidence does not warrant a DUI charge. We do not read the statute so broadly. It is narrowly drawn only for the purpose of prohibiting a standard plea bargain, a guilty plea in return for a lesser reduced charge. The prosecutor retains his discretionary authority to initially charge the accused with a DUI offense, some lesser offense, or not at all; he may also decide that a DUI charge has been improvidently filed, and should be reduced or dismissed. The prosecutor’s decision, however, must be made in good faith upon a review of the available evidence and may not be made as the result of an agreement with the accused to plead to a lesser charge in order to avoid the mandatory penalties established by the act.
This case is somewhat analogous to challenges to mandatory minimum sentence or “gun” acts designed to discourage the criminal use of firearms. In State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978), 100 A.L.R.3d 418, we upheld K.S.A. 21-4618, which denies probation or suspension of sentence to any defendant convicted of certain crimes in which the defendant used a firearm in the commission thereof, when that statute was challenged as violative of the separation of powers doctrine because it infringed upon the judicial power and discretion in sentencing. We held that 21-4618 is not such a restriction on the judicial power as would constitute an impermissible legislative usurpation of the court’s prerogatives. Similar statutes have been almost uniformly upheld against separation of powers challenges in other jurisdictions. See Annot., Validity of Statutes Prohibiting or Restricting Parole, Probation, or Suspension of Sentence in Cases of Violent Crimes, 100 A.L.R.3d 431 § 6; and Annot., Narcotics Offenses — Mandatory Sentence, 81 A.L.R.3d 1192 § 6. The legislative proscription of plea bargaining in DUI cases represents a similar effort to ensure that DUI offenders serve mandatory sentences.
The statute now before us contains a very limited encroachment upon the executive power, and its aim is to combat a major problem. We hold that the encroachment is not sufficient to constitute a violation of the constitutional separation of powers doctrine, and that K.S.A. 8-1567 is a valid enactment.
The judgments of dismissal in State v. Compton and State v. Williams, and the judgments suppressing certain evidence in State v. Keenan and State v. Ramirez, are all reversed, and the cases are remanded to the respective trial courts for further proceedings in conformity with this opinion.
Lockett, J., not participating. | [
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|
The opinion of the court was delivered by
Miller, J.:
This is an appeal by Caldwell and Associates, Inc., the successful purchaser at a sheriff s sale, from the order of the Sedgwick District Court sustaining defendant Carole J. Burke’s motion to set aside the sale. The Court of Appeals reversed. Mid Kansas Fed’l Savings & Loan Ass’n v. Burke, 8 Kan. App. 2d 443, 660 P.2d 569 (1983). We granted review.
The facts are fully set forth in the Court of Appeals opinion, and we will but summarize them here. James and Carole Burke, husband and wife, purchased a residence in Wichita in 1980, and assumed a $22,000 note, secured by a mortgage on the premises, held by Mid Kansas Federal Savings & Loan Association. The note became delinquent and Mid Kansas commenced foreclosure proceedings by filing this action. James Burke was served personally and Carole was served by leaving a copy of the summons and petition with James, at the parties’ residence. The Burkes defaulted, judgment was entered for Mid Kansas, and foreclosure ordered. A sheriff s sale was held and Caldwell and Associates, Inc., was the successful bidder. The sale was confirmed and redemption fixed at six months. After the redemption period expired, a writ of assistance was issued and served upon Carole Burke. Within a few days she filed a motion to vacate the sale pursuant to K.S.A. 60-255(5) and 60-260(5), claiming that no personal service of summons was had upon her, that she was never notified of the foreclosure proceedings, and that her failure to plead was due to excusable neglect. She indicated that she was prepared to advance the sum paid by the purchaser, together with accrued interest, costs and expenses, and she has since paid that amount, some $26,000, in to the court. The property is valued at $74,000. The trial court held that no service of process had been had upon Carole Burke because her husband, apparently an alcoholic, was not a “person of suitable . . . discretion” as required by K.S.A. 1982 Supp. 60-304(c). The trial court proceeded to set aside the judgment and dismiss the action.
Three issues were considered on appeal. The Court of Appeals held that Carole Burke’s motion to vacate, filed some seven months after the entry of judgment, was timely made, and that the trial court had jurisdiction to consider the motion. Thé Court of Appeals also held that the lower court’s conclusion that James Burke was not a person of suitable discretion for the purpose of residential service of process pursuant to K.S.A. 1982 Supp. 60-304(a) was not supported by substantial, competent evidence, and therefore service upon Carole Burke was valid. With those portions of the Court of Appeals opinion, we agree.
We differ, however, with the final determination of the Court of Appeals,- wherein it held that Carole Burke’s conduct “could only be characterized as inexcusable neglect,” therefore preempting any motion to vacate the default judgment framed under K.S.A. 60-260(5). That statute reads in applicable part;
“On motion- and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect ... or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceeding was entered or taken.”
Chief Judge Foth disagreed with the majority’s conclusion that Carole Burke’s conduct was inexcusable, and wrote a dissenting ■opinion in which he said:
“In dealing with the 60-260(b) aspects of her motion the majority finds she is precluded from relief because of her ‘inexcusable neglect.’ This conclusion is apparently based only on her willingness to entrust the family’s financial affairs to a husband who is known to have a drinking problem. There are in my opinion two things wrong with this analysis:
“First, I am not prepared to say Mrs. Burke’s acquiescence in.a long-standing allocation of family responsibilities was ‘inexcusable.’ There is nothing to indicate Mr. Burke had ever failed to carry out his part of the arrangement before. Certainly there is no evidence Mrs. Burke knew of any delinquency before the day the two messengers arrived, one to shut off the lights and the other to put her out in the street.
“Second, and more important, I read the cases treating with excusable versus inexcusable neglect as referring to neglect of the lawsuit in question. See Jenkins v. Arnold, 223 Kan. 298, 573 P.2d 1013 (1978), and cases cited therein. Mrs. Burke cannot be accused of neglecting this lawsuit; the evidence is undisputed that the first she heard of it was when the deputy arrived with the writ of assistance. She immediately sought counsel-and promptly filed her motion for relief.
“It has often been stated that a motion under 60-260(b) is addressed to the sound discretion of the trial judge, who should have ‘due regard for what is just and fair under existing circumstances.’ Jenkins, 223 Kan. at 299, and cases cited. In this case Mrs. Burke did not seek relief from the foreclosure, but only from the sale to the appellant (of which she had been equally unaware). She tendered, and the court ordered, repayment of the purchase price in full, interest at the market rate, and reimbursement of all expenses. Under the court’s order the purchaser would lose only the chance to make a speculative profit, while Mrs. Burke'would be able to retain her home for herself and her children, and Would avoid forfeiting her substantial equity in it.
“It seems apparent to me the trial court in this case was swayed by the equities of the case, which were all one way, and seized upon the alleged process deficiency as a method of achieving a result which was ‘just and fair under existing circumstances.’ Although I can’t agree with the procedural channel utilized, I believe the court arrived at the correct destination. I certainly can find no abuse of discretion and would therefore affirm.” 8.Kan. App. 2d at 449-50.
Jenkins v. Arnold, 223 Kan. 298, 573 P.2d 1013 (1978), cited by Chief Judge Foth, provides a comprehensive analysis of the principles applicable when considering a motion to set aside a default judgment or otherwise relieve a party from an order or other proceeding pursuant to K.S.A. 60-260(h). Some of the applicable principles there set forth are:
“(1) The granting of relief from a default judgment under K.S.A. 60-260(£>) rests in the sound discretion of the district court. [Citations omitted.]
“(2) The exercise of judicial discretion requires that a judge have due regard for what is just and fair under existing circumstances and that he not act in an arbitrary, fanciful, or unreasonable manner. [Citations omitted.]
“(3) While there is a need to achieve finality in litigation, judicial discretion must not achieve that end in disregard of ‘what is right and equitable under the circumstances.’ [Citation omitted.]
“(7) ‘Inexcusable neglect’ is closely akin to ‘reckless indifference.’ It implies something more than the unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind. [Citation omitted.]
“(8) ‘Excusable neglect’ as used in K.S.A. 60-260(b) is not susceptible to clear definition. What constitutes excusable neglect under the statute must be determined on a case by case basis under the facts presented. [Citations omitted.]
“(9) A motion to set aside a default judgment may be granted whenever the court finds:
(a) That the nondefaulting party will not be prejudiced by the reopening;
(b) That the defaulting party has a meritorious defense; and
(c) That the default was not the result of inexcusable neglect or a willful act. [Citation omitted.]” 223 Kan. at 299-300.
Mr. Burke was allegedly an alcoholic; Mrs. Burke entrusted him with taking care of the family’s financial affairs, and without her knowledge he failed to make payments on the indebtedness to Mid Kansas. The evidence is undisputed that she had no knowledge of that default, or of the pendency of this action, until the writ of assistance was served upon her. She then moved swiftly, secured counsel, and filed her motion to set aside. Her conduct in entrusting her husband with family financial affairs, absent any indication that she should have known that he was not making payments when due, cannot be characterized as reckless or inexcusable. Likewise her failure to appear and answer a civil action which she did not know was pending against her cannot be so characterized.
“Surprise,” as that term is used in K.S.A. 60-260(b), is defined to be some condition or situation in which a party to an action is unexpectedly placed to his injury, without any default or negligence of his own, and which ordinary prudence could not have guarded against. See Baratti v. Baratti, 109 Cal. App. 2d 917, 921, 242 P.2d 22 (1952); Hodge Sheet Metal Products v. Palm Springs Riviera Hotel, 189 Cal. App. 2d 653, 11 Cal. Rptr. 435 (1961); and Graves v. Nationwide Mutual Insurance Company, 151 A.2d 258, 261 (D.C. 1959). Language similar to our statute, K.S.A. 60-260(b), including the words “mistake, inadvertence, surprise or excusable neglect” were contained in Section 274 of the North Carolina Code prior to the turn of the century. The Supreme Court of that state, discussing that language in the case of Marsh v. Griffin, 123 N.C. 660, 667, 31 S.E. 840 (1898), observed:
“In the cases construing this section, the words ‘mistake, inadvertence’ and ‘surprise’ seem to have been ignored with singular unanimity. The phrase ‘excusable neglect’ is apparently taken as embodying the meaning of the section.”
These words continue to be ignored judicially and the vast majority of the reported decisions under Section 60(b) Fed. R. Civ. Proc., our Section 60-260(fe), and similar code provisions of other states, center for the most part around the term “excusable neglect” and seldom discuss “surprise.” It seems to us, however, that Mrs. Burke fits in that category. She had no actual knowledge of the proceeding, was surprised to learn of it, and acted promptly upon discovery of the lawsuit, the judgment, and the sale. We hold that the judgment and other .proceedings were subject to being set aside on the grounds of surprise. Her failure to respond to the summons was understandable and excusable since she had no actual knowledge of the pendency of the action. The judgment could also be set aside on the grounds of excusable neglect.
K.S.A. 60-260(h) is to be liberally construed “in order that judgments will reflect the true merits of a case.” Wirt v. Esrey, 233 Kan. 300, 311, 662 P.2d 1238 (1983).
The trial court properly protected those who relied upon the judgment. Mid Kansas secured the amount due on its note, and the purchaser at the sale, Caldwell, was reimbursed in full, including its expenses and 15% accrued interest. We conclude that the trial court’s grant of relief to Carole Burke, though granted for an erroneous reason, was proper, and that the judgment of the trial court should be affirmed.
The judgment of the Court of Appeals reversing the trial court is reversed, and the judgment of the District Court of Sedgwick County is affirmed.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Holmes, J.:
The defendant, United States Fidelity and Guaranty Company, appealed from an adverse decision in district court which granted judgment to plaintiff for benefits under the medical payments and personal injury protection coverages afforded by his automobile insurance policy. The Court of Appeals reversed the decision of the district court and remanded the case for further proceedings. We granted review of that decision, reported at 8 Kan. App. 2d 144, 651 P.2d 954 (1982), pursuant to K.S.A. 20-3018(6).
As determined by the Court of Appeals, the question of the liability of the defendant for payments under the policy was dependent upon a factual determination of whether the plaintiff John B. Egy, at the time he suffered injury in an automobile accident, was an employee of Holland Roofing Company, and therefore entitled to workers’ compensation benefits. This threshold factual question was not decided by the district court and the Court of Appeals directed the case be remanded for the trial court to make the necessary factual determination.
A careful review of the record convinces us the Court of Appeals reached the correct result in this case. However, the untimely death of the trial judge, the Hon. James V. Riddel, Jr., precludes the necessary factual findings based solely upon the record. Therefore, we affirm the decision of the Court of Appeals,.re verse the judgment of the district court and remand the case for a full evidentiary hearing on the factual determination of whether the plaintiff was an employee of Holland Roofing Company at the time he received his injuries on September 12, 1979, and for further proceedings consistent with the factual findings.
It is so Ordered.
Herd, J., not participating. | [
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NOW on this 15th day of June, 1983, the request of Nancy J. Schmidt, an attorney of Liberal, Kansas, duly admitted to practice law in the State of Kansas, to voluntarily surrender her license to practice law comes before the court for consideration.
Having fully considered the request of the said Nancy J. Schmidt, the court finds that the surrender of her license to practice law should be accepted.
It Is Therefore Ordered that the surrender of the license to practice law of Nancy J. Schmidt, an attorney of Liberal, Kansas, be and the same is hereby accepted and the Clerk of the Appellate Courts is directed to strike the name of Nancy J. Schmidt from the roll of attorneys authorized to practice law in the State of Kansas. | [
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The opinion of the court was delivered by
Lockett, J.:
This is an appeal from the District Court of Nemaha County, Kansas where the defendant was convicted of possession of marijuana (K.S.A. 1982 Supp. 65-4127b[a] [3]) and possession of heroin (K.S.A. 65-4127a). The defendant was originally sentenced to not less than 10 nor more than 30 years; the sentence was later modified to not less than 5 nor more than 20 years. Defendant has appealed.
The facts are as follows: In the early morning hours of October 24, 1981, Officer Kirwin pulled behind the defendant’s car on Highway 75. After observing the defendant’s car cross the center line twice, Officer Kirwin turned on his lights and stopped the defendant’s car. The defendant was the only occupant of the car. When Officer Kirwin approached the car he noticed the smell of marijuana. Asking the defendant to exit the vehicle, the officer shined his light in the ashtray and saw what appeared to be a marijuana cigarette butt. Officer Kirwin asked the defendant if he could look into the car; receiving permission, he seized the marijuana butt and warned the defendant of his Miranda rights. When asked to identify the item, the defendant stated that it was a marijuana cigarette butt. Defendant then reached into his shirt pocket and pulled out another cigarette which he identified as a marijuana cigarette. Officer Kirwin then asked if there were additional marijuana cigarettes in the car. Defendant replied “No” and then gave the officer permission to search the car. Officer Kirwin found an additional marijuana cigarette butt and a blue shaving kit on the floor of the car. Defendant stated that the kit was his. Officer Kirwin took the kit back to his car and had the defendant open the kit. Officer Kirwin found a plastic bag of marijuana seeds and individually wrapped aluminum foil packets. The officer opened one of the packets and saw a brown powder which he suspected to be heroin.
Terry L. Koch, a chemist for the Kansas Bureau of Investigation, examined the evidence. At the trial he identified one of the cigarettes as containing marijuana and testified that heroin was contained in the foil packets. From his conviction defendant appeals.
Defendant raises fourteen issues in his appeal. It would not be productive in this opinion to set out each of the numerous issues raised and discuss them individually. It is sufficient to relate each point has been individually considered, and no error of substance has been found. Two issues numbered ten and fourteen by the appellant are of such import they merit discussion.
K.S.A. 22-3215 is the defendant’s statutory right to suppress a confession or admission given by the defendant on the grounds that a statement is not admissible as evidence. It provides:
“(1) Prior to the preliminary examination or trial a defendant may move to suppress as evidence any confession or admission given by him on the ground that it is not admissible as evidence.
“(2) The motion shall be in writing and shall allege the grounds upon which it is claimed that the confession or admission is not admissible as evidence.
“(3) If the motion alleges grounds which, if proved, would show the confession or admission not to be admissible the court shall conduct a hearing into .the merits of the motion.
“(4) The burden of proving that a confession or admission is admissible shall be on the prosecution.
“(5) The issue of the admissibility of the confession or admission shall not be submitted to the jury. The circumstances surrounding the making of the confession or admission may be submitted to the jury as bearing upon the credibility or the weight to be given to the confession or admission.
“(6) The motion shall be made before preliminary examination or trial, unless opportunity therefor did not exist or the defendant was not aware of the ground for the motion, but the court in its discretion may entertain the motion at the preliminary examination or the trial.”
The motion to suppress a confession or admission under K.S.A. 22-3215 is available only to the defendant.
A second method of determining the admissibility of a defendant’s confession or admission is the Jackson v. Denno hearing. The Jackson v. Denno hearing can be requested by (1) the defendant, (2) the State, or (3) the court on its own motion prior to or during a trial. A motion to suppress (K.S.A. 22-3215) or a Jackson v. Denno hearing raises the same issue, therefore there is no requirement that the court conduct both a hearing on the motion to suppress (K.S.A. 22-3215) and a Jackson v. Denno hearing on the same facts.
June 22, 1964, the United States Supreme Court handed down its decision in Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774 (1964), 1 A.L.R.3d 1205. The facts were summarized as follows:
“Under the New York procedure concerning determination of the voluntariness of a confession offered by the prosecution, the trial court excludes it if in no circumstances it could be deemed voluntary, but leaves to the jury the ultimate determination of its voluntary character, as well as its truthfulness, if the evidence presents a fair question as to its voluntariness. In compliance with this procedure, a New York state court, in a prosecution for murder, submitted to the jury, along with the other issues, the question of the voluntariness of a confession, obtained from petitioner while he was hospitalized and after he had been given doses of demerol and scopolamine. Petitioner was convicted and his conviction was affirmed by the New York Court of Appeals, the United States Supreme Court denying certiorari. His petition for habeas corpus was denied in the United States District Court for the Southern District of New York (206 F Supp 759), and the Court of Appeals for the Second Circuit affirmed (309 F 2d 573).
“On certiorari, the United States Supreme Court reversed and remanded the case to the District Court. In an opinion by White, J., expressing the views of five members of the Court, it was held that (1) the New York procedure described above violated the due process clause of the Fourteenth Amendment and that the contrary decision in Stein v New York, 346 US 156, 97 L Ed 1522, 73 S Ct 1077, should be overruled; (2) a jury cannot be assumed to have reliably found a confession voluntary where it also determines its truthfulness; (3) the undisputed evidence in the record did not show the involuntariness of the confession, in view of the state’s evidence that the drugs neither had nor could have had any effect upon petitioner at all; (4) petitioner was entitled to a hearing in the state courts with a view to determining the voluntariness of the confession; (5) petitioner was entitled to a new trial only if the hearing in the state court resulted in a determination that the confession was not voluntary; and (6) the District Court should allow the state a reasonable time to afford petitioner a hearing or a new trial, failing which petitioner was entitled to his release.
“Black, J., with the concurrence of Clark, J., dissented from the holdings of the Court under (1), (2), and (5). Black, J., also dissented from the holding of the Court under (3), expressing the view that the confession was given under circumstances that were inherently coercive.
“Clark, J., dissenting, expressed the view that the constitutionality of the New York procedure was not ripe for decision, but that in any event he joined the dissents of the other Justices.
“Harlan, J., joined by Clark and Stewart, JJ., dissented from the holdings of the Court under (1) and (2).” 12 L.Ed.2d 908-09.
Justice White, writing for a splintered majority, stated:
“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confessions, Rogers v. Richmond, 365 U.S. 534 [5 L.Ed.2d 760, 81 S.Ct. 735 (1961)], and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U.S. 401 [89 L.Ed. 1029, 65 S.Ct. 781 (1945)]; Stroble v. California, 343 U.S. 181 [96 L.Ed. 872, 72 S.Ct. 599 (1952)]; Payne v. Arkansas, 356 U.S. 560 [2 L.Ed.2d 975, 78 S.Ct. 844 (1958)]. Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness . . . .” 378 U.S. at 376-77.'
“Expanded concepts of fairness in obtaining confessions have been accompanied by a correspondingly greater complexity in determining whether an accused’s will has been overborne — facts are frequently disputed, questions of credibility are often crucial, and inferences to be drawn from established facts are often determinative. The overall determination of the voluntariness of a confession has thus become an exceedingly sensitive task, one that requires facing the issue squarely, in illuminating isolation and unbeclouded by other issues and the effect of extraneous but prejudicial evidence. See Wilson v. United States, 162 U.S. 613 [40 L.Ed. 1090, 16 S.Ct. 895 (1896)]; United States v. Carignan, 342 U.S. 36 [96 L.Ed. 48, 72 S.Ct. 97 (1951)]; Smith v. United States, 348 U.S. 147 [99 L.Ed. 192, 75 S.Ct. 194 (1954)]. Where pure factual considerations are an important ingredient, which is true in the usual case, appellate review in this Court is, as a practical matter, an inadequate substitute for a full and reliable determination of the voluntariness issue in the trial court and the trial court’s determination, pro tanto, takes on an increasing finality. The procedures used in the trial court to arrive at its conclusions on the coercion issue progressively take on added significance as the actual measure of the protection afforded a defendant under the Due Process Clause of the Fourteenth Amendment against the use of involuntary confessions. These procedures must, therefore, be fully adequate to insure a reliable and clear-cut determination of the voluntariness of the confession, including the resolution of disputed facts upon which the voluntariness issue may depend.” 378 U.S. at 390-91.
“We turn to consideration of the disposition of this case. Since Jackson has not been given an adequate hearing upon the voluntariness of his confession he must be given one . . . .” 378 U.S. at 391.
“It is both practical and desirable that in cases to be tried hereafter a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence.” 378 U.S. at 395.
All federal courts and the courts of the fifty states of the United States determined Jackson v. Denno required a hearing on the voluntariness of a confession prior to its admission into evidence. Failure to conduct the Jackson v. Denno-type hearing required (1) a new trial, or (2) a remand of the case back to the trial court for a post-trial hearing to determine if the confession was voluntary or involuntary; if involuntary the defendant was entitled to a new trial.
In State v. Milow, 199 Kan. 576, 433 P.2d 538 (1967), following the rationale of Jackson v. Denno, this court stated:
“The accused in a criminal proceeding was charged with burglary in the second degree and larceny, and a purported confession taken on a tape recording was offered in evidence, whereupon the trial court proceeded to hear evidence and decide as a preliminary matter whether the confession was freely and voluntarily made; but the trial court in such collateral proceeding heard only the testimony of the detective who took the statement and denied the accused the right to call another detective as a witness or to testify himself on the voluntariness of the confession. On appeal it is held: Under the present state of the record the admission of such confession into evidence by the trial court, over the accused’s objection, was erroneous in that the trial court failed to consider the totality of the circumstances in making a determination on the voluntariness of the confession.” 199 Kan. 576, Syl. ¶ 2.
“Where a person is on trial for a crime, evidence of a confession of guilt of the crime previously made by such person is in general not admissible unless it appears that the confession was entirely voluntary. If such confession is made while the party is under arrest or charged with a crime, evidence of the confession is not admissible on the trial unless it is made to clearly appear that the party was fully advised of his rights, and that after being so advised, the confession of guilt was freely and voluntarily made under circumstances that afforded no undue influence in procuring the confession. Furthermore, the burden of proof is upon the state to show that any confession of a crime by the accused was freely and voluntarily made before the confession is admissible in evidence. In this connection it is the duty of the trial court, before admitting the confession in evidence, to hear evidence and decide as a preliminary matter whether the confession was freely and voluntarily made without force or coercion. (State v. Seward, 163 Kan. 136, 181 P.2d 478 [on rehearing, 164 Kan. 608, 191 P.2d 743]; and State v. McCarther, 197 Kan. 279, 416 P.2d 290.)
“A situation similar to that in the instant case arose in State v. Seward, supra, where the trial court admitted a writing in evidence which constituted a confession, denying the defendant’s counsel a right to show by witnesses that the offered writing was not a declaration against interest or the confession of the accused. The trial court advised counsel that his offer would be accepted when the defendant was putting on his case. The jury was thereupon called in and the witness permitted to identify the paper, whereupon the trial court overruled the objection and admitted the confession. In substance the trial court refused to consider, before overruling the objection to the confession, all of the evidence as to whether the confession was freely and voluntarily made without force or coercion. The court there reversed a conviction holding, among other things, it was the duty of the trial court, before admitting the confession into evidence, to hear evidence and decide as a preliminary matter whether the confession was freely and voluntarily made without force or coercion.
“In the Seward case an extended discussion was undertaken analyzing cases from other jurisdictions concerning the burden of proof where a confession is offered in evidence, and instructions where a confession has been properly received in evidence. Reference is made to the Seward opinion as apropos to the situation at hand.
“In Andrews v. Hand, 190 Kan. 109, 372 P.2d 559, 371 U.S. 880, 9 L.Ed.2d 117, 83 S.Ct. 152, it was said:
“ ‘Coercion in obtaining a confession from an accused can be mental as well as physical. (Payne v. Arkansas, 356 U.S. 560, 2 L.Ed.2d 975, 78 S.Ct. 844; Spano v. New York, 360 U.S. 315, 3 L.Ed.2d 1265, 79 S.Ct. 1202; Blackburn v. Alabama, 361 U.S. 199, 4 L.Ed.2d 242, 80 S.Ct. 274.) The Fourteenth Amendment forbids “fundamental unfairness in the use of evidence, whether true or false” (Lisenba v. California, 314 U.S. 219, 236, 86 L.Ed. 166, 180, 62 S.Ct. 280), and the range of inquiry as to whether a confession was involuntarily obtained is broad. Whether a confession was freely or involuntarily given is based upon consideration of “the totality of the circumstances” (Fikes v. Alabama, 352 U.S. 191, 197, 1 L.Ed.2d 246, 251, 77 S.Ct. 281), and “where there is a genuine conflict of evidence great reliance must be placed upon the finder of fact.” (Blackburn v. Alabama, supra.) . . .’ (p. 117.)” 199 Kan. at 583-84.
“The points suggested by the record in the instant case were squarely considered by the United States Supreme Court in Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R. 3d 1205. In Andrews v. Hand, supra, the Kansas court in capsule form (heretofore quoted) has recognized the rules upon which the United States Supreme Court elaborated in considerable detail in Jackson v. Denno, supra. It there held the procedure in the state of New York to determine the voluntariness of a confession violated the due process clause of the Fourteenth Amendment to the Federal Constitution.
“Under New York procedure, concerning a determination of the voluntariness of a confession offered by the prosecution, the trial court excludes it if under no circumstances could the confession be deemed voluntary, but leaves to the jury the ultimate determination of its voluntary character, as well as its truthfulness, if the evidence presents a fair question as to its voluntariness. In a prosecution for murder in Jackson v. Denno, supra, a New York state court in compliance with the foregoing procedure submitted to the jury, along with other issues, the question of the voluntariness of a confession obtained from the pétitioner while he was hospitalized and after he had been given doses of demerol and scopolamine. The petitioner was convicted and his conviction affirmed by the New York Court of Appeals, the United States Supreme Court denying certiorari. Later his petition for habeas corpus was denied in the United States District Court for the Southern District of New York (206 F. Supp. 759), and the Court of Appeals for the Second Circuit affirmed (309 F.2d 573).” 199 Kan. at 585-87.
“Certainly, where a trial court is obligated to consider the totality of the circumstances in determining whether a confession is voluntarily given, more is embraced than simply hearing the state’s evidence, or only a part of it, in making such determination. Here the trial court in the collateral proceeding refused to permit counsel for the appellant to call Detective Andrew Taylor, who had interrogated the appellant on occasions prior to the taking of the taped confession, and the trial court also denied the appellant a right to testify, holding that the appellant’s testimony was defensive matter for the jury to hear and determine at the proper time.
“Under Kansas law, after a confession is admitted into evidence as being voluntary, the question of voluntariness is not open for the jury to consider, and a trial court does not err in refusing to give an instruction on the issue of voluntariness. (State v. Robinson, 182 Kan. 505, 322 P.2d 767; and State v. Freeman, 195 Kan. 561, 408 P.2d 612, cert. den. 384 U.S. 1025, 16 L.Ed.2d 1030, 86 S.Ct. 1981.) The trial court has a duty, however, after deciding that a confession has been voluntarily made, and admitted into evidence, to instruct the jury that it should consider the truth or falsity of the confession along with the other evidence in the case (State v. Seward, supra), and evidence bearing upon the credence to be given a confession is admissible. (K.S.A. 60-408.)
“To the extentthat Syllabus ¶ 1 and the corresponding portion of the opinion in State v. Jones, 198 Kan. 30, 422 P.2d 888 (followed in State v. Phinis, 199 Kan. 472, 430 P.2d 251), is inconsistent with the law stated in this opinion, as exemplified in Syllabus ¶ 3, it is disapproved. The statutory law of this state, as construed by our decisions, must yield when it is not in harmony with rights guaranteed to our citizens by the Fourteenth Amendment to the Federal Constitution as interpreted by the United States Supreme Court. (See, K.S.A. 60-408.)
“We turn now to a consideration of the disposition of this case. Since the appellant has not been given an adequate hearing upon the voluntariness of his confession, he must be given one.
“This is not a case where the facts concerning the circumstances surrounding the confession are undisputed, and the task is only to judge the voluntariness of the confession based upon the clearly established facts in accordance with proper constitutional standards. Here there are substantial facts in dispute. Whether the appellant is entitled to relief depends upon how these facts are resolved, for if the witnesses for the state are to be believed we cannot say the appellant’s confession was involuntary, whereas if the appellant’s version of the facts is accepted the confession was involuntary and inadmissible.
“At this point the appellant has not yet had an adequate evidentiary hearing productive of reliable results, to which he is constitutionally entitled, concerning the voluntariness of his confession. It does not follow, however, that he is automatically entitled to a complete new trial including a retrial on the issue of guilt or innocence. His position before the trial court, and here, is that the issue on the admissibility of his confession should not have been decided by the trial court summarily, or by the convicting jury, but should have been determined in a proceeding separate and apart from the jury which determined his guilt or innocence. He is entitled to such a hearing in the trial court, but if at the conclusion of such a collateral evidentiary hearing on the issue of coercion, it is determined the appellant’s confession was voluntarily given, admissible in evidence, and proper for the jury to consider, a new trial is unnecessary, because the appellant has already been tried by a jury with the confession placed before it and has been found guilty. Under these circumstances, if the conviction rested upon the confession there is no constitutional prejudice to the appellant. If the jury relied upon it, it was entitled to do so. On the other hand, if the trial court at a properly conducted collateral proceeding determines the facts upon all the evidence, and decides the appellant’s confession was involuntary, there must be a new trial on the issue of guilt or innocence without admission of the confession into evidence. (See Jackson v. Denno, supra.)” 199 Kan. at 589-90.
Milow was followed in Baker v. State, 204 Kan. 607, 464 P.2d 212 (1970). The Court of Appeals of Kansas in State v. Shuck ahosee, 2 Kan. App. 2d 717, 587 P.2d 923 (1978), restated the understood requirements of Jackson v. Denno.
June 23, 1977, the United States Supreme Court handed down its decision in Wainwright v. Sykes, 433 U.S. 72, 53 L.Ed.2d 594, 97 S.Ct. 2497 (1977). John Sykes was tried for third-degree murder in a Florida court. During the trial an oral statement previously made by Sykes to police officers, admitting that he had shot the deceased from the front porch of his trailer home, was admitted into evidence through the testimony of two officers who had heard it. At no time during the trial were any of Sykes’ statements challenged by his counsel on the ground that Sykes had not understood the Miranda warnings given to him by the police, nor did the trial judge on his own motion question their admissibility or hold a Jackson v. Denno hearing on that issue. The issue was not raised on appeal. Respondent subsequently filed in the trial court a motion to vacate his conviction, and filed petitions for habeas corpus in the state appellate courts, apparently for the first time challenging the voluntariness of his statements. Failing in the Florida court, Sykes initiated an action in the United States District Court under 28 U.S.C. § 2254, asserting the inadmissibility of his statements by reason of his lack of understanding of the Miranda warnings. That court ruled that Jackson v. Denno (1964), required a hearing in a state criminal trial prior to the admissions of an inculpatory out-of-court statement, and Sykes had not lost his right to assert such a claim by failing to object at trial or on direct appeal. The State of Florida appealed the decision to the United States Court of Appeals for the Fifth Circuit, which'upheld the.United States District Court requiring a hearing on the issue of voluntariness despite the Florida Rule of Criminal Procedure “contemporaneous objection” rule which barred a subsequent review of objections or claims not raised before the time of the original trial.
The United States Supreme Court reversed, holding:
“Respondent also urges that a defendant has a right under Jackson v. Denno, 378 U.S. 368 [12 L.Ed.2d 908, 84 S.Ct. 1774, 1 A.L.R. 3d 1205] (1964), to a hearing as to the voluntariness of a confession, even though the defendant does not object to its admission. But we do not read Jackson as creating any such requirement. In that case the defendant’s objection to the use of his confession was brought to the attention of the trial court, id.., at 374, and n. 4, and nothing in the Court’s opinion suggests that a hearing would have been required even if it had not bee,n. To the contrary, the Court prefaced its entire discussion of the merits of the case with a statement of the constitutional rule that was to prove dispositive — that a defendant has a ‘right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness.....’ Id,., at 376-377 (emphasis added). Language in subsequent decisions of this Court has reaffirmed the view that the Constitution does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession.
“We therefore conclude that Florida procedure did, consistently with the United States Constitution, require that respondent’s confession be challenged at trial or not at all, and thus his failure to timely object to its admission amounted to an independent and adequate state procedural ground which would have prevented direct review here.” Wainwright v. Sykes, 433 U.S. at 86-87.
A defendant is entitled to a hearing out of the presence of the jury for the purpose of determining the issue of voluntariness. This determination should be made without regard to the truth or falsity of the confession. Under the Kansas law there are two methods for determining the voluntariness of a confession: (1) K.S.A. 22-3215, motion to suppress confession or admission, or (2) a Jackson v. Denno-type hearing. Either method of testing the voluntariness of a confession is sufficient. A defendant is entitled to have his confession tested by one or the other but not both. When a confession is challenged, then the prosecution has the burden of proving the confession is admissible by a preponderance of the evidence. It is incumbent upon the defendant to request a hearing to test the voluntariness of a confession.
A defendant during a trial has the right to object to the introduction of any confession or admission on the issue of voluntariness. If there has been a prior determination under K.S.A. 22-3215 or a Jackson v. Denno-type hearing on the same facts and issues and the confession or admission has been determined voluntary, there is no requirement that the hearing be repeated. Where there has been no hearing prior to trial on the voluntariness of a confession then the court, outside the presence of the jury at the time of trial, determines if the confession or admission is voluntary.
Kansas has a “contemporaneous objection” rule similar to Florida. K.S.A. 22-3417 provides:
“Formal exceptions to rulings or orders of the court are unnecessary. It is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor; and, if a party has no opportunity to object to a ruling or order at the time it is made, the absence of an objection does not thereafter prejudice him.”
One attempting to exclude evidence, whether by objection or motion, has a duty to indicate the specific grounds so as to alert the court as to the question raised. Absent some objection or motion by the defendant to the admission of his confession or admission, the United States Constitution does not require a hearing on the voluntariness to be held prior to its admission into evidence.
We therefore conclude that Kansas procedure does, consistent with the United States Constitution, require that appellant’s confession be challenged prior to or during the trial or not at all. The appellant’s failure to request a hearing or timely object to the admission of his confession waives his right to raise that issue for the first time on appeal unless the opportunity to object did not exist. We, therefore, depart from our prior requirement, distinguish State v. Milow, 199 Kan. 576, 433 P.2d 538 (1967), and overrule State v. Shuckahosee, 2 Kan. App. 2d 717, 587 P.2d 923 (1978), and the cases that follow its holding.
Defendant finally contends that to enhance the penalty, as provided in K.S.A. 65-4127a, any prior violation must be a violation contained within the Kansas version of the Uniform Controlled Substances Act.
Count 1 of the complaint filed by the State stated the charge:
“That on or about the 24th day of October, 1981, the said Wiley James Miles, within the above and within named County and State, then and there being, did then and there contrary to the statutes of the State of Kansas unlawfully, feloniously and willfully possess or have under his control an opium derivative, to-wit: heroin, other than as authorized in the Kansas Controlled Substances Act or K.S.A. 65-4105 (c) (10), defendant having been convicted of possession of heroin previously. Contrary to K.S.A. 65-4127 (a) [sic 65-4127a]. Class B Felony. Penalty Sections: K.S.A. 21-4501 (b) and K.S.A. 21-4503 (1) (a).”
The complaint filed against the defendant advised of the specific offense with which he was charged (illegal possession or control of heroin), the seriousness thereof (a felony), and the penalty (Class B felony), because of the defendant’s prior conviction for sale of heroin. Defendant’s prior conviction for sale of heroin in October, 1972, occurred in the State of Iowa.
Defendant reasons that his conviction for possession of heroin under the Kansas Uniform Controlled Sübstances Act is not a second or subsequent offense since the Iowa conviction was not a violation of the Kansas Act, Defendant claimed only a prior conviction of the present Kansas Act can be used to en hance the sentence set forth in K.S.A. 65-4127a for the present conviction.
The primary purpose of a uniform state law is to provide, as far as possible, uniform laws on the subject involved that would be common to all the states adopting the uniform law. Uniform laws are intended to secure not only identity of statute, but also uniformity of decision.
Kansas adopted the Uniform Controlled Substances Act July 1, 1972, replacing the Uniform Narcotic Drug Act, which had been enacted in 1957. The purpose of the Uniform Controlled Substances Act, 9 U.L.A. 197 (1979), is to regulate drug traffic. The Commissioners on Uniform State Laws explained:
“The Uniform Controlled Substances Act is designed to supplant the Uniform Narcotic Drug Act, adopted by the National Conference of Commissioners on Uniform States Laws in 1933, and the Model State Drug Abuse Control Act, relating to depressant, stimulant, and hallucinogenic drugs, promulgated in 1966. With the enactment of the new Federal narcotic and dangerous drug law, the ‘Comprehensive Drug Abuse Prevention and Control Act of 1970’ (Public Law 91-513, short title ‘Controlled Substances Act’ [21 U.S.C.A. § 801 et seq.]), it is necessary that the States update and revise their narcotic, marihuana, and dangerous drug laws.
“This Uniform Act was drafted to achieve uniformity between the laws of the several States and those of the Federal government. It has been designed to complement the new Federal narcotic and dangerous drug legislation and provide an interlocking trellis of Federal and State law to enable government at all levels to control more effectively the drug abuse problem.
“The exploding drug abuse problem in the past ten years has reached epidemic proportions. No longer is the problem confined to a few major cities or to a particular economic group. Today it encompasses almost every nationality, race, and economic level. It has moved from the major urban areas into the suburban and even rural communities, and has manifested itself in every State in the Union.
“Much of this major increase in drug use and abuse is attributable to the increased mobility of our citizens and their affluence. As modern American society becomes increasingly mobile, drugs clandestinely manufactured or illegally diverted from legitimate channels in one part of a State are easily transported for sale to another part of that State or even to another State. Nowhere is this mobility manifested with greater impact than in the legitimate pharmaceutical industry. The lines of distribution of the products of this major national industry cross in and out of a State innumerable times during the manufacturing or distribution processes. To assure the continued free movement of controlled substances between States, while at the same time securing such States against drug diversion from legitimate sources, it becomes critical to approach not only the control of illicit and legitimate traffic in these substances at the national and international levels, but also to approach this problem at the State and local level on a uniform basis.” 9 U.L.A. at 188. State v. Flinchpaugh, 232 Kan. 831, 836, 659 P.2d 208 (1983).
Our legislature, recognizing the increasing drug problem that has been and is affecting our society, included a method of increasing the penalty for habitual violators of the Kansas Uniform Controlled Substances Act. K.S.A. 65-4127a provides:
“Except as authorized by the uniform controlled substances act, it shall be unlawful for any person to manufacture, possess, have under his control, possess with intent to sell, sell, prescribe, administer, deliver, distribute, dispense or compound any opiates, opium or narcotic drugs. Any person who violates this section shall be guilty of a class C felony, except that, upon conviction for the second offense, such person shall be guilty of a class B felony, and upon conviction for a third or subsequent offense, such person shall be guilty of a class A felony, and the punishment shall be life imprisonment.”
The propriety of inflicting severer punishment on second or subsequent offenders has been long recognized in this state. The offenders are not punished the second time for the earlier offense, but the repetition of criminal conduct aggravates their guilt and justifies increased penalties when they are convicted. The Kansas Supreme Court has recognized the validity of a habitual criminal act, State v. Collins, 215 Kan. 789, 528 P.2d 1221 (1974); that such an act does not violate due process or equal protection, State v. Sully, 219 Kan. 222, 547 P.2d 344 (1976); and is constitutional, State v. Levier, 226 Kan. 461, 601 P.2d 1116 (1979). Prior convictions can be limited to those which were committed in the sentencing state or may include prior convictions of other jurisdictions. The applicability of convictions obtained in other jurisdictions for enhancement purposes may be made conditional, requiring that the previous offense be of the same class, a felony or misdemeanor.
Our legislature intended that prior drug convictions within this state and drug convictions of other jurisdictions may be used to increase an offender’s punishment for sentencing purposes under K.S.A. 65-4127a if, (1) the prior conviction was for an offense of the character specified in the Kansas Uniform Controlled Substances Act, and (2) the prior conviction was of the same class, a felony. A prior conviction for a misdemeanor theft would not be of the same character (a drug offense) or class (a felony), and therefore could not be used to enhance the penalty for a violation of the Uniform Controlled Substances Act.
The defendant’s prior conviction, for sale of heroin in Iowa, was a violation of the same character under our law and the penalty, a felony, was of the same class. The State’s use of the prior Iowa conviction to enhance the sentence for the Kansas violation was proper.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This case arose out of a building construction contract between Unified School District No. 210, Hugoton, Kansas, as owner, and Johns Construction Company, Inc., as contractor. A dispute arose as to whether the contractor was entitled to extra compensation because of change orders. The owner claimed offsets for defects and delays in completion of the job. The construction contract specifically provided that all disputes arising under the contract should be decided by arbitration “in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining unless the parties mutually agree otherwise.” In accordance with the agreement, the controversy was submitted to a panel of three arbitrators which determined the claims between the parties. The arbitrators found some items of dispute in favor of the contractor and other items in favor of the school district. The contractor filed a motion in the district court of Stevens County to confirm the award pursuant to K.S.A. 5-411. The school board moved to vacate the award pursuant to K.S.A. 5-412(a)(l), (2), (3), and (4). The district court confirmed the award. The school district has appealed.
The scope of review of a district court in a proceeding to confirm an arbitration award is governed by the Uniform Arbitration Act, K.S.A. 5-401 et seq., as interpreted in Foley Co. v. Grindsted Products, Inc., 233 Kan. 339, 662 P.2d 1254 (1983), and Evans Electrical Constr. Co. v. University of Kansas Med. Center, 230 Kan. 298, 634 P.2d 1079 (1981). In Evans Electrical Constr. Co., we stated:
“Where parties have agreed to be bound by a submission to arbitration, errors of law and fact, or an erroneous decision of matters submitted to the judgment of the arbitrators, are insufficient to invalidate an award fairly and honestly made. Nothing in an award relative to the merits of the controversy as submitted, even though incorrectly decided, is ground for setting aside the award in the absence of fraud, misconduct, or other valid objections.” Syl. ¶ 5.
The first point raised by the school district on the appeal is that the closing of the hearing to the public by the arbitrators violated the Kansas Open Meetings Act, (K.S.A. 75-4317 et seq.), which provides in K.S.A. 1982 Supp. 75-4318 in part as follows:
“(a) Except as otherwise provided by state or federal law or by rules of the house or senate, and except with respect to any impeachment inquiry or other impeachment matter referred to any committee of the house of representatives prior to the report of such committee to the full house of representatives, all meetings for the conduct of the affairs of, and the transaction of business by, all legislative and administrative bodies and agencies of the state and political and taxing subdivisions thereof, including boards, commissions, authorities, councils, committees, subcommittees and other subordinate groups thereof, receiving or expending and supported in whole or in part by public funds shall be open to the public and no binding action by such bodies shall be by secret ballot, but any administrative body that is authorized by law to exercise quasi-judicial functions shall not be required to have open meetings when such body is deliberating matters relating to a decision involving such quasi-judicial functions.”
The issue squarely presented is whether the Kansas Open Meetings Act applies to proceedings before an arbitration board which is holding a hearing on a dispute arising out of a contract for the construction of a school building. We have no hesitation in holding that it does not. The Kansas Open Meetings Act, by the express language of K.S.A. 1982 Supp. 75-4318(a), applies only to agencies of the state and political and taxing subdivisions thereof, receiving or expending and supported in whole or in part by public funds. The arbitration board in this case was created by a contract entered into between the school district and a private contractor. The arbitration board was not a public agency as contemplated by the statute, and, hence, was not subject to the provisions of the Kansas Open Meetings Act.
The school board’s next point is that they were denied a fair hearing because the arbitrators excluded all witnesses from the hearing, including the board’s architect in charge of the construction project and its construction manager. The school district maintains that in closing the hearing and applying the exclusion rule, the arbitrators denied the school board and its architect and construction manager due process of law. We find no merit to this contention. By the express terms of the construction contract, the arbitration hearings were to be conducted in accordance with the Construction Industry Arbitration Rules in effect at the time the construction contract was entered into. At that time, Section 25 of the Construction Industry Arbitration Rules provided:
“Section 25. ATTENDANCE AT HEARINGS — Persons having a direct interest in the arbitration are entitled to attend hearings. The arbitrator shall otherwise have the power to require the retirement of any witness or witnesses during the testimony of other witnesses. It shall be discretionary with the arbitrator to determine the propriety of the attendance of any other persons.”
Under this section, the arbitrators had the discretionary power to determine the propriety of the attendance of witnesses during the testimony of other witnesses and the school district has no right to complain. A similar discretion is vested in trial courts to exclude witnesses from the courtroom during the taking of testimony of other witnesses. Unless an abuse of discretion is shown, a decision will not be reversed on that ground. Here we find nothing in the record to show an abuse of discretion by the arbitrators.
The school board claims, however, that the arbitrators excluded the school board’s expert witness, a licensed architect from Texas, who was employed to aid and assist the school board and also to testify as an expert witness in the case. It should be noted that in this case the arbitrators excluded all witnesses, whether those of the school board or those of the contractor. The same rule of exclusion was applied to the witnesses of both parties. Under the circumstances, we cannot say that there was any fraud, misconduct, or improper action on the part of the arbitrators which denied the school board a fair hearing or due process of law.
The school board’s final point is that the contractor used misleading or perjured testimony, because one of its witnesses had previously been convicted of a felony in Seward County, Kansas, and also in the State of Texas. These convictions were brought to the attention of the arbitrators during the course of the hearing for the purpose of impeaching that witness’s testimony. The witness in question was construction foreman for the contractor. From the record, it appears that the questions propounded to the witness were ambiguous and do not support the contention that the witness committed perjury. Furthermore, since the witness appeared before the arbitrators at the hearing and they were advised of the prior convictions and had a full opportunity to weigh his testimony and determine his credibility, we find no basis for complaint by the school board.
We have considered all of the points raised by the school board on the appeal. We find that the record supports the district court’s judgment and that there was no fraud or arbitrary action or denial of a fair hearing to the school board by the arbitrators. We hold that the district court properly confirmed the arbitration award.
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The opinion of the court was delivered by
Miller, J.:
The defendant, Harold Jones, appeals following his conviction by a jury in Sedgwick District Court of aggravated burglary, K.S.A. 21-3716; two counts of rape, K.S.A. 21-3502; and one count of aggravated sodomy, K.S.A. 21-3506. He raises five issues, four dealing with the admission of evidence and one with jury instructions. Briefly stated, the evidence was that the defendant forced his way into an apartment occupied by two young women. At knifepoint, he raped each of them several times over a period of several hours, caused one of them to commit sodomy upon him, threatened their lives, subjected them to appalling indignities, and finally left, telling them that he was going to kill “Harold Jones,” a homosexual who lived in apartment No. 208. The police were called, and went to apartment No. 208, where they found the defendant as the sole occupant. Both young women, separately, identified defendant as the criminal. A search of apartment No. 208, pursuant to a search warrant, produced clothing matching that which defendant was said to have worn, and a knife matching the description of that used by the assailant. Also discovered in plain view was a green bathrobe tie, matching the robe of one of the victims; the robe tie was not listed on the warrant but was seized and was later offered and received in evidence. The defense was alibi.
Defendant contends that the admission into evidence of expert testimony of a police laboratory investigator was error because the witness did not have sufficient education or background to justify the opinion expressed. The qualifications of expert witnesses and the admissibility of expert testimony are matters which lie within the sound discretion of the trial court; its ruling thereon will not be disturbed on appeal unless the appellate court finds an abuse of discretion. State v. Churchill, 231 Kan. 408, 413, 646 P.2d 1049 (1982). We have reviewed the record, and find that the trial court did not abuse its discretion in admitting the testimony.
The trial court admitted exhibit No. 11, the rape kit performed on one of the young women, over defendant’s objection; defendant contends that this was error because there was no showing that the kit had not been materially altered, and because the chain of custody was incomplete. Dr. Osio took the samples which comprised the rape kit; one officer testified that Dr. Osio turned the rape kit over to him and Officer Corriston; the latter testified that he placed the kit in the police lab; the lab examiner testified that exhibit No. 11, which he examined, was received from Officer Corriston. The chain of custody was substantially complete. The test for a proper chain of custody has been characterized as a “reasonable certainty” that no material alterations have occurred. The proof to be offered is that the object has not been improperly tampered with or altered. See State v. Diaz & Altemay, 232 Kan. 307, Syl. ¶ 6, 654 P.2d 425 (1982); and the extensive discussion in State v. McGhee, 226 Kan. 698, 702-03, 602 P.2d 1339 (1979). Here there was no hint or evidence of any kind that the samples had been “materially” or “improperly” altered in any way. We find no error.
Defendant argues that his cross-examination of one of the victims was unduly limited. The witness had been receiving psychiatric treatment, and counsel was permitted to inquire about the nature of that treatment and about'the type of medication she had been taking for a reasonable period of time prior to the occurrence. When counsel attempted to examine the witness as to much earlier treatment and medication, the trial court ruled that the information sought was not relevant to her ability to perceive events on the night of the crime. The scope of cross-examination is a matter within the sound discretion of the trial court and, absent a showing of clear abuse, the exercise of that discretion will not constitute prejudicial error. State v. Carr, 230 Kan. 322, 325-26, 634 P.2d 1104 (1981). There is no showing here that the trial court abused its discretion.
Defendant moved to suppress the green bathrobe tie, but the trial court overruled the objection and admitted it into evidence. Defendant now contends that the admission of that exhibit into evidence was error because the robe tie was not named in the warrant authorizing the search. The officer who conducted the search under the warrant testified that as he was searching the apartment he noticed the green cord in an open paper sack standing in the kitchen. He noted that the color and material matched one of the victims’ bathrobes, which he had previously taken into custody, and he recalled that the robe did not have a tie cord.
In State v. Galloway, 232 Kan. 87, 652 P.2d 673 (1982), we stated the three requirements of Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971), as follows:
“[W]e conclude the plain view exception to the 4th Amendment ... is applicable only where it is shown: 1) The initial intrusion which afforded the authorities the plain view was lawful by virtue of a warrant (search or arrest), waiver or exigent circumstances; 2) the discovery of the evidence was inadvertent; and 3) the authorities immediately had reasonable or probable cause to believe the evidence observed in plain view was incriminating in nature.” 232 Kan. at 93-94.
Applying this test to the evidence before us, it is eminently clear that the requirements of the test were met and that the trial court did not err in receiving the green robe tie into evidence.
Defendant requested an instruction on sodomy as a lesser included offense of aggravated sodomy. The victims testified that they were threatened throughout by the defendant, who was armed with a large butcher knife; the defense was alibi. The defendant was either guilty of aggravated sodomy or he was not guilty. There was no evidence to support an instruction on or a conviction of sodomy.
Defendant now contends that the trial court’s instruction on intent was error. No objection was lodged to that instruction at trial and since the instruction was not clearly erroneous, defendant may not now claim error. See K.S.A. 22-3414(3), and State v. Moore, 230 Kan. 495, 498, 639 P.2d 458 (1982).
Finally, defendant complains of the trial court’s instruction defining sexual intercourse. The instruction as given referred to the “female organ” rather than the “female sex organ.” This was error. See K.S.A. 21-3501(1). Jury instructions, however, are to be considered together and read as a whole, without isolating any one instruction. See State v. Childers, 222 Kan. 32, 38, 563 P.2d 999 (1977), and State v. Griffin, 221 Kan. 83, 558 P.2d 90 (1976). If the instructions properly and fairly state the law as applied to the facts in the case and if the jury could not reasonably be misled by them, then the instructions, though in some small way erroneous, do not constitute reversible error. In this case the jury was fully instructed on all facets of the crimes charged, including an instruction about oral sodomy, which was one of the offenses charged. There was much explicit evidence that the defendant had repeated sexual intercourse with both victims. Viewing the record and the jury instructions as a whole, we find that the instructions fairly and fully state the law as applicable to the case, and we see nothing in the record to indicate that the instructions confused or misled the jury. We therefore find no prejudicial error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.;
This is an appeal by plaintiff, Ellis J. Garrison, from summary judgment entered by the district court based on the statute of limitations. The judgment of the district court was affirmed by the Court of Appeals in Garrison v. Vu, 8 Kan. App. 2d 189, 653 P.2d 824 (1982). The case is before this court upon petition for review.
The issues and facts are set forth in the Court of Appeals’ opinion as follows:
“Plaintiff raises the following issues on appeal: (1) Whether the trial court erred in finding the statute of limitations was not tolled by the operation of K.S.A. 60-517; (2) whether the trial court erred by failing to find that the action was commenced, for statute of limitations purposes, by the filing of defendant’s answer within the statutory period; and (3) whether the trial court erred by failing to find the defendant should be estopped from raising the statute of limitations as a bar to the plaintiff s cause of action.
“On September 1, 1977, a collision occurred between a vehicle operated by defendant and a bicycle operated by plaintiff in Overland Park. Plaintiff filed his petition against defendant on June 26, 1979, alleging personal injury and property damage resulting from defendant’s negligent operation of the car. The petition alleged defendant to be a Kansas resident, residing at 8348 England in Overland Park, and service of summons upon defendant at that address was requested. The summons was returned on June 28, 1979, without personal service and noted that defendant ‘no longer lives at address given, whereabouts unknown.’
“On July 10,1979, plaintiff requested issuance of an alias summons for service on defendant at 7303 Walmer, Overland Park, Kansas. The Johnson County sheriff filed a return on service of summons on July 13, 1979, reflecting residential service on July 11, 1979, ‘by leaving with Minh Ng Uyen, nephew, and a person of suitable age and discretion.’ It was later established that defendant had moved to 3006 Teakwood, Garland, Texas, and had resided at that address since September of 1978. It was further established as an uncontroverted fact that defendant never lived at 7303 Walmer and did not know Minh Ng Uyen.
“On August 9, 1979, defendant filed an answer admitting plaintiff s allegation that defendant is a resident of the State of Kansas, County of Johnson, residing at 8348 England, Overland Park, Kansas. It is important to note that he did not admit residency at the address on Walmer where service was purportedly obtained. In addition, his answer set forth the affirmative defenses of failure to state a claim upon which relief can be granted, insufficient service of process, improper process, and the running of the statute of limitations.
“The parties subsequently proceeded with discovery and on March 25, 1981, a pretrial conference was held. The trial court noted in its pretrial order that the jurisdiction of the court and whether there was proper and sufficient service of process on the defendant was still at issue.
“On April 13, 1981, defendant filed a motion for summary judgment, based on lack of personal service and the subsequent running of the statute of limitations. Upon receiving defendant’s motion, plaintiff immediately requested new service upon defendant in Texas and personal service was obtained.
“On May 21, 1981, the trial court heard arguments on defendant’s motion for summary judgment and denied it. On June 30, 1981, however, the trial court reconsidered its oral ruling and set it aside, thereby entering summary judgment in favor of defendant. Plaintiff appeals.” 8 Kan. App. 2d at 189-90.
Plaintiff first contends the trial court erred in finding the statute of limitations was not tolled by the operation of K.S.A. 60-517. That statute provides:
“If when a cause of action accrues against a person he or she be out of the state, or has absconded or concealed himself or herself, the period limited for the commencement of the action shall not begin to run until such person comes into the state, or while he or she is so absconded or concealed, and if after the cause of action accrues he or she depart from the state, or abscond or conceal himself or herself, the time of the absence or concealment shall not be computed as any part of the period within which the action must be brought. This section shall not apply to extend the period of limitation as to any defendant whose where abouts are known and upon whom service of summons can be effected under the provisions of article 3 of this chapter.” (Emphasis supplied.)
The trial court held the two-year statute of limitations (K.S.A. 60-513) was not tolled by defendant’s departure from the state by virtue of the availability of substituted service pursuant to K.S.A. 8-401 and -402. The Court of Appeals agreed with this rationale. Both courts relied on Carter v. Kretschmer, 2 Kan. App. 2d 271, 577 P.2d 1211, rev. denied 225 Kan. 843 (1978). The holding of Carter is summarized in its Syllabus ¶ 2 as follows:
“In an action arising from an automobile accident in which the defendant subsequently left this state, it is held: Where substituted service was available, the defendant was not beyond the reach of process from our courts; therefore, the tolling provisions of K.S.A. 60-517 did not operate to suspend the time for filing a new action under K.S.A. 60-518. Accordingly, it was proper for the trial court to dismiss the plaintiffs action on the ground it was barred by the statute of limitations.”
The question then becomes whether substituted service pursuant to K.S.A. 8-401 and -402 could have been effected. The Court of Appeals held such substituted service was available and hence K.S.A. 60-517 did not operate to toll the running of the statute of limitations. We do not agree.
K.S.A. 8-401 provides:
“(1) ‘Nonresident’ or ‘nonresident person’ shall mean: (A) A person who is a nonresident of this state; (B) a person who is a resident of this state and who departs from this state subsequent to the accident or collision from which the action or proceeding against such person or a representative of such person arose and remains absent from this state for thirty (30) days continuously, whether such absence is intended to be temporary or permanent; (C) a person who at the time of the accident or collision from which the action or proceeding arose was a resident of this state but who has subsequently thereto become a nonresident of this state;
“(2) ‘representative’ shall have the meaning respectively ascribed to it in subsection (1) of K.S.A. 59-102.
“(b) The acceptance by a nonresident person of the rights and privileges conferred by existing laws to operate motor vehicles on the public highways of the state of Kansas, or the operation by a nonresident person, or an authorized chauffeur of such nonresident, or agent, of a motor vehicle on the said highways, other than under said laws, shall be deemed equivalent to an appointment by such nonresident of the secretary of state of the state of Kansas, or the secretary’s successor in office, to be such nonresident’s true and lawful agent, upon whom may be served all lawful process in any action or proceeding against said nonresident or a representative of said nonresident growing out of any accident or collision in which said motor vehicle may be involved, while same is operated in the state of Kansas by said nonresident, or by an authorized chauffeur of said nonresident or agent; and said acceptance or operation of said vehicle shall be a signification of agreement that any such process which is so served on the secretary of state shall be of the same legal force and validity as if served upon said nonresident or a representative of said nonresident personally within the state.” (Emphasis supplied.)
K.S.A. 8-402 provides:
“8-402. Procedure in procuring service pursuant to 8-401. The manner of procuring and serving process in any cause, brought pursuant to the preceding section, shall be as follows, to wit: The plaintiff shall file a verified petition in the district court in the county where the cause of action arose or the plaintiff resides, showing a cause of action against the defendant of the class contemplated in K.S.A. 8-401, and shall further show in said petition, or by affidavit, to the satisfaction of the judge of said court, that the defendant is one of the persons contemplated in said K.S.A. 8-401, and the residence of said defendant, and a description of the car or motor vehicle claimed to have been operated by the said defendant or an agent of the defendant, as near as the same can reasonably be ascertained by the plaintiff; and the time, place and nature of such accident, or injury. Upon such showing being made, the judge shall make an order, directing that service of process be made on the defendant as provided in said K.S.A. 8-401; and also, that a copy of the process, and petition, and of said order, and a notice that the same have been served upon the secretary of state, pursuant to this act, be delivered to the defendant by registered mail or personally without the state by a sheriff or deputy sheriff in such state. Proof of such service shall be made by affidavit filed in said cause by the person making said service, and service shall be deemed complete thirty (30) days from the date the affidavit is filed by the person making the service stating that such personal service has been made on the defendant and giving the date thereof. The court in which the action is pending shall, upon affidavit submitted upon behalf of the defendant, grant such additional time to answer, or continuances, as shall be reasonably necessary to allow defendant full opportunity to plead and prepare for the trial of the said cause.” (Emphasis supplied.)
Pursuant to the express language of K.S.A. 8-402 “service shall be deemed complete thirty (30) days from the date the affidavit is filed . . . stating that such personal service has been made on the defendant . . . .”
The cause of action arose on September 1, 1977. The case was filed on June 26,1979. On August 9,1979, an answer was filed on defendant Vu’s behalf admitting he was “a Kansas resident.” Subsequently it was established Vu had actually been a Texas resident since September 1978. Defendant’s true whereabouts were unknown to plaintiff until April 1981. Vu’s own counsel did not learn where Vu was living until 1981 when he requested an insurance investigator to locate his client. Upon being advised of Vu’s Texas address, plaintiff promptly secured personal service upon him. Plaintiff has exhibited no lack of diligence herein relative to learning Vu’s Texas address and acted with due dispatch to secure personal service upon learning the true facts.
We therefore conclude:
1. Defendant’s whereabouts, within the meaning of K.S.A. 60-517 were not known to plaintiff until April 1981;
2. Substituted service upon defendant pursuant to K.S.A. 8-401 and -402 could not have been completed prior to April 1981 when defendant’s residence was ascertained, and hence substituted service could not have been effected within the meaning of K.S.A. 60-517 prior thereto;
3. The exception to the statute of limitations tolling provisions set forth in K.S.A. 60-517 is therefore inapplicable herein;
4. The statute of limitations was tolled between September 1978 and April 1981; and
5. Personal service was had upon the defendant within the applicable two-year statute of limitations.
By virtue of the result reached on this issue, the other issues raised need not be addressed.
The judgment of the district court and Court of Appeals are reversed and the action is remanded to the district court for further proceedings. | [
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The opinion of the court was delivered by
Porter, J.:
The main contention is that the negligence of which the jury found the defendant guilty is not alleged in the petition nor within the issues defined by the court in its instructions to the jury; and it is claimed that the court should have set aside the general verdict and rendered a judgment in favor of defendant on the findings, or at least should have granted a new trial.
There is force in the claim that the particular negligence found by the jury is not included in the three claims of negligence specified by the court in that portion of the instructions first quoted, supra. The first claim of negligence the court properly took from the jury because there was no evidence showing that the cover was out of repair or that it was worn or rotten. By their findings the jury eliminated the second specification — that the defendant had negligently failed to place a railing around the conveyor; and it may be said that the evidence would not have warranted a finding that the defendant was negligent in this respect. Nor is the negligence found by the jury in- eluded within the third specification — that the defendant failed to inspect the cover and keep it in repair and free from defects. The evidence showed that it was not out of repair, that the boards were sound, and if there had been an inspection for possible defects it would not have prevented the cover from being out of place.
The law is well settled that in actions of this kind the plaintiff must recover upon grounds of negligence alleged in his petition. (Brown v. Railway Company, 59 Kan. 70; Newby v. Myers, 44 Kan. 477; Telle v. Rapid Transit Rly. Co., 50 Kan. 455; S. K. Rly. Co. v. Griffith, 54 Kan. 428.) The principal claim of plaintiff at the trial was that the cover was worn and rotten and gave way when he stepped upon it; and while the petition did allege the failure to provide hooks or catches to keep the cover in place, so little attention was paid to this claim on the trial that the court overlooked it in the brief summary of the negligence which the jury should consider, and counsel for the plaintiff did not regard its omission of sufficient importance to challenge the court’s attention thereto. If the issue had been submitted and the jury had found that the cover slipped when the plaintiff stepped upon it, and that the negligence which was the proximate cause of the injury consisted in the failure to provide some appliance to keep the cover in. place, the judgment ought to be affirmed. It is argued that the general finding in the plaintiff’s favor and the special findings that the cover was not in place and had not been removed by some of the fellow servants of the plaintiff while he was at work should be so construed, but this requires a more liberal construction of the special findings than we feel warranted in making, in view of the pleadings and instructions. It requires us to lose sight of the particular claim of negligence which defendant was called upon to meet. It is not alleged in the petition that the cover was out of place or that it slipped from its place when the plaintiff stepped upon it.
We think the case was improperly tried, and. the judgment is therefore reversed and a new trial ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This action was brought by the appellee to set aside a deed executed and delivered by him to the appellants, W. E. Hopkins and W. C. Pearce. At the time of the execution of the instrument the appellee had been arrested, and, for want of bond, had been committed to jail to await a preliminary examination on the charge of arson. In his petition he alleged that he employed the appellants as his attorneys to defend him in the action and secure his release in any of the courts in which it was necessary to prosecute and defend the case; that he executed and delivered to them a deed to two quarter sections of land to secure the payment of the reasonable charges of such attorneys for their services, not exceeding $500; that on a preliminary examination before a justice of the peace at Garden City he was discharged; that the service rendered by the appellants would have been reasonably worth $25, if the same had been rendered in good faith; that he had at various times tendered the appellants $25 for such service, and demanded a reconveyance of the property, which the appellants refused; also, that the appellants, by reason of their unfaithfulness, gross negligence, misconduct and want of skill in the performance of their duties as attorneys, forfeited their right to any compensation, and that he should not be required to account to them for any sum whatever.
In their answer the appellants alleged, in substance, that the deed was given as a mortgage to secure the payment of $500 justly due from the appellee to them, which sum the appellee agreed to pay them for defending him in the action to the final determination of the charge; that the appellee had paid no part of that sum; and that the entire amount, with interest, was due. The appellants, also, as a part of their answer, filed a cross-petition asking the foreclosure of the instrument as a mortgage, and prayed for judgment in the sum of $500 and interest, and for the foreclosure of the mortgage and sale of the property to pay the indebtedness. Trial was had to a jury, before the Honorable Gordon L. Finley, judge pro tern. The jury returned a general verdict in favor of the appellee, and also returned answers to questions submitted to them by the court as follow:
“(1) Ques. Did the plaintiff, J. B. Moore, on or about the 20th day of April, 1905, employ the defendants to defend him in a case in which he was charged with arson? Ans. Yes.
“(la) Q. And agree to pay defendants the sum of $500 for conducting his defense? A. He did, in case they had to carry it to the supreme court.
“(2) Q. If you answer question No. 1 in the affirmative, then did Moore, on the 22d day of April, 1905, execute a deed to secure the payment of the $500? .A. Yes
“(3) Q. Did the plaintiff, on'the 22d day of April, 1905, execute and deliver to the defendants a deed to the lands described in the petition? A. Yes.
“(4) Q. Did the defendants, on the 10th day of August, 1905, execute an agreement to the plaintiff whereby they agreed to reconvey the lands described in the plaintiff’s petition to the plaintiff on payment of the sum of $500 and interest? A. Yes.
“ (5) Q. If you answer No. 4 in the affirmative, then state if the plaintiff accepted the agreement mentioned in question No. 4. A. Yes, he accepted the agreement as an instrument to show that the deed in question was a mortgage and not a warranty deed.
“ (6) Q. Was the agreement mentioned in question No. 4 recorded in Grant county, Kansas, after the same was delivered to the plaintiff lay the defendants? A. Yes.
“ (7) Q. Did the plaintiff employ, generally, the defendants to defend him in an action in which the plaintiff was charged with the crime of arson in Finney county, Kansas? A. Yes.
“ (8) Q. If you answer question No. 7 in the affirmative, then state whether the plaintiff ever, at any time, paid the defendants any money as a retainer fee or for services rendered. A. No, but tendered a reasonable fee for service rendered.
“(9) Q. Did the plaintiff, after the delivery to‘him of the agreement mentioned in questions numbered 4, 5 and 6, endeavor to procure a loan of money from witness R. C. Stocks in the sum of $500, and state to said Stocks that he wanted to pay Hopkins and Pearce? A. Yes.
“(10) Q. Did the plaintiff, on or about April 20, 1905, agree to execute a deed to the defendants for the lands described in the petition, to secure the payment of the sum of $500? A. Yes.”
On the trial the appellants offered in evidence, although it was not pleaded in the answer, a paper marked “Exhibit A,” and, without objection, it was admitted, viz.:
“State of Kansas, Finney county, ss.
“Know all men by these presents : That, whereas, on the 22d day of April, 1905, J. B. Moore executed and delivered to W. R. Hopkins and W. C. Pearce his certain warranty deed on the following-described land, situated in Grant county, Kansas, to wit, the southwest quarter of section 32, township twenty-eight (28), range 37, the northwest quarter of section five (5), township 29, range 37.
“Now, therefore, it is hereby stated and agreed that said deed was executed as and for a mortgage to secure the payment to the said W. R. Hopkins and W. C. Pearce the sum of $500 within six months from the date of said deed, and we hereby agree to convey said land to the said Moore whenever the said sum is fully paid.
“IN witness whereof we have set our hands this 10th day of August, 1905. W. R. Hopkins.
W. C. Pearce.
“State of Kansas, -Grant county, ss.
“Filed for record this 11th day of August, 1905, at 3 P. M. N. C. Henshaw, Register of Deeds.
“Page 3. Miscellaneous I, page 468.”
The appellants insist, first, that the court erred in admitting over their objection, any evidence under the petition. Objections to the introduction of evidence are not favored after the issues have all been formed in the case. Argument made on this objection criticizes the petition as if the question were pending upon a demurrer thereto. It is sufficient to say that the issues were formed by the petition and the answer and cross-petition, under which both the appellants and the appellee were seeking affirmative relief. The petition alleged facts sufficient to entitle the appellee to relief, the instrument of defeasance not being pleaded in the answer, and the ruling of the court on the objection was not erroneous.
Numerous objections are made by appellants of alleged trial errors, but in the opinion of a majority of the court, in which the writer does not fully concur, one question is sufficient to determine the case, and the consideration of the others becomes unnecessary.
The deed set out in the petition purports to be an absolute conveyance to the appellants. The writing, dated August 10, 1905, executed by the appellants and delivered to the appellee, is an instrument of defeasance conditioned upon the payment of $500 by the appellee to the appellants at a time certain, and, unless the appellee was induced by fraud or coerced to accept it, the two writings together constituted a complete and entire contract — a mortgage to secure the payment of $500. That the appellee alone executed the deed and the appellants alone signed the defeasance is not controlling; formerly it wa£ the usual method of making a mortgage. The acceptance of the executed deed is an acceptance of the conveyance. The free aeceptance of the executed defeasance was an acceptance of the terms thereof.
The appellee contends that the oral agreement at the time he employed the appellants was that he should pay them only reasonable compensation for such services as they actually rendered, not exceeding $500, whether in the justice, the district or the supreme court; that the case was terminated in the justice’s court, and, at most, he should only pay for their services therein; that by reason of their alleged unfaithfulness in rendering such services they were entitled to nothing. On the other hand, the appellants contend that the oral contract was that they were to defend the appellee in each of the courts in which the case might become pending, and were to receive $500 therefor. So far a question would be presented for determination by a jury. However, it is undisputed that after the services, whatever they were, were completed and the employment ended, the' appellee demanded of the appellants a statement that the deed was only intended as a security, and not as an absolute conveyance. In response thereto the appellants signed and delivered to him the foregoing defeasance. One of the appellants testified that the paper was read to the appellee and he was asked if it was satisfactory, to which he answered, “Yes.” .The appellee testified that he accepted it because “it was all I could get.” The jury found that he accepted it “to show that the deed in question was a mortgage and not a warranty deed.” At this time the appellee knew the extent and the manner of services rendered, and, as a proposition of law, it must be said that unless he did so under duress he accepted the defeasance subject to the expressed condition contained therein. He could not accept it in part and repudiate it in part. (Adams et al. v. Helm, 55 Mo. 468; Deutmann v. Kilpatrick, 46 Mo. App. 624.)
The„only claim of duress made by the appellee is that he feared the appellants were about to sell his land, of which they appeared to have the full title of record.» This does not constitute duress. He could have made his tender and brought an action to set aside the deed as well before as after he received the defeasance. Whatever the oral contract may have been, in accepting the instrument of defeasance he completed a written contract, which he can not vary by oral testimony. The construction and effect of the contract then devolved upon the court and was not in the province of the jury. It was a question of law and not of fact.
The judgment is reversed and the case is remanded, with instructions to render judgment for the defendants as prayed for.
Mason, J., not sitting. | [
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The opinion of the court was delivered by
Porter, J.:
The first contention is that the court erred in opening the judgment because in the affidavit in support of the application there was no showing that the other defendants, Richard D. Harlan and Walter Chrystie, had no knowledge of the pendency of the action in time to appear and defend. It is sufficient to say that the judgment was opened at the same term at which it was rendered and when the court had absolute control of the judgment, with full authority to set it aside, modify it or open it up for a defense. (Hemme v. School District, 30 Kan. 377; Mudge v. Hull, 56 Kan. 314.) The fact that the application purported to follow the statutory provisions for opening up a judgment within three years did not deprive the court of its right to open the judgment at the same term at which it was rendered, under the court’s general powers.
The second error complained of is that the judgment and findings of fact are not within the issues. In this connection it is .insisted that the issues were ownership and possession, as alleged in the petition; that the plaintiffs’ ownership and possession were denied in the answer and a claim set up that the defendants were the absolute-owners; that the answer made no claim that the defendants were mortgagees in possession. It is therefore argued that three findings of the court are without the issues: (1) That the defendants were entitled to hold as mortgagees in possession until the mortgage debt was paid; (2) that the mortgage debt had never been paid; and (3) that the defendants did not intend to abandon the land or their rights as mortgagees in possession.
On the other hand, it appears that the plaintiffs in their reply, as new matter, and as a reason why the defendants should not be allowed-to assert a claim of absolute ownership, set up the proceedings in the ejectment suit and attached thereto a copy of the judgment and opinion, in which it was held that the defendants were mortgagees in possession and that the remedy of the plaintiffs was by an action to redeem. Since the reply was filed the defendants have never urged, and do not now claim, that they are in possession as absolute owners; but urged at the trial, and are still contending, that the plaintiffs can not maintain this action to quiet title. It can not therefore be said that the issues were narrowed down to the single question of which of the parties had the legal title and possession, or that the court could not without going beyond the issues raised by the pleadings determine the respective rights of the parties.
The plaintiffs’ claim in substance amounts to this: that they pleaded'in their reply the former judgment for the sole purpose of defeating the claim in the answer that the defendants were the absolute owners, In order, however, to plead the judgment at all, it was necessary to plead the whole of it; and the entire judgment rendered -by the district court in pursuance of the mandate from this court, together with the opinion, is pleaded. That judgment was not an unconditional determination that the plaintiffs own the land and that the defendants have no interest in it. On the contrary, it was finally determined between the parties that while the plaintiffs were the owners, the defendants were mortgagees in possession, and that the only way in which the plaintiffs could regain their land was by paying the mortgage debt or by bringing an action to redeem, which would require them to pay. The reply brought upon the record the former judgment in its entirety, for all purposes; and after it was pleaded as an adjudication, if some portion of it was in favor of the defendants and against the plaintiffs, it could hardly be successfully contended that both parties were not bound by it. The bringing of it on the record had the effect to broaden the issues, and the court could not determine the rights of the parties under it without giving effect to all of its provisions.
The plaintiffs’ contention that the court erred in not striking out the finding that the rights of the defendants as mortgagees in possession until the mortgage debt is fully paid were adjudicated between the parties can not be sustained. That was the very thing determined in the judgment which the plaintiffs pleaded in their reply. Nor was it error to refuse to strike out the finding that the mortgage debt has never been paid. This finding was necessary in order to enable the court to determine the equities between the parties. The other finding which it is claimed should have been stricken out is that Harlan did not at any time intend to abandon the land or any of his rights as mortgagee in possession. This was likewise a necessary finding in order to determine the equities, and was amply supported by the evidence.
It is earnestly insisted that the judgment in the ejectment action only defined the rights of the parties as they existed at the time it was rendered, and that those rights have since been altered in some manner by new conditions. It can not be denied that the defendants, for ten years, from March 1896, to March, 1906, were in the quiet, peaceable possession as mortgagees, and that it had been adjudicated that they were lawfully in such possession, and that the plaintiffs’ remedy was to redeem from the mortgage. The defendants were all nonresidents. James S. Harlan looked after the land by correspondence with his tenant and with an agent. In March, 1906, he notified the tenant to vacate, and the tenant did so. Previous to this time, Loomis had tried to rent the land from Harlan, and had made some effort to rent it from Harlan’s tenant before the latter vacated. Harlan learned from others that Loomis was on the land. Meanwhile, the plaintiffs had brought an action to redeem from the mortgage. Although they had secured a lease from Loomis in April, they did not dismiss their action until October. In December Harlan wrote to Loomis asking him to pay the rent. Loomis wrote in answer that he had deposited the rent in a bank in Emporia. He had evidently done so in order that the plaintiffs could receive the rent, but he concealed from Harlan the fact that he claimed to be a tenant of the plaintiffs. It appears, therefore, that the situation of the parties had not been voluntarily changed by any act of the defendants. They never voluntarily surrendered possession or their claim to hold as mortgagees.
We think there was sufficient evidence to sustain the findings made by the court, and the conclusions of law necessarily follow from the facts. The plaintiffs, in order to ask equity, must come into court with clean hands. The authorities are too numerous to require citation which hold that a mortgagee in the lawful possession of mortgaged premises can not be ousted or deprived of his rights as such against his will or. by anything in fact short of redemption and complete satisfaction of the mortgage debt. (20 A. & E. Encycl. of L. 981; 27 Cyc. 1238, 1239.) As said in Townshend v. Thomson et al., 139 N. Y. 152:
“A mortgagee who has lawfully taken possession of the mortgaged premises can not be ousted or deprived of his rights as such by the mere intrusion of the owner of the equity of redemption against his will or without his knowledge. There must be some act or omission on his part indicating a change in his position. The mortgagee who has taken lawful possession of the land pledged for his debt is not obliged to stand upon the land with a club to keep off intruders; nor need his continued possession be of such a character as is required by the statute to create a title by adverse possession.” (p. 162.)
(To the same effect see Buehler v. Teetor, ante, p. 281.)
In Nicholson v. Hale, 78 Kan. 599, it was held in the case of a tax deed that after the five-year statute of limitations has run and the owner’s right to lawful entry has lasped he can not lawfully acquire any rights as against the tax-deed holder' by force, fraud or stealth. The same principle applies here. After the judgment in ejectment determined the rights of the parties and until the defendants voluntarily abandoned their possession the plaintiffs no longer possessed the right lawfully to enter upon the land without first satisfying the debt; and they could not change the respective rights of the parties by acquiring possession through force, fraud or stealth, or by connivance with a tenant who pretended to hold under the mortgagees.
The former judgment the plaintiffs themselves pleaded was an adjudication that the only course open to them was to redeem from the mortgage. The debt has not been satisfied, and no change has occurred in the situation which has affected the respective rights of the parties.
Complaint is made of the refusal to permit the plaintiffs to offer evidence showing that the defendants had committed waste upon the premises. The objection was rightly sustained. If this were an action to redeem, -the evidence might have been admissible.
The judgment is affirmed. | [
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Per Curiam:
The judgment in this case is affirmed. The opinion stating the grounds of the affirmance will he prepared and filed later. (For formal opinion, see Duggan v. Emporia, ante, p. 429.) | [
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The opinion of the court was delivered by
West, J.:
The appellee brought this suit to set aside the will of Joseph Beets, the amended petition alleging mental unsoundness and undue influence, the-latter being eliminated by the findings.
A jury was impaneled and a number of questions, submitted and answered, some of the answers being-adopted by the court, and others changed or set aside, so that the findings as finally made by the court are all that need consideration, all complaints about the action of the jury being rendered futile by the fact that the court took the matter into its own hands. (Medill v. Snyder, 61 Kan. 15.)
Errors are alleged respecting instructions and rulings-, on the admission of evidence, but we do not find anything material therein.
It is insisted that the findings are unsupported by the evidence, and that some of them are contrary thereto, but from the lips of' more than fifty witnesses fell testimony sufficient to support either theory of the? case.
It is urged that the findings are inconsistent, and that we should disregard them and render or direct a decree for appellants.
Joseph Beets, when about 81 years old, made a will giving one-fourth of his property to each of his four children. Several years later he went to live with his daughter, the appellee, and after a time became convinced that one of her sons had called his mother a liar and- seemed much incensed thereat, and left on the same day and went to stay with a son, H. P. Beets. The testator felt very apprehensive that his daughter was not well treated by her husband and sons, and that sometime she would be thrust aside by them and thrown upon her own resources, though her husband was a man of ample means. The result was that a few weeks after leaving his daughter’s home he went to an attorney and had another will drawn, giving one-fourth of his property to each of the other children absolutely, but giving the appellee’s fourth to her “to have and to hold under the following terms and conditions, to wit:
“I direct that such one-fourth of my property shall be held in trust for her during the period of her’ natural lifetime by my executors hereinafter named, who shall take such part and portion of my property into their control and possession and keep the same invested to the best advantage and pay to said Eliza J.. Harbison the profits therefrom and also pay her such sums from the principal as may be needed for her support and comfort, but such trustee shall not pay to her from such funds more than shall be actually necessary for her own support and comfort, and at the death of the said Eliza J. Harbison I give all the rest, residue and remainder thereof to my other three children above mentioned, share and share alike, and if any one of my children be not living, then to the heirs of such one in equal parts, to have and to hold forever.”
On returning he remarked that he now had the will as he wanted it, that Eliza’s interest would be protected and it would insure her keep after- he was gone, and that her family would go back on her, adding, “Now see who guesses right.” One witness said the testator had some kind of a stroke while at Harbison’s. but it is not clear whether this was before or after the execution of the will. Some time after leaving he was injured in a runaway, and thereafter taken to a sanitarium, where he died April 17, 1906. He left the Harbison home March 19, 1905, and executed the will in question on the 23d of the following May.
The findings, as finally arranged by the court, are in substance that Joseph Beets was 86 years old and physically able to be up and around when he executed the will; that he knew to whom he was disposing of his property in the will; that he knew all the provisions thereof and understood their nature and effect, but did not fully comprehend the nature and effect of the disposition he was making; that he deemed it to the best interest of the appellee to make the provision that her share .should be placed in the hands of trustees, but that he was chiefly controlled by the thought that she was in danger of being driven out of her family; that he arranged with a neighbor to go to town with him the day the will was drawn, and gave to the attorney the information as to how he wanted it drawn; that it was read over to him before its execution ; that he told the neighbor on the way home that it had been drawn the way he wanted it — “that he, in some measure, understood the terms of the will, but that he did not fully comprehend it.” The following also appear:
(4) “I adopt as my own the answer and finding of the jury to question number four, the question being: ‘At the time he made the will in question did Joseph Beets have sufficient mental capacity to comprehend what he was doing and how he was disposing of his. property in making said will?’ The answer being: ‘No.’
(5) - “I adopt as my own the answer and finding of the jury to question number five, the question being: ‘At the time he made said will did Joseph Beets have sufficient mental capacity to understand the ties of relationship and the claims of his various children upon him?’ The answer being: ‘No.’
(7) ‘T set aside the finding of the jury as to question number seven, the question being: ‘Did he know of all the provisions of said will and-understand the nature and effect of the disposition he was making of his property thereby?’ The answer being: ‘Yes.’ I find that he knew of the provisions of said will, but did not fully comprehend the nature and effect of the disposition he was making.
(8) “I adopt as my own the answer and finding of the jury to question number eight, the question being: ‘Did he fully understand and know that he was placing the portion that he gave to his daughter, Eliza J. Har-. bison, in the hands of trustees to be used for her support as therein directed?’ The answer being: ‘Yes.’
(9) “I adopt as my own the answer and finding of the jury to question number nine, the question being: ‘Did he deem it to the best interest of Eliza J. Harbison to make the provision in his said will that her share of his property should be placed in the hands of trustees ?’ The answer being ‘Yes.’ And I further find that he was chiefly controlled by the thought that his daughter, Eliza J. Harbison, was in danger of being driven out of her family.
(10) “I adopt as my own the answer and finding of the jury to question number ten, the question being: ‘At the time he made the will in question was Joseph Beets laboring under an insane delusion concerning his daughter, Eliza J. Harbison, or some member of her family?’ The answer being: ‘Yes.’
(11) “I adopt as my own the answer and finding of the jury to question number eleven, the question being: ‘If you answer the last question “Yes,” then state with reference to what person or persons he entertained such delusion.’ The answer being: ‘Joseph Harbison.’ And I further find that the said delusion extended to the other members of the Harbison family.
(12) “I adopt as my own the answer and finding of the jury to question number twelve, the question being: ‘If you answer question number ten “Yes,” then state what insane delusion you refer to.’ The answer being: ‘The imaginary quarrel in the Harbison family.’
(16)' “I adopt as my own the answer and finding- of the jury to question number three, the question being: ‘At the time of leaving the home of his daughter, the plaintiff, did Joseph Beets believe there had been a family quarrel in the Harbison home that day?’ The answer being: ‘Yes.’
(17) “I adopt as my own the finding and answer of the jury to question number four, the question being: ‘If you answer question number three in the affirmative, state whether there had been a quarrel in the Harbison home that day, as believed by said Joseph Beets.’ The answer being: ‘No.’
(18) “I adopt as my own the finding and answer of the jury to question number five, the question being: ‘If you find that Joseph Beets believed there had been a quarrel in the Harbison home or family on that occasion, state whether or not argument was used by any member of the Harbison family to convince him to the contrary, and if so, by whom?’ The answer being: ‘Yes, Mrs. Harbison.’ And I further find that other members of the family used arguments on said occasion, to convince him to the contrary.
(20) “I set aside the answer and finding of the jury to question number seven, the question being: ‘Did Joseph Beets leave the Harbison home because of his belief that they had a quarrel in said home on that day?’ The answer being: ‘He left home that day.’ I find that he left the Harbison home because of his belief that there had been a quarrel in said home on that occasion.
(22) “I adopt as my own the answer and finding of the jury to question number nine, the question being: ‘In making the will in question was Joseph Beets influenced in any way by an insane delusion as to acts, or any act, which he believed to have occurred in the Harbison family, the day that he left the Harbison home, and which in fact did not occur?’ The answer being: ‘Yes.’
(28) “I adopt as my own the answer and finding of the jury to question number ten, the question being: ‘At the time of leaving the Harbison home, and at the time of executing the will in question, did Joseph Beets entertain an insane delusion that Joseph Harbison had abused or shown disrespect to his mother, Eliza J. Harbison, the plaintiff in this action?’ The ■answer being: ‘Yes.’
(24) “I adopt as my own the finding and answer of the jury to question number eleven, the question being: ‘If you answer the last question in the affirmative, did said' insane delusion influence said Joseph Beets in making the provisions, or any of them, contained in said will?’ The answer being: ‘Yes.’
(25) “I adopt as my own the finding and answer of the jury tb question number twelve, the question being: ‘Was the testator,. Joseph Beets, of sound mind and memory at the time he executed the will in controversy in this action?’ The answer being: ‘No.’
(41) “I adopt as my own the answer and finding of the jury to question number fourteen, the question being: ‘Is it a fact that at the time of the execution of the will in question that Joseph Beets was capable of transacting business generally.’ The answer being: ‘No.’ ”
There is a seeming conflict between these findings, but upon careful examination in the light of the evidence they are susceptible of reconciliation. That the testator fully understood and knew that he was placing the daughter’s portion in the hands of trustees, to be used for her support as therein directed, is not necessarily inconsistent with the idea that he did not have sufficient mental capacity to comprehend what he was doing and how he was disposing of his property, in view of the further proposition that he did not have sufficient mental capacity to understand the ties of relationship and the claims of his various children upon him and that he was under an insane delusion as to an imaginary quarrel in the appellee’s family and was influenced thereby in making the will, and that “he was chiefly controlled by the thought that his daughter, Eliza J. Harbison, was in danger of being driven out of her family.” It all amounts to this: That he had mental capacity to know how he wanted the will drawn and to direct that the appellee’s portion be placed in the hands of trustees, but not to transact business generally in a sane manner, on ac count of the insane delusion about the quarrel and the fear of the daughter’s being thrown upon her own resources by her well-to-do husband. True, the specific ■ insane delusion found relates only to the imaginary quarrel, but manifestly the court, as shown by the ninth and eleventh findings, thought this specific delusion merged into the notion that the appellee was in danger of financial desertion, and that the testator entertained such notion is abundantly shown by the evidence, and no basis therefor is apparent. In other words, the result may be thus epitomized: He knew what he was doing, but he had an insane reason for doing it. This is really not more mysterious than other manifestations of insanity, for its effects are often inconsistent and inscrutable.
It is familiar law that one laboring under an insane delusion which influences him to make a will in a certain way does not possess testamentary capacity. In Medill v. Snyder, 61 Kan. 15, an instruction to the effect that “the testator might be capable of transacting the ordinary business affairs of life and sane on other matters, but that if the will was influenced and the direct offspring of an unfounded and insane delusion it could not be sustained” (p. 23), was approved. (Schouler, Wills & Adm. §§ 69-75; 1 Jarman, Wills, 6th ed., p. *38; Kimberly et Ux. Appeal from Probate, 68 Conn. 428, and note to the same case in 37 L. R. A. 261.)
The. judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Meyer and wife brought this action against the city to recover damages to their residence property by reason of the alleged negligent manner in which the city graded the street — making a deep cut — upon which their property fronted, and, by reason of such negligence, alleged that the earth in front of their dwelling caved in and slipped and injured their property to the extent of $2000. The case was tried in the court of common pleas to a jury, and resulted in a verdict and judgment in favor of the plaintiffs for $1400. The city appeals.
' The appellant contends that ■ the grading was. done in accordance with a petition signed by Meyer and other resident property owners, and that it was the duty of the plaintiffs to protect their property from the accident which occurred by building a retaining wall along the street at the front. On the other hand, the plaintiffs contend that the grading was. done from time to time; that the street was kept in such condition, and there was such an amount of earth, left for weeks immediately in front which had to be removed, that it was impracticable for them to build the retaining wall while the work was in progress. There is no contention but that the earth did slip in front of the house; that the house, which was built of stone, was cracked on two sides; that the pillars, to the porch were undermined; that the front doors were placed in such condition that they would not open or shut; and that the plaintiffs, for a short time, moved out of the house, in which they had resided.
There are twenty-one assignments of error, but only eight are argued in the brief. It is contended that the court erred in giving instruction No. 7, in which, after stating to the jury that the plaintiffs wereestopped from recovering damages by reason of the-grading of the street to the established grade, which was some distance below the surface line of their property, added the following: “and [you] are not to consider the same except in so far as the depth of the cut made in front of their said premises may have relation to any slipping or sliding of the earth, if any, in the-matter of the prosecution of the work of the grading in question.” It is said the quoted words instruct, inferentially, that if the depth of the cut had any relation to the slipping or sliding of the earth the plain-' tiffs might recover by' reason of the grading,' even if properly done. Taken alone, this instruction might be construed so to read. In other instructions the jury were told that the plaintiffs could not recover on ac count of the grading, but assumed the risk thereof, unless such grading was done in a negligent and improper manner. Instruction No. 9 is very explicit. It reads:
.“If you find from a preponderance of the evidence that the said defendant city let the contract to one Julius Turner to grade the street in question, and that the said contractor proceeded with said grading under the direction of the city engineer with all reasonable care and dispatch, and without any more delay than was reasonable, occasioned by reason of the frost and inclemency of the weather during the winter season, which prevented the prosecution of said work, and that such grading was done by the contractor in accordance with the request of the plaintiff in his petition to said city upon the line of the established grade of said street in front of plaintiffs’ said property, and the injury and damage to plaintiffs’ house, if any, was not occasioned by reason of any unreasonable delay in the prosecution of said work of grading by said contractor, then the plaintiff can not recover, and your verdict must be for the defendant city.”
It is contended that the court erred in giving instruction No. 12, in regard to the measure of damages, it being stated therein that if the jury found that the plaintiffs were entitled to recover they should “allow them such reasonable sum as the evidence shows they have been damaged, that is to say, such reasonable sum as the evidence shows will be required to repair said property and place it in the same condition in which it was immediately prior to the time of the happening of the injury and damage, if any, not exceeding the sum of $2000.” The jury had, under the order of the court, gone in a body to see the property, and there was much evidence as to the condition of the building. One witness, who qualified as an engineer, testified that in his opinion the damaged condition of the house was" due to the grading of the street; that the house was, at the time of trial, unsafe for habitation.
It is further contended by the appellant that the measure of damages, if damage be shown by the negligence of the city, is the difference in value of the property as it was immediately before and immediately after the injury. The proper measure of damages is different in different cases, depending upon the particular facts. In a stone building, for instance, if a stone should be cracked by another than the owner, at or near the foundation thereof, in such a manner as slightly to depreciate the appearance and value of the building, but not to injure the occupancy, the rule contended for by the city would undoubtedly be right, and the rule prescribed by the court in this case would be wrong. To restore the building to the same condition as it was before the injury, in the case supposed, might require the tearing down of a large portion of the building and the incurring of large expense, while the damage to the actual use or value of the property might be very slight. In support of the city’s contention Kerns v. Kansas City, 79 Kan. 562, is cited. Under the facts of that case the rule there stated still meets our approval, but, under the facts of the case supposed above, it would not afford a correct rule. As before said, the proper measure of damages depends largely upon the facts of each particular case.
The plaintiffs produced evidence as to what would be necessary to put the house in as good condition, practically, as it was before, and furnished estimates of the cost, which evidence tended to show that it was necessary to rebuild the front of the house. The city offered no evidence to show that the cost of the proposed repairs would exceed the difference in the value of the property immediately before and after the injury, or that the house could be repaired so as to make it habitable and salable without rebuilding the foundation and front of the house. While, as before said, the rule laid down by the court as to the measure of damages would not be applicable' in every case, under the evidence in this case we think it is correct.
It is also contended that in instruction No. 11 the court shifted the burden of proof upon the city to show that the settling of the walls of the house was caused by improper construction or defective material, or some cause other than the alleged negligence of the city in the manner of the grading. While, as before said, this instruction, read alone, might be susceptible of the construction given it by the city, yet, if' read in connection with the other instructions, especially Nos. 2 and 3, which, in effect, tell the jury that, the burden of proving all of the facts necessary to their recovery rests upon the plaintiffs, we think the jury were not misled. It may also be said there was substantially no evidence of any defect in the foundation wall o.r of any other cause for the settling of the-walls than 'the slipping or sliding of the earth.
Again, it is contended that instruction No. 8 assumes, to cover the entire law of the case, and omits some matters that should have been included therein. We do not think' that it is true that this instruction assumes to cover the entire law of the case. There were numerous instructions, and, all read together, as they should be, they seem to be fair and to include no substantial error.
•The remaining objections and the. brief relating thereto go to the discussion of the introduction and admission of evidénce, and to the credibility of wit-* nesses. We have read the evidence and the objections, and find nothing calling for special mention, and think that no substantial error was committed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Hayes, the plaintiff, loaded twenty-five head of fat cattle at a loading chute at Norman, Miami county, which is about two miles from Paola, the nearest station on the defendant’s line of railroad. No agreement in regard to the shipment appears to have been made, except such contract as the law implies. The train, including the cattle accompanied by the plaintiff, was drawn to the station at Paola, and the plaintiff aroused the defendant’s agent and asked to have a contract written up while he was getting some breakfast. This was done. The plaintiff on his return signed the contract as prepared, without reading it, and boarded the train, which almost immediately started on its journey. The contract was shown to the conductor by the plaintiff, in lieu of a ticket for his transportation, and was honored as such; and no obj ection was' at any time made by the plaintiff to the terms or conditions thereof.
The train arrived at Kansas City about 8:30 in the forenoon, but was not placed at the chutes-so that the cattle could be unloaded until about 11:30 A. M. of that day. When unloaded the cattle were in bad condition, heated and wet with sweat; the market had closed for the day and prices for such cattle had dropped from ten to twenty-five cents per hundredweight. Toward evening of the same day the cattle were shipped back to the plaintiff’s farm, and thereafter he began this suit for damages.
In his petition he based his claim for damages upon the general allegation of carelessness and negligence of the defendant in handling the cattle. The amount claimed is $250. He recovered a verdict and judgment for $150. The petition alleged that the contract was oral; but no evidence was introduced in support thereof, except that relating to the ordering of the cars. The facts, as related by the plaintiff as' a witness in his own behalf, indicate that he expected to ship on a written contract. On the trial there was evidence offered tending to support some claim for a delay of five hours in setting the cars at the chute for loading.. It may' be a question whether the evidence tended to' support any special damage on this count, but, if so, it was waived by the following conditions of the written, contract:
“As a further consideration for the reduced rate herein given the shipper hereby releases and waives any and all causes of action for damages by reason of any written or verbal contract for the shipment of said cattle or any of them prior to the execution hereof.”
It is contended by the defendant that no issue of loss by lower market is to be found in the pleadings. It is true that there is no specific allegation in the petition claiming damages on this account, but it is alleged that the defendant agreed to transport the cattle speedily and in a careful and prudent manner. If not expressly stated in the contract, the law, from the nature of the service, implies such an agreement. The petition made a general claim for damages on account of the careless and negligent handling of the cattle. In the absence of any motion to make the petition more definite and certain, we think the petition was sufficient in this respect.
The pertinent findings of the jury are, in .substance, that the defendant handled the cattle from the point of shipment to destination, and did not deliver them to a connecting carrier; that the negligence of the defendent consisted in its failure to deliver the cattle promptly to the stockyards company; that the market for the class of cattle shipped did not continue from eight o’clock in the morning until three o’clock in the afternoon; that the cattle were not in good condition when placed at the chutes for unloading. The defendant moved to set aside each of these findings, except the last, as not supported by the evidence. The evidence is conflicting, but we think each finding is supported by evidence. The evidence on the one hand was that the car of cattle was set at the chutes at 8:50 o’clock A. M., and on the other that it was not until 11:30 A. M., ■and that for about three hours prior thereto the car had been switched and bumped around the railroad yards at Kansas City or in the vicinity thereof.
It is also contended that the court erred in permitting the plaintiff to give his opinion as to the amount of damage he suffered. As the case is likely to be retried, we suggest, since it appears that the cattle were not weighed immediately before and after the alleged injury, that loss of weight, if any, may be proved by opinion testimony from those accustomed to shipping cattle; also, that loss of weight and difference in price on the market, if any, caused by the delay should be proved as the ultimate facts upon which the jury may draw their conclusions as to the amount of the damage. A witness should not be allowed to testify to the conclusion.
It is further contended that the fact that the defendant kept an agent at the stockyards is immaterial to any issue, and was incompetent to show that the defendant did not deliver the cattle to the St. Louis & San Francisco Railroad Company as a connecting carrier. It does tend to show that the shipment of the cattle back from Kansas City was also made under a contract with the defendant as the carrier, and is a circumstance to be considered. There was also other evidence tending to support the finding.
It is argued by the plaintiff that the defendant’s agent at the stockyards was notified of the condition of the cattle before they were reshipped. In our view such evidence would have been very material in this case, but we are unable to find it in the record.
The plaintiff stated in his testimony that he based his estimate of the damage upon the shrinkage of the cattle and loss of market, and,-there being no finding of the jury to indicate the contrary, it is presumed that the verdict was based upon both these elements of damage. As to loss of market, or market price, no notice provided for in the contract is requisite to a recovery. (Railway Co. v. Poole, 73 Kan. 466; Railway Co. v. Fry, 74 Kan. 546; Cornelius v. Railway Co., 74 Kan. 599; Railway Co. v. Frogley, 75 Kan. 440; Darling v. Railway Co., 76 Kan. 893.) As to the loss by shrinkage, such notice is necessary. (Railway Co. v. Poole, 73 Kan. 466; Railway Co. v. Wright, 78 Kan. 94.) The stipulated notice would convey to the defendant no information as to loss in market price, but, as to the alleged shrinkage, the object of the notice required by the contract was to give the defendant an opportunity to inspect the cattle and to ascertain for itself the extent of the loss, if any.
Again, it is said the court erred in receiving testimony that the plaintiff had not read the contract; that he had not known of two rates of shipment, and had not been offered the choice between the two rates. Under some circumstances evidence of this kind is material, but we think the plaintiff’s own testimony shows that he used no diligence in informing himself as to the contents of the contract after he entered the train, anti, thereafter, having used it for his transportation, he waived any objections thereto.
The defendant objects to the giving of several instructions. No. 12 became immaterial under the findings of the jury. Instructions numbered 13, 13a, and 14 are very lengthy and will not here be copied. They instruct, in substance, that if the plaintiff did not have. an opportunity to read the contract and was not informed that there were two rates of shipment, and he got a lower rate by shipping under the contract, he was not bound by it. As we have seen, there was not sufficient evidence to justify the submission of this question of shrinkage to the jury. As a matter of Jaw, it must be said, under .the evidence, that the shipment was made under the written contract, or, at least, that there was not sufficient evidence to avoid the written contract.
The judgment is reversed and the'case is remanded for a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an action to recover the price of - a filter sold by the International Filter Corn-* pany to the Caney Ice and Cold Storage Company. In response to a letter from the ice company the filter company wrote that its filters would remove all foreign suspended matter from the water, free it from oil and discoloration, and assure uniformly clear ice, and it proposed to ship one on the condition that it might be returned within thirty-five days if in its use, according to directions, satisfactory results were not obtained. The trial offer was accepted by the ice company on September 21, 1908, and two days later a filter was shipped to it from Chicago, and at the same time the filter company wrote advising the ice company of the shipment and asking it to report if any difficulties in its operation were encountered. On October 28, 1908, the ice company wrote the filter company that they had not been able to give the filter a thorough test on account of the fact that the machinery was not working well, and that the ice produced contained foreign matter, but that they were not able to determine whether it was a defect in the filter or defects in their plant, and they asked that the trial period be extended for a week or more until they could make a more complete test. In answer to this letter the filter company wrote, suggesting that they thought that the defects were due to the machinery of the ice plant rather than the filter, and they made a number of suggestions as to the cause of the trouble and how it might be remedied. They further stated that the time for trial had expired, but that as an accommodation they were willing to extend the date of payment to November 15, 1908. On November 16, 1908, the filter company drew on the ice company for the price of the filter, but the ice company refused to pay the draft, saying that the filter would not take foreign matter out of the ice and was not up to the warranty in other respects. In addition to this correspondence there was testimony that in response to another letter written by the ice company, to the effect that the filter was working badly, the filter company wrote extending the time of trial and guaranteeing to make the filter work satisfactorily, but that the letter was lost. On November 27, 1908, the ice company returned the filter to Chicago, where it was received by the filter company, which stated that it was holding it subject to the order of the ice company. This action was brought for the invoice price of the filter, and the defense was rescission and return of the filter as provided by contract, a breach of the warranty of sale, and damages for the breach. The case was tried without a jury and a general finding in favor of the ice company was made.
The evidence relating to the right of rescission and as to the warranty is conflicting, and nothing in the record discloses what is embraced in the general finding or upon what theory judgment was rendered. In reaching its decision the court was at liberty to accept the testimony of defendant and all reasonable presumptions must be indulged in support of the general finding which the court made. It is contended that as the defendant did not notify the plaintiff of its purpose to return the filter, nor return it within the thirty-five days, the sale became absolute and the defendant liable for the price. According to some of the testimony the time of return of the filter, if it did not work well, was extended, and although the letter was not produced the finding of the court may have been based on the secondary evidence of the contents of this letter. There was evidence, too, of representations and warranties of quality by the plaintiff and also testimony that the filter did not correspond to the warranty. If the evidence of the defendant was believed by the court, the filter was found to be unsatisfactory and inferior after a fair test had been made, and, further, that it was returned within the time as extended and agreed upon between the pax-ties.
Under the testimony there was ground for holding that defendant had a right to return the filter, or, if it •elected, it could retain it and recoup the damages sustained by x-eason of the plaintiff’s breach of the contract. The contract involved appears to be executory in its nature, and when the defendant, after a test in good faith, found that the filter did not meet the warranty it had a right to return it within the agreed time, and if there was an express warranty, as claimed, the right to recover or set-off the damages resulting from the breach of warranty would survive an acceptance of the filter whether the contract was executory •or complete. (Graff v. Osborne, 56 Kan. 162; Underwood et al. v. Wolf, 131 Ill. 425; Fairbank Canning Co. v. Metzger et al., 118 N. Y. 260; Benj. Sales, 5th ed., p. 1013.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Schwartzberg, in his petition herein, filed August 16, 1906, states: That on the 13th of February, 1906, he was living in Kansas City, Kan., and conducted a tailoring, clothing and gents’ furnishing store; that on that date the defendant bank filed a petition in the common pleas court for the recovery of $500 on a promissory note due thirty days thereafter, and at the same time procured an attachment to be issued against this plaintiff’s property; that the sheriff seized the entire stock of clothing and other merchandise, all the shelving and counters in the plaintiff’s business, and also all the tailoring appliances and stock in trade used by the plaintiff in his business as a tailor, which were exempt from attachment; that the grounds for attachment stated in the affidavit and motion were wholly false, untrue, malicious and without probable cause; that in consequence of such attachment the plaintiff’s business was closed, he was deprived of the possession thereof, also of his exempt tools, appliances and stock in trade, his business was ruined and his livelihood cut off for about eight- months; that he employed and paid attorneys to the amount of $400; that in direct consequence of such attachment proceedings the plaintiff was financially wrecked, his standing and credit as a business man and his reputation for honesty and fair dealing ruined to such a degree that he will be unable to carry on a business in the community; that by reason of the wrongful and unlawful acts of the defendant the plaintiff is entitled to punitive damages, and prays judgment for $7400.
On the 16th day of April, 1908, Schwartzberg filed an amended petition in this case, which appears to have been like the original petition, except the following:
“That on or about the 27th day of January, 1908, said action [attachment suit of the bank against Sehwartzberg] was duly and regularly tried by said court of common pleas, and said court found the issues joined in said action in favor of the defendant therein, B. Sehwartzberg, who is plaintiff herein, and rendered judgment against said Central Avenue State Bank, the plaintiff therein, thereby conclusively and finally determining and adjudicating that said grounds of attachment as stated in said motion, affidavit and petition were wholly false, untrue and utterly without foundation, in fact. A true copy'of said judgment is hereto attached, marked ‘Exhibit C,’ and made a part hereof.
“That by reason of the malicious and unlawful acts of the defendant in said attachment proceedings the plaintiff is entitled to punitive damages or exemplary damages in the sum of $1000, in addition to the actual damages above mentioned.
“That on the 8th day of March, Í906, and as a direct result of the attachment of the defendant, as aforesaid obtained, the plaintiff was by the United States district court of the district of Kansas adjudged an' involuntary bankrupt on the application of the Courtney Shoe Company, the Swofford Dry Goods Company, and the American Hand Sewed Shoe Company, who were at said time other creditors of this plaintiff.
“That in said bankruptcy proceedings the entire stock of goods of the plaintiff’s said business and the fixtures were taken possession of by a receiver appointed by said United States district court, and were by him sold at forced sale at a great sacrifice and loss of about $2000 to the plaintiff.”
To this amended petition the bank filed a general denial. At the conclusion of Schwartzberg’s evidence the bank filed a demurrer thereto, on the ground that it was not sufficient to prove a cause of action in favor of the plaintiff and against the defendant. The demurrer was sustained, and, a motion for a new trial having been denied, judgment was rendered against Schwartzberg for costs. From this judgment he appeals.
There are numerous specifications of error, which maybe grouped under five heads: (1) The exclusion of evidence offered by the plaintiff; (2) the order of the court requiring the plaintiff to elect as to causes of action; (3) in admitting in evidence a notation of the sheriff showing that the goods, after being taken under the attachment, were turned over to the United States marshal; (4) in sustaining a demurrer to the evidence; and (5) in denying the motion for a new trial and rendering judgment for the defendant.
The plaintiff in his petition alleged that the attachment was wrongful and malicious, and, after he had introduced in evidence the judgment in the attachment case, offered further evidence tending to show that the attachment was wrongful and malicious on the part of the defendant. To this, objection was made that the petition stated two causes of action commingled, and the court required the plaintiff to elect upon which he would proceed. - The plaintiff replied that he elected to proceed upon both grounds. The court then ruled that “testimony to prove a malicious attachment would be allowed to be introduced. Testimony to show a wrongful attachment will be excluded.” This was error. There was but one cause of action, the unlawful taking of the property and the results therefrom. If the taking was simply wrongful, there was one measure of damages; and if both unlawful and malicious, there was another measure of damages. The taking could not be wrongful and malicious without also being wrongful. It was well said in Fry v. Estes, 52 Mo. App. 1:
“No case can be found in this state wherein the plaintiff sued in one count for the wrongful, and in the other for the malicious, attachment of his property, nor is there any reason for adopting that course, since, if an action on the case will lie for a wrongful attachment, malice in the attachment merely goes in ag gravation of the damages and furnishes no independent cause of action.” (p. 9.)
The decision of the court in the attachment action, finding in favor of the plaintiff herein and dissolving the attachment, is conclusive proof that the attachment was unlawful. (Hoge v. Norton, 22 Kan. 374.) The plaintiff then had the right to proceed further and prove the nature of the wrongful acts and the extent of his damages therefrom.
Sehwartzberg testified that he could not resume business until the October following the attachment, and for the purpose of showing that the attachment broke him up in business and deprived him of his means of doing business he was asked why he could not resume business before that time. An objection to this question was also sustained, and was erroneously sustained. If the attachment was wrongfully obtained, the loss to his business is one of the elements of his damages. (Western News Company v. Wilmarth, 33 Kan. 510.)
The plaintiff introduced the sheriff’s return of the attachment, as, in effect, an admission of the defendant, and offered evidence to show that the return did not include all of the property taken by the sheriff. On objection to such evidence the court ruled: “There is not anything this defendant ever took or got.that was not acquired by'the sheriff when he went there, and this sheriff’s return shows what he got. The return of the sheriff can not be impeached by testimony of- this kind.” This is error. The sheriff’s return is not conclusive as against the defendant in that action. (Simpson v. Voss, 31 Kan. 227.) Sehwartzberg had testified that when the sheriff served the attachment papers he walked into the plaintiff’s store and asked him for his key, which he surrendered; then told him to take his cash and get out, and the sheriff followed him out and locked the door. This, if true, constituted a taking of everything within the store, and the de fendant is responsible for anything unlawfully taken. (Simpson v. Voss, supra.)
The amended petition alleged, in effect, that on the day following the attachment of the plaintiff’s goods they were turned over, on the order of the United States district court, to the marshal, under an involuntary bankruptcy proceeding which had been started against Schwartzberg, and it is contended that, under subdivision 6 of section 70 of the bankruptcy act of 1898 (30 U. S. Stat. at L. p. 566, 1 Fed. Stat. Ann. p. 701), the trustee in bankruptcy by that proceeding acquired all of Schwartzberg’s causes of action arising upon contracts or from the unlawful taking and detention of, or injury to, his property. This is correct; but it includes, of course, only the property that passed to the trustee in bankruptcy, and the taking and detention thereof. Subdivision 6 of section 70 of the bankruptcy act of 1898 provides: “Rights of actions arising upon contracts or from the unlawful taking or detention of, or injury to,” the bankrupt’s property pass to the trustee.
The defendant further contends that, as Schwartz-berg’s action was originally started while the attachment case was pending against him, he had at that time no cause of action whatever, and that any trial errors committed could not prejudice him, because he was in no event entitled to any judgment. The property attached, if any, which was exempt by law, was not legally subject to attachment in any event and did not pass to the trustee in bankruptcy, and for the taking of this property Schwartzberg had a cause of action immediately upon its seizure. If the attachment was procured maliciously, any damages which he suffered from the tort, aside from the taking and detention of the property turned over to the trustee, did not pass to the trustee in bankruptcy.
The amended petition — so-called—was really, in part, •a supplemental petition, and alleged facts that had occurred after the beginning of the original action. The plaintiff should have procured an order of court to file an amended and supplemental petition, but since it is the policy of the law that all causes of action connected with one transaction shall be tried in one suit, and as this case, so far as it has proceeded, proceeded as though the latter petition had been properly filed, and as the court, on application, should have allowed it, we will regard the case as if a proper order had been obtained and an amended and supplemental petition had been filed in the language of the so-called •amended petition.
The court correctly admitted in evidence the amendment to the sheriff’s return on the order of attachment.
From what has been said, it follows that the court ■erred in sustaining the demurrer to the plaintiff’s evidence and in denying his motion for a new trial. The judgment is reversed and a new trial is awarded, with instructions to proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
West, J.:
The county attorney of Linn county, acting under section 2782 of the General Statutes of 1909 (Laws 1907, ch. 263, § 5), issued a subpoena for the appellant to appear before a justice of the peace and tell what he -knew about the violation of the laws of the state relating to gambling. After being duly sworn by the justice the appellant testified that he had not participated in a crap game within the past two years and did not know of any persons who had done so; that the only dice he had seen on Sunday, October 24, 1909, was a pair he saw Ollie Brooks have, and that he told Brooks to throw them out in the street, which was done; that he was not present at any game where dice were used on Sunday, October 24, 1909, and was sure he did not see any other persons playing any game with dice or doing any gambling with dice on that day; that he was not present on that day where any other persons bet any money to be dicided by the throw of dice in any manner; that he was sure he was not present at any place where any game was being played with dice on Sunday, October 24, 1909, near the so-called McCown rock quarry, or at any other place east of the St. Louis & San Francisco Railroad Company, north of Pleasanton, Kan. This testimony was given October 30, 1909. On January 10, 1910, the county attorney filed a complaint in a justice court charging the appellant with betting money and property upon the result of throwing dice, and upon the game of chance called shooting craps, in Linn county, on October 24, 1909. On the samé day the appellant entered a plea of guilty to this charge. Afterward an information was filed in the district court charging the appellant with perjury in the testimony given before the justice on October 30, 1909, assigning several different false statements as having been -willfully made by him therein. A motion to quash was denied, and upon the trial the state offered in evidence the testimony before the justice, the complaint and plea of guilty on the 10th day of January, 1910, and the testimony of a large number of witnesses.
At the close of its evidence the state elected to rely for conviction upon the alleged falsehood that the appellant was not present at any point near the so-called McCown rock quarry, east of the St. Louis & San Francisco railroad track, north of Pleasanton, in Linn county, on October 24, 1909, where any person dr persons were engaged in playing the gambling game called shooting craps, and upon certain exhibits and the testimony of certain named witnesses.
The court instructed the mry, among other things, that “a reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they can not say that they feel an abiding conviction to a moral certainty of the truth of the charge.” The appellant requested the court to instruct that “in order to find a verdict of guilty it is necessary that each one of the jurors, after considering the evidence and conferring with other members of the jury, be satisfied beyond a reasonable doubt of the truth of every material allegation of the information,” which instruction was refused. A motion for a new trial was denied.
The appellant complains that the trial court erred in denying his motion to quash, on the ground that the information did not charge a public offense and on the ground that it was bad for duplicity; in the admission of certain evidence; in denying the appellant’s motion to direct a verdict of not guilty; in refusing and giving certain instructions, and in denying motions for a new trial and in arrest of judgment.
The information is very full and complete and satisfies even all the technical common-law requirements, and is not bad for duplicity, because the various assignments of perjury all occurred at one time and in one proceeding. The appellant made and signed the testimony at one sitting, and it is much the same as an affidavit. (2 Arch. Crim. Pr. & Pl., J. N. Pom. Notes, p. 1737.)
It is urged that the information is bad for failure to state that when the county attorney issued his subpoena for the appellant to appear before the justice he, the county attorney, had reason to believe that the defendant knew of violations of the laws against gambling. It is argued that unless the county attorney had reason so to believe he was not authorized by the statutes to proceed, and that otherwise the proceeding would be ultra vires and void. Section 2732 of the General Statutes of 1909 (Laws 1907, ch. 263, § 5) provides that if the county attorney shall bé notified by any officer or other person or shall have knowledge of any violation of the laws of this state relating to gambling it shall be his duty forthwith diligently to inquire into the facts of such violation, and for that purpose he is authorized to cause subpoenas to be issued for such persons as he shall have reason to believe have any information or knowledge of such violation. As the county attorney is a sworn officer we can not presume that he acted arbitrarily or capriciously, but on the contrary we ought to, and do, presume that he acted in view of his official authority and duty, and that he did in fact have reason to believe that the appellant had such knowledge. We do not think, therefore, that the omission of this allegation from the information rendered it subject to the motion to quash.
The complaints concerning the introduction of evidence have reference to the dockets and proceedings touching the matters in the justice court, and we think the evidence was properly admitted.
The abstract does not disclose the evidence given by the witnesses said to be relied on for proof that the appellant was present at the .time and place charged when other persons were engaged in gambling. Without this testimony the mere showing that the appellant had pleaded guilty to the offense of gambling at some undisclosed point in Linn county on the same day would be entirely insufficient to support a conviction. But upon referring to the original record it appears beyond all question, from the evidence of James Parsons, Tom Leigh, Tom Lloyd, White Brockett ‘and Ollie Brooks, that on the 24th day of October, 1909, at the point referred to in the examination before the justice, the appellant was present where a most flourishing game for money was in progress; that a circle of some fifteen interested persons was formed, and that the appellant was standing on the north of this circle and the persons present were but a very few feet apart.
In the «oral argument it was urged that a variance exists between the charge and the proof in respect to the description of the place where the gambling took place. The assignment of perjury relied on was “that the said W. M. Smith was not present at any point near the so-called McCown rock quarry, east of the St. Louis & San Francisco railroad track, north of Pleasanton, in Linn county, Kansas, on October 24, 1909, where any person or persons were engaged in playing the gambling game called ‘shooting craps.’ ” In the election this assignment was stated the same as in the information. Turning to the answer given by the appellant before the justice of the peace we find that it was as follows:
“Ques. Are you sure that you were not present at any place where any game was being played with dice on last Sunday near the so-called McCown rock quarry, or at any other place east of the St. Louis & San Francisco Railroad Company, and north of Pleasanton, Kan. ? Ans. I am sure.”
It will be observed that in the actual testimony given by the appellant he did not, so far as this assignment is concerned, swear touching any place east of the St. Louis & San Francisco railroad track, but east of the company, and this question and answer were not confined to Linn county nor to a gambling game. There were other statements in the testimony on which perjury might well have been assigned and on which proof might have been made beyond' peradverture. The question is whether, having relied on this assignment, the state broadened the same and created a material variance by the language used in the information and in the election by adding the name of the county and by adding the element of a gambling game, which is not included in the term “game played with dice.” The rule is that the proof must conform substantially to the charge, but that a literal conformity is not required. (2 Whar. Crim. L., 10th ed., § 1307; 2 Ell. Ev. § 200.) But is this a substantial conformity? The appellant swore that he was sure he was not present at any place where any game was being played with dice on the Sunday in question, near the so-called McCown rock quarry or at any other place east of the St. Louis & San Francisco Railroad Company and north of Pleasanton, Kan. Not only did the information and the election add to this assignment of perjury the element of gambling, the fact that the location was in Linn county, but the court instructed the jury that in order to find the defendant guilty it m,ust appear beyond a reasonable doubt that the appellant falsely testified that he was .not present “at any point near the so-called McCown rock quarry, east of the St. Louis & San Francisco railroad tracks north of Pleasanton, in Linn county, Kansas, on October 24, 1909, where any person or persons were engaged in playing the gambling game called ‘shooting craps.’ ” The writer is of the opinion that the proof did not substantially conform to the charge, and that the case should be reversed for that reason. But my brethren are of the belief that, as the appellant swore before the justice that he was sure he was not present at any place where any game was being played with dice on the day in question near the so-called McCown rock quarry, the proof amounts to a substantial conformity.
It is urged that the alleged false testimony was not. given in any “cause, matter or proceeding” within the' perjury statute. Section 2640 of the General Statutes of 1909 (Gen. Stat. 1868, ch. 31, § 148), under which the information was drawn, makes it perjury willfully and corruptly to swear falsely in any material matter to an oath legally administered in any “cause, matter or proceeding before any court, tribunal or public body or officer.” While the taking of the testimony before the justice was not an action or special proceeding as-defined by the code, it was beyond question a “proceeding” as defined by this court. (Gordon v. The State ex rel., 4 Kan. 489, 490; In re Tillery, Petitioner, 43 Kan. 188, 192; A. T. & S. F. Rld. Co. v. Brassfield, 51 Kan. 167, 174; Drumm v. Cessnum, 61 Kan. 467.)
Complaint is made that the court refused to instruct', the jury that each one must be satisfied beyond a. reasonable doubt of the truth of every material allegation of the information. This would have been proper had no election been made by the state to rely on only one of the various assignments of perjury,, but, having elected to rely on one only, this instruction, in order to be proper, should have been limited to the-material allegations of such assignment; hence the-refusal to give this instruction was not error.
It is also complained that the court did not obey the' statute requiring an instruction upon the law applicable to the case, whether requested or not (Crim. Code, § 236), for the reason that the jury were not told that each one must find the defendant guilty beyond a reasonable doubt. While this was not done in so many words, we think it was substantially done when the jury were instructed that they must find the defendant: guilty beyond a reasonable doubt, and that a reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, ■“leaves the minds of the jurors in that condition that they can not say that they feel an abiding conviction to a moral certainty of the truth of the charge; that is, to a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it.” The average juror is usually fully advised of his prerogative to disagree, with his fellow jurors, and the idea that in a criminal case a unanimous verdict is essential to a conviction is so thoroughly understood in this state that we think the language used by the court in the instruction given, was a sufficient compliance with the requirements of the statute.
The judgment of the trial court is affirmed.
West, J., dissents, stating his reasons in the opinion. | [
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The opinion of the court was delivered by
Smith, J.:
The undisputed facts .in this case, briefly stated, are: Stevens was employed by the railroad company as night watchman at Mineral, where there were switch yards but no roundhouse, and where, on a cold night in February, 1907, with two other men, he was to pare for three -engines. Their duties were to keep up sufficient steam to prevent the pipes from freezing. Stevens had been employed at this business only a short time, but longer than either of the other workmen, who were subject to his direction. The engines were numbered 159, 165 and 178. During the night Stevens was on engine No. 159, where the accident occurred, and was called by the workmen to one of the other engines to adjust some difficulty, and on his return to No. 159 the supply pipe, or hose, which was attached at one end to a “goose neck” under the engine and at the other to a feed pipe from the water tank, blew off at the “goose neck,” struck him on the leg, and fractured it. The supply pipe was of rubber, always contained water from the tank, and its function was to convey water to the engine. One of the principal duties of the workmen was to keep up sufficient steam in the engine and so adjust it as to force the steam through the supply pipe into the tank, to prevent the water in the supply pipe and other pipes from freezing. The engine had been taken to the repair shop at Parsons and a new supply pipe placed thereon a day or two before the accident, and had been run out to Mineral on the evening previous thereto. The “goose neck” was of metal, enlarged at the end, and the pipe was fastened by being slipped over this enlargement and held by a metal clamp, adjusted by a screw, in a manner similar to the attachment of a nozzle to an ordinary lawn hose.
On the trial the jury returned a verdict in favor of Stevens for $2500 damages. A motion for a new trial was denied, and judgment was rendered' according to the verdict.
The claim of the appellee is that this hose was not properly attached and secured to the “goose neck” at the shops, and, on the part of the appellant, that Stevens negligently permitted the steam to get down and the water to freeze in the pipe.
In the petition it was alleged that the hose was loosely and insecurely clamped to the “goose neck,” and by reason thereof was unable to withstand a pressure of steam sufficient and necessary to keep the heater warm and the water therein from freezing, and that the railroad company, in the exercise of ordinary care, could have ascertained the defective condition; also, that the appellee did not know of the defect. The ap pellant demurred to the petition, on the ground that it contained no allegation that Stevens, in the exercise of ordinary care, could not have known of the defect. If the accident occurred from the want of ordinary care on the part of the appellee it constituted contributory negligence on his part, and was a proper matter to' be alleged in defense.
We think the court properly overruled the demurrer. The evidence on the part of Stevens tended to establish the fact that the pipe was improperly attached, and, on the part of the company, evidence was given by Roundtree — the engineer who ran the engine out — to the effect that Stevens neglected to keep up proper steam; that the water in the pipe froze; that the accumulating steam blew off the pipe and caused the injury; and that it was negligence on the part of Stevens to allow the steam to get down. The evidence presented no further issue for the determination of the jury, and, hence, the demurrer of the appellant to the evidence was properly overruled.
The third contention argued by appellant is that, if it should be assumed from the evidence that the railroad company was negligent in any particular, it must be conceded that Stevens was familiar with the conditions around him — everything could be seen by him; that he Imew the dangers of the place; in ‘fact, that he and his coemployees made the dangerous condition, if any existed; and that he voluntarily and unnecessarily put himself in a place of danger and received the injury by climbing into the cab on the side on which the pipe blew off instead of on the other side. As before said, this presents an issue for the jury. There was evidence pro and con, the jury determined the issue in favor of the appellee, and the court approved the verdict. There was sufficient evidence to sustain, the judgment. We can not say, as a matter of law, that a man who was previously inexperienced and who had been only tending an engine for the purpose indicated in this case for a short time, was bound to know from mere observation that the attachment of the pipe to the “goose neck” by the skilled workmen of the railroad company at its shops had been improperly done; nor can we say that the evidence fails to show that the accident occurred by reason of the defective attachment of the hose to the “goose neck,” or that the evidence conclusively shows that the accident occurred by reason of the fault of the appellee and his assistants in allowing the steam to get down and the water to freeze in the pipes.
In short, this is a fact case. There seems to be no substantial legal question involved. It is contended that some of the findings are inconsistent, but we do not think they are necessarily so. The instructions of the court were proper, and, as before said, it approved the findings of the jury, and we think on sufficient evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
John L. Kilworth orally entered into a partnership agreement with G. W. Ice and J. N. Howell, by the terms of which they were to do the work upon a farm owned by him, he to furnish one-half of the stock and they the other, the profits and losses to be divided equally. The business was conducted in this manner for three years, and for an additional year under a similar arrangement between Kilworth and Ice, Howell having retired. Ice and Howell sued Kilworth for an accounting and settlement and obtained a judgment, from which he appeals.
A principal complaint is that the court erred in allowing the plaintiffs credit for certain labor, which they claim was done outside of the partnership contract, for the permanent improvement of the property, but which the defendant insists was covered by the agreement. We think the question was one of fact, to be decided in view of all the circumstances, and that the evidence was sufficient to support the decision made. Other matters submitted are of a similar character. In one respect, however, a question of law is presented. The defendant occasionally advanced money for the benefit of the partnership. All income from the business passed through his hands. In his account he charged interest upon balances computed by himself from time to time. There are cases holding in substance that the law implies an agreement to pay interest on advances made by a partner to the firm. (22 A. & E. Encycl. of L. 126.) But the general (and, as we think, the better) rule is that until a settlement has been had and a balance struck such interest is not chargeable, unless there is an actual but not necessarily express understanding to that effect, or some special reason therefor arising out of the equities of the matter. (22 A. & E. Encycl. of L. 125; 80 Cyc. 442; 9 L. R. A. 425, note'; 45 Am. Dec. 518, note.) In the present in stance the evidence might justify, but does not compel, a finding that there was an agreement to pay interest, and there seems to be no reason for departing from the usual practice.
The plaintiffs concede that by an error in computation the amount found due was excessive by $167.55, The judgment will be modified to that extent, and otherwise affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The American Cement Plaster Company owns and operates a gypsum mine and gypsum mill near the town of Blue Rapids, Kan. On the 23d day of July, 1908, Jesse Nelson, a boy about nineteen years, of age, was killed while at work in this mine. The main tunnel or corridor of.the mine extended in about a hundred feet where' there were two rooms, one of these known as room one and the other as room two. In the- operation of the mine it was intended that these-rooms should be drifted side by side leaving a pillar or rib from sixteen to twenty feet wide between them for the purpose of supporting the roof and protecting the miners at work in one room from explosions in the other. On the morning of the accident the young-man was directed to go to work in room two, picking up rock, without any warning that a shot was to be fired. in the rib between the two rooms. Just after he was placed at work there another employee, by order of the-superintendent, placed a shot in room one, in the pillar dividing the two rooms where the pillar or rib was not to exceed four or five feet thick, with the result that the explosion broke into room two, causing the instant death of young Nelson. This action was brought by the parents of the boy to recover damages for his death because of the negligence of the company.
The company in its answer denied that Jesse. Nelson was in its employ at the time of the accident and alleged that he was in the employ of one Jeb Jenkins, who it claimed was an independent contractor.' The answer further alleged that the mine and mills were formerly owned by the Great Western Plaster Company, and that on or about the 1st day of July, 1897, that company, being then the owner of the mine, entered into a written contract with John Messenger and Jeb Jenkins by the terms of which Messenger and Jenkins agreed to do all the work in the mine in a good and workmanlike manner according to the plans and specifications to be furnished by the company, and to deliver the gypsum rock for the mill at the mouth of the mine at a stipulated price per ton; that it was expressly agreed in the contract that Messenger and Jenkins should employ and discharge the men who worked in the mine and have full supervision and control over them, and that the owner of the mine was to have nothing whatever to-do with the men or the manner in which the work should be conducted, or anything that moved to the-safety of the men in the wofk of getting out the rock. The answer set out a copy of the written contract, and alleged that about the year 1900 John Messenger withdrew from the work and that Jeb Jenkins took, over and continued the work of furnishing the rock and gypsum under the terms of the written contract, and that after the purchase in 1907 of the mill property and mines by the American Cement Plaster Company he continued to work under and by virtue of the same contract and that no change had been made therein except that the price of rock per ton to be paid Jenkins had been changed from thirty-five to forty cents. In addition, the answer set up the usual defenses in actions of this kind, but these need not be considered.
In the reply the plantiffs denied that the company operated the mine under the contract set out in the answer. There was a trial before a jury and a verdict in favor of the plaintiffs in the sum of $6000, upon which the court rendered judgment, and the company appeals. With their verdict the jury returned the following special findings of fact:
“ (1) Ques. Who was the superintendent of the mill of the American Cement Plaster Company at Blue Rapids on the 23d day of July, 1908? Ans. Ed Irvin.
“(2) Q. Who selected and employed men who were working in the mine on the 23d day of July, 1908? A. Jeb Jenkins and the American Cement Plaster Company.
“(3) Q. What workman fired the shot that caused the death of Jesse Nelson? A. Herb Newman.
“(4) Q. If you find that the workman that fired the shot was Herb Newman, you may state whether or not the said Herb Newman knew that Jesse Nelson was working or had gone to work in the adjoining room? .A. He knew that he was ordered to go there.
“(5) Q. State who employed Herb Newman, fixed his wages and directed what he should do and where he should work. A. Jeb Jenkins.
“(6) Q. State the names of the other employees working with Herb Newman at the time the casualty occurred. A. One employee — name unknown to jurors.
“(7) Q. Who employed and directed what these men should do and where they should work? A. The American Cement Plaster Company employed them, through Jeb Jenkins, and Jenkins directed what they should do and where they should work.
“(8)- Q. On the morning of July 23, 1908, did Mr. Jenkins instruct the deceased, Jesse Nelson, to work in the room with Herb Newman and another man and tell him to remain in that room until he gave him other work to do? A. Yes.
“(9) Q. Did Jesse Nelson, on the morning of July-23, 1908, tell Marcy and Richardson that he was going to work in mine room No. 2? A. No.
“(10) Q. Did Marcy and Richardson tell him that it was dangerous to work in that room because Herb Newman was working for a break-through between the room in which Newman was working and room No. 2? A. No.
“ (11) Q. What was the age of the deceased, Jesse Nelson, at the time of his death? A. Nineteen years old.
“(12) Q. Was he working for his parents at that time, and if so what was he contributing to their support? A. He was working for the American Cement Plaster Company, for the benefit of his parents, and •contributing his earnings to their support.
“(13) Q. Prior to his employment in this mine, had he been living with his parents continuously, and what amount had he contributed to their support? A. He was living with his parents continuously and contributed his earnings to his parents.
“(14) Q. If you allow any damages to the plaintiffs in this suit, what amount do you allow for their loss of the service of Jesse, Nelson between the date of his death and the time when he would have reached his majority? A. One thousand dollars.
“ (15) Q. If you make any allowances for damages in this case, what amount do you estimate the expense his parents would have been to for his support and maintenance until he would have arrived at the age of 21? A. Four hundred and thirty dollars.
“(16) Q. If you allow any damages in this case to the plaintiffs, what amount do you allow to them as compensation for the loss of his services after he arrived at the age of majority? A. Five thousand dollars.”
It can not be seriously contended that the boy’s death was not caused by the negligence of his employer. He was put to work in an exceedingly dangerous place without any warning of his danger. The wall in which the shot was placed and fired should have been and was supposed by every one working in the mine to be from sixteen to twenty feet thick. In fact it was about five feet in thickness. It appears that the men themselves, working in the darkness except as that was illuminated by the small lamps carried in their caps, had no way of ascertaining with any degree-of accuracy the directions in which the excavations were made. They could only guess as to the direction of the yooms and the thickness of the walls between. By an inspection and survey made from time to time as the work progressed the direction of the various workings could have been ascertained and the thickness of the walls and pillars could have been known. The duty of making such inspections and surveys rested upon the employer of the workmen, and this duty seems to have been wholly disregarded.
The principal errors assigned may be grouped as follows: (1) The failure, of the court to submit to the jury the question whether Jesse Nelson at the time of the accident was in the employ of an independent contractor and not in the employ of the defendant company; (2) the refusal to instruct the jury that if they believed from the evidence that at the time of the accident the boy was in the employ of an independent contractor no recovery could be had against the defendant company; (3) the giving of an instruction in which the jury were told to disregard all the evidence tending to show that Jenkins was an independent contractor and that the boy was in his employ. The theory of the trial court appears from the following instruction, which is the one complained of:
“(2) You are instructed that the owners and operators of a mine and mills engaged in the business of producing and manufacturing plaster from gypsum rock secured from- an underground mine by the ordinary process of mining, and which in its nature is dangerous to others, is under obligation to see that it is carefully performed so as to avoid injury, and such person or corporation can pot delegate this obligation to an independent contractor and thus avoid liability in case the work and operation of said mining business is negligently done to the injury of a servant employed in such mining operations; and applying this rule to the case in hand the jury are instructed, that if you shall be satisfied by a preponderance of evidence that the said Jesse Nelson on the 23d day of July, 1908, while in the performance of his labors as a servant and miner in the mine of the American Cement Plaster Company, in Marshall county, Kansas, and without any fault or negligence on his own part, was killed by the explosion of a shot or blast which threw the gypsum rock into the room in which he was working, thereby dismembering his body and causing his death, and that such acts and results were from the negligence of the American Cement Plaster Company, its officers, agents and employees, as set forth in plaintiffs’ claim of negligence, then you must find for the plaintiffs and against the defendant, regardless of any suggestion in the' evidence toward the claim that said Jeb Jenkins was an independent contractor and solely liable for the negligence in the operation of said mine, if any such negligence existed.”
The defendant relies chiefly upon the case of Laffery v. Gypsum, Co., 83 Kan. 349, which was an appeal from the same county to recover damages for the death of a miner in a gypsum mine, and the defense there was that the injury was caused by the negligence of an independent contractor who it was claimed by the mining company operated under a contract similar in its terms to the one set out in the answer in the present case. The same trial judge gave an instruction in language substantially identical with the instruction complained of here. The fifth paragraph of the syllabus in that case reads as follows:
“It can not be held, as a matter of law, that mining generally is so intrinsically or inherently dangerous as to make the owner of a mine liable for the negligence of an independent contractor resulting in injuries to a servant of such contractor, where it is not shown that the mine was unsafe when the contract was made or that the owner reserved some control of its operation.”
It was further held that in such a case it was error not to submit to the jury the disputed question of fact whether the person who employed the workmen or superintended the operation of the mine was an independent contractor or superintendent for the owner. The present case was tried before that opinion came down. The theory of the trial court in both cases was the same, and it is obvious that the theory was erroneous and that the instruction should not have been given; and it is equally clear that the court -should have submitted under proper instructions the question whether Jenkins was an independent contractor or acting as superintendent for the company.
We are satisfied with the decision in the Laffery case and with the rule there announced. But one question remains, which is whether that case controls the decision in this. There are two points upon which the present must be distinguished from that case and which in our opinion are sufficient to require an affirmance of the judgment. In the opinion in the Laffery case it was said:
“It will be observed that the jury did not find that Drake was superintendent of the mine for the company. They were not requested to find bn that issue, although -quite material.” (83 Kan. 352.)
In the present case the jury did find that Jenkins was the superintendent of the mine for the company; that is, they found that the defendant company through Jenkins employed Newman, the man who fired the shot, .as well as Nelson, the boy who was killed, and that Jenkins directed what they should do and where they should work. Unless this finding of the jury was induced by the erroneous instruction given, or the failfire to give other instructions the error in the instructions is not ground for reversal. As to when error in instructions given will be regarded as immaterial because of findings made by the jury, see A. T. & S. F. Rld. Co. v. English, 38 Kan. 110; Railway Co. v. Michaels, 57 Kan. 474; and Whitney v. Brown, 75 Kan. 678. For cases holding that error in the refusal to give instructions is likewise rendered immaterial by special findings which destroy the claim upon which such instructions are predicated, see Head v. Dyson, 31 Kan. 74; Mfg. Co. v. Nicholson, 36 Kan. 383; City of Kinsley v. Morse, 40 Kan. 577; and Sloan v. Pierce, 74 Kan. 65. Neither the instructions given nor the failure to give other instructions could have induced the jury to find as they did. Therefore the decision might be placed upon the proposition that the error in the instructions was rendered immaterial by the special finding of the jury. We do not care, however, to rest the decision upon this ground alone.
The defendant pleaded a written contract which it alleged was in force with Jenkins, that by its terms expressly provided that Jenkins should operate the mine independently and furnish the company gypsum rock at the mouth of the mine at a stipulated price per ton, should employ and discharge his own workmen, and that the company should exercise no control over them or the conditions looking to their safety. If such a contract was in force and in fact Jenkins operated under it and was not in the defendant’s employ, he was an independent contractor and the company should not be held liable for injuries to his employees caused by the negligent manner in which he operated the mine. (Laffery v. Gypsum Co., 83 Kan. 349.) In our opinion there was no substantial evidence showing that the written contract relied upon was in force or that Jenkins at the time of the accident sustained to the company the relation of an independent contractor. The proof showed that this contract was drawn up and signed by the Great Western Plaster Company and Messenger and Jenkins eleven years before the accident in this case. It was executed July 1, 1897, when the mills and mine belonged to the other company. It is apparent from the evidence and all the circumstances connected with the contract that it was entered into as a scheme and subterfuge to enable the Great Western Plaster Company to avoid its liability for injuries to its employees caused by its own negligence. Neither Messenger nor Jenkins was possessed of any means or capital. That of itself would not make the contract unlawful, but it is only one of several circumstances- indicating the purpose of the arrangement. When the alleged contract had been in existence about two years the Great Western Plaster Company, acting through a Mr. Paul, who was a part owner and superintendent of the plant, discharged Messenger, and Jenkins continued to operate the mine to all appearances under the same arrangement until 1904, when the contract was taken up by the Great Western Plaster Company, on the advice of its attorney, and because a suit had been brought against it for an injury to one of the workmen in the mine, and the scheme was apparently not working successfully. If the company which owned the mine and made the contract with Messenger and Jenkins retained outside of the written instrument the right to discharge at will one of the parties to the contract who was evidently a partner of the other, the contractors were not independent but dependent upon the company, and the written instrument was not what it purported to be. About two years after the written contract had been taken up the Great Western Plaster Company sold the entire plant to the defendant, and the mine continued to be worked in the same way as before, Jenkins hiring the men and the defendant company paying them every two weeks in checks made out to the individual- workmen, the pay roll being kept by Jenkins and furnished to the company. The company weighed the rock at the mouth of the mine and paid Jenkins sometimes 40, sometimes 42% and at other times 45 cents per ton of rock, and charged him a stipulated price for oil used in the miners’ lamps and for powder used in blasting. The company owned the mules and furnished their feed. The testimony shows that the price paid to Jenkins per ton of rock was changed from time to time to allow for the difference he had to pay for wages of the workmen, so that in effect the company and not Jenkins took the risk of all fluctuations in the scale of wages caused by the supply of labor. When work in the harvest fields attracted the men and higher wages had to be paid, Jenkins was not so independent but that he could by merely asking obtain from the company whatever additional price per ton was required to make him whole. This plan was continued with the defendant company, and they had three prices which they paid him as the scale of labor demanded.
After this action had been brought a vigorous search was made by the superintendent of the defendant company, in which Jenkins assisted, for the purpose of finding the old contract. It was finally discovered, nailed
' in a box in the office at Blue Rapids. It had come jugh the flood of 1903 and portions of its provisions not legible. No officer of the company was willing ™ testify that he had seen it since the flood. A. Henley, president of the defendant company, was called as a witness to prove that this was the contract under which the mine was operated. He testified as follows:
“Ques. I will ask you to state, Mr. Henley, whether or not you had a contract with him by which he operated the mines at Blue Rapids? Ans. Yes, sir; we did.
“Q. You may examine the contract which I now hand you, which the stenographer has marked ‘Exhibit F,’ and state to the jury whether or not that is the contract which you had with him? A. Yes, sir; that is the contract. Soon after we took possession of the Great Western company I asked Mr. Jenkins if he would continue the same arrangement and on the same terms as he had been doing heretofore with the other company, that is, before we took possession, and he said he would, and the same arrangement was continued until he quit the company’s employ only a short time ago.
“Q. Have you had any other or different contract with him? A. None whatever.
“Q. Is that the contract in your hands ? A. This is. the one.”
It will be observed that Mr. Henley testified to a mere conclusion when he said “this is the one [contract]’* under which Jenkins worked, and there is nothing in the testimony intimating that before this action was. brought he ever saw the paper or was aware of its existence. That he had such a conversation with Jenkins, is denied by the latter, but if we assume that the conversation took place as related, the written contract was not mentioned, and, according to the testimony of Jenkins and that of Paul, who was the superintendent of the Great Western company, the contract had been taken up years before that, and ever since Jenkins had been working along without any written contract. He may have agreed with Henley to continue to act as superintendent of the mine in the same way, so that there, is no evidence 'that the written contract relied upon in the answer was in existence as a live contract at the time the accident occurred. Mr. Henley himself, inadvertently perhaps, referred in his testimony to Jenkins as an employee and said that the latter “quit the company’s employ only a short time ago.” It further appeared from the evidence that the company had taken put a policy of insurance indemnifying it for loss by reason of injuries to its employees. The plaintiffs introduced the policy in evidence. The estimated average number of employees engaged in the gypsum mine is therein stated to be twenty. The number of men actually employed in the mine varied from time to time. The pay roll showed about thirty so employed at the time of the accident. When the death of young Nelson occurred the defendant notified the insurance company of the 'claim for damages. Afterward, the insurance company procured from Jenkins a declaration of independence in the form of a written statement to the effect that he hired and discharged all the men, worked the mine under a contract, and that the company had nothing to do with the miners. Thereupon, the insurance company refused to assume any liability in the-matter. The inference is quite strong that the written contract was an afterthought and that the defendant intended to rely upon its arrangement by which Jenkins-was to hire and discharge.the men at the mine, and was to be paid a price per ton for the rock mined. The arrangement, whether it was in writing as alleged in the-answer, or merely verbal as Jenkins testified, had, we think from all the circumstances, but one purpose, which, was to enable the defendant to escape liability for injury to its own employees arising out of negligence for which it would in law be responsible.. We have not been, cited to any-cases directly in point, nor have we been able to find any which present a similar state of facts. The law with respect to the negligence of an independent contractor rests upon the principle that one person should not b.e compelled to answer for the fault or negligence of another over whom he has no control. Where the owner of property places it in charge of a contractor who employs workmen and they are injured by the negligence of their employer, the owner can not beheld liable because the workmen are not his servants and he is not their master; but there are exceptions to this rule arising in cases where the property or the manner in which.it must be used is intrinsically and inherently dangerous.
The application of the rule with its exceptions as applied to cases of injuries received in the operation of' mines is discussed and numerous cases are cited by Mr. Justice Benson in the opinion in Laffery v. Gypsum Co., 83 Kan. 349. The same principle was applied to a case .not involving the relation of master,and servant, where-the owner was held liable for injuries to a third person on the ground that the work was in its nature dangerous to others and the owner owed a duty to the public., (Railroad Co. v. Madden, 77 Kan. 80. For other exceptions to the general rule, see 16 A. & E. Encycl. of L. 199, 206.) Numerous cases might be cited where the- courts have held the owner liable notwithstanding an independent contract, where the owner retained the right to exercise a certain control over the method or manner in which the work should be done. These cases may be said to proceed upon the theory that the contractor was not in fact independent. Courts will not hesitate to look to the substance of the contract and all the. circumstances in order to determine the actual relation which the owner of the property sustains to the •persons employed. “The mere fact of nominal employment by an independent contractor will not relieve the master of liability where the servant is in fact in his employ.” (26 Cyc. 971, and cases cited.)
Considering the case in this aspect as one of first impression, we think it is clear that courts ought not to permit the employer to avoid liability for injuries to his workmen resulting from his own negligence by a colorable arrangement such as this appears to have been. To hold thus would pervert a wise and useful principle of law to a purpose for which it was never intended. Whenever the courts can say from all the circumstances that the contractor is not independent of the owner and that the contract, whatever its terms, is' only a device or scheme to avoid th.e liability of a master to his servants for his failure to perform a duty which the law imposes upon him, the defense that the injury was caused by an independent contractor should not be permitted to prevail.
For the reasons stated, the judgment is affirmed. | [
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The opinion of the court was. delivered by
West, J.:
Morgan B. Kitsmiller died many years, ago, leaving his widow, Mary J. Kitsmiller, and certain children, including a daughter, Ella, the mother-of the appellee. The widow owned in her own right a piece of land referred to in the evidence as the north eighty. In April, 1906, several years after the decease of appellee’s mother, some negotiations were had relative to purchasing the interest of appellee in this north eighty, and she claims to have received legal advice that, she could not convey her interest, as it was only an expectancy, contingent upon inheriting some portion of the land at the death of her grandmother. Mary J. Kitsmiller died April 4, 1908, seized of the undivided half of the real estate left by her husband and also seized of the north eighty hereinbefore referred to. She left a will dividing the latter equally among her nine children, including Ella, the appellee’s mother. On June- 8, 1908, the appellant filed her petition for partition, and on November 30, 1908, the trial court ordered partition and awarded appellant a two-ninths interest, which included her interest as devisee under the will and also the interest of appellee, which the petition alleged had been conveyed by the deed now in controversy, executed April 30, 1906. September 19, 1908, the appellee was made a defendant at her own request, and filed a cross-petition admitting that before the death of her grandmother, Mary J. Kitsmiller, she, the appellee, had conveyed to the appellant all of her interest in the estate of her grandfather, but averring that she was still the owner of an undivided one-ninth of her grandmother’s interest therein and also an undivided one-ninth of the land belonging to her grandmother at the time of her death. To this cross-petition the appellant answered that by the deed of April 30, 1906, appellee had conveyed her expectant interest in her grandmother’s land for an ample consideration, duly paid, to which answer a general denial was filed, and the court, on July 27, 1909, found in favor of the appellee. The question of vital importance, therefore, is as to the effect of the quitclaim deed. The instrument, omitting the acknowledgment, was as follows, the second description covering the land formerly owned by Mary J. Kitsmiller:
“This indenture, made this 30th day of April, in the year of our Lord, one thousand nine hundred and six, between Jennie Carter and Robert Carter, her husband, heirs of Morgan B. Kitsmiller, deceased, of La Harpe, in the county of Allen, and state of Kansas, of the first part, and Mattie Mosier, of the second part,
“Witnesseth: That the said parties of the first part, in consideration of the sum of fifty-five and no-100 dollars, to them duly paid, have sold, and by these presents do remise, release and quitclaim, to the said party of the second part, her heirs and assigns, forever, all their right, title and interest in that tract or parcel of land situated in the county of Allen, and state of Kansas, and described as follows, to wit: The east half (%) of the southeast quarter (%) of section twenty (20), township twenty-five (25), range twenty-one (21) ; also the north half of the northeast quarter (%), of section twenty-nine (29), township twenty-five (25), range twenty-one (21), with all the appurtenances, and all the estate, title and interest of parties of the first part therein.
“To have and to hold, all and singular, the above-described premises, together with the appurtenances, unto the said party of the second part, her heirs and assigns, forever.
“In witness whereof, the said parties of the first part have hereunto set their hands and seal the day and year above written. Jennie Carter (Seal).
Robert Carter (Seal).”
The execution of the deed was not denied, and the ■testimony shows that the consideration was fair. It appears that the appellee had about negotiated a ’ sale "to another party when her aunt, the appellant, suggested that she would give five dollars more, and soon thereafter the two went to Bronson, where the deed was prepared by Mr.-Lardner, cashier of the bank, and ■was executed and delivered. The appellant claims that she was buying all the interest that her niece had, present and prospective; that “she wanted to sell all that she- had”; and that she, appellant, would not have bought but for the understanding that she was buying ber niece’s interest in Mary J. Kitsmiller’s land. The appellee testified as to the conversation at the bank:
“All I remember of, she said, Do you mean to sell me all of it or just the share in the north eighty?
“Ques. What did you mean by all of it? Ans. I ihad reference to the two properties, the grandmother’s .and grandfather’s. I told her that Mr. Ritter had advised me that I could not sell what did not belong to me; that grandmother’s estate belonged entirely to her .•at that time.”
She further testified that appellant did not say that •she had to convey all her interest, vested and expectant, but that the appellant had spoken in the morning about ■conveying it and was told that -appellee had been ad vised that she could not convey what did not belong; to her.
“Ques. What did Mrs. Mosier say then? Arts. She-wanted it fixed out in that way, and I told her to fix. it up to suit her, but it was not legal.
“Q. You fixed it up that way though, didn’t you, including your interest in your grandmother’s estate?' A. No, sir; I did not.
“Q. Did you consent? You told her to go ahead and' fix it up to suit herself, you say? A. I told her to. give-the numbers of the land because I did not know the numbers.”
She further testified that she preferred selling to Mrs. Mosier, the appellant, because she was a member of the family, but that she, appellee, did not try to convey her grandmother’s share.
“Ques. You did intend to convey all the interest, vested and expectant in the Kitsmiller properties, but: you had been informed that you could not legally do. so? Ans. Yes, it is true.”
The rule is settled in this state that generally a quitclaim deed passes only what the grantor owned' at the-time of its'execution, and it is clear that the appellee,, at the time she made the deed in question, was vested', with no interest whatever in the land in controversy. In Clendening v. Wyatt, 54 Kan. 523, the instrument not only employed the language usual in a quitclaim: deed, but added an express release of- the grantor’s, undivided portion of what he might be entitled to-of his mother’s estate, thus making it apparent from-the face of the instrument that the intention was to. transfer the expectancy. In Bliss v. Brown, 78 Kan. 467, it was held that a warranty deed of his mother’s-estate, executed by a son against whom a valid lien: existed and who subsequently took the estate by operation of law, conveyed no title, but that the warranty-deed estopped the son from repudiating the claims of' his grantee. The court said:
“The whole title, legal and equitable, belonged to his, mother. This deed was a nullity so far as her title to the land is concerned.” (p. 475.)
In Knight v. Dalton, 72 Kan. 131, a husband who had ■contracted with another to care for his insane wife made a quitclaim deed to the real estate of the latter, subject to a life estate in himself. He claimed, and the court held, that the intention was not to convey a future interest, but simply to secure compliance with his contract. The court said (citing authorities) :
“He had no interest whatever, except the possibility that he might outlive his wife and inherit from her in ■case the property had not been transferred. As he had no estate or vested interest in the land, his mere quitclaim, if it had been so intended, would not have affected the title nor have carried to the grantee any estate or title which the grantor might subsequently ■acquire.” (p. 134.)
In Glover v. Condell, 163 Ill. 566, it was held that an ordinary quitclaim deed will not cover a future contingent interest, limited to the surviving members of a class of which the grantor is a member, upon the event of the death of one of them without living issue, where no terms are used which refer to future interests. The court said:
“A quitclaim is sufficient to pass any estate which the person executing it has at the time of such execution, but it can not affect by way of release a future contingent interest, limited to the surviving members of'a class, upon the event of the death of one of them without living issue at the time of his death, there being no terms used in such quitclaim or release which can be construed as referring to future interests. (Striker v. Mott, 28 N. Y. 82.) In order to create an assignment of future interests and contingencies, ‘there must be on the face of the instrument expressly, or collected from its provisions by necessary implication, language of present transfer directly applying to the future as well as to the existing property, or else language importing a present contract or agreement between the parties to sell or assign the future property.’ (3 Pom. Eq. Jur. § 1290.)” (p. 594.)
The instrument in question is not ambiguous, and nothing can be found in its terms indicating an inten-' tion to transfer an expectancy. The court for some reason permitted evidence as to the execution of the deed, previous expressions and subsequent conduct of the parties, and the intentions of each, but did not find therefrom that the instrument went beyond its plain and manifest terms.
Complaint is made that the court erred in placing upon the appellant the burden of proof, but doubtless the court considered her the original plaintiff in the action and deemed it incumbent upon her to support the allegations of her' petition as to her ownership of the land in question, and the fact that the appellee filed a cross-petition setting up her interest and the appellant denied by reasserting the deed would hardly justify the court in placing the burden upon the appellee. But the case was tried by the court, without a jury, and we can not see that any injury was caused to either party by this ruling.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Benson, J.:
This action was brought upon a bond given by the defendant surety company under the mechanic’s lien law to secure the payment of claims against a contractor. (Civ. Code, § 660.) The petition alleged a sale and delivery of stone for a school building to a contractor, and default in payment therefor. The answer contained a general denial. The plaintiff recovered, and the defendant contends that the evidence was insufficient to prove that the plaintiff was the real party in interest. It is insisted that the plaintiff’s evidence conclusively proved that the material' in question was furnished by a corporation, of which the plaintiff was president, and therefore a demurrer to the evidence interposed by the defendant should have been sustained.
The plaintiff’s evidence tended to prove that for some time previous to the delivery of the stone a partnership, composed of the plaintiff and another person, had been engaged in quarrying and selling stone from a quarry owned by the firm. On or about May 21, 1907, the plaintiff, with his partner and others, filed in the proper office a charter of the Rockhill Stone Company and organized a corporation by that name, for the purpose, among others, of quarrying and selling stone, but the corporation never engaged in that business, and the material in question, which was delivered between June 24 and July 12, 1907, belonged to, and was sold and delivered by the plaintiff for, the partnership. On July 18, 1907, the plaintiff became the sole owner of the quarry and partnership assets by purchase and con veyan'ce from his partner. It was the intention of the partners to convey the quarry to the corporation, but upon the retirement of the plaintiff’s partner the plan of carrying on the business by the corporation was abandoned and the plaintiff continued to operate the quarry until November, 1907, when he conveyed it, with the other property used in the business, to another corporation.
The fact that a corporation had been formed to carry on the business before the material was delivered does not necessarily prove that the stone was furnished by it, and the evidence upon which the defendant relies to sustain the demurrer tends to prove that it was not. The court did not err in overruling the demurrer.
The plaintiff produced evidence of an agreement by the contractor to purchase and pay for the stone, and an admission was made that he delivered it at the building. The defendant claimed, and offered evidence tending to prove, that the material in question was furnished to a subcontractor and not to the contractor, as alleged by the plaintiff. This main question of fact was determined by the verdict against the defendant, but it alleges that there was error in an instruction upon this issue. The instruction complained of was:
“If you find from the evidence that the stone in question was sold to one Carruth, as a subcontractor under L. G. Ferguson, and not to said L. G. Ferguson as contractor, and that said L. G. Ferguson paid said Carruth for said stone, then you will find for the defendant, even though you may find from the evidence that said Carruth did not pay the plaintiff for said stone.”
The objection is to the words italicized, on the ground that if the sale was not made to Ferguson the defendant is not liable, whether Carruth was paid or not, and this is true, for the plaintiff’s claim rests entirely upon a sale and delivery to the contractor. In another instruction, however, the jury were informed clearly and positively that the plaintiff was required to prove by a preponderance of the evidence that the stone was sold by the plaintiff to Ferguson, the contractor, and that if the evidence was evenly balanced upon this issue there' could be no recovery. The apparent qualification by the clause referred to in the instruction complained of may be accounted for by the fact that the defendant requested an instruction to the efféct that if Carruth furnished the stone, and “Ferguson paid him all or even a part of the money due thereon,” there could be no recovery, although Ferguson had actually agreed to pay for the material, unless such promise was in writing. While the instruction asked for. was not given, the criticism of a clause contained in one that was given is weakened by the fact that the part objected to was in substance and effect embraced in the defendant’s, request. The defendant produced in evidence a receipt from Carruth to the contractor purporting to acknowledge payment for the stone in question. This tended to support the defendant’s contention that the stone was furnished to Carruth instead of the contractor, and may have led to the insertion of a clause in the request and in the instruction complained of that might well have been omitted. Waiving, however, the origm of the clause objected to, the issue was so clear upon the-main question that it is not perceived how the jury could have been misled or the defendant prejudiced.
A motion was made for a new trial, based upon newly discovered evidence. The affidavits are voluminous, and contain much that bears remotely if at all upon the issue. An affidavit of Carruth contains the general statement that he agreed with Shores for the purchase-of the stone and that he purchased all the stone furnished by Shores down to July 27. He does not say that he was present at the conversation constituting-the agreement upon which the plaintiff relied, which was testified to by him and another witness. The most that can be claimed for the proposed testimony of Carruth is that it would tend to corroborate the testimony of the contractor that there was no such conversation. or agreement, but it is indirect and inconclusive. Among the rules governing the allowance of new trials because of newly discovered evidence is the one requiring that the proposed testimony must be of such character' and strength as would with reasonable probability compel a different decision. (Sexton v. Lamb, 27 Kan. 432; Brown v. Wheeler, 62 Kan. 676.) We agree with the district court that the testimony presented in Carruth’s affidavit is insufficient for this purpose.
Another affidavit was that of the plaintiff’s former partner, tending to show that the stone was furnished by the corporation. No reason is given why this evidence, if deemed material, was not discovered before the trial. (Wilkes v. Wolback, 30 Kan. 375.) Besides, it is not regarded as very important. Further reference to the affidavits is unnecessary.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was brought to oust the city from exercising the power and franchise of requiring the engineers and firemen at the city water and light plant to work more than eight hours per day. Find ings of fact and conclusions of law were stated separately, and those which are now material follow:
“FINDINGS OF FACT.
“(4) It-is necessary in the operation of this plant that one of the pumps be operated continuously, and for the last two years the plan has been to operate one pump ■ continuously for about two weeks, and then the other for the same period of time. The same is true with reference to the dynamos, it being necessary to operate one continuously. For the past two years, and now, with the exception of about three months in midwinter, the fuel used for the operation of the steam engine, as also for the steam pumps, is natural gas. During the said three months the fuel used was coal, and the same arrangement is likely to continue. For about two years last past, and now, the plant has been operated by two shifts of men, a first engineer , and fireman on duty from six o’clock in the morning till six o’clock at night, and a second engineer with a fireman, who is on duty from six o’clock in the evening until six o’clock in the • morning. In the event of any extra labor necessitated by breakage, when other service is required, extra men are furnished by the city or assist in making repairs.
“ (5) On December 26, 1908, the city council enacted an ordinance amending section 1 of a previous ordinance, which last ordinance is No. 742, and is made a part of these findings. It would appear from the evidence, however, that the city has wholly disregarded this ordinance, as the evidence shows that in the employment of the men for the operation of the plant it has employed by the month as follows: A first engineer at $85 per month; a first fireman at $50 per month; a second engineer at $70 per month; a second fireman at $45 per month. The evidence does not disclose the wages paid other employees, neither does it disclose what the current rate of wages was in this locality for any of the time or times herein mentioned. In the event that any of the city employees lost time, if the lost time was less than one month, one-thirtieth of a month’s wages was deducted for each day lost.
“(6) The evidence discloses that the first engineer who has been employed by the city was a man of sufficient knowledge of machinery to operate the engines. If any part of the machinery got out of repair, he repaired the same; if slight repairs were necessary, he did this work alone; if any heavy work was required, he had other helpers. At.night, before leaving his work, he swept the floor of the engine room. He kept the pumps packed, a work that can be performed by any man of ordinary intelligence. He kept oiled such of the machinery as did not have self-oilers. By a mechanical device, he increased or decreased the speed of the engine as necessity might require, and during the twelve hours he was on duty the time consumed in his employment that could be called mechanical or laborious work did not exceed five hours out of the twelve on an average; the balance of the time was occupied in watching the machinery and keeping a general oversight of the plant. The work of the second engineer was very similar to that of the first engineer, except that he was not required to keep the machinery in repair, and hence a larger portion of his time was spent in a general oversight of the plant. [To which plaintiff objects and excepts.]
“(7) The fireman employed during the daytime, and when the fuel used was natural gas, was required to adjust his fire by means of a mechanical device upon the gas burner, throw the levers that controlled the lights of the city, of which levers there were three or four, brush off the weir once a day, which required, perhaps, thirty minutes of time, see that the iron and alum were placed in the purifying boxes, which required, ordinarily, not to exceed an hour and a half during the day; perhaps twice the length of time if the water in the river was muddy. In the event of a fire he had to see that the second pump was started, and at the close of the day sweep out the boiler room. In all, the work that he performed that could be called 'labor’ did not exceed four hours of the twelve, during the time that natural gas was used for fuel. During the time that coal was used for fuel he had the work above referred to to perform, as well as to wheel in coal and place the same in the furnaces. During these months his work could be called labor during the entire twelve hours, although there were still intermissions when he was not required to work. The fireman on the night shift had much the same work to perform as the fireman of the day shift, except that he did not have to clean the weir. [To which plaintiff objects and excepts.]
“It does not appear that the workmen have ever made any complaint or found any fault with their employment, and this action was brought by the commissioner of labor of this state.
“CONCLUSIONS OP LAW.
“(1) That in the employment of first and second engineers defendants have not violated and are not violating any law of the state, and that as to such engineers the plaintiff is not entitled to the relief demanded, or any part thereof.
“ (2) That in the employment of first and second firemen the defendants have not violated any law of this state during such time as natural gas was used for fuel.
“(3) During such time as the defendants used coal for fuel and required or permitted the firemen to work twelve hours per day such employment was in violation of law.
“(4) Judgment should be awarded in favor of the plaintiff and against all and each of the defendants, enjoining all of them and each of them from requiring or permitting their firemen at the water and electric plant to work more than eight hours out of each twenty-four hours during such time as coal is used as fuel, as and for a legal day’s work, and that each party hereto pay the costs that it has made, respectively.”
Judgment was rendered according to the conclusions of law, and the state appeals.
The statute governing the subject is section 1 of chapter 114 of the Laws of 1891 (Gen. Stat. 1909, § 4643), which reads in part as follows:
“That eight hours shall constitute a day’s work for all laborers, workmen, mechanics or other persons now employed or who may hereafter be employed by or on behalf of the state of Kansas, or by or on behalf of any county, city, township or other municipality of said state, except in cases of extraordinary emergency which may arise in time of war or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life; provided, that in all such cases the laborer, workmen, mechanics or other persons so employed and working to exceed eight hours per calendar day shall be paid on the basis of eight hours constituting a day’s work.”
It is not necessary to discuss at length the meaning of the terms “laborer,” “workman,” and “mechanic.” The ordinary dictionary definitions were doubtless in the legislative mind. The words “other persons” do not of course refer to the identical persons already specifically named. If they should they would be meaningless. Under the doctrine of ejusdem, generis they mean others like those enumerated. Therefore they may include workmen with special training equal to those who have learned a trade and skill equal to those who work with tools in the constructive shaping or application of material, but who are not strictly artisans. Under the title “Workman” Webster’s New International Dictionary discusses the differences in meaning of the words “workman,” “laborer,” “artisan,” “artificer,” “mechanic,” and “craftsman,” as follows:
“Workman is the general term; it frequently applies to one who does relatively skilled work, as contrasted with a laborer, whose work demands strength or exertion rather than skill; an artisan as here compared (see artist) is esp. one who is employed in an industrial or mechanic art or trade; mechanic, once synonymous with artisan, is now commonly restricted to a workman who is skilled in constructing, repairing or using machinery; a CRAFTSMAN is one who practices a handicraft; artificer commonly implies power of contrivance or adaptation in the exercise of one’s craft.”
Just when “mechanics” became thus differentiated from “artisans” is not material. The “other persons” mentioned in the statute, of the same grade and class as “mechanics” in the sense of “artisans,” clearly include persons who work about, attend to, repair and operate machinery, as the engineers and firemen at the Ottawa water and light plant do.
. The statute makes it unlawful to require or permit the employees indicated to work more than eight hours per day, and punishes persons guilty of violating the act by fine or imprisonment, or both. In the case of The State, ex rel., v. Martindale, 47 Kan. 147, it was said that the statute is penal in nature and can not be extended by construction. In the opinion of the-writer it is improper to characterize the statute as-penal. The purpose is purely remedial. It is to relieve laborers, workmen, mechanics and similar employees from the pressure of economic conditions which compel them to work beyond just limits of time and endurance. It is a human life, health and welfare statute, to be given a beneficial interpretation for the public good. Of course it does not apply to cases not within the contemplation of the legislature, but the language used should be interpreted liberally to promote the true legislative purpose, notwithstanding the fact that a violation of the act is punishable as a misdemeanor. However this may be, the act is not extended beyond its terms by the interpretation which has been adopted. A complete list of the persons embraced was not attempted. Three general groups, of a popularly understood character, were named. Then all other workmen of like kind were expressly included by the term “other persons.” Officers are excluded by the use of the word “employed,” an office being distinguished from an employment in that it implies! tenure, duration, emolument and'duty; and in the case cited employees of the penitentiary were held to be excluded because of another statute governing their service. The opinion closes, however, with the following observations:
“It was urged upon the argument on behalf of the state that if chapter 114 had no application to the officers and employees in the penitentiary, or in the charitable institutions of the state, its provisions would scarcely have any operation. This is not correct, because, if the statute is constitutional, it will apply to. laborers, workmen, mechanics or other persons employed by or on behalf of the state, in many cases outside of the penitentiary and the charitable institutions, and also to many of the employees of counties, cities and townships of the state.” (47 Kan. 150.)
The district court seemed to regard the amount of time consumed in actual use of the hands as controlling. Such time was estimated to be, for the first engineer, five hours per day; for the second engineer, something less; and for the firemen, four hours per day, except when coal was used. The time of these men, however, was not divided into uniform periods of manual labor and supervision. As the evidence shows, and as everyone knows, manipulation and oversight alternate for irregular periods with varying frequency. For example, a fireman testified as follows in reference to regulating the supply of gas to the burners:
“It is done by pulling the burners out and pushing them in. The burner is loose at one end and there is a piece that slips inside of the burner, and this piece is hollow, and as you push it in it closes the opening and lets more gas in, and when you pull it out it opens wide and shuts off the gas — reduces it. It is slipped in and out by hand. That regulates the burner by pushing it in and out; when you push it in you get more air and maybe in three minutes you have to pull it out and maybe in two minutes, and there are times again when you wouldn’t have to do anything for twenty or thirty minutes.”
The same is true concerning the regulation of the pumps supplying the boilers with water, the regulation of the voltage as electric lights are turned on and off by consumers, and other work about the plant. Fires, accidents, breakdowns and other fortuities intervene, so that, everything considered, the employment is in fact a compound of manipulation and oversight. All of it is work, one-half or more is strictly manual, and each employee is obliged to do some heavy work. Under these circumstances the court concludes that the service falls within the statute.
An argument is made that because these employees are paid by the month the statute has not been vioalted. The principal authorities cited are Exodus, Deuteronomy and Leviticus. Much as it respects the laws referred to, the court feels that it is bound by the act of the Kansas legislature regulating labor under the sociological conditions existing in this state. The statute specifies laborers, workmen, mechanics and employees of like kind. The persons intended are characterized by the kind of work they do rather than by the incidental fact of how often wages are paid. The statute can not be evaded by calling compensation “salary” and making it payable at long intervals.
The judgment of the district court is reversed so far as it is unfavorable to the state, and the cause is remanded with instructions to render judgment in accordance with the views hereinbefore expressed. | [
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The opinion of the court was delivered by
Mason, J.:
This is an appeal from a judgment for a fire loss. The questions presented are for the most part disposed of by what is said in a very similar case, Hilligoss v. Railway Co., ante, p. 372.
A special complaint is here made because the trial court allowed a recovery of the value of the second growth of timothy and clover as pasture, and in addition the amount necessary to place the meadow in its original condition. This is not objectionable as a doubling of damages. In Bradley v. Ia. Central Ry. Co., 111 Iowa, 562, it was said:
“Plaintiff was allowed to introduce evidence of the value of the growing grass upon this meadow, and this, with the cost of restoring the meadow, was given the jury as an element of damages. The complaint on this score is that plaintiff was thus awarded double damages. This, we think, is not so. Restoring the meadow meant, and could only have been understood to mean, putting the grass roots in the condition they were before the fire.” (p. 565.)
The rule followed may not be applicable in every case of a similar loss, but it gave a fair measure of compensation in the present instance.
Instructions are complained of as making too rigorous a requirement of the railway company as to the care to be exercised in the construction of its engines. The jury found that the engine was not in good condition, and in effect that there was no proof that it had been properly inspected. Any error in relation to negligence in the original condition therefore became immaterial.
The judgment is affirmed. | [
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Per Curiam:
At the recent city election in Salina, A. W. Purinton and Edward L. Wilder were candidates for councilman, a position then held by Wilder, and on the face of the returns made by the election board Purinton had a majority of the votes cast. Three days after the election, and before a canvass of the returns was made, Wilder instituted a proceeding to enjoin a canvass of the election returns, and also to prevent Purinton from interfering with his possession of the office of councilman, upon the alleged ground that, illegal votes were cast and counted for Purinton and that he (Wilder) was legally reelected to the office. An order of injunction was granted by the probate judge, which the district judge promptly and rightly set aside as soon as it was brought to his attention. The plaintiff seeks to contest an election and to have the right to a public office determined in an injunction proceeding. This can not be done. “Equity rigidly abstains from interfering in contests for the possession of public offices. It never assumes to determine who is the rightful claimant.” (Lawrence v. Leidigh, 58 Kan. 676, 677.)
The ruling of the. district court in dissolving the injunction is affirmed. | [
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